                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 10, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 SONNY LAUREN HARMON, SR.,

               Plaintiff - Appellant,                    No. 10-6223
          v.                                           (W.D. Oklahoma)
 RICHARD R. SITZMAN, Assistant                   (D.C. No. 5:09-CV-01132-C)
 District Attorney; TIM D.
 KUYKENDALL, District Attorney;
 LARRY S. BALCERAK, Assistant
 District Attorney; WILLIAM N.
 PETERSON, District Attorney;
 THOMAS PURCELL, Chief Counsel
 OIDS; TASHA A. STEWARD, OIDS
 Attorney; JAMES D. BEDNAR,
 Executive Director OIDS,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Sonny Lauren Harmon, Sr., a state prisoner in Oklahoma,

proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983 action against

numerous Oklahoma legal officials. We affirm. 1



                                 BACKGROUND

      On October 15, 1993, Mr. Harmon pled guilty to conspiracy to commit a

felony in Garvin County, Oklahoma. He was given a three-year suspended

sentence. As it happened, however, Mr. Harmon was not eligible to receive a

suspended sentence under Oklahoma law at that time, because he had two or more

prior felony convictions. 2 For some reason not apparent in this record, this error

of state law went unnoticed until May 16, 2008, when the state district court of




      1
       A jurisdictional issue has been referred to us as the merits panel in this
appeal. We construe Mr. Harmon’s “Motion for Correction Order to Issue and
Notice to the Court of Related Appeal” as a Fed. R. Civ. P. 59 or 60 motion, and
conclude that his notice of appeal was timely filed. See Fed. R. App. P.
4(a)(4)(A). We therefore have jurisdiction over this appeal.
      2
        The relevant Oklahoma statute provided that individuals “being sentenced
upon their third or subsequent to their third conviction of a felony” were
ineligible to receive a suspended sentence. Okla. Stat. tit. 22, § 991a(C); see also
Bumpus v. State, 925 P.2d 1208, 1209-12 (Okla. Crim. App. 1996) (vacating a
suspended sentence because the defendant had at least two prior felony
convictions).

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Garvin County, Oklahoma, entered a summary order vacating the “illegal

judgment and sentence” imposed on Mr. Harmon in 1993.

      In the interim, in 2001, Mr. Harmon was convicted in state court in

Pontotoc County, Oklahoma, of concealing stolen property and of four other

crimes. Mr. Harmon avers the 1993 subsequently-voided conviction (“Void

Conviction”) was used to enhance the sentences imposed in these latter

convictions. He concedes, however, that as of the sentencing in that case, the

1993 conviction had not yet been declared void.

      Mr. Harmon was also convicted in April 2006 in Garvin County,

Oklahoma, of multiple charges of second-degree burglary after being convicted

previously of two or more felonies. Mr. Harmon again claims that, at the

combined trial on all of these charges, the state introduced evidence of the Void

Conviction for purposes of enhancing his sentence, even though he concedes that

1993 conviction had not yet been declared void. Mr. Harmon was sentenced to

twenty years’ imprisonment on each of the three second-degree burglary

convictions, to be served consecutively.

      Mr. Harmon brought the instant 42 U.S.C. § 1983 action, alleging the

following: malicious prosecution, against District Attorney Tim D. Kuykendall,

District Attorney William N. Peterson, Assistant District Attorney Richard R.

Sitzman and Assistant District Attorney Larry S. Balcerak. This allegation was

based on the proposition that these four prosecutors violated Mr. Harmon’s

                                           -3-
double jeopardy rights because the Garvin County and Pontotoc County

convictions (which they prosecuted), particularly the conviction for concealing

stolen property, constituted multiple charges for one criminal event. He also

averred that the prosecutors wrongfully used the Void Conviction to enhance the

sentences he received for both the Garvin County and Pontotoc County

convictions.

      Next, Mr. Harmon alleged “legal malpractice” and “ineffective assistance

of appellate counsel” against Thomas Purcell, the Chief Counsel for the

Oklahoma Indigent Defense System (“OIDS”) and OIDS attorney Tasha A.

Steward. Ms. Steward and Mr. Purcell (OIDS attorneys) were appointed by the

state district court to represent Mr. Harmon during post-conviction proceedings.

Mr. Harmon’s final claim is one of negligence against OIDS Executive Director

James Bednar, who he claims has negligently failed to “maintain his office to

provide sixth amendment effective representation to all indigent criminal

defendants.” Mr. Harmon also alleged various state tort law claims, asking the

federal district court to exercise supplemental jurisdiction over these claims. For

all of these alleged violations, Mr. Harmon sought unspecified declaratory and

injunctive relief, as well as compensatory, nominal and punitive damages.

      Various defendants filed dispositive motions: defendants Sitzman,

Kuykendall and Balcerak (all Garvin County prosecutors) filed a motion to

dismiss, and defendant Peterson (a Pontotoc County prosecutor) likewise filed a

                                         -4-
motion to dismiss. Mr. Harmon also filed dispositive motions: a motion for entry

of default judgment against defendants Purcell, Steward and Bednar, and a

separate motion for entry of default judgment against defendant Peterson. He

also filed a motion to supplement his appendix; a motion for appointment of

counsel; a motion for service on defendants Steward and Bednar; and a motion to

strike defendant Peterson’s motion to dismiss. 3

      The federal district court referred this matter to a magistrate judge, who

issued a lengthy and thorough Report and Recommendation recommending

dismissal of Mr. Harmon’s action in its entirety. More specifically, the Report

recommended that the defendants’ motions to dismiss be granted, and

additionally,

      in the alternative, that Plaintiff’s claims against these Defendants be
      dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
      state a claim upon which § 1983 relief may be granted. It is further
      recommended that Plaintiff’s § 1983 claims against the remaining
      Defendants be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
      for failure to state a claim upon which § 1983 relief may be granted.
      In addition, it is recommended that the Court decline to exercise
      supplemental jurisdiction over Plaintiff’s state law tort claims.

Rep. & Rec. at 2, R. Vol. 1 at 84. Finally, the Report recommended the denial of

all of Mr. Harmon’s motions, except it recommended granting Mr. Harmon’s


      3
        Several of these motions stem from the fact that, as the magistrate judge
noted in the Report and Recommendation, as of the date of that Report, the record
demonstrated that defendants Purcell, Steward and Bednar had never been
officially served with notice of the action against them. In view of the resolution
of the case, however, these motions were properly denied as moot.

                                         -5-
motion to supplement his appendix. The district court adopted the Report and

Recommendation in its entirety and dismissed Mr. Harmon’s action against all

defendants with prejudice.

      We can add nothing significant to the thorough and careful analysis

provided in the magistrate judge’s Report and Recommendation, as adopted by

the district court. Accordingly, for substantially the same reasons contained in

that Report and Recommendation, we affirm the dismissal of Mr. Harmon’s

§ 1983 action. We further deny his request to proceed in forma pauperis.

      For the foregoing reasons, the dismissal of Mr. Harmon’s § 1983 action is

AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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