F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                 JAN 24 2005
                                  TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 MARKELL ARCHILTA,

               Petitioner-Appellant,                        No. 04-6125
          v.                                              (W.D. of Okla.)
 STATE OF OKLAHOMA,                                  (D.C. No. CV-04-162-R)

               Respondent-Appellee.


                            ORDER AND JUDGMENT              *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.               **




      Petitioner-Appellant Markell Archilta, a state prisoner appearing         pro se ,

appeals the dismissal of his “Petition for Extraordinary Writ.” The district court

construed Archilta’s petition as (1) seeking habeas corpus relief pursuant to 28

U.S.C. § 2254 and (2) asserting a federal claim under either 42 U.S.C.          § 1983 or

28 U.S.C. § 1331. The district court dismissed the habeas elements of the petition


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
for failure to exhaust state court remedies, and dismissed the remaining elements

under 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253, we agree with the district court’s construction of the petition,

deny Archilta’s request for a certificate of appealability (COA), and affirm the

dismissal of the case.

                                       Background

       Archilta is a Native American incarcerated in an Oklahoma prison after

being sentenced to six, concurrent, thirty-year sentences for felony convictions in

April 1990. [R/R at 2] In February 2004, Archilta sought an “Extraordinary Writ”

in the district court pursuant to 28 U.S.C.     §§ 1343(a) and 1651, contending that

his constitutional and treaty rights had been violated by Oklahoma’s arrest,

prosecution, and incarceration of him for crimes committed on Indian lands over

which Oklahoma has no criminal jurisdiction. He also sought class representative

status on behalf of all other Oklahoma citizens who are Native Americans and are

incarcerated in Oklahoma prisons for crimes committed in Oklahoma. Archilta

named as defendants “the State of Oklahoma and unknown Officials (State,

County, City) who are citizens of the State of Oklahoma, and [are] employed as a

State, County, City employee.”

       A magistrate judge recommended that the petition be dismissed for two

reasons. First, he concluded that the portion of the petition challenging


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Oklahoma’s jurisdiction should be dismissed without prejudice because it failed

to establish either that Archilta had exhausted state remedies or that an exception

to the exhaustion requirement applied. Second, to the extent the petition sought

relief based on Archilta’s allegedly unconstitutional convictions, the magistrate

judge found it should be construed to assert a claim under 42 U.S.C.    § 1983 and

be dismissed pursuant to 28 U.S.C.     § 1915(e)(2)(B). The district court adopted

the recommendations in their entirety.

                                        Discussion

        On appeal, Archilta raises several challenges to the decision of the district

court. First, he claims that the court erred by construing his pleadings as a

petition for a writ of habeas corpus pursuant to     28 U.S.C. § 2254 and for

dismissing his action for failure to exhaust state remedies. Second, he argues that

the court erred by construing his pleadings as raising a    § 1983 claim and

dismissing them based on Eleventh Amendment immunity. Finally, Archilta seeks

clarification regarding the district court’s denial of his class action request, asks

this court to appoint counsel, and asserts the district court erred in declining to

consider his amended objections to the magistrate judge’s recommendations.

I. Habeas Corpus Claim

A. Applicability of   § 2254




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       Although Archilta filed the petition for an “Extraordinary Writ” pursuant to

28 U.S.C. §§ 1343(a) and 1651, the district court construed it in part as a      § 2254

habeas corpus petition because it “clearly seeks habeas corpus relief in the form

of Petitioner’s release from [state custody] and the invalidation of his

convictions.” [R/R at 2] Archilta nonetheless argues on appeal that the

extraordinary nature of his case indicates that    § 2254 does not apply.

Specifically, he contends (1) that claims for treaty violations are not typical, (2)

he would have filed a § 2254 petition if he had intended to do so, and (3) the

petition “at its core” does not seek to challenge his convictions or sentence, “but

rather seeks answers to federal questions of law.” [Br. at 9]

       Reviewing de novo the district court’s determination that      § 2254 applies to

the petition, see United States v. Fillman , 

, 1056 (10th Cir. 1998)

(“[w]e review de novo the district court's interpretation of a federal statute"), we

hold that the district court properly construed the petition as seeking a writ of

habeas corpus pursuant to    § 2254.

       The petition filed in the district court sought relief in the form of a

declaratory judgment that “[a]ll State Judgment and Sentences are Void for want

of Jurisdiction over Indians whose crime was committed in Indian Country as

defined by federal Law.” [Petition at 16] Thus, Archilta seeks to void his

sentence and be released from prison. As a result, his sole avenue of federal


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relief is a petition for habeas corpus.   See Preiser v. Rodriguez , 

, 500

(1973) (holding that where state prisoner challenges fact or duration of

imprisonment and seeks release from that imprisonment, sole federal remedy is a

writ of habeas corpus);    see also Pennsylvania Bureau of Corr. v. United States

Marshals Serv. , 

, 43 (1985) (“The All Writs Act [contained in 28

U.S.C. § 1651] is a residual source of authority to issue writs that are not

otherwise covered by statute. Where a statute specifically addresses the particular

issue at hand, it is that authority, and not the All Writs Act, that is controlling.”)

(alteration added).

B. Dismissal of the habeas claim for failure to exhaust state remedies

       Archilta contends that even if the district court properly construed the

petition in part as raising a   § 2254 claim, he is entitled to a COA on the question

whether the district court properly dismissed the claim for failure to exhaust state

remedies. This court may only issue a COA if a petitioner “has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see also Slack v. McDaniel , 

, 483–84 (2000);      United

States v. Springfield , 

, 1177 (10th Cir. 2003). Where a district

court dismisses a petition on procedural grounds, “a COA should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists


                                             -5-
of reason would find it debatable whether the district court was correct in its

procedural ruling.”    Slack , 529 U.S. at 484. Though the petitioner must satisfy

each prong of this test in order for this court to hear his appeal, we are free to

dispose of the application on an issue “whose answer is more apparent from the

record and arguments.”      

       The district court dismissed the     § 2254 claim after determining that (a)

Archilta failed to establish exhaustion of state remedies, and (b) he did not show

an exception to the exhaustion requirement should apply. Archilta argues, as he

did before the district court, that requiring him to return to the state courts is

futile because the courts do not have jurisdiction over him as an Indian who

allegedly committed his crimes on Indian land. He further argues that pursuant to

the Medicine Lodge Peace Treaty of 1867 he has already exhausted the only

administrative process required by filing a complaint with the Bureau of Indian

Affairs.

       After thoroughly reviewing the record in this case, we agree that Archilta

has failed to show that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. We have already determined

that the district court properly construed the petition as asserting a    § 2254 claim.

As such, the petition is subject to the exhaustion requirements of       § 2254(b)(1).

Archilta has failed either to establish that he exhausted the remedies available in


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the Oklahoma state courts or that his failure to exhaust should be otherwise

excused. See Miranda v .Cooper , 

, 398 (10th Cir. 1992) (state

habeas petitioner has burden of establishing exhaustion or application of

exception to exhaustion requirement).

      Archilta’s claim that returning to the state courts would be futile because

Oklahoma does not have jurisdiction over him as an Indian who committed crimes

on Indian land begs the initial question as to whether the crimes were in fact

committed on Indian land. As determined by the district court, Oklahoma state

courts can and do determine whether they have jurisdiction over Indians for

crimes allegedly committed in Indian Country.          See, e.g. , Cravatt v. State , 

, 280 (Okla. Crim. App. 1992) (resolving jurisdictional question for

crime committed in Indian Country);    State v. Klindt , 

, 403 (Okla.

Crim. App. 1989) (stating general rule that “the State of Oklahoma does not have

jurisdiction over crimes committed by or against an Indian in Indian Country”);

see also DeCoteau v. District County Court         , 

, 427–28 (1975)

(holding South Dakota state courts properly exercised jurisdiction over acts by

Indians not occurring on Indian land).

      Furthermore, the district court also properly declined to determine the

applicability of the one-year period of limitations for filing a habeas petition

pursuant to § 2254. See 28 U.S.C. § 2244(d)(1). As indicated by the court,


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Archilta is eligible to petition for an appeal out of time under Oklahoma law,        see

Okla. Stat. Ann., tit. 22, Ch. 18, App., Rule 2.1(E), which, if granted, would

effectively restart the filing period under    § 2244(d)(1). See Orange v. Calbone ,

, 1173 (10th Cir. 2003). We, therefore, affirm the district court’s

dismissal without prejudice of the portion of the petition properly construed as a

§ 2254 habeas application.

II. Injunctive and Declaratory Relief Claims

       The magistrate judge construed the petition in part to assert a claim for

damages or equitable relief under 42 U.S.C.         § 1983. The district court noted that

claims for treaty-based rights may be cognizable under         § 1983. However, the

court ultimately determined that the claims were barred under          Heck v. Humphrey ,

, 486–87 (1994),       and the Eleventh Amendment regardless of whether

they were construed under      § 1983 or as federal claims over which the court had

jurisdiction under 28 U.S.C. § 1331.

       Archilta’s claim that the district court erred in determining that        § 1983

applied to his petition misconstrues the court’s order. Though the district court

adopted the magistrate judge’s recommendations in their entirety, and the

magistrate judge found     § 1983 applicable, the district court’s order concluded that

whether cognizable under      § 1983 or § 1331, the claims seeking damages as well

as equitable relief were barred under the reasoning of       Heck . We decline at this


                                              -8-
time to determine whether claims alleging violations of treaty rights may be

brought under § 1983 and instead adopt the approach of the district court. As

such, whether construed under     § 1983 or § 1331, we hold that the district court

properly found the claims barred under     Heck .

       Heck teaches that where a state prisoner brings a claim seeking damages for

an allegedly unconstitutional conviction, the claim is not cognizable under    § 1983

and must be dismissed unless plaintiff can demonstrate that the conviction has

already been invalidated.    

–87.     The Supreme Court extended

the rationale of Heck to encompass a § 1983 claim seeking declaratory relief in

Edwards v. Balisok , 

, 648 (1997), and this court has previously

applied Heck to bar 42 U.S.C. §§ 1983 and 1985 claims seeking declaratory and

injunctive relief.   See Lawson v. Engleman , No. 03-7012, 

, *1,

*1 n.2 (10th Cir. 2003) (unpublished opinion).

       Here, Archilta seeks relief in multiple forms, including,    a “Procedure

Provided by the Court for Compensation, Punitive or otherwise for Injury, Loss,

Violation of rights, protections and immunities of each Individual Indian, against

each Official State, County, City, other Bad Men/White Men” and “Return of

any/all Money, Property, Equity Illegally/Unlawfully taken from Indians.”

Though the petition is nebulous, we interpret these claims for damages and

equitable relief as necessarily implying the invalidity of Archilta’s convictions.


                                            -9-
Therefore, whether we construe the applicable cause of action under       § 1983 or §

1331, the rationale of Heck applies to bar the claims.     See Beck v. City of

Muskogee Police Dep’t , 

, 557 (10th Cir. 1999) (noting that      Heck

should apply “when the concerns underlying         Heck exist,” which include “those

claims that would necessarily imply the invalidity of any conviction”). Since

Archilta’s claims necessarily imply the invalidity of his convictions and he cannot

demonstrate that his convictions have already been invalidated, the district court

properly held that the claims must be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B) for failure to state a claim.

       Archilta also contends that the district court erroneously excluded his

claims against state officials under the Eleventh Amendment because state and

local officials are only entitled to qualified immunity. This argument also

misconstrues the district court’s decision. The court only found the Eleventh

Amendment applicable to the damages claims against the state itself. The court

barred all other claims for damages and equitable relief, including those against

the state and local officials, under   Heck . Hence, Archilta’s qualified immunity

argument is without merit because the court did not find the officials entitled to

immunity. Accordingly, we affirm the district court’s determination that the state

is immune from suit for damages under the Eleventh Amendment,          see Edelman v.




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Jordan , 

, 662–63 (1974), and the dismissal of the petition pursuant

to § 1915(e)(2)(B).

III. Other Claims

A. Request for class action certification

       As discussed above, Archilta’s claims for damages and equitable relief are

barred by Heck and the Eleventh Amendment. He furthermore has failed to meet

the requirements of Fed. R. Civ. P. 23(a) and (b) for class certification.

Therefore, the district court’s denial of his request for class action certification is

affirmed.

B. Request for court appointed counsel

       Appointment of counsel is within the discretion of the district court and

only in those extreme cases where the lack of counsel results in fundamental

unfairness will the district court’s decision be overturned.   See McCarthy v.

Weinberg , 

, 839 (10th Cir. 1985). Here, Archilta has failed to

establish that the lack of counsel resulted in a fundamentally unfair disposition of

his case. See United States v. Masters     , 

, 1253 (10th Cir. 1973)

(burden on applicant to establish appointment of counsel warranted). Thus, the

district court’s denial of the request for counsel is affirmed.

C. Archilta’s amended objections




                                            -11-
      Pursuant to 28 U.S.C. § 636(b)(1) and W.D. Okla. R. 72.1, Archilta had

until March 16, 2004 to file objections to the magistrate judge’s findings. He

first filed objections on March 16, which the district court considered in ruling on

the petition. According to the district court’s docket, Archilta filed amended

objections on March 26, which the district court ordered stricken as untimely. He

argues on appeal that the district court erred in refusing to consider his amended

objections because he placed the objections into the care of institutional staff in a

timely manner on April 24, 2004.   1
                                       [Br. at 8]

      Failure to make a timely objection to the magistrate judge’s findings or

recommendations waives appellate review of both factual and legal questions.

See Moore v. United States   , 

, 659 (10th Cir. 1991). However, this

rule is inapplicable either when the interests of justice so dictate or “when the

magistrate’s order does not apprise the pro se litigant of the consequences of a

failure to object to findings and recommendations.”    

reviewed

Archilta’s amended objections and conclude that the interests of justice do not

dictate that the objections be considered in disposing of this case since they too

are without merit. Further, Archilta’s pro se status does not alter this


      1
       We assume, based on the fact that the district court ordered the amended
objections stricken on March 31, 2004, Archilta is actually claiming that he filed
the objections on March 24. Even if this is true, the filing occurred after the
March 16 deadline and the district court properly concluded that the amended
objections were untimely.

                                            -12-
determination because the magistrate judge’s report made clear that failure to

reply in a timely manner would constitute waiver. [R/R at 8] Therefore, we hold

that the district court properly declined to consider the amended objections.

                                      Conclusion

       For the foregoing reasons, we affirm the district court’s dismissal of the

case and deny Archilta’s request for a COA.

                                          Entered for the Court

                                          Timothy M. Tymkovich
                                          Circuit Judge




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