en banc rehearing granted Feb. 14, 2024
How later courts described this case
- en banc rehearing granted Feb. 14, 2024
- pending rehearing en banc. 92 F.4th 1150
Written by the judges who cited it.
The opinion
Case: 22-50998 Document: 00517002174 Page: 1 Date Filed: 12/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
December 14, 2023
No. 22-50998
____________ Lyle W. Cayce
Clerk
Erma Wilson,
Plaintiff—Appellant,
versus
Midland County, Texas; Weldon (Ralph) Petty, Jr., sued
in his individual capacity; Albert Schorre, Jr., sued in his individual
capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CV-85
______________________________
Before King, Willett, and Douglas, Circuit Judges.
Don R. Willett, Circuit Judge:
Since she was nine years old, Erma Wilson has dreamed of becoming
a registered nurse. That dream ended 22 years ago when a Midland County
jury convicted her of cocaine possession. Wilson doggedly maintained her
innocence (and does to this day)—insisting that the cocaine found on the
ground was not hers—and she rejected multiple plea deals, a rare choice in
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No. 22-50998
today’s plea-bargain age.1 Erma Wilson placed her faith in the justice system,
trusting she would get due process and a fair trial.
Wilson’s faith was misplaced.
In Wilson’s trial—and in hundreds of others in Midland County
spanning decades—bedrock judicial norms were dishonored. Unbeknownst
to Wilson, a Midland County assistant district attorney, Ralph Petty, had
been moonlighting, acting as both accuser and adjudicator. For nearly 20
years, the multitasking Petty had worn two hats: (1) by day, a prosecutor in
the public courtrooms of Midland County judges; and (2) by night, a law clerk
in the private chambers of Midland County judges. Disturbingly, Petty was
working both sides of the bench, seeking favorable rulings while also writing
them.
As a first-time offender, Wilson was sentenced to eight years of
community supervision. But the felony conviction derailed her lifelong
dream of becoming a nurse. Fast forward 20 years: Petty’s dodgy side hustle
belatedly came to light, and Wilson filed this federal civil rights suit over her
decades-old conviction, claiming that Petty’s dual role denied her due
process. Wilson does not allege that Petty was a frontline prosecutor in her
case. But she does allege that he advised fellow prosecutors regarding her
_____________________
1
In America’s criminal justice system, few cases actually go to trial. The system
does not just include plea bargaining; the system is plea bargaining. In Texas, 94% of state
convictions result from a guilty or no contest plea. Annual Statistical Report
for the Texas Judiciary: FY 2022, at 80 (2023). In federal courts, the rate is even
higher: in fiscal year 2021, 98.3% of offenders pleaded guilty, an all-time high. Glenn R.
Schmitt & Lindsey Jeralds, U.S. Sentencing Comm’n, Overview of
Federal Criminal Cases: Fiscal Year 2021, at 8 (2022).
2
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case while also advising the judge presiding over it and surreptitiously
drafting important rulings adverse to Wilson.2
Lady Justice wears a blindfold because justice is supposed to be meted
out evenhandedly. She holds scales because evidence is supposed to be
weighed impartially. These ancient symbols of fairness and clear-
sightedness—the very moral force underlying a just legal system—are
mocked if one side can rig the game by calling its own balls and strikes. Petty’s
conflict of interest was undeniable, and it flattened Wilson’s constitutional
guarantee of a fair trial.
More broadly, this disturbing case also underscores that the American
legal system regularly leaves constitutional wrongs unrighted. Many worthy
§ 1983 claims go unfiled, and those that are filed must navigate a thicket of
immunity doctrines that shield government wrongdoing, thus turning valid
claims into vanquished ones.3 And here, there is a threshold hurdle that
_____________________
2
Petty used unique formatting and styling for the documents he drafted for
Midland County district judges. This tell-tale formatting and styling appear on the Abstract
of Disposition and Judgment in Wilson’s case. Wilson asserts that county records will also
show that Petty invoiced Judge Hyde, the judge in Wilson’s case, for work performed on
her case.
Some of Wilson’s other allegations as to Petty’s role are made “on information and
belief.” “The Twombly plausibility standard which applies to all civil actions, . . . does not
prevent a plaintiff from ‘pleading facts alleged on information and belief’ where the facts
are peculiarly within the possession and control of the defendant . . . or where the belief is
based on factual information that makes the inference of culpability plausible . . . .” Innova
Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th
Cir. 2018) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)).
Evidence as to the particulars of what Petty worked on as an assistant district attorney and
as a law clerk are in the possession of Defendants, and the other facts Wilson has alleged
certainly make the inference of culpability plausible.
3
Prosecutors, for example, enjoy absolute immunity for actions taken in their
prosecutorial role. Imbler v. Pachtman, 424 U.S. 409, 428 (1976) (“[I]t has been thought in
the end better to leave unredressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of retaliation.” (quoting Gregoire v.
3
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Wilson must overcome before she even reaches the formidable immunity
gauntlet: the “favorable termination” rule from Heck v. Humphrey4 (plus our
own post-Heck precedent). Under the Supreme Court’s Heck decision, a
convicted party cannot seek § 1983 damages for unconstitutional conviction
or imprisonment without first showing that the conviction or sentence has
been reversed on appeal or otherwise declared invalid, such as by federal
habeas relief.5 The wrinkle here is that Petty’s conflicted dual-hat
arrangement came to light only after Wilson had served her whole sentence,
making federal habeas a non-option.6
Heck aims to avoid a collision between § 1983 and federal habeas, but
Wilson (and the amici supporting her) argue that Heck is inapplicable where
federal habeas is unavailable. Other circuits have agreed, holding that
favorable termination should only be required when a § 1983 plaintiff is
eligible for federal habeas relief. This is a solid argument—but a foreclosed
one in this circuit. Under our precedent’s expansive reading of Heck,
noncustodial plaintiffs must meet the favorable-termination requirement,
_____________________
Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). Local and county governments enjoy immunity
unless unconstitutional actions were taken pursuant to an official policy or custom. Pineda
v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002); Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). Other government officials enjoy the judge-created doctrine of qualified
immunity, which lets wrongdoers duck consequences for rights-robbing violations—no
matter how deliberate, brazen, and knowingly corrupt—unless plaintiffs can point to a
functionally identical case that previously declared the same misconduct unlawful. Zadeh
v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J., concurring) (“To some
observers, qualified immunity smacks of unqualified impunity . . . .”); Anderson v.
Creighton, 483 U.S. 635, 639–40 (1987). Upshot: Many Americans’ rights are violated but
not vindicated.
4
512 U.S. 477, 486–87 (1994).
5
Id.
6
28 U.S.C. § 2254 only allows persons “in custody” to file an application for a writ
of habeas corpus.
4
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No. 22-50998
too—even if it’s practically impossible for them to do so. Put simply, our rule
of orderliness bars relief for the disorderliness that Wilson suffered.
This result is unseemly. Absent § 1983, noncustodial individuals on
the receiving end of violative conduct, however egregious, will have no
federal forum to vindicate their federal constitutional rights. But as a three-
judge panel bound by controlling circuit precedent, our hands are tied. Only
the en banc court, or the United States Supreme Court, can deliver a different
result that better aligns with Congress’ broad textual command in § 1983.7
Until then, this panel must AFFIRM.
I
The facts are easy to lay out—though hard to take in.
A
In 2001, a jury in Midland County, Texas, convicted Erma Wilson of
cocaine possession. Police officers said they found crack cocaine on the
ground near where Wilson had been standing with friends. She told the
officers it wasn’t hers. The officers then said they would release her if she
told them who it belonged to. She said she didn’t know. They arrested her
for possession. Wilson rejected multiple plea deals, went to trial, was
convicted, and received an eight-year suspended sentence. Wilson appealed,
arguing that the trial court erred in denying her motion to suppress and that
the evidence was legally and factually insufficient to support her conviction.
The court of appeals affirmed across the board, and Wilson appealed no
further, nor did she seek state or federal habeas relief.
_____________________
7
Or, and hear me out, Congress can always legislate, reclaiming its lawmaking
prerogative against court-invented, counter-textual limitations on the broad statutory
remedy that Congress crafted.
5
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While Wilson’s case was tried and appealed, Weldon “Ralph” Petty
Jr. was working both as a Midland County prosecutor and as a law clerk for
the Midland County district judges. He was first hired as a law clerk in March
2000. The next year, in early 2001, Petty was hired as an assistant district
attorney by Albert Schorre, the district attorney at the time. But Petty didn’t
leave his law-clerk post. Rather, his employment contract with the District
Attorney’s Office specified that Petty “shall be permitted to continue the
performance of legal services for the District Judges of Midland County,
Texas and perform such work for the said District Judges as they shall desire
and be paid for the same as ordered by the District Judges.”
As an assistant district attorney, Petty worked on cases at all stages of
prosecution. The same was true of his work on the other side of the bench.
For instance, Petty was responsible for opposing habeas corpus petitions as
an assistant district attorney and for working on habeas corpus rulings as a
law clerk. Petty worked in these two conflicting roles from 2001–2014, and
again in 2017 and 2018. Over his career, Petty is alleged to have been both the
lead prosecutor and the law clerk on more than 300 cases. He retired in 2019.
In August 2019, the Midland County District Attorney, Laura Nodolf,
discovered that Petty had been dually employed by her office and the district
judges for nearly two decades. She sent letters to defendants found to be
affected, acknowledging the blatant conflict of interest, adding, “This is a
potential violation of the rules of ethics for attorneys.” The Supreme Court
of Texas certainly thought so. In April 2021, the Court concluded that Petty
had engaged in professional misconduct, and upon Petty’s motion for
acceptance of resignation in lieu of disciplinary action, it cancelled Petty’s
law license and barred him from the practice of law in Texas. The story
received national attention in 2021 when a death row prisoner named Clinton
6
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No. 22-50998
Lee Young successfully obtained habeas relief on the grounds that Petty had
worked directly on both sides of his case.8
Wilson did not receive a letter notifying her that she had been affected
by Petty’s conflict of interest. She says she learned of Petty’s role in her case
when news media began to cover Young’s habeas petition. This was more
than 20 years after she was convicted and long after she finished serving her
suspended sentence.
B
Wilson brought 42 U.S.C. § 1983 claims against Midland County,
Petty, and Schorre, alleging that Petty’s improper moonlighting deprived her
of due process. She also sought declaratory relief and compensatory and
punitive damages. Defendants moved to dismiss, arguing that Wilson’s
claims are barred because she failed to meet Heck’s favorable-termination
requirement for § 1983 plaintiffs.
The magistrate judge recommended dismissal under Heck. The
district court agreed, overruling Wilson’s objections, adopting the magistrate
judge’s report and recommendation, and entering final judgment dismissing
Wilson’s claims. This appeal followed.
II
We review Rule 12(b)(6) dismissals de novo, applying the same
standard as the district court.9 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
_____________________
8
It’s worth noting that Young, who was on death row when Petty’s dual role came
to light, has access to § 1983. But because Wilson was never in custody, § 1983 remains out
of reach for her. The former received a death sentence, the latter a suspended sentence.
But both convictions resulted from a tainted process offensive to the Constitution.
9
Hines v. Quillivan, 982 F.3d 266, 270–71 (5th Cir. 2020).
7
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No. 22-50998
relief that is plausible on its face.’”10 Midland County vehemently denies that
Petty worked on Wilson’s case at any stage—pretrial, trial, or appeal. But at
the preliminary, motion-to-dismiss stage, “this framework is one-sided,”
meaning we must accept as true all well-pleaded facts in Wilson’s complaint,
which allege a structurally defective system that violated her constitutional
right to a criminal proceeding free of actual or perceived bias.11
III
This case revisits what Heck termed “the intersection”12 of
42 U.S.C. § 1983 and 28 U.S.C. § 2254 (the federal habeas corpus statute),
“the two most fertile sources of federal-court prisoner litigation.”13 Both
statutes “provide access to a federal forum for claims of unconstitutional
treatment at the hands of state officials, but they differ in their scope and
operation.”14 Thirty years ago, in Heck, the Supreme Court addressed the
statutes’ interplay when a § 1983 plaintiff sues “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.”15
A
Heck famously—and unanimously—established the favorable-
termination rule: a state inmate’s § 1983 suit is “not cognizable” unless the
_____________________
10
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
11
Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 582 (5th Cir. 2020).
12
Heck, 512 U.S. at 480.
13
Id.
14
Id.
15
Id. at 486.
8
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inmate first shows a “favorable termination” to his criminal conviction or
confinement. The Court defined “favorable termination” to mean “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.”16 The Court disallowed Heck’s § 1983 claim alleging that
police knowingly destroyed evidence because a successful civil action would
functionally and necessarily impugn the legality of his murder conviction.17
The bottom-line result in Heck was 9–0, but the Court splintered 5–4
over the rule’s reach and rigidity. And over the decades, a deep circuit split
has emerged over footnote 1018—specifically, over dicta in footnote 10.19 The
question is simply stated: does Heck’s favorable-termination rule apply only
to those currently in custody (like Roy Heck) or also to those not in custody
(like Erma Wilson)? The dicta in footnote 10 suggests the latter.20
_____________________
16
Id. at 486–87.
17
Id. at 479, 490.
18
Id. at 490 n.10. Justices Scalia, Rehnquist, Kennedy, Thomas, and Ginsburg
signed on to this point. Id. at 478.
19
Judge Easterbrook convincingly explains that footnote 10 is mere dicta:
Footnote 10 is the only part of the Court’s opinion in Heck to address the
appropriate treatment of plaintiffs whose custody has ended, and a clearer example of dicta
is hard to imagine. The footnote concerns a subject that had not been briefed by the parties,
that did not matter to the disposition of Heck’s claim, and that the majority thought would
not matter to anyone, ever. That belief has been embarrassed by the fact that many former
prisoners contend that their convictions were wrongful but are no longer in a position to
seek collateral review. Heck did not present for decision any question about the appropriate
treatment of this situation.
Savory v. Cannon, 947 F.3d 409, 432 (7th Cir. 2020) (Easterbrook, J., dissenting).
20
Heck, 512 U.S. 490 n.10 (“We think the principle barring collateral attacks—a
longstanding and deeply rooted feature of both the common law and our own
9
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Justice Souter’s concurrence21 takes the opposite view, urging that
favorable termination should not be required of noncustodial plaintiffs who
fall “outside the intersection of § 1983 and the habeas statute”—those who
“discover (through no fault of their own) a constitutional violation after full
expiration of their sentences.”22 As these individuals cannot invoke federal
habeas since they are not currently “in custody,” they should be able to sue
under § 1983, “the only statutory mechanism” available to them.23 The
alternative—the blanket denial of any federal forum to those whose federal
rights have been violated—“would be an untoward result.”24 The four
concurring Justices focused on jurisdictional collisions, fretting that requiring
favorable termination in all § 1983 cases, even for noncustodial plaintiffs well
outside the intersection of § 1983 and habeas, would thwart valid claims.
Four years later in Spencer v. Kemna, Justices again commented on
whether to hold noncustodial § 1983 plaintiffs to the favorable-termination
requirement.25 The Court did not answer the question directly. But Justice
Souter again penned a four-Justice concurrence offering a “better view”—
the same stance he had taken in Heck. He reiterated that the “general” § 1983
should be read in light of the “specific” § 2254, which by its terms applies
only to those “in custody.”26 He thought it “important to read the Court’s
_____________________
jurisprudence—is not rendered in applicable by the fortuity that a convicted criminal is no
longer incarcerated.”).
21
Justices Blackmun, Stevens, and O’Connor joined Justice Souter’s concurrence.
Id. at 491.
22
Id. at 500 (Souter, J., concurring).
23
Id. (emphasis added).
24
Id.
25
523 U.S. 1 (1998).
26
Id. at 20–21 (Souter, J., concurring).
10
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Heck opinion as subjecting only inmates seeking § 1983 damages for
unconstitutional conviction or confinement” to the favorable-termination
rule “lest the plain breadth of § 1983 be unjustifiably limited at the expense
of persons not ‘in custody.’”27 The “better view” of Heck, he again
explained, “is that a former prisoner, no longer ‘in custody,’ may bring a
§ 1983 action establishing the unconstitutionality of a conviction or
confinement without being bound to satisfy a favorable-termination
requirement that it would be impossible as a matter of law for him to
satisfy.”28 Justice Souter emphasized that barring § 1983 claims from
noncustodial plaintiffs would create a “patent anomaly.”29 Interestingly,
Justice Ginsburg, who had joined Justice Scalia’s majority in Heck, sided with
Justice Souter in Spencer, plus concurred separately to disavow her earlier
position. Citing Justice Frankfurter’s maxim that “[w]isdom too often never
comes, and so one ought not to reject it merely because it comes late,”30
Justice Ginsburg agreed that “[i]ndividuals without recourse to the habeas
statute because they are not ‘in custody’ . . . fit within § 1983’s ‘broad
reach.’”31 And Justice Stevens agreed in a dissent.32 Thus, counting noses, a
majority of the Spencer Court arguably adopted Justice Souter’s view: no
Heck bar for § 1983 plaintiffs not in custody and thus ineligible for federal
_____________________
27
Id. (emphasis added).
28
Id. at 21 (Souter, J., concurring).
29
Id. at 20.
30
Id. at 21 (Ginsburg, J., concurring) (quoting Henslee v. Union Planters Nat. Bank
& Trust, 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting)).
31
Id. at 21–22 (quoting Heck, 512 U.S. at 503 (Souter, J., concurring in judgment)).
32
Id. at 25 n.8 (Stevens, J., dissenting) (“Given the Court’s holding that petitioner
does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter
explains, that he may bring an action under 42 U.S.C. § 1983.”).
11
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habeas relief. Those five Justices, though, were not part of a single, cohesive
majority opinion.
Since Spencer did not require the Court to directly confront the core
issue of whether Heck operates when habeas does not, the issue remains
unsettled. And the lower-court fallout has been predictable: an entrenched
circuit split as courts try to divine the Court’s true majority position.
B
We entered the Heck debate in 2000. In Randell v. Johnson, we tackled
head-on whether favorable termination applies to § 1983 plaintiffs not in
custody.33 Our answer was absolute. We understood Heck to have created a
“universal favorable termination requirement.”34 That is, we read Heck to
have held—“unequivocally”35—“that unless an authorized tribunal or
executive body has overturned or otherwise invalidated the plaintiff’s
conviction, his claim ‘is not cognizable under [section] 1983.’”36 Thus, when
a § 1983 plaintiff “has not satisfied the favorable termination requirement of
Heck, he is barred from any recovery and fails to state a claim upon which
relief may be granted,” even if he is no longer in custody and thus unable to
file a federal habeas petition.37
Randell acknowledged that three other circuits (at the time), based on
the concurring and dissenting opinions in Spencer, had reached the opposite
conclusion and relaxed Heck’s favorable-termination requirement for § 1983
_____________________
33
227 F.3d 300, 301 (5th Cir. 2000) (per curiam).
34
Id. (emphasis added).
35
Id. (emphasis added).
36
Id. (quoting Heck, 512 U.S. at 487) (alteration adopted).
37
Id.
12
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plaintiffs with “no procedural vehicle to challenge their conviction.”38 We
declined to follow suit, remarking that Randell had not shown the lack of any
procedural vehicle; rather, “he speaks only of inability to obtain habeas
relief.”39 We also observed that we have been admonished to follow “directly
applicable precedent, even if that precedent appears weakened by
pronouncements in [the Supreme Court’s] subsequent decisions.”40 To be
sure, the policy rationales underlying Heck are considerably less salient when
applied to non-Heck-typical plaintiffs (like Wilson) with no access to federal
habeas. But Randell says what it says. More, it says what it says emphatically.
Randell may have been a three-page per curiam opinion decided without the
benefit of oral argument (perhaps because Randell was pro se), but that
makes it no less binding. Accordingly, we must dutifully follow Randell even
if we believe it wrongly assessed Heck’s breadth.
Four years after Randell, the Supreme Court glancingly mentioned
Heck’s favorable-termination requirement in Muhammad v. Close.41 Again,
footnoted dicta play a starring role: “Members of the Court have expressed
the view that unavailability of habeas for other reasons may also dispense with
the Heck requirement. This case is no occasion to settle the issue.”42 Bottom
line: the Supreme Court has yet to squarely answer whether the Heck bar
applies to noncustodial § 1983 plaintiffs.
Wilson seizes on Muhammad’s “no occasion to settle the issue”
language, saying it implicitly but necessarily overrules Randell, which had
_____________________
38
Id.
39
Id.
40
Id. (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)).
41
540 U.S. 749 (2004) (per curiam).
42
Id. at 752 n.2 (citations omitted).
13
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referred to Heck’s treatment of the issue as not merely decided but
“unequivocally” so. According to Wilson, Randell’s mode of analysis has
been abrogated and Randell no longer qualifies as binding precedent, thus we
are free to consider the issue anew. We acknowledge, as we must, that
Muhammad is in tension with our Randell decision. The former indicates that
Heck’s statement in footnote 10 that favorable termination applies to
noncustodial plaintiffs is mere dicta; the latter described Heck’s
establishment of a “universal” rule (which sweeps in noncustodial plaintiffs)
as an “unequivocal[]” holding. While we are unconvinced by Randell’s
reasoning (which twice uses “unequivocally” in describing Heck’s holding),
we are also unconvinced that the Supreme Court has unequivocally
superseded Randell, as opposed to leaving the issue unsettled. Indeed, in
2012, eight years after Muhammad, we reaffirmed Randell’s core holding:
“The fact that Morris is no longer a prisoner ‘in custody’ for his offense and
thus may not seek habeas relief does not excuse him from the ‘favorable
termination’ rule of Heck . . . .”43
Our rule of orderliness means “a panel of the court cannot overturn a
prior panel decision ‘absent an intervening change in the law, such as by a
statutory amendment, or the Supreme Court or by our en banc court.’”44
Our “precedent is implicitly overruled if a subsequent Supreme Court
opinion establishes a rule of law inconsistent with that precedent.”45 “[T]his
may naturally occur” when “an intervening Supreme Court decision
_____________________
43
Morris v. McAllester, 702 F.3d 187, 192 (5th Cir. 2012) (citing Randell, 227 F.3d
at 301).
44
United States v. Boche-Perez, 755 F.3d 327, 334 (5th Cir. 2014) (quoting Tech.
Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)
(italics omitted).
45
In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2022) (citation
omitted).
14
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fundamentally change[s] the focus of the relevant analysis”46 or when “the
Supreme Court disavows the mode of analysis on which our precedent
relied.”47 A “mere hint of how the [Supreme] Court might rule in the future,
however, will not suffice; the intervening change must be unequivocal.”48
Randell understood Heck to “unequivocally” impose a favorable-
termination requirement for § 1983 plaintiffs with no stated exceptions.49
Wilson would say Randell misunderstood Heck. Nonetheless, Randell
required the noncustodial plaintiff to prove favorable termination because
Heck set out a “universal” rule that the Supreme Court had not relaxed for
those not in custody.50 If a precedent is directly applicable, we must dutifully
follow it, even if we believe its reasoning is not watertight.
True, Randell acknowledged the debate roiling among Members of the
Supreme Court and that three other circuits (at that time) had scrapped
favorable termination for noncustodial plaintiffs based on Spencer’s
concurring and dissenting opinions.51 We noted in Randell that the circuits
that had eased the Heck rule to let § 1983 suits proceed did so because they
“have concluded that the Supreme Court—if presented with the question—
would relax Heck[].”52 This framing shows that in Randell we understood the
_____________________
46
Id. (alteration in original) (internal quotation marks and citations omitted).
47
Stokes v. Sw. Airlines, 887 F.3d 199, 204 (5th Cir. 2018).
48
Id. (internal quotation marks and citation omitted).
49
Randell, 227 F.3d at 301; see also Heck, 512 U.S. at 486–87.
50
Randell, 227 F.3d at 301.
51
Id.; see also Jenkins v. Haubert, 179 F.3d 19, 26–27 (2d Cir. 1999) (relaxing the
requirement); Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 n.3 (6th Cir. 1999) (same); Carr
v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999) (same).
52
Randell, 227 F.3d at 301 (emphasis added).
15
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Supreme Court to not yet have addressed the question post-Spencer.53 We
elected to follow what we viewed as controlling precedent—what Randell
called Heck’s “universal favorable termination requirement”—which we
considered no less applicable to plaintiffs unable to seek habeas relief.54
Randell’s mode of analysis was to recognize that: (1) Heck
“unequivocally” established a “universal” favorable-termination rule for
§ 1983 plaintiffs; and (2) although there had been debate about whether
favorable termination should be relaxed for noncustodial plaintiffs, the
Supreme Court had not yet done so.55 And nothing in Muhammad abrogates
Randell. Muhammad acknowledges the debate in Heck and Spencer56 and
specifies that the Supreme Court has not yet squarely addressed the question,
stating, “This case is no occasion to settle the issue.”57
While we doubt the universality of Heck’s favorable-termination
requirement,58 neither Spencer nor Muhammad upended the post-Heck legal
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53
Midland County, Petty, and Schorre argue that “[i]n Muhammad, the Supreme
Court was not commenting on any supposed ambiguity in a reading of Heck. Instead, the
Court was describing the impact, if any, of Spencer’s dicta on Heck, an issue the Muhammad
court expressly stated it was not addressing. Randell, however, did, and Randell concluded
that Heck controlled despite Spencer’s dicta.” We agree.
54
Randell, 227 F.3d at 301 (emphasis added).
55
See id.
56
540 U.S. at 752 n.2.
57
Id.; see also Savory, 947 F.3d at 425 (“[F]ootnote 2 of Muhammad merely
acknowledged the possibility that the Court may someday revisit footnote 10 of Heck
[suggesting that the favorable-termination requirement should apply to noncustodial
plaintiffs]. Because it has not yet done so, we are bound by the holding and reasoning of
Heck.”).
58
We note that Randell’s characterization of the favorable termination requirement
as “universal” is also specious because Heck does not universally apply. It is
“not . . . implicated by a prisoner’s challenge that threatens no consequence for his
conviction or the duration of his sentence.” Crittindon v. LeBlanc, 37 F.4th 177, 190 (5th
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landscape. The Heck rule as to federal habeas-ineligible plaintiffs may well
have been weakened by various footnoted pronouncements. But as a middle-
management circuit court, we must heed the Supreme Court’s admonition
of leaving to the Court “the prerogative of overruling its own decisions.”59
Muhammad did not explicitly overrule Randell, nor did it implicitly
overrule Randell by disavowing its mode of analysis. Under the rule of
orderliness, our precedents are only overruled when the intervening change
in the law is “unequivocal.”60 We cannot say that has happened here. Thus,
even if we had zero doubt that Randell was wrongly decided in 2000, it
remains no less binding in 2023.
C
Since our Randell decision in 2000, the preexisting post-Heck, post-
Spencer circuit split has only deepened. The current line-up is 6–5 in favor of
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Cir. 2022) (quoting Muhammad, 540 U.S. at 751). Section 1983 “challenges to the validity
of any confinement or to particulars affecting its duration fall within the ‘core’ of habeas
corpus and are barred” by Heck without favorable termination; “[b]y contrast,
constitutional claims that merely challenge the conditions of confinement . . . fall outside
of that core and may be brought pursuant to § 1983 in the first instance.” Hicks v. LeBlanc,
81 F.4th 497, 509 (5th Cir. 2023) (quoting Nelson v. Campbell, 541 U.S. 637, 643 (2004)).
For instance, where prisoners have been held “past the expiration of their duly imposed
sentences,” we have allowed them to bring § 1983 claims in the first instance because their
claims “do not implicate the fact or duration of [their] confinement.” Id. at 509–10.
Wilson’s § 1983 challenge falls at the “core” of habeas because it implicates the validity of
her conviction, and is thus squarely within Heck’s ambit.
59
Agostini, 521 U.S. at 237 (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477, 484 (1989)); see also Whole Woman’s Health v. Paxton, 978 F.3d 896, 920 (5th
Cir. 2020) (Willett, J., dissenting) (“As middle-management circuit judges, we cannot
overrule the Supreme Court. But neither should we ‘underrule’ it. Our duty is to
harmonize its decisions as well as possible.” (citation and internal quotation marks
omitted)).
60
See Stokes, 887 F.3d at 204 (quoting United States v. Alcantar, 733 F.3d 143, 146
(5th Cir. 2013).
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those circuits holding that Heck does not bar a § 1983 claim when the plaintiff
is not in custody, since there is no collision at the § 1983/habeas intersection.
Relaxing Heck for noncustodial plaintiffs (6): Second,61 Fourth,62
Sixth,63 Ninth,64 Tenth,65 Eleventh.66
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61
Huang v. Johnson, 251 F.3d 65, 73–75 (2d Cir. 2001) (“[W]e conclude that Heck
does not bar [the noncustodial plaintiff’s] Section 1983 action . . . . in light of both the
Spencer majority’s dictum and the fact that the Spencer concurrences and dissent revealed
that five justices hold the view that, where federal habeas corpus is not available to address
constitutional wrongs, § 1983 must be.” (quotation marks and citation omitted)).
62
Wilson v. Johnson, 535 F.3d 262, 265–68 (4th Cir. 2008) (“If a prisoner could
not, as a practical matter, seek habeas relief, and after released, was prevented from filing a
§ 1983 claim, § 1983’s purpose of providing litigants with a uniquely federal remedy against
incursions under the claimed authority of state law upon rights secured by the Constitution
and laws of the Nations . . . would be severely imperiled.” (quotation marks and citation
omitted)).
63
Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592, 599–603 (6th Cir.
2007) (“The Heck Court was not confronted with a factual scenario . . . in which the § 1983
claimant has no recourse in habeas . . . . Thus, adopting Justice Souter’s rationale does not
amount to a failure to follow Heck where Heck offered no binding guidance on the
application of the favorable-termination requirement.”).
64
Nonnette v. Small, 316 F.3d 872, 875–78 (9th Cir. 2002) (“Informed as we are by
the opinions in Spencer, we conclude that Heck does not preclude [the noncustodial
plaintiff’s] § 1983 claim.”).
65
Cohen v. Longshore, 621 F.3d 1311, 1315–17 (10th Cir. 2010) (“[T]he Supreme
Court itself has recognized this issue to be an unsettled one . . . . and in light of the fact that
Heck involved a petitioner who was still incarcerated, we are not persuaded that Heck must
be applied to petitioners without a habeas remedy.”).
66
Harden v. Pataki, 320 F.3d 1289, 1301–02 (11th Cir. 2003) (holding that where
federal habeas corpus was not available because a person had been extradited, § 1983 must
be available).
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Applying Heck to noncustodial plaintiffs (5): First,67 Third,68 Fifth,69
Seventh,70 Eighth.71
We forthrightly recognize—again—that our view is the minority one.
Most circuits have held that noncustodial plaintiffs need not comply with
Heck’s favorable-termination requirement. Indeed, given how the word
“prisoner” pervades the Heck opinion—starting with the opening sentence,
“This case presents the question whether a state prisoner . . . .”72—it seems
sensible to read Heck as having to do with, well, prisoners.
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67
Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998) (recognizing dicta from the
Spencer concurrences and dissent but choosing to follow directly applicable precedent).
68
Gilles v. Davis, 427 F.3d 197, 209–10 (3d Cir. 2005) (“We doubt that Heck has
been undermined, but to the extent its continued validity has been called into question, we
join on this point, our sister courts of appeals for the First and Fifth Circuits in following
the Supreme Court’s admonition to lower federal courts to follow its directly applicable
precedent, even if that precedent appears weakened by pronouncements in its subsequent
decisions, and to leave to the Court the prerogative of overruling its own decisions.”
(internal quotations marks and citation omitted)).
69
Randell, 227 F.3d at 301–02.
70
Savory, 947 F.3d at 430 (“Heck controls the outcome where a section 1983 claim
implies the invalidity of the conviction or sentence, regardless of the availability of habeas
relief.”).
71
Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007) (“Absent a decision of the
Court that explicitly overrules what we understand to be the holding of Heck . . . we decline
to depart from that rule.”).
72
Heck, 512 U.S. at 478 (emphasis added); id. at 480–81 (stating that “[t]his case
lies at the intersection of the two most fertile sources of prisoner litigation,” “the federal
habeas corpus statute . . . requires that state prisoners first seek redress in a state forum,”
“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement,” and “certain claims by state prisoners are not cognizable under
[§ 1983]”) (emphasis added); id. at 487 (“[W]hen a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence . . . .”) (emphasis added); id.
at 489 (explaining that “[e]ven a prisoner who has fully exhausted available state remedies
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With the single exception of footnote 10, every statement in Heck
about waiting for a prisoner’s vindication centers on a prisoner then in
custody. The paramount concern motivating Heck, that a prisoner could use
§ 1983 to circumvent § 2254’s habeas requirements (like exhaustion of state
remedies), is simply not implicated when the plaintiff is not incarcerated.
There is no risk of a collision between § 1983 and § 2254 if the latter never
enters the Heck intersection. And to be sure, Justice Scalia’s observation in
footnote 10 that favorable termination should apply broadly to cases
involving former state prisoners—“of which no real-life example comes to
mind”73—has proven improvident. Real-life examples abound of non-
prisoners with facially meritorious constitutional claims denied their day in
court, including Erma Wilson.
Even so, there has been no intervening change in the law, meaning we
as a three-judge panel are bound by circuit precedent and cannot change
course. Accordingly, because Wilson has failed to satisfy Heck’s favorable-
termination requirement, her § 1983 suit cannot proceed.
IV
When the current Chief Justice of the United States appeared before
the Senate Judiciary Committee in 2005, he famously invoked baseball,
assuring the nation, “I will remember that it’s my job to call balls and strikes
and not to pitch or bat.”74 By this time, the criminal justice playing field in
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has no cause of action under § 1983 unless and until” he shows favorable termination)
(emphasis added).
73
Id. at 490 n.10 (emphasis added).
74
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief
Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005)
(statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
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Midland County was already lopsided, with one side secretly acting as
pitcher, batter, and umpire all at once.
Rabid sports fans howl nonstop about blown calls and revel in accusing
officials of losing their team the game—or even rigging it. We expect fair play
in sports. So too in courts. We want all of life’s arbiters to enforce the rules
impartially. And in litigation, America’s other national pastime, judges
(unlike umpires who simply shout, “You’re out!”) are expected to
painstakingly explain why something is inside or outside the legal strike zone.
Today’s result is difficult to explain. What allegedly happened here (and in
hundreds of other criminal cases in Midland County) is utterly bonkers: the
presiding judge employed a member of the prosecution team as a right-hand
adviser.
The Supreme Court put it plainly generations ago: “A fair trial in a
fair tribunal is a basic requirement of due process.”75 We have been equally
clear: “[F]undamental to the judiciary is the public’s confidence in the
impartiality of our judges and the proceedings over which they preside.”76
Taking Wilson’s well-pleaded allegations as true—as we must at the 12(b)(6)
stage—she has suffered the fallout of a criminal justice system that offended
the gravest notions of fundamental fairness. She seeks accountability for
unconstitutional wrongdoing that upended her life. However, our 2000
decision in Randell not to relax Heck’s favorable-termination requirement for
noncustodial plaintiffs has not been overruled—at least not yet.
Accordingly, as Wilson has not shown favorable termination, her
§ 1983 suit cannot proceed. Only the en banc court (or the Supreme Court
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75
In re Murchison, 349 U.S. 133, 136 (1955).
76
United States v. Jordan, 49 F.3d 152, 155 (5th Cir. 1995).
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given the entrenched circuit split) can decide whether Randell’s expansive
reading of Heck subverts § 1983’s broad textual command.
We AFFIRM.
22