                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                   TENTH CIRCUIT                               March 24, 2014

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
BILLY GENE MARSHALL,

              Plaintiff - Appellant,

v.                                                            No. 13-5126
                                                  (D.C. No. 4:13-CV-00484-SPF-PJC)
PHIL LOMBARDI; JOHN DOE, Court                                (N.D. Okla.)
Clerk; MARY JANE, Court Clerk,

              Defendants - Appellees.



                   ORDER DISMISSING APPEAL AND
            ORDER DENYING MOTION FOR LEAVE TO PROCEED
                   WITHOUT PREPAYMENT OF FEES


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


       Billy Gene Marshall, acting pro se, brought a civil rights complaint against the

Clerk of Court for the U.S. District Court for the Northern District of Oklahoma and two

unnamed court clerks. He alleged the clerks deprived him of due process in a habeas

corpus case when they mislabeled a document he sent for filing. He claims the motion,

captioned “Motion to Admit and deny Authenticity of Attached documentation,”

contained “‘material’ evidence of [his] actual innocence.” (R. Vol. 1 at 15.) He says the

clerks incorrectly filed the motion as a “Request For Admissions,” (R. Vol. 1 at 16),

which prevented the court from considering it. He also claims he was improperly denied

any notice of the change. He asserts the clerks’ actions deprived him of “his right to
present evidence of his actual innocence.” (R. Vol. 1 at 19.) He seeks $6 million in

compensation for this “willful and wanton failure” to honor his rights.

       The judges of the Northern District of Oklahoma recused themselves from the case

and it was assigned to District Judge Stephen P. Friot, from the Western District of

Oklahoma. Acting sua sponte, the judge dismissed Marshall’s complaint without

prejudice under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), which requires

plaintiffs whose civil rights complaints “necessarily imply the invalidity of [the]

conviction or sentence” to show “that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal court’s issuance of a writ

of habeas corpus,” id. at 486-87, prior to filing their complaint. See also Garza v.

Burnett, 672 F.3d 1217, 1218 (10th Cir. 2012) (“Under Heck v. Humphrey, . . . a plaintiff

may not sue . . . if success in the action would undermine a criminal conviction.”). Since

Marshall alleged his actual innocence without first obtaining such a reversal or

repudiation of his conviction, the judge reasoned, Marshall was “essentially seek[ing] to

relitigate claims presented in his habeas corpus case,” just as Heck v. Humphrey forbids.

(R. Vol. 1 at 28.) The judge also denied Marshall’s request to proceed without

prepayment of costs and fees on appeal; he reapplies here.

       Although Marshall bears the burden of demonstrating an error in the proceedings

before the district court, Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995), he

has not meaningfully addressed the district judge’s Heck v. Humphrey analysis. While he

does claim “[a] decision against appellee(s) would not invalidate the conviction”

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(Appellant Br. 15.), he fails to explain why.1 The only authority he cites, Hill v. Hawes,

320 U.S. 520 (1944), also fails to suggest any fault in the judge’s Heck analysis. While

we liberally construe the filings of pro se appellants, see Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), we are “not required to manufacture an

appellant’s argument on appeal when [he] has failed in [his] burden to draw our attention

to [an] error below.” Starbuck, 69 F.3d at 1093 (quotation marks omitted). Given the

lack of any meaningful argument responsive to the judge’s rationale for dismissal,

Marshall has waived any objection to the dismissal order. See id.

       Because Marshall fails to identify any error in the district judge’s analysis, this

appeal is frivolous. We DISMISS it as required by 28 U.S.C. § 1915(e)(2)(B)(i). We

IMPOSE a strike under 28 U.S.C. § 1915(g). Coupled with the district court’s dismissal,

he now has two strikes associated with this case. See Jennings v. Natrona Cnty. Det. Ctr.

Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal

of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals

count as strikes.”). Marshall has a prior strike, arising from the dismissal of appeal

12-6272. As such, he has accrued three strikes and is now subject to the significant

restrictions on filing civil actions and appeals described in 28 U.S.C. § 1915(g).



       1
         In the same breath in which he assures us he is not challenging his conviction, he
explains how, in his view, one consequence of success on his claim would be to
“reinstate [his] appeal for further habeas review.” (Appellant Br. 14.) And, indeed, he
goes on at length in his brief to explain how his filing would have demonstrated he was
“actually innocent.” (Appellant Br. 2) Because his complaint seeks “to negate an element
of the offense of which he ha[s] been convicted,” Heck, 512 U.S. at 486-87, it challenges
his conviction and is squarely barred.

                                            -3-
       We also DENY Marshall’s motion to proceed without prepayment of costs and

fees, see DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (concluding “a

reasoned, nonfrivolous argument on the law and facts in support of the issues raised on

appeal” is a prerequisite for leave to proceed on appeal without prepayment of costs and

fees), and remind him of his obligation to pay the filing and docket fees in full. See

Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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