FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 3, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 MARK ANTHONY ESQUIBEL,

               Plaintiff - Appellant,                   No. 10-1357
          v.                                           (D. Colorado)
 BRIAN WILLIAMSON; OFFICER                   (D.C. No. 1:10-CV-01279-ZLW)
 SMITH; OFFICER TODIS; SHERIFF
 J. GRAYSON ROBINSON;
 DOUGLAS G. BECHTEL,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Mark Anthony Esquibel, a Colorado state prisoner appearing pro se,

appeals the dismissal of his complaint against several persons involved in a

criminal prosecution against him: the deputy district attorney who prosecuted

him, Douglas Bechtel; the deputy state public defender appointed to represent



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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.
him, Brian Williamson; and the police officers who arrested him, Dan Smith and

William Todis. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On June 3, 2010, Mr. Esquibel, proceeding in forma pauperis, filed a pro se

prisoner complaint in the United States District Court for the District of Colorado.

The complaint alleged several claims under 42 U.S.C. § 1983 arising out of his

arrest, detention, and prosecution by Colorado state authorities. The district court

ordered him to file an amended complaint clarifying the factual basis of his

claims, and he did so on July 21, 2010. The amended complaint alleged that on

November 20, 2009, he was illegally detained by Smith and Todis and that the

detention constituted an illegal search and seizure in violation of the Fourth,

Fifth, and Fourteenth Amendments to the United States Constitution. He also

alleged that Bechtel and Williamson had conspired to withhold exculpatory

evidence by failing to introduce Todis’s police report documenting Mr. Esquibel’s

arrest or to produce Todis as a witness at his preliminary hearing. He asserted

that Todis’s report and testimony would have contradicted Smith’s report and

preliminary-hearing testimony. (He also sought relief from defendant Sheriff J.

Grayson Robinson; but he has not argued on appeal that the district court erred in

dismissing his claims against the sheriff.) The amended complaint included an

assertion that 28 U.S.C. § 2254 provided an “additional or alternative” basis of

jurisdiction for his claims. R., Vol. 1 at 98. It asked for compensatory and

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punitive damages and a “preliminary injunction to prevent irreparable injury and

adequate corrective process be applied.” 

      The district court, acting sua sponte under § 1915(e)(2)(B)(i), dismissed the

amended complaint in an order dated August 5, 2010. Mr. Esquibel filed his

notice of appeal on August 11. On September 23 the district court denied his

motion to proceed in forma pauperis on appeal.

II.   DISCUSSION

      Because Mr. Esquibel is proceeding pro se, we construe his pleadings

liberally. See Kay v. Bemis, 

, 1218 (10th Cir. 2007). We first

address his claim for habeas relief, and then address his claims under § 1983.

      A.     § 2254 Application

      Liberally construing Mr. Esquibel’s amended complaint, the district court

read it to seek habeas relief under 28 U.S.C. § 2254; but it dismissed the claim as

premature. We affirm the dismissal because Mr. Esquibel has not shown that he

exhausted his state remedies before filing his amended complaint.

      A state prisoner generally may not raise a claim for federal habeas corpus

relief unless he “has exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, a habeas applicant must pursue it

through “one complete round of the State’s established appellate review process,”

giving the state courts a “full and fair opportunity” to correct alleged

constitutional errors. O'Sullivan v. Boerckel, 

, 845 (1999). If a state

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prisoner has not properly exhausted state remedies, the federal courts ordinarily

will not entertain an application for a writ of habeas corpus unless exhaustion

would have been futile because either “there is an absence of available State

corrective process” or “circumstances exist that render such process ineffective to

protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii). The

applicant bears the burden of proving that he exhausted state court remedies, see

McCormick v. Kline, 

, 851 (10th Cir. 2009), or that exhaustion would

have been futile, see Clonce v. Presley, 

, 273 (10th Cir. 1981).

      Mr. Esquibel has not shown that he exhausted his state remedies before

filing his amended complaint on July 21, 2010. To be sure, it appears that

Mr. Esquibel raised in state court some of the issues raised in that amended

complaint. But the only matter presented to a state appellate court before he filed

his amended complaint was his petition to the Colorado Supreme Court for a writ

of prohibition and mandamus to set aside the denial of his pretrial request for

habeas relief in Colorado state district court. The petition was denied on May 6,

2010. Such a petition for extraordinary and discretionary relief does not satisfy

the exhaustion requirement. See Castille v. Peoples, 

, 351 (1989);

Edmiston v. Colorado, 158 F. App’x 980, 981–82 (10th Cir. 2005) (unpublished).

In any event, it would be remarkable if Mr. Esquibel could have exhausted his

state remedies by the time he filed his amended complaint in federal court

because his conviction in state court was on July 20, 2010, only one day before

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the filing. (The fact of Mr. Esquibel’s conviction does not appear in the district-

court record but is disclosed in his brief in this court.)

       Because Mr. Esquibel has failed to show that he exhausted his state

remedies and has not argued that exhaustion would have been futile, we affirm

the district court’s dismissal of his habeas claim.

      B.     § 1983 Claims

      As for Mr. Esquibel’s § 1983 claims, he challenges only the district court’s

dismissal of the damages claims against defendants Bechtel, Williamson, Smith,

and Todis. The district court, apparently not informed that Mr. Esquibel had been

convicted the day before he filed his amended complaint, abstained from

exercising jurisdiction over these claims under Younger v. Harris, 

(1971). Although it would have been proper for the district court to stay this case

so that a judgment could not have any preclusive effect on the pending criminal

prosecution, dismissal of the damages claims on that ground was error. See

Wallace v. Kato, 

, 393–94 (2007); Quackenbush v. Allstate Ins. Co.,

, 719 (1996); D.L. v. Unified Sch. Dist. No. 497, 

,

1228 (10th Cir. 2004). Nevertheless, we can affirm the dismissal on other

grounds.

      The claim against Bechtel is barred by his immunity from suit. “State

prosecutors are entitled to absolute immunity against suits brought pursuant to

§ 1983 for activities intimately associated with the judicial process.” Gagan v.

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Norton, 

, 1475 (10th Cir. 1994) (emphasis, ellipsis, and internal

quotation marks omitted). To determine whether a prosecutor is entitled to

absolute immunity, “the determinative factor is advocacy because that is the

prosecutor’s main function.” 

marks omitted). Absolute

prosecutorial immunity applies to both claims that a prosecutor willfully used

perjurious testimony and claims that a prosecutor willfully suppressed evidence.

See Imbler v. Pachtman, 

, 431 n.34 (1976); Robinson v.

Volkswagenwerk AG, 

, 1372 n.4 (10th Cir. 1991) (it is a

“well-settled rule that a prosecutor cannot be held personally liable for the

knowing suppression of exculpatory information” (internal quotation marks

omitted)).

      Also, public defenders ordinarily cannot be held personally liable under

§ 1983 when “performing a lawyer’s traditional functions as counsel to a

defendant in a criminal proceeding” because they do not “act under color of state

law.” Polk Cnty. v. Dodson, 

, 325 (1981). Although a public

defender may act “‘under color of state law’ when engaged in a conspiracy with

state officials to deprive his client of constitutional rights,” Hunt v. Bennett, 

, 1268 (10th Cir. 1994), a mere conclusory allegation of conspiracy will

not suffice. See Ashcroft v. Iqbal, 

, 1949–50 (2009); Bell Atl.

Corp. v. Twombly, 

, 556–57 (2007); 

. Here,




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the amended complaint contains “no facts establishing an agreement or meeting of

the minds” between Bechtel and Williamson. 

.

      Turning to Mr. Esquibel’s claims against Smith and Todis, we hold that

they are barred by Heck v. Humphrey, 

(1994). That decision

disallows § 1983 claims that, if successful, would necessarily imply the invalidity

of a previous conviction, unless the conviction has been set aside. 

As

the Supreme Court stated:

      [I]n 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, 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.

There is no evidence that Mr. Esquibel’s convictions have been

reversed, expunged, declared invalid, or called into question. He appears to argue

that because two of the original five charges against him were dismissed, he has

received a favorable determination sufficient to go forward on his § 1983 claims.

The question under Heck is not, however, whether some charges were dismissed,

but whether a judgment in his favor on his civil claims “would necessarily imply

the invalidity” of the convictions on the remaining charges. 

      The sole allegations against the two officers in the amended complaint are

that they detained and searched him in violation of the Fourth, Fifth, and


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Fourteenth Amendments. Although “a suit for damages attributable to an

allegedly unreasonable search may lie even if the challenged search produced

evidence that was introduced in a state criminal trial resulting in the § 1983

plaintiff’s still-outstanding conviction,” 

n.7, the suit is cognizable only

when the evidence would have been admissible despite the unlawful search or the

conviction would have been obtained without the evidence, see id.; Beck v. City of

Muskogee Police Dep’t, 

, 559 n.4 (10th Cir. 1999). Here, however,

Mr. Esquibel’s own brief on appeal states that his “conviction aris[es] from police

officer’s violations of Plaintiff’s Fourth, Fifth and Fourteenth Amendments on

grounds that officers lacked reasonable suspicion unsupported by probable cause

on which to detain and question Plaintiff,” Aplt. Br. at 6 ¶ 8, and that “[t]he

Constitutional violations were central to the state criminal conviction,” 

Based upon his own contention that Smith and Todis’s alleged misconduct

directly led to his conviction, his § 1983 claims against them are barred by Heck

unless his conviction is set aside.

      Finally, we note that Mr. Esquibel’s amended complaint includes a request

for injunctive relief, and that Heck serves to bar only actions “to recover damages

for allegedly unconstitutional conviction or imprisonment.” 

(emphasis added). We do not address the injunction request, however,

because it is not clear from the complaint what injunctive relief he is seeking and




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because his brief on appeal failed to contest the district court’s dismissal of any

claim for injunctive relief.

III. CONCLUSION

      We AFFIRM the dismissal of the amended complaint. We GRANT

Mr. Esquibel’s motion to proceed in forma pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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