Davison v. Smith

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 3, 2025
• Docket: 24-6256
• Status: Unpublished

Opinion

Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 3, 2025 _________________________________ Christopher M. Wolpert Clerk of Court ALONZO G. DAVISON,

Plaintiff - Appellant,

v. No. 24-6256 (D.C. No. 5:24-CV-00483-HE) CLIFFORD SMITH, District Court Judge, (W.D. Okla.) District Court of Tulsa County, individual and official capacity; SCOTT ROWLAND, Presiding Judge, Oklahoma Court of Criminal Appeals, individual and official capacity; ROBERT L. HUDSON, Vice Presiding Judge, Oklahoma Court of Criminal Appeals, individual and official capacity; GARY L. LUMPKIN, Judge, Judge, Oklahoma Court of Criminal Appeals, individual and official capacity; DAVID B. LEWIS, Judge, Oklahoma Court of Criminal Appeals, individual and official capacity; TIMOTHY TYMKOVICH, Chief Judge, United States Court of Appeals for the Tenth Circuit, individual and official capacity; JEROME A. HOLMES, Circuit Judge, United States Court of Appeals for the Tenth Circuit, individual and official capacity; JOEL M. CARSON, Circuit Judge, United States Court of Appeals for the Tenth Circuit, individual and official capacity; KEVIN STITT, Governor, State of Oklahoma, individual and official capacity; GENTNER DRUMMOND, Attorney General, State of Oklahoma, individual and official capacity; RYAN WALTERS, State Superintendent of Education, State of Oklahoma, individual and official capacity; STEVEN HARPE, Director, Oklahoma Department of Corrections, individual and official capacity; G.T. BYNUM, Mayor, Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 2

City of Tulsa, State of Oklahoma, individual and official capacity; STEVEN KUNZWEILER, District Attorney, Tulsa County, Oklahoma, individual and official capacity; EDDIE STREATER, Regional Director, Bureau of Indian Affairs, individual and official capacity; DEB HAALAND, Secretary of the Interior, United States of America, individual and official Capacity; DAVID HILL, Principal Chief, Muskogee Nation, individual and capacity; CHARLES HASKINS, Principal Chief, Cherokee Nation, individual and official capacity; BILL ANOATUBBY, Governor, Chickasaw Nation, individual and official capacity; GARY BATTON, Chief, Chickasaw Nation, individual and official capacity; GREG P. CHILCOAT, Principal Chief, Seminole Nation, individual and official capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

Plaintiff Alonzo G. Davison, an Oklahoma inmate proceeding pro se, appeals

the district court’s sua sponte dismissal of his complaint filed under 42 U.S.C.

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

* 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. 2 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 3

BACKGROUND

Plaintiff is serving a 45-year prison sentence based on 2002 convictions in

Tulsa County District Court of lewd molestation of a child and sexually abusing a

minor. After the Supreme Court’s decision in McGirt v. Oklahoma, 591 U.S. 894

(2020), Plaintiff engaged in genealogical research and discovered that he “is an

Indian as defined by the Major Crimes Act.” 1 R. at 30-31. Based on that discovery,

in October 2020 he filed an application for postconviction relief in state court arguing

that because he is an Indian and his crimes occurred on the Muscogee (Creek) Nation

reservation, “the State of Oklahoma lacked subject-matter jurisdiction to prosecute

him, which lied squarely on the federal government.” R. at 26. The Oklahoma Court

of Criminal Appeals (OCCA) affirmed the district court’s denial of that application in

October 2021.

Plaintiff then requested authorization from this court to file a second or

successive application for relief under 28 U.S.C. § 2254. 2 His proposed application

included four claims, including one that we construed as a McGirt challenge. 3 In an

order dated May 6, 2022, we denied Plaintiff’s motion and explained that his McGirt

argument was unavailing for two reasons—first, because McGirt did not announce a

1 The Major Crimes Act vests exclusive jurisdiction in federal courts over certain enumerated crimes committed by Indians in Indian country. See 18 U.S.C. § 1153(a); Murphy v. Royal, 875 F.3d 896, 915 (10th Cir. 2017). 2 Plaintiff’s first § 2254 application was dismissed in 2016 as untimely, and this court denied a certificate of appealability. See Davison v. McCollum, 696 F. App’x 859, 862 (10th Cir. 2017). 3 The other three claims, which asserted ineffective assistance of counsel, are not pursued in this action. 3 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 4

new rule of constitutional law, and second, because the factual predicate for

Plaintiff’s claim (his Indian heritage) could have been discovered previously through

the exercise of due diligence.

Plaintiff filed this action on May 13, 2024, seeking relief against various state,

federal, and Indian officials under § 1983 and Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The 21 named defendants

consist of (1) the judges who ruled on Plaintiff’s state and federal postconviction

motions; (2) several state elected officials, including the district attorney in his

criminal case; (3) the director of the Oklahoma Department of Corrections; (4) the

Secretary of the Interior and Regional Director of the Bureau of Indian Affairs; and

(5) various tribal leaders in Oklahoma.

Plaintiff accuses each of the defendants of acting under color of state, federal,

tribal, or international law to implement a policy, practice, and/or custom of

“purposeful miscategorization of [him] and other African-Descendant Native

Americans.” R. at 25. As we understand his claims, defendants are alleged to have

wrongfully identified Plaintiff and other “African-Descendant Native Americans” as

“slave-Indian, Freeman, mulatto, negro, colored, Black, African-American, and more

recently, persons of color.” Id. In so doing, defendants deprived Plaintiff of the

“privileges associated with the status of Indigenous people.” Id. One such privilege

is the right to be prosecuted in federal court. In that regard, Plaintiff accuses the

defendants of allowing “the State of Oklahoma to perform duties of federal or tribal

authorities, by arresting, trying, and convicting Plaintiff . . . when they [Oklahoma]

4 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 5

lacked authority to convict or punish [him].” Id. (first bracketed insertion in

original). Plaintiff’s alleged injury “is the fact that [he] was not given an opportunity

to challenge the denial of his [state] application for Post Conviction Relief which

raised a Federal jurisdiction claim under the Major Crimes Act.” Id. at 33.

In accordance with its screening obligations under 28 U.S.C. §§ 1915(e)(2)(B)

& 1915A, the district court dismissed the complaint sua sponte, citing two bases for

its decision. First, it determined that all claims were barred by Heck v. Humphrey,

512 U.S. 477 (1994), because Plaintiff’s allegation “that the state courts did not have

subject matter jurisdiction to prosecute him . . . directly challenges the validity of

[his] conviction and sentence.” R. at 75. Second, the court held that the claims

against the defendant judges and state prosecutor were barred by absolute immunity.

DISCUSSION

We review de novo a district court’s dismissal of a complaint for failure to

state a claim under § 1915(e)(2)(B)(ii). See Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007). Dismissal is proper when 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.” Id. (internal quotation marks omitted). Employing the same standard of

review applicable to dismissals under Federal Rule of Civil Procedure 12(b)(6), “we

accept the well-pleaded allegations of the complaint and construe them in the light

most favorable to the plaintiff.” Ind. Pub. Ret. Sys. v. Pluralsight, Inc., 45 F.4th

1236, 1247 (10th Cir. 2022) (internal quotation marks omitted). Because Plaintiff is

5 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 6

a pro se litigant, “we construe his pleadings liberally, but we do not act as his

advocate.” Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008).

A. Applicability of Heck v. Humphrey

Plaintiff first challenges the district court’s reliance on Heck. He argues that

he is not disputing the validity of his conviction or attempting to reduce his sentence

but is merely raising a “procedural challenge[]” related to the improper handling of

his state postconviction motion. Aplt. Br. at 4. As best we can interpret his

argument, the alleged underlying errors were several due-process violations by the

state trial court in adjudicating his 2020 application for postconviction relief. Then,

while his appeal to the OCCA was pending, that court issued a decision in another

case that “altered the rules of the Post-Conviction Procedure Act,” and it applied

“this New Procedural Rule to deny Plaintiff’s Post-Conviction Appeal,” in violation

of the Ex Post Facto Clause. Id. at 7 (internal quotation marks omitted).

Plaintiff also accuses this court of violating due process through errors in

rejecting his 2022 motion for authorization under 28 U.S.C. § 2244(b). He appears to

challenge our analysis of the merits of his claim and our determination that the

factual predicate for his claim could have been discovered earlier.

As for the nonjudicial defendants, Plaintiff argues that his claims do not attack

the validity of his confinement or sentence but relate to their practice of

“miscategorizing . . . African-Descendant Native-Americans,” Aplt. Br. at 9-10,

which he blames for delaying his discovery that he is an Indian under the Major

Crimes Act. Through this § 1983 action, Plaintiff seeks a judicial determination that

6 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 7

defendants’ policies are “a direct cause for, 1) the violation of the Ex Post Facto

Clause, and 2) deprivation of [his] Procedural Due Process Rights . . . as it pertains to

the adjudication of [his] Post Conviction Proceedings, for the purpose of the Major

Crimes Act.” Aplt. Br. at 11-12.

We agree with the district court that Plaintiff’s complaint falls squarely within

Heck’s prohibition. All his claims are based on the allegation that defendants’

policies deprived him of the “privileges associated with the status of Indigenous

people.” R. at 25. But the only such privilege specified with any clarity in his

complaint is the right of Indians to be prosecuted in federal court under the Major

Crimes Act. And Plaintiff’s claimed injury, as we noted earlier, was being denied the

opportunity to challenge the denial of his state postconviction motion, “which raised

a Federal jurisdiction claim under the Major Crimes Act.” Id. at 33.

It is well established “that a prisoner in state custody cannot use a § 1983

action to challenge the fact or duration of his confinement.” Wilkinson v. Dotson,

544 U.S. 74, 78 (2005) (internal quotation marks omitted). Included within this

prohibition are actions that challenge the duration of confinement, whether directly or

“indirectly through a judicial determination that necessarily implies the unlawfulness

of the State’s custody.” Id. at 81. The complaint in this action explicitly challenges

the lawfulness of the state’s custody on jurisdictional grounds and also seeks an

adjustment to Plaintiff’s sentence to comport with federal guidelines. Though styled

as a civil action, the complaint plainly seeks relief that is exclusively available via

7 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 8

habeas corpus and is therefore barred by Heck. It was properly dismissed without

prejudice under § 1915(e)(2)(B)(ii).

Moreover, to the extent Plaintiff seeks to challenge this court’s denial of his

motion for authorization under § 2244(b)(2), his claims constitute an improper end

run around the statutory bar of § 2244(b)(3)(E) and would be subject to dismissal on

that ground. See § 2244(b)(3)(E) (“The grant or denial of an authorization by a court

of appeals to file a second or successive application shall not be appealable and shall

not be the subject of a petition for rehearing or for a writ of certiorari.”).

B. Immunity

The district court dismissed Plaintiff’s claims against the defendant judges and

state prosecutor with prejudice based on absolute immunity. Subject to certain

narrow exceptions, judges have absolute immunity for acts taken in their judicial

capacity. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Likewise, “[a] prosecutor is

absolutely immune for activities which are intimately associated with the judicial

process such as initiating and pursuing a criminal prosecution.” Snell v. Tunnell,

920 F.2d 673, 686 (10th Cir. 1990) (internal quotation marks omitted).

Plaintiff does not make any specific argument challenging the applicability of

prosecutorial immunity. Nor does he argue that his claims against the judges fall

within any exception to judicial immunity. Rather, he argues that such immunity

does not apply here because he asserted only official-capacity claims and does not

seek monetary damages but is seeking only prospective relief. Plaintiff, however,

has not alleged any anticipated injury justifying prospective relief and therefore lacks

8 Appellate Case: 24-6256 Document: 10-1 Date Filed: 10/03/2025 Page: 9

standing under § 1983. See K.A. v. Barnes, 134 F.4th 1067, 1075-76 (10th Cir. 2025)

(plaintiff whose parental rights had been terminated lacked standing to seek

prospective declaratory relief regarding policies affecting parental rights). Now that

Plaintiff has been able to identify himself as an Indian, the alleged policies, practices,

and customs of the defendants can have no future consequences to him, and he

cannot seek relief on behalf of others.

Finally, we take note of Plaintiff’s apparent confusion stemming from the

district court’s failure to specifically identify the defendants being dismissed by its

order. But the district court’s order was clear. It dismissed all claims against the

judges and district attorney with prejudice based on absolute immunity. All claims

against the remaining defendants were dismissed without prejudice as barred by

Heck.

CONCLUSION

We affirm the judgment below. We grant Plaintiff’s motion to proceed

without prepayment of costs or fees and remind him of his continuing obligation to

make partial payments on this appeal until the filing fee is paid in full.

Entered for the Court

Harris L Hartz Circuit Judge