“what does remain an open question, even in this Circuit, is ... whether Heck bars 1983 suits when the plaintiff has intentionally defaulted his habeas claims”
How later courts described this case
- “what does remain an open question, even in this Circuit, is ... whether Heck bars 1983 suits when the plaintiff has intentionally defaulted his habeas claims”
- Heck bar does not apply to a §1983 claim regarding conditions of confinement where the prisoner could not have challenged them through a habeas petition
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ALEXANDER KATES,
DECISION AND ORDER
Plaintiff,
23-CV-6426DGL
v.
STATE OF NEW YORK,
Defendant.
________________________________________________
Pro se plaintiff Alexander Kates (“plaintiff”) brings this action under 42 U.S.C. §1983
(“Section 1983”), challenging his 2011 conviction in Monroe County Court for attempted criminal
possession of a weapon in the second degree, following plaintiff’s entry of a guilty plea. Plaintiff
requests, inter alia, that his conviction be declared unconstitutional and invalid.1 On October 11,
2023, the Court issued an Order to Show Cause why the complaint, which was filed approximately
12 years after the conviction at issue, should not be dismissed as time-barred. (Dkt. #3).
Plaintiff has timely and articulately responded to the Order to Show Cause (Dkt. #9, #10,
#11). Nonetheless, for the reasons that follow, the Court finds that plaintiff has failed to
1 Plaintiff has previously attempted, three times, to challenge the same conviction. In 2019, plaintiff filed an action
challenging a subsequent and unrelated conviction under 42 U.S.C. §1983: when he moved, as part of that action, to
also vacate the 2011 conviction, the Court denied that motion, because the 2011 conviction was unrelated to the
substantive claims in that case, and “actions under section 1983 . . . are not proper vehicles to overturn a state-court
criminal conviction.” Kates v. Waye, 16-CV-6554, Dkt. #38 at 2. In 2020 (20-CV-6593), plaintiff sought a writ of
habeas corpus relative to the 2011 conviction: that petition was dismissed for lack of jurisdiction because he was no
longer in custody at the time the action was filed. See Kates v. New York State, 2021 U.S. Dist. LEXIS 83434
(W.D.N.Y. 2021). In a third habeas corpus action, filed in 2021 to challenge a separate conviction, plaintiff again
alleged that the 2011 conviction has been unconstitutional, which the Court again rejected, based on the fact that he
was no longer in custody. Kates v. Superintendent of the Attica Corr. Facility, 2023 U.S. Dist. LEXIS 149347 at *49
(W.D.N.Y. 2023).
demonstrate good cause why the matter should not be dismissed as time-barred, and accordingly,
determines that it must be dismissed.
DISCUSSION
Initially, plaintiff argues that the statute of limitations should be tolled because, inter alia:
(1) the three-year statute of limitations did not allow him sufficient time to exhaust his state
remedies, file a petition for habeas corpus relief, and receive a disposition of that petition, before
proceeding to a Section 1983 action; and (2) the statute of limitations on his Section 1983 claims
premised on a wrongful conviction cannot being to run until his sentence on that conviction is
invalidated, and since the conviction has never been invalidated, his instant claims are, if anything,
premature rather than late; and (3) the statute of limitations should be tolled, because plaintiff was
induced by fraud, misrepresentation, and/or ineffective assistance on the part of the state court
judge, Monroe County District attorney, and other state actors, from filing a timely action.
In evaluating a complaint, the Court must accept all factual allegations as true and draw all
inferences in plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). Here,
plaintiff alleges a number of constitutional infractions relative to his 2011 conviction, including
that: (1) the prosecution presented false information to the grand jury with respect to plaintiff’s
felony status or lack thereof; (2) plaintiff’s guilty plea was not knowing and voluntary, and/or was
made on the basis of poor legal advice from his counsel; (3) plaintiff’s counsel failed to properly
challenge the application of certain state laws to plaintiff’s charges; (4) plaintiff did not learn until
August 2018 that his attorney had failed to file a notice of appeal as plaintiff had asked; and
(5) plaintiff did not become aware of sufficient facts to permit him to recognize that his counsel
and the trial court had provided poor legal advice and/or misapplied relevant legal standards, until
November 2018. (Dkt. #9, #11).
Furthermore, federal courts are bound to borrow New York State’s rules for tolling the
statute of limitations, where they are not inconsistent with federal law. See Board of Regents of
Univ. of State of New York v. Tomaino, 446 U.S. 478, 487-91 (1980). In New York, tolling is
permitted where: (1) the commencement of an action was stayed by court order or statute; (2) a
dispute that was submitted to arbitration is later found to be nonarbitrable; (3) the defendant is
outside the state of New York at and after the time the claim accrues; and/or (4) the plaintiff is
disabled by infancy or insanity at and after the time the claim accrues. See N.Y. CPLR §§204, 207,
208.
The statute of limitations for Section 1983 claims is three years. See Jewell v. County of
Nassau, 917 F.2d 738, 740 (2d Cir. 1990); N.Y. CPLR §214(2). Plaintiff’s complaint, which was
filed in state court (and thereafter removed) on or about July 1, 2023 – twelve years after the 2011
conviction it seeks to challenge – is manifestly untimely, and plaintiff has not set forth any proper
reason for tolling. Statutes of limitation have a purpose: there must be an end to litigation at some
point.
Plaintiff has not plausibly alleged any basis for tolling the statute of limitations under New
York law. Even assuming arguendo that the Court were to determine that plaintiff was, as he
claims, prevented by means of fraud or deception from learning of the existence of his instant
claim until November 2018, such that the statute of limitations should be equitably tolled until that
time, his claims would still be time-barred, as the complaint was not filed until July 2023, nearly
five years after plaintiff avers that he learned of the factual basis for his claims.2
2 As the Court previously noted, it is unclear in these circumstances whether plaintiff’s Section 1983 claim would also
be barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that a claim for
money damages is not cognizable under Section 1983 if a decision in favor of the plaintiff would necessarily invalidate
a criminal conviction, unless that “conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal . . . ., or called into question by a federal court's issuance of a writ of habeas
corpus.” 512 U.S. at 486-87 (citation omitted).
I have considered the remainder of plaintiff's arguments, including his claim that the
pendency of myriad other legal challenges prevented him from pursuing his instant claims in a
timely manner, and find them to be without merit.
CONCLUSION
For the foregoing reasons, I find that plaintiff's claims are time-barred, and that plaintiff
has failed to show cause why his untimely claims should not be dismissed. The complaint is hereby
dismissed, in its entirety, with prejudice. The Clerk of Court is directed to close the case.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 27, 2024.
Recent cases in this Circuit appear to carve out an exception to Heck, and hold that an individual who seeks to
challenge an allegedly unconstitutional conviction or incarceration, but is no longer “in custody” for purposes of 28
U.S.C. §2554 and therefore has no access to federal habeas relief, might instead pursue a Section 1983 claim. See
generally Wiggins v. Mellia, 2023 U.S. App. LEXIS 25389 at *4 (2d Cir. 2023)(“[t]here is...a narrow exception to
the Heck bar that permits a §1983 suit where federal habeas relief is unavailable); Jenkins v. Haubert, 179 F.3d 19, 21
(2d Cir. 1999)(Heck bar does not apply to a §1983 claim regarding conditions of confinement where the prisoner could
not have challenged them through a habeas petition). At the same time, it remains an open question whether an
individual who intentionally defaults upon federal habeas corpus claims by failing to pursue them until after he is no
longer “in custody,” may lay claim to that exception. See Opperisano v. Jones, 286 F. Supp. 3d 450, 459-60 (E.D.N.Y.
2018)(“what does remain an open question, even in this Circuit, is ... whether Heck bars 1983 suits when the plaintiff
has intentionally defaulted his habeas claims”)(quoting Teichmann v. New York, 769 F.3d 821, 830 (2d Cir.
2014)(Calabresi, J., concurring)).
Because I find that plaintiffs claims are subject to dismissal on timeliness grounds in any event, the Court does
not reach the question of whether and to what extent the Heck bar applies here. See Teichmann, 769 F.3d 821 at 829
(Calabresi, J. concurring)(when Heck questions can be disposed of based on well-settled principles upon which there
is broad agreement ... it is generally desirable for...district courts to decide them on these non-Heck grounds”).