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

                             FOR THE TENTH CIRCUIT                           May 14, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 FARAMARZ MEHDIPOUR,

       Plaintiff - Appellant,

 v.                                                         No. 18-6161
                                                   (D.C. No. 5:18-CV-00268-SLP)
 LISA DENWALT-HAMMOND; C.                                  (W.D. Okla.)
 WESLEY LANE, II; DAVID PRATER,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
                  _________________________________

      Mr. Faramarz Mehdipour, an Oklahoma state prisoner proceeding pro se,

appeals the district court’s judgment dismissing without prejudice a civil rights action

he filed under 42 U.S.C. § 1983, and the court’s denial of his Fed. R. Civ. P. 60(b)

motion. We lack jurisdiction to review the underlying judgment because

Mr. Mehdipour’s notice of appeal was untimely. We have jurisdiction under




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
28 U.S.C. § 1291 to review the denial of his Rule 60(b) motion, and we affirm that

denial.

I.     Background

       In 1993, Mr. Mehdipour was convicted in Oklahoma state court of intimidating

a witness. That conviction was overturned on direct appeal. In 1996, he was

convicted of attempting to intimidate a witness after conviction of two or more

felonies and sentenced to sixty years’ imprisonment. That conviction and sentenced

were affirmed. See Mehdipour v. State, 

(Okla. Crim. App. 1998).

Mr. Mehdipour has been unsuccessful in his attempts to overturn his conviction in

state post-conviction and federal habeas corpus proceedings. See Mehdipour v. Okla.

Ct. of Civil Appeals, 62 F. App’x 203, 209–10 (10th Cir. 2003) (recounting litigation

history and denying certificate of appealability from denial of second habeas

petition).

       In 2018, Mr. Mehdipour filed a pro se § 1983 complaint against the

defendants. Two of them, Ms. Lisa Denwalt-Hammond and Mr. C. Wesley Lane, II,

were Oklahoma County assistant district attorneys involved in the prosecutions

referred to above, and the third, Mr. David Prater, was the Oklahoma County district

attorney at the time of those prosecutions. Mr. Mehdipour alleged that in the

criminal proceedings against him, defendants violated his constitutional rights by

maliciously prosecuting him, falsifying court documents, tampering with court

records, treating him differently than other similarly situated defendants, and failing

to correct those violations. He also alleged constitutional violations based on the

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lack of preliminary hearings at either trial, which allegedly deprived the state court of

jurisdiction. He sought damages and declaratory relief.

      A magistrate judge screened Mr. Mehdipour’s complaint pursuant to 28 U.S.C.

§ 1915A(a) and (b) and provided the district court with a report and recommendation

(R&R). The magistrate judge recommended dismissing the claims against Mr. Lane

with prejudice on the basis of absolute prosecutorial immunity, and dismissing the

claims against the other two defendants, and any claims generally challenging the

1996 conviction, as barred by Heck v. Humphrey, 

(1994). In Heck, the

Supreme Court held that a § 1983 suit for damages caused by an allegedly

unconstitutional conviction or imprisonment or by other unlawful actions is not

cognizable if “a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence,” unless the plaintiff proves the conviction or

sentence has been invalidated. 

      Mr. Mehdipour timely objected to the R&R arguing that Mr. Lane was not

entitled to absolute prosecutorial immunity. He did not address the application of

Heck other than a conclusory assertion that he was “not attempting to overcome his

conviction in this action” but would instead be challenging his conviction “in a

separate action soon to be filed in [the federal district court].” R. at 53. The district

court declined to dismiss the claims against Mr. Lane based on prosecutorial

immunity but concluded that Heck barred all claims against all three defendants. The


      1
         In Wilkinson v. Dotson, 

, 82 (2005), the Supreme Court made
clear that Heck applies “no matter the relief sought (damages or equitable relief).”
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district court noted that in Mehdipour v. Chapel, 12 F. App’x 810, 813–14 (10th Cir.

2001), this court had determined that Heck barred virtually identical § 1983 claims

Mr. Mehdipour raised in that case. The district court also reasoned that

Mr. Mehdipour’s assertion that he intended to challenge his conviction and sentence

in a separate action underscored imposing the Heck bar to his § 1983 claims.

Consequently, the district court dismissed the action without prejudice on June 21,

2018 and entered a separate judgment the same day.

      On August 7, 2018,2 Mr. Mehdipour filed a Rule 60 motion in which he argued

that Heck did not apply to his case because he was only challenging the process used

to convict him, not the result. The district court construed the motion as seeking

relief under Rule 60(b)(1) and (b)(6) and denied it. The court first determined that

Mr. Mehdipour’s attempt to distinguish Heck came too late given his failure to object

to the magistrate judge’s recommendation that dismissal under Heck was warranted.

In the alternative, the district court concluded that the attempt to distinguish Heck

lacked merit because, as noted in its dismissal order, this court had “found virtually

identical § 1983 claims previously raised by [Mr. Mehdipour] against one or more of

the Defendants to be barred by Heck.” R. at 76 (citing Mehdipour, 12 F. App’x

at 813). Finally, the district court denied the Rule 60(b) motion to the extent



      2
         Although Mr. Mehdipour’s Rule 60(b) motion was not actually filed until
August 9, 2018, he placed it in the prison’s system for processing legal mail, postage
prepaid, on August 7, 2018. Under the prison mailbox rule, the motion is deemed
filed on August 7. However, the two-day differential is ultimately immaterial to the
disposition of this appeal.
                                            4
Mr. Mehdipour otherwise attempted to advance new claims or make other arguments

not raised in his objection to the R&R.

II.   Appellate Jurisdiction

      “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional

requirement.” Bowles v. Russell, 

, 214 (2007). And a notice of appeal

in a civil case must be filed “within thirty days after the entry of [the] judgment,

order or decree” being appealed. 28 U.S.C. § 2107(a). Mr. Mehdipour filed a notice

of appeal on September 14, 2018, naming both the district court’s underlying

judgment and the denial of his Rule 60(b) motion. That was more than thirty days

after the district court’s June 21, 2018 judgment. Although a Rule 60 motion can toll

the running of the 30-day appeal period until the district court disposes of the motion,

it does so only if “filed no later than 28 days after the judgment is entered.”

Fed. R. App. P. 4(a)(4)(A)(vi). Mr. Mehdipour did not file his Rule 60(b) motion

until August 7, 2018, which was 47 days after entry of the June 21 judgment.

Therefore, it did not toll the time to appeal the underlying judgment, and we lack

jurisdiction to review that judgment.

      Mr. Mehdipour’s notice of appeal was filed 29 days after the entry of the order

denying his Rule 60(b) motion on August 16, 2018, so it was timely under § 2107(a).

We therefore have jurisdiction to review that order, but “not the underlying decision

itself.” Servants of the Paraclete v. Does, 

, 1009 (10th Cir. 2000).




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III.   Merits

       We review the denial of a Rule 60(b) motion for abuse of discretion. 

Mr. Mehdipour’s pro se filings a liberal construction, but we do not act as his

advocate. Yang v. Archuleta, 

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

       We need not decide whether the district court abused its discretion in denying

Mr. Mehdipour’s Rule 60(b) motion on the ground that he advanced arguments he

had not raised in his objections to the magistrate judge’s R&R. Instead, we agree

with the district court that Mr. Mehdipour failed to distinguish Heck. On appeal,

Mr. Mehdipour emphasizes that his claims are about “the process (due process), not

the result.” Aplt. Opening Br. at 2. And he insists that he did not seek to invalidate

his conviction but instead sought damages based on defendants’ deprivation of his

constitutional rights to adequate process.3 This line of argument overlooks that Heck

bars even those § 1983 claims that “necessarily imply the invalidity of [a]

conviction.” 

(emphasis added). Actual invalidation is not

required. Success on the merits of Mr. Mehdipour’s § 1983 claims that the

defendants maliciously prosecuted him, falsified court documents, tampered with

court records, treated him differently than other similarly situated defendants, failed

to correct those violations, and deprived him of a preliminary hearing, which resulted

in the state trial court proceeding without jurisdiction, would necessarily imply the



       3
        Mr. Mehdipour also argues that the district court erred in concluding that all
three defendants were entitled to absolute prosecutorial immunity, but the court did
no such thing. We therefore do not address this argument.
                                           6
invalidity of his conviction. We therefore conclude that the district court did not

abuse its discretion in denying Mr. Mehdipour’s Rule 60(b) motion.

                                   CONCLUSION

      We affirm the district court’s denial of Mr. Mehdipour’s Rule 60(b) motion

and otherwise dismiss this appeal for lack of jurisdiction. We deny Mr. Mehdipour’s

motion for a default judgment.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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