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

                             FOR THE TENTH CIRCUIT                       October 19, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 TOBI KILMAN,

       Plaintiff - Appellant,

 v.                                                        No. 19-1476
                                               (D.C. No. 1:19-CV-02265-LTB-GPG)
 DEAN WILLIAMS, Executive Director of                       (D. Colo.)
 the Colorado Department of Corrections;
 RICK RAEMISCH, Former Executive
 Director of the C.D.O.C.; JAMES
 RICKETS, Former Executive Director of
 the C.D.O.C.; TOM CLEMENTS, Former
 Executive Director of the C.D.O.C.; JOHN
 SUTHERS, Former Executive Director of
 the C.D.O.C.; JOE ORTIZ, Former
 Executive Director of the C.D.O.C.;
 ARISTEDES ZAVARES, Former
 Executive Director of the C.D.O.C.;
 FRANK GUNTER, Former Executive
 Director of the C.D.O.C.; WALTER
 KAUTZKY, Former Executive Director of
 the C.D.O.C. and unnamed former
 executive director of the C.D.O.C. Circa
 1990-2019,

       Defendants - Appellees.
                      _________________________________

                                ORDER AND JUDGMENT *


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                        _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________

      Tobi Kilman appeals pro se from the district court’s judgment dismissing his

42 U.S.C. § 1983 action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                    I. Background

      Kilman was a Colorado state prisoner at four different times between 1997 and

2017. In his complaint in this action, filed after his 2017 release, he alleged that he

was deprived of 56 months of statutory good-time and earned-time credits. He

asserted that this deprivation violated his rights under the Fifth, Eighth, and

Fourteenth Amendments. He sought damages against the current and former

Executive Directors of the Colorado Department of Corrections (CDOC) in their

individual capacities. His theory was that beginning in 1990, Executive Director

Kautzky implemented a policy of improperly awarding good-time and earned-time

credits, and successive Executive Directors have continued the policy.

      After granting Kilman leave to proceed in forma pauperis (IFP), a magistrate

judge screened the complaint and ordered Kilman to show cause why the district

court should not dismiss it. Kilman responded. The magistrate judge then issued a

report and recommendation that the action should be dismissed pursuant to Heck v.

Humphrey, 

(1994). Under Heck, if “a judgment in favor of [a state

prisoner] would necessarily imply the invalidity of his conviction or sentence,” a

district court must dismiss a § 1983 action “unless the plaintiff can demonstrate that


                                            2
the conviction or sentence has already been invalidated.”

In the

alternative, the magistrate judge recommended dismissing the complaint as legally

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) for failure to allege facts showing either

a constitutional violation or personal participation by any of the named defendants.

Kilman filed timely objections to the magistrate judge’s recommendation. The

district court accepted and adopted the recommendation and dismissed the action for

the reasons stated in the recommendation. Kilman appeals.

                                     II. Discussion

       Kilman primarily argues that Heck does not apply to his action because he did

not seek to invalidate either his convictions or his sentences but only the manner in

which his sentences were imposed. We disagree and therefore affirm the district

court’s dismissal based on Heck. Consequently, we need not reach Kilman’s other

arguments.

       Because the district court dismissed Kilman’s action as part of the IFP

screening process, we construe its Heck dismissal as one under § 1915(e)(2)(B)(ii)’s

directive that a court must dismiss an action if it “fails to state a claim on which relief

may be granted.” See Smith v. Veterans Admin., 

, 1312 (10th Cir.

2011) (“[T]he dismissal of a civil rights suit for damages based on prematurity under

Heck is for failure to state a claim.”). Thus, our review is de novo. See Kay v.

Bemis, 

, 1217 (10th Cir. 2007) (applying de novo review to dismissal

of IFP complaint for failure to state a claim under § 1915(e)(2)(B)(ii)). We afford a



                                            3
liberal construction to Kilman’s pro se filings, but we may not act as his advocate.

See Yang v. Archuleta, 

, 927 n.1 (10th Cir. 2008).

      In applying Heck, the district court relied on our unpublished decision, Kailey

v. Ritter, 500 F. App’x 766 (10th Cir. 2012). In Kailey, we held that Heck barred a

§ 1983 claim that Colorado prison officials violated a prisoner’s constitutional rights

under the First, Fifth, and Fourteenth Amendments when they failed to award him

earned-time credits. See

Kilman attempts to distinguish Kailey in

three ways: (1) Kailey was subject to discretionary parole, but Kilman was subject to

mandatory parole, so Kilman has a liberty interest in the credits he allegedly did not

receive; (2) Kailey’s action had technical and procedural issues that are lacking here;

and (3) Kailey argued that earned-time credits could not be withheld for bad

behavior, but Kilman raises no such argument. While these distinctions exist,

Kilman does not explain why they are material to the Heck analysis, and we see no

materiality. In Kailey, our application of Heck did not turn on any of the factual

distinctions Kilman highlights.

      But regardless of Kailey, the Supreme Court has made clear that under its

precedent, including Heck, a writ of habeas corpus is the sole federal remedy in cases

where a state prisoner seeks any relief, damages or otherwise, that would “necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,

, 82 (2005). Kilman’s success in a § 1983 action for damages based on

the deprivation of good-time and earned-time credits would require a federal court to

determine that prison officials wrongly deprived him of those credits and held

                                           4
Kilman longer than they should have. That would necessarily demonstrate that the

duration of Kilman’s confinement was invalid, even if his claim is viewed purely as a

due process challenge to CDOC’s allegedly wrongful procedure for computing

credits. See Edwards v. Balisok, 

, 646 (1997) (applying Heck to

prisoner’s § 1983 suit that, if successful on procedural challenge, would imply the

invalidity of the deprivation of good-time credits). Accordingly, to obtain federal

relief, Kilman had to pursue a writ of habeas corpus.

      As the district court noted, Heck does not apply when a plaintiff has no

available habeas remedy, but the plaintiff must show that the lack of a habeas remedy

is “through no lack of diligence on his part.” Cohen v. Longshore, 

,

1317 (10th Cir. 2010). The only statement in Kilman’s appellate brief that could be

construed as relevant to the Cohen exception is his claim that he was simply unaware

of the CDOC’s “corrupt time-computation practices until he had already [been]

discharged.” Aplt. Br. at 4. His lack of awareness, however, shows nothing more

than a lack of diligence in filing any habeas petitions during his incarcerations. See

Marsh v. Soares, 

, 1220 (10th Cir. 2000) (“[I]t is well established that

ignorance of the law, even for an incarcerated pro se petitioner, generally does not

excuse prompt filing.” (internal quotation marks omitted)). Kilman, therefore, has

not shown that Cohen’s exception to Heck applies.

                                   III. Conclusion

      The district court’s judgment is affirmed. We grant Kilman’s motion to

proceed IFP on appeal and remind him of his obligation to continue making partial

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payments until the appellate filing and docketing fees are paid in full. See 28 U.S.C.

§ 1915(a)(1) (excusing only “prepayment of fees”);

prisoners to make partial payments of filing fees). 1


                                            Entered for the Court
                                            Per Curiam




      1
         Section 1915(b)(1)’s partial-payment fee provisions apply to Kilman because
at the time he filed this appeal, he was a pretrial detainee at a Colorado county
detention center.
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