                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 23, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


 M ONTG OM ERY CA RL AKERS,

          Plaintiff-Appellant,
 v.                                                      No. 06-3273
 KIM I. M ARTIN, Assistant U. S.                (D.C. No. 06-CV-3175-SAC)
 Attorney, also known as K im Burger,                   (D. Kansas)
 also known as K im Fowler;
 JACQUELINE E. ROKUSEK, Defense
 Counsel; JAM ES K ESZEI, Special
 Agent, Federal Bureau of
 Investigation; K A TH RY N H .
 VRATIL, U. S. District Judge; ERIC
 F. M ELGREN, U. S. Attorney,

          Defendants-Appellees.




                             OR D ER AND JUDGM ENT *


Before BRISCO E, EBEL, and M cCO NNELL, 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         This order and judgment is not binding precedent, except under the doctrines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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

      M ontgomery Carl Akers (Akers), a federal prisoner appearing pro se,

appeals the district court’s dismissal of his civil complaint, styled as a 42 U.S.C.

§ 1983 action, but construed by the district court as a claim brought pursuant to

Bivens v. Six U nknown N amed A gents, 403 U .S. 388 (1971). W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the dismissal.

      Akers’ civil rights action alleges a broad conspiracy to deprive him of

various constitutional rights. He alleges the conspiracy involves a federal district

court judge, federal prosecutors, a federal public defender, and an FBI agent – all

of whom were involved in his then pending federal wire fraud case. Akers sought

relief for alleged constitutional violations in the form of monetary damages and

the cessation of all further proceedings in his criminal case. The district court

construed Akers’ complaint as a Bivens claim, then dismissed it pursuant to 28

U.S.C. § 1915A for failure to state a claim upon which relief can be granted.

      Specifically, insofar as A kers sought injunctive and declaratory relief in

regards to his criminal case, the district court determined that the appropriate

avenue for the remedy sought would be a direct appeal and/or the filing of a post-

conviction petition as provided by 28 U.S.C. § 2255. The district court also

relied on Heck v. Humphrey, 512 U.S. 477 (1994) to conclude that the relief he

sought was premature until and unless he could first demonstrate that his

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conviction had been reversed, set aside, or otherwise invalidated. The district

court also held that Akers’ claims against the district court judge and the federal

prosecutors were barred by recognized immunities from suit and that Akers’

allegations were insufficient to defeat these immunities. Last, the district court

determined that permitting Akers to amend his complaint to cure these

deficiencies would be futile.

      Akers challenges this dismissal, essentially reasserting those allegations set

forth in his complaint. W e review de novo a dismissal under § 1915A for failure

to state a claim. See M cBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).

“D ismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.” Perkins v. Kansas Dep’t of

Corr., 165 F.3d 803, 806 (10th Cir. 1999). In conducting our review, we construe

the pro se pleadings liberally, applying a less stringent standard than formal

pleadings drafted by lawyers. Garrett v. Selby Connor M addux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). But “we are not bound by conclusory

allegations, unwarranted inferences, or legal conclusions” contained in those

pleadings. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994).

      After reviewing the record, we agree with the district court that to the

extent Akers seeks monetary damages, success on the merits of this case would

necessarily imply the invalidity of his criminal conviction. In Heck, 512 U.S. at

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486-87, the United States Supreme Court held that “in order to recover damages

for allegedly unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal,” or otherwise declared invalid, called into question by

the issuance of a habeas writ, or expunged. See Crow v. Penry, 102 F.3d 1086,

1087 (10th Cir. 1996) (concluding that Heck applies to a Bivens claim). Akers

has failed to allege or show that his conviction has been reversed, declared

invalid, expunged, or called into question. Thus, his claim is premature and he

has failed to state a claim upon which relief may be granted.

      W e also agree with the district court that to the extent Akers seeks to

challenge his criminal conviction and sentence, he may file a direct appeal 1 and/or

seek post-conviction relief as provided by 28 U.S.C. § 2255. See M cIntosh v.

U.S. Parole Com’n, 115 F.3d 809, 811 (10th Cir. 1997) (explaining that a § 2255

proceeding is a collateral attack on the validity of a conviction and sentence).

A nd, as A kers’ complaint contains no other cognizable cause of action, we

conclude that the district court did not err in its dismissal.




      1
       Akers was eventually convicted of wire fraud in federal district court and his
criminal appeal is currently pending before this court.

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     Accordingly, we AFFIRM the district court’s dismissal of Akers’ complaint

and DENY Akers’ second motion for appointment of counsel.


                                           Entered for the Court


                                           M ary Beck Briscoe
                                           Circuit Judge




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