Petition for Writ of Certiorari — Scott Carpenter, Petitioner v. Douglas Jordan

Supreme Court briefJul 11, 2018

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NO.

In the Supreme Court of the United States

SCOTT CARPENTER, in his individual capacity,

Petitioner,

DOUGLAS JORDAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Gary M. Prince

Counsel of Record

N. Craig Strand

O’Neil Parker & Williamson, PLLC

7610 Gleason Drive, Ste. 200

Knoxville, Tennessee 37919

865-546-7190

865-546-0789 fax

gprince@opw.com

cstrand@opw.com

Counsel for Petitioner

Scott Carpenter,

in his individual capacity

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTION PRESENTED

The accrual of a cause of action under 42 U.S.C.

§ 1983 for a constitutional violation for withholding

exculpatory evidence as recognized by Brady v.

Maryland, 373 U.S. 83 (1963) is governed by this

Court’s decision Heck v. Humphrey, 512 U.S. 477

(1994). In Heck, this Court held that a cause of action

for an “unconstitutional conviction” “accrues” when the

“outstanding judgment” has been “invalidated” by

being “reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such a determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus, 28 U.S.C. § 2254.” 512 U.S. at 486-487

& 489-90.

Based on Heck, Courts are split on whether the

statute of limitations for a § 1983 wrongful conviction

claim based on a Brady and other like violations

commences to run after only an “invalidation” or after

both an “invalidation” and a “favorable termination.”

The Sixth Circuit, in this case, provided that the

statute of limitations for Jordan’s commenced after

both an “invalidation” and a “favorable termination.”

The Question Presented is:

Does a 42 U.S.C. § 1983 wrongful conviction claim

for unconstitutionally withholding exculpatory

evidence “accrue” and thus the statute of limitations

commence to run when (1) a conviction is “invalidated”

by the post-conviction procedures set out in Heck or

when (2) a conviction is “invalidated” and the plaintiff

is no longer subject to criminal prosecution due to a

“favorable termination?”

PARTIES TO THE PROCEEDING

Mr. Douglas Jordan was the plaintiff-appellant

below.

Blount County, Tennessee, Mr. Scott

Carpenter, in his individual capacity, and Mr. James

Brooks, in his individual capacity, were the defendantsappellees below. Mr. Jordan is the respondent here.

Mr. Carpenter, in his individual capacity, is filing this

petition for writ of certiorari.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISION INVOLVED . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . 6

The Circuits are Divided on the Accrual of a

§ 1983 Claim that is based on a

Constitutional Violation due to a purported

Withholding of Exculpatory Evidence. . . . . . 7

A. Overview of the Delayed Accrual Rule

under Heck that has caused a Split in

Authority over the Commencement of the

Statute of Limitations for a § 1983 Claim

based on a purported Failure to Disclose

Exculpatory Evidence. . . . . . . . . . . . . . . . 7

B. First, Second, Eighth, Tenth, and

Eleventh Circuits: § 1983 Claims Accrue

and the Statute of Limitations

Commences to Run when the Conviction

is “Invalidated” by Post-Conviction

Procedures highlighted in Heck. . . . . . . 10

C. Third and Fourth Circuits: § 1983

Wrongful Conviction Claims Accrue and

the Statute of Limitations Commences to

Run when the Conviction is “Invalidated”

and then is no longer Subject to Criminal

Prosecution due to a “Favorable

Termination.” . . . . . . . . . . . . . . . . . . . . . 13

D. Fifth, Sixth, Seventh, and Ninth Circuits:

Conflicting Decisions about when a § 1983

Wrongful Conviction Claim Accrues. . . . 14

II.

The Statute of Limitations for a § 1983

Wrongful Conviction Claim based on a Brady

and other like Violations should Commence

when the Plaintiff’s Conviction is

“Invalidated.” . . . . . . . . . . . . . . . . . . . . . . . . 17

III.

This Case is Appropriate to Resolve the Split

of Authorities as to the Commencement of

the Statute of Limitations of a § 1983

Wrongful Conviction Claim for Brady and

like Constitutional Violations. . . . . . . . . . . . 23

IV.

The Issue in this Case is an Important

Federal Question that will Affect Litigants

involved in Lawsuits where the Plaintiff

alleges a Wrongful Conviction under § 1983.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDIX

Appendix A Opinion and Judgment in the United

States Court of Appeals for the Sixth

Circuit

(March 15, 2018) . . . . . . . . . . . . . App. 1

Appendix B Memorandum Opinion and Judgment

in the United States District

Court, Eastern District of Tennessee

at Knoxville

(July 28, 2017) . . . . . . . . . . . . . . . App. 7

Appendix C Order Denying Petitions for Rehearing

En Banc in the United States Court of

Appeals for the Sixth Circuit

(April 13, 2018) . . . . . . . . . . . . . App. 15

TABLE OF AUTHORITIES

CASES

Boddie v. Connecticut,

401 U.S. 371 (1971) . . . . . . . . . . . . . . . . . . . . . . 19

Bradford v. Scheerschlight,

803 F.3d 382 (9th Cir. 2015) . . . . . . . . . . . . 16, 25

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . passim

Brandley v. Kesshan,

64 F.3d 196 (5th Cir. 1995) . . . . . . . . . . . . . . . . 14

Brody v. Village of Port Chester,

345 F.3d 103 (2nd Cir. 2003) . . . . . . . . . . . . . . . 21

Brown v. City of Houston,

297 F. Supp. 3d 748 (S.D. Tex. 2017) . . . . . . . . 14

Buckley v. Ray,

848 F.3d 855 (8th Cir. 2017), certiorari denied,

2017 U.S. LEXIS 4206

(U.S. June 26, 2017) . . . . . . . . . . . . . . . . 12, 25, 26

Carey v. Piphus,

435 U.S. 247 (1978) . . . . . . . . . . . . . 18, 19, 20, 21

Clay v. Allen,

242 F.3d 679 (5th Cir. 2001) . . . . . . . . . . . . . . . 14

CTS Corp. v. Waldburger,

134 S. Ct. 2175 (2014) . . . . . . . . . . . . . . . . . . . . 21

D’Ambrosio v. Marino,

747 F.3d 378 (6th Cir. 2014) . . . . . . . . . . . 4, 5, 15

vii

Davis v. Zain,

79 F.3d 18 (5th Cir. 1996) . . . . . . . . . . . . . . . . . 14

Del Real v. Gomez,

330 F.App’x 110 (7th Cir. 2009) . . . . . . . . . . . . 16

Dinicola v. DiPaolo,

945 F.Supp. 848 (W.D. Penn. 1996) . . . . . . . . . 13

Ecvhavarria v. Roach,

2017 U.S. Dist. LEXIS 144589

(D. Mass. Sept. 7, 2017) . . . . . . . . . . . . . . . . . . . 12

Goodwin v. Metts,

885 F.2d 157 (4th Cir. 1989) . . . . . . . . . . . . . . . 19

Heck v. Humphrey,

512 U.S. 477 (1994) . . . . . . . . . . . . . . . . . . passim

Imbler v. Pachtman,

424 U.S. 409 (1976) . . . . . . . . . . . . . . . . . . . . . . 18

Jackson v. Barnes,

749 F.3d 755 (9th Cir. 2014), cert. denied,

2015 U.S. LEXIS 234 (U.S. Jan. 12, 2015) . . . . 16

Jackson v. Virginia,

443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . 6

Jeanty v. City of Utica,

2018 U.S. Dist. LEXIS 87867

(N.D.N.Y. May 25, 2018) . . . . . . . . . . . . . . . . . . 11

Jennings v. Shuman,

567 F.2d 1213 (3rd Cir. 1977) . . . . . . . . . . . . . . 19

Johnson v. Dossey,

515 F.3d 778 (7th Cir. 2008) . . . . . . . . . . . . . . . 16

viii

Johnson v. New York City Police Department,

651 Fed. Appx. 58 (2nd Cir. 2016) . . . . . . . . . . . 11

Johnson v. State,

38 S.W.3d 52 (Tenn. 2001) . . . . . . . . . . . . . . . . . . 3

King v. Harwood,

852 F.3d 568 (6th Cir. 2017), cert. denied,

2018 U.S. LEXIS 378 (U.S. Jan. 8, 2018) . . . 5, 15

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) . . . . . . . . . . . . . . . . . . . . . . 6

Mills v. Barnard,

869 F.3d 473 (6th Cir. 2017), rh’g denied, 2017

U.S. App. LEXIS 19999 (6th Cir. Oct. 12, 2017) . 15

Nat’l Cas. Co v. McFartridge,

604 F.3d 335 (7th Cir. 2010) . . . . . . . . . . . . . . . 16

Olson v. Correiro,

189 F.3d 52 (1st Cir. 1999) . . . . . . . . . . . . . . . . 19

Owens v. Balt. City State’s Attys. Office,

767 F.3d 379 (4th Cir. 2014), cert. denied,

135 S. Ct. 1893 (2015) . . . . . . . . . . . 13, 14, 25, 26

Poventud v. City of New York,

750 F.3d 121 (2nd Cir. 2014) . . . . . . . . . . . . 11, 19

Railroad Telegraphers v. Railway Express Agency,

Inc.,

321 U.S. 342 (1944) . . . . . . . . . . . . . . . . . . . . . . 21

Roberson v. Tennessee,

399 F.3d 792 (2005) . . . . . . . . . . . . . . . . . . . . . . . 4

Rowe v. City of Fort Lauderdale,

8 F. Supp. 2d 1369 (S.D. Fla. 1998) . . . . . . . . . 12

Smalls v. City of New York,

181 F. Supp. 3d 178 (E.D.N.Y. 2016) . . . . . . . . 11

Smith v. Gonzalez,

222 F.3d 1220 (10th Cir. 2000) . . . . . . . . . . 11, 21

Smith v. Holtz,

87 F.3d 108 (3rd Cir. 1996) . . . . . . . . . . . . . . . . 13

United States v. Marion,

404 U.S. 307 (1971) . . . . . . . . . . . . . . . . . . . . . . 19

Wallace v. Kato,

549 U.S. 384 (2007) . . . . . . . . . . . . . . . . . . passim

Wright v. City of Philadelphia,

229 F. Supp. 3d 322 (E.D. Pa. 2017) . . . . . . . . . 13

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . passim

Tenn. Code Ann. § 28-3-104 . . . . . . . . . . . . . . . . . . . 4

Tenn. Code Ann. § 40-30-111(a) . . . . . . . . . . . . . . . . 3

OTHER AUTHORITIES

1 C. Corman, Limitation of Actions

§ 7.4.1 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

National Registry of Exonerations, Newkirk Center

for Science and Society (2018), http://www.law.

umich.edu/special/exoneration/Documents/Exon

erationsIn2017.pdf . . . . . . . . . . . . . . . . . . 6, 24, 25

PETITION FOR A WRIT OF CERTIORARI

Mr. Carpenter, in his individual capacity,

respectfully petitions for a writ of certiorari to the

review the judgment of the United States Court of

Appeals for the Sixth Circuit.

OPINIONS BELOW

The decision of a panel of the Court of Appeals for

the Sixth Circuit is reported with a citation of Jordan

v. Blount County, 885 F.3d 413 (6th Cir. 2018) and is

reproduced in the Appendix at 1a-6a. The decision of

the United States District Court for the Eastern

District of Tennessee is reported at 2017 U.S. Dist.

LEXIS 118433 (E.D. Tenn. July 28, 2017) and is

reproduced in the Appendix at 7a-14a. The denial for

a Petition for Rehearing En Banc hearing is reported at

2018 U.S. App. LEXIS 94449 (6th Cir. Apr. 13, 2018)

and is reproduced in the Appendix at 15a-16a.

JURISDICTION

The Court of Appeals for the Sixth Circuit issued its

judgment on defendants’ Petition for Rehearing En

Banc on April 13, 2018. Pet App. 15a-16a. This

Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

The statue involved is the Civil Rights Act of 1871,

which provides in relevant part as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person with the

jurisdiction therefore to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proceeding for redress . . .

42 U.S.C. § 1983.

STATEMENT OF THE CASE

Douglas Jordan’s 2002 conviction for murder was

“invalidated” per Heck in 2011 when he was granted

post-conviction relief by an authorized state tribunal

based on a purported violation of his constitutional

rights under Brady related to an alleged failure to

disclose exculpatory evidence. A jury acquitted him on

a subsequent retrial in 2015. Plaintiff filed his

Complaint within one year of the acquittal at retrial

but four years after he was granted post-conviction

relief.

Based on precedent from the First, Second, Eighth,

Tenth, and Eleventh Circuits, Jordan’s 42 U.S.C.

§ 1983’s claim for the defendants’ purported failure to

disclose exculpatory evidence would be barred by the

statute of limitations because it would have accrued in

2011 when his claim was “invalidated” as specified in

Heck. In the Third and Fourth Circuits, Plaintiff’s

claim would be deemed timely because it would have

accrued in 2015 when he was subsequently acquitted.

The Fifth, Sixth, Seventh, and Ninth Circuits have

decisions providing seemingly different results. The

facts of this case provide a compelling vehicle for the

Court to resolve the splits and provide uniformity for

the parties involved in 42 U.S.C. § 1983 claims based

on a wrongful conviction due to a purported failure to

disclose exculpatory evidence.

In October 2002, a jury convicted Jordan of seconddegree murder for the 1998 death of Jennifer Byerly.

Pet. App. 8a. The purported withholding of exculpatory

evidence that allegedly violated Plaintiff’s

constitutional rights occurred in between March 1998

and October 2002. Pet. App. 8a.

In 2011, the Tennessee Court of Criminal Appeals

granted Jordan post-conviction relief1 by “vacating and

setting aside” Jordan’s 2002 conviction based on a

“denial or infringement” of his due process rights

recognized under Brady. Pet. App. 2a.

The Tennessee post-conviction statute, provides:

If the court finds that there was such a denial or

infringement of the rights of the prisoner as to

render the judgment void or voidable, including a

finding that trial counsel was ineffective on direct appeal,

the court shall vacate and set aside the judgment or

order a delayed appeal as provided in this part and shall

enter an appropriate order and any supplementary orders

that may be necessary and proper.

Tenn. Code Ann. § 40-30-111(a) (emphasis added). See also,

Johnson v. State, 38 S.W.3d 52, 63 (Tenn. 2001) (providing that a

conviction is vacated when a criminal defendant seeks postconviction relief, even if he is merely granted a new capital

punishment hearing).

When Jordan was retried, Jordan was found not

guilty of Second Degree Murder in 2015. Pet. App. 3a.

Within a year2 of the acquittal in 2015, Jordan filed

this instant lawsuit asserting that he was wrongfully

convicted because of alleged constitutional violations by

defendant Carpenter and other defendants related to

the purported withholding of exculpatory evidence.

Pet. App. 3a.

Scott Carpenter and the other defendants filed

dispositive motions providing that all claims against

them should be dismissed because they are barred by

the statute of limitations. Pet. App. 9a. Relying

primarily on the Sixth Circuit decision D’Ambrosio v.

Marino, 747 F.3d 378, 382 & 385-386 (6th Cir. 2014),3

the District Court agreed, holding that Jordan’s claims

were barred by the one-year statute of limitations. Pet.

App. 10a-13a. The District Court found that claims

began to accrue and thus the statute of limitations

began to run in 2011 when the state court of appeals

“vacated and set aside” Jordan’s conviction under the

state-law post-conviction procedures. Pet. App. 10a13a.

The statute of limitations for a § 1983 actions for an alleged civil

rights actions that arises in Tennessee is one year. Tenn. Code

Ann. § 28-3-104; Roberson v. Tennessee, 399 F.3d 792, 794 (2005).

See, Pet. App. 3a.

In D’Ambrosio, 747 F.3d at 385-386, the Sixth Circuit stated that

a plaintiff’s cause of action for wrongful conviction based on a

Brady violation accrues when the underlying conviction is reversed

or vacated by a post-conviction relief proceeding, even if the

plaintiff is subject to retrial.

During the pendency of Jordan’s appeal, the Sixth

Circuit issued the decision King v. Harwood, 852 F.3d

568, 579 (6th Cir. 2017) that provided the statute of

limitations for wrongful conviction claims did not

commence until a plaintiff is later acquitted after

subsequent criminal prosecution. Pet. App. 4a.4

Relying on King, the Sixth Circuit, in this case, held

that Jordan’s cause of action for wrongful conviction

began to accrue when he was acquitted in 2015 after

being retried and not when his prior conviction was

vacated, pursuant to the state-law post-conviction

procedures. Pet. App. 4a.

Carpenter timely filed a Petitioner for Rehearing En

Banc highlighting the Sixth Circuit’s conflicting

decisions and how the decision conflicted with certain

other jurisdictions regarding this same or similar issue.

Pet. App. 15a. On April 13, 2018, the Sixth Circuit

denied Carpenter’s Petition for Rehearing En Banc.

Pet. App. 15a.

Seemingly contrary to the D’Ambrosio decision, the King Court

held that a plaintiff’s claim for wrongful conviction did not accrue

when the plaintiff’s “Alford plea was vacated” (not the conviction)

under the state-law rules of civil procedure based on the discovery

of another individual’s confession to the crimes for which the

plaintiff was convicted.

REASONS FOR GRANTING THE WRIT

This Court should grant a writ of certiorari because

it can resolve a split between the Circuits on an

important federal question regarding a statute of

limitations issue under 42 U.S.C. § 1983 that will affect

many litigants involved in wrongful conviction

lawsuits.5 Wrongful conviction claims under 42 U.S.C.

§ 1983 based on Brady violations are brought in all

Circuits. Due to the numerous exonerations,6 wrongful

conviction claims/suits will continue to be brought and

may (likely) increase. Under Heck, this Court provided

that a cause of action for wrongful conviction accrues

when a plaintiff’s “outstanding criminal judgment” is

“invalidated” by being “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 or

a writ of habeas corpus, 28 U.S.C. § 2254.” 512 U.S. at

486-487.

The First, Second, Eighth Tenth, and Eleventh

Circuits hold that the statute of limitations commences

to run when the plaintiff’s criminal conviction is

“invalidated” by the procedures outlined in Heck. The

Third and Fourth Circuits provide that the statute of

limitations begins to run after the criminal conviction

Jordan’s claim is for an alleged violation of his Due Process rights

under the Fourteenth Amendment because “trial has occurred.”

Manuel v. City of Joliet, 137 S. Ct. 911, 920 n. 8 (2017) (citing

Jackson v. Virginia, 443 U.S. 307, 318 (1979)).

National Registry of Exonerations, Newkirk Center for Science

and Society 1 & 3 (2018), http://www.law.umich.edu/special/

exoneration/Documents/ExonerationsIn2017.pdf.

has been “invalidated” and the plaintiff is no longer

subject to criminal prosecution due to a “favorable

termination.” The Fifth, Sixth, Seventh, and Ninth

Circuits are seemingly split within their respective

jurisdiction on this issue.

This case permits the Court to resolve this

important federal question and provide uniformity for

all litigants involved in 42 U.S.C. § 1983 wrongful

conviction claims based on Brady and other like

constitutional violations.

The Circuits are Divided on the Accrual of

a § 1983 Claim that is based on a

Constitutional Violation due to a purported

Withholding of Exculpatory Evidence.

The Circuits are split based on their differing

interpretations of this Court’s findings in Heck. To

appropriately consider this issue, a brief overview of

this Court’s relevant precedent is provided.

A. Overview of the Delayed Accrual Rule

under Heck that has caused a Split in

Authority over the Commencement of

the Statute of Limitations for a § 1983

Claim based on a purported Failure to

Disclose Exculpatory Evidence.

Since Brady, this Court has helped define the

contours of a 42 U.S.C. § 1983 claim based on

purported Brady and other like constitutional

violations. Relevant to this case, the issue before the

Heck Court was whether a plaintiff who has not

received habeas relief has a “cognizable claim” under

42 U.S.C. § 1983 for a Brady violation when the claim

for damages “challenges” or “calls into question the

lawfulness of [the] conviction or confinement.” 512

U.S. at 483.

Looking “first to the common law,” the Heck Court

used the comparison of a malicious prosecution to a

Brady violation claim to help avoid what it called a

“collision” between § 1983 and the federal habeas

statute. 512 U.S. at 483-484. In doing so, the Heck

Court provided that

We think the hoary principle that civil tort

actions are not appropriate vehicles for

challenging the validity of outstanding

criminal judgments applies to § 1983 damages

actions that necessarily require the plaintiff to

prove the unlawfulness of his conviction or

confinement, just as it has always applied to

actions for malicious prosecution.

512 U.S. at 486 (emphasis added). Based on this

principle, this Court held that a wrongful conviction

claim accrues under § 1983 when the plaintiff’s

“outstanding judgment” is “invalidated” by being

“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 or a writ of habeas corpus, 28

U.S.C. § 2254.” 512 U.S. at 486-487.

Of note, the Heck Court did not state that a plaintiff

must prove that he received a “favorable termination”

of any criminal prosecution in order to have a § 1983

claim for a wrongful conviction—or that the case has

been terminated at all. Rather, the Heck Court

provided the plaintiff must “demonstrate the

invalidity of any outstanding criminal judgment.”

512 U.S. at 487 (emphasis added). Significantly, in

concluding its discussion about the accrual of a § 1983

wrongful conviction claim, this Court specifically used

different language from the “favorable termination”

rule for a malicious prosecution claim when it stated:

Just as a cause of action for malicious

prosecution does not accrue until the criminal

proceedings have terminated in the plaintiff’s

favor, 1 C. Corman, Limitation of Actions

§ 7.4.1, p. 532 (1991); Carnes v. Atkins Bros. Co.,

123 La. 26, 31, 48 So. 572, 574 (1909), so also a

§ 1983 cause of action for damages attributable

to an unconstitutional conviction or sentence

does not accrue until the conviction or

sentence has been invalidated.

512 U.S. at 489-490 (emphasis added).

In his concurring opinion in Heck, Justice Souter

spoke against the prospect of the use of the “common

law” and ultimately the elements of a malicious

prosecution as a “destination” in deciding the contours

of a wrongful conviction claim under 42 U.S.C. § 1983.

512 U.S. at 492-494. However, when defining the

“delayed accrual rule,” the Heck Court did avoid using

elements of a malicious prosecution claim as a

“destination” when it adopted the “invalidation” of an

“outstanding criminal judgment” language instead of

the “favorable termination” requirement language of a

malicious prosecution claim.

Although

addressing

false

arrest/false

imprisonment claims, the Wallace v. Kato, 549 U.S.

384 (2007) decision provided guidance that Carpenter

submits should have made this principle clear.

Specifically, the Wallace Court stated that the

“deferred accrual” rule under Heck is “called into play

only when” there is an “invalidation of an “outstanding

criminal judgment.” 549 U.S. at 393. As such, “It [the

delayed accrual rule] delays what would otherwise be

the accrual date of a tort action until setting aside of an

extant conviction.” 549 U.S. at 393 (emphasis in

original). Based on this principle, the Wallace Court

found that any deferred accrual of a claim based on a

threat of a § 1983 claim invalidating a future conviction

is not proper because there is “no criminal conviction

that the cause of action would impugn.” 549 U.S. at

393.

Despite the Heck and the Wallace decisions, the

Heck Court’s comparison to the malicious prosecution

claim and the plain language of the Heck “deferred

accrual rule” regarding “invalidation” (not necessarily

favorable termination) has caused Circuits and courts

within certain jurisdictions to split over when a cause

of action for a Brady or other like violations accrue and

thus when the statute of limitations commences to run.

B. First, Second, Eighth, Tenth, and

Eleventh Circuits: § 1983 Claims Accrue

and the Statute of Limitations

Commences to Run when the Conviction

is “Invalidated” by Post-Conviction

Procedures highlighted in Heck.

Since the Heck decision, courts have considered the

issue of the accrual of § 1983 wrongful conviction

claims based on purported Brady violations within the

context of both a statute of limitations defense and also

whether the plaintiff has prematurely brought a claim

due to a Heck bar.

In one of the first cases to deal the specific issue of

accrual, the Tenth Circuit held that a § 1983 action

based on a Brady violation accrues and thus the statute

of limitations begins to run when the plaintiff’s

conviction is deemed “invalid” through a state habeas

proceeding. Smith v. Gonzalez, 222 F.3d 1220, 1222

(10th Cir. 2000). Importantly, the Smith Court found

that the Heck Court’s concerns about a civil action

“invalidating any outstanding criminal judgment” are

not implicated after a criminal conviction is invalidated

(even if subject to retrial) because there is no

outstanding judgment to impugn. 222 F.3d at 1222.

Citing the Smith decision, the Second Circuit found

that a claim for a wrongful conviction accrues when the

“conviction is no longer ‘outstanding”’ because, due to

the “vacatur” of the conviction, a § 1983 suit could not

“demonstrate the invalidity of the vacated conviction”

and thus could not “impeach [impugn] the new trial’s

result.” Poventud v. City of New York, 750 F.3d 121,

134 (2nd Cir. 2014). Other Second Circuit Courts have

barred claims based on the statute of limitations

because the causes of action began to accrue when a

conviction was invalidated, even when the plaintiff was

subject to subsequent criminal prosecution. Jeanty v.

City of Utica, 2018 U.S. Dist. LEXIS 87867, at *8-13

(N.D.N.Y. May 25, 2018); Smalls v. City of New York,

181 F. Supp. 3d 178, 185-186 (E.D.N.Y. 2016).7

See also, Johnson v. New York City Police Department, 651 Fed.

Appx. 58, 59 (2nd Cir. 2016) (finding that the plaintiff did not have

a cognizable § 1983 claim because his underlying conviction had

not been invalidated).

Recently, the Eight Circuit held that the statute of

limitations for a Brady claim accrues and thus the

statute of limitations commences to run when the claim

is “invalidated.” Buckley v. Ray, 848 F.3d 855, 867 (8th

Cir. 2017), certiorari denied, 2017 U.S. LEXIS 4206

(U.S. June 26, 2017). In so holding, the Buckley Court

explained that:

The Supreme Court’s decision in Wallace

controls [the plaintiff’s] [Brady] claim. The trial

court invalidated [plaintiff’s] conviction on

November 1, 2010. No extant conviction exists

for his § 1983 claims to impugn. The possibility

that the State may have re-tried and convicted

him of the cocaine charges—“an anticipated

future conviction”—does not implicate the Heck

rule.

848 F.3d at 867 (emphasis in original).

In the First Circuit, a District Court held that the

statute of limitations for a Brady claim for withholding

exculpatory evidence accrued when the plaintiff was

granted a new criminal trial and not when the

prosecutors decided not to retry the plaintiff.

Ecvhavarria v. Roach, 2017 U.S. Dist. LEXIS 144589,

at *16-19 (D. Mass. Sept. 7, 2017). In the Eleventh

Circuit, a District Court found that the plaintiff’s

wrongful conviction claim accrued and thus the statute

of limitations began to run when his conviction was

vacated in a state-law post-conviction proceeding,

despite the plaintiff being subject to retrial. Rowe v.

City of Fort Lauderdale, 8 F. Supp. 2d 1369, 1375 (S.D.

Fla. 1998).

C. Third and Fourth Circuits: § 1983

Wrongful Conviction Claims Accrue and

the Statute of Limitations Commences

to Run when the Conviction is

“Invalidated” and then is no longer

Subject to Criminal Prosecution due to

a “Favorable Termination.”

The Third Circuit, in Smith v. Holtz, 87 F.3d 108,

110 & 113 (3rd Cir. 1996), states that “so long as success

on such a claim would necessarily imply the invalidity

of a conviction that is pending criminal prosecution,

such a claim does not accrue so long as the potential for

a judgment in the pending criminal prosecution

continues to exist.” As such, based on this language,

the Third Circuit provides that the accrual of a § 1983

claim for a Brady violation does not accrue until there

is no longer a threat for criminal prosecution. See,

Dinicola v. DiPaolo, 945 F.Supp. 848, 858-860 (W.D.

Penn. 1996) (finding that plaintiff’s claims related to

concealment of exculpatory evidence did not accrue

until he was acquitted at his retrial).8

The Fourth Circuit holds that the statute of

limitations for a claim based on a Brady violation

begins to accrue when there is no possibility of a

conviction and not just based on a vacatur of the

original conviction. Owens v. Balt. City State’s Attys.

But see, Wright v. City of Philadelphia, 229 F. Supp. 3d 322, 331332 n. 5 (E.D. Pa. 2017) (finding that it did not need to determine

whether the plaintiff’s malicious prosecution claim and other like

claims accrued because they were timely whether they accrued

when the “threat of future prosecution ceased upon [the plaintiff’s]

acquittal” or when there was a “vacatur of his conviction”).

Office, 767 F.3d 379, 389-392 (4th Cir. 2014), cert.

denied, 135 S. Ct. 1893 (2015).9

D. Fifth, Sixth, Seventh, and Ninth

Circuits: Conflicting Decisions about

when a § 1983 Wrongful Conviction

Claim Accrues.

The Fifth Circuit has differing decisions on the

issue. In at least two cases, the Fifth Circuit held that

a § 1983 wrongful conviction claim accrues based on

the reversal of the original conviction due to a

constitutional violation, even when the plaintiff faces

a pending criminal prosecution/trial. Clay v. Allen, 242

F.3d 679, 681-682 (5th Cir. 2001);10 Davis v. Zain, 79

F.3d 18 (5th Cir. 1996).11 However, the Fifth Circuit and

its Courts have also held that a wrongful conviction

claim accrues when there is a final favorable

termination in the plaintiff’s favor and not just when a

conviction is invalidated. Brandley v. Kesshan, 64 F.3d

196, 199 (5th Cir. 1995) (finding that the “reversal of a

conviction and remand for new trial is not, in and of

itself, a termination”); Brown v. City of Houston, 297

F. Supp. 3d 748, 762 (S.D. Tex. 2017) (holding that a

In Owens, the post-conviction relief was based on new DNA

testing not matching and not based on an intentional withholding

of exculpatory evidence. 767 F.3d at 389-392.

In Clay, the original conviction was reversed based on a

constitutional violation related to excessive bail. 242 F.3d at 681682.

In Davis, the original conviction was reversed based on a

constitutional violation related to prosecutorial misconduct and

suborned perjury. 79 F.3d at 19.

claim for Brady violations does not accrue when the

plaintiff’s conviction had been vacated pursuant to a

federal habeas corpus petition but when there is a

decision not to re-prosecute him).

When first confronted with this issue, the Sixth

Circuit stated a plaintiff’s cause of action for wrongful

conviction based on a Brady violation accrues when the

underlying conviction is reversed or vacated by a postconviction relief proceeding, even if the plaintiff is

subject to retrial. D’Ambrosio, 747 F.3d at 382 & 385386. However, since this finding, the Sixth Circuit has

provided that a plaintiff’s cause of action accrues and

thus the statute of limitations begins to run when the

plaintiff is no longer subject to criminal prosecution,

even if the plaintiff’s conviction has already been

vacated. Jordan, 885 F.3d at 413 (finding that

plaintiff’s cause of action accrued after he was

acquitted after retrial); Mills v. Barnard, 869 F.3d 473,

479 (6th Cir. 2017), rh’g denied, 2017 U.S. App. LEXIS

19999 (6th Cir. Oct. 12, 2017);12 King v. Harwood, 852

F.3d 568, 579 (6th Cir. 2017), cert. denied, 2018 U.S.

LEXIS 378 (U.S. Jan. 8, 2018)13.

In Mills, the Sixth Circuit (relying on King) held that the

plaintiff’s lawsuit alleging fabrication of and withholding of

evidence did not accrue when he was granted relief under the

statutory writ of error coram nobis but when the trial court later

entered a nolle prosequi order. 869 F.3d at 479.

In King, the Sixth Circuit held that a plaintiff’s claim for

wrongful conviction did not accrue when the plaintiff’s “Alford plea

was vacated” (not the conviction) under the state-law rules of civil

procedure based on the discovery of another individual’s confession

to the crimes for which the plaintiff was convicted. 852 F.3d at

579.

The Seventh Circuit first held that a plaintiff’s

claim for a Brady violation begins to accrue when a

plaintiff is acquitted after being granted a motion for a

new trial (not after any post-conviction relief). Johnson

v. Dossey, 515 F.3d 778, 781-782 (7th Cir. 2008).

Contrary to this position, the Seventh Circuit has since

issued decisions consistent with the First, Second,

Eighth, Tenth, and Eleventh Circuits. Specifically, in

Nat’l Cas. Co v. McFartridge, 604 F.3d 335, 344 (7th

Cir. 2010), the Seventh Circuit held that a plaintiff’s

claim for wrongful conviction based on Brady violations

accrues when he is granted post-conviction relief, as

the initial conviction is already invalidated.14

Like the Fifth, Sixth, and Seventh Circuits, the

Ninth Circuit seemingly has a split of authority within

its jurisdiction. In Jackson v. Barnes, 749 F.3d 755 (9th

Cir. 2014), cert. denied, 2015 U.S. LEXIS 234 (U.S.

Jan. 12, 2015), the Ninth Circuit held that the

plaintiff’s cause of action for a wrongful conviction for

a violation of his Miranda rights accrued when his first

conviction was vacated and set-aside and not after he

was retried. However, in Bradford v. Scheerschlight,

803 F.3d 382, 387-389 (9th Cir. 2015), the Ninth Circuit

held that the plaintiff’s claim for wrongful conviction

based on a “fabrication of evidence” (newly tested DNA

evidence) accrued when he was acquitted at retrial and

not when the plaintiff’s conviction was vacated.

See also, Del Real v. Gomez, 330 F.App’x 110, 111 (7th Cir. 2009)

(finding that “What might happen in a subsequent prosecution is

neither here nor there; the claim accrues as soon as the only

obstacle to the litigation – the adverse judgment- has been lifted”).

II.

The Statute of Limitations for a § 1983

Wrongful Conviction Claim based on a

Brady and other like Violations should

Commence when the Plaintiff’s Conviction

is “Invalidated.”

A rule where the statute of limitations commences

to run when a conviction is “invalidated” by a postconviction procedure is consistent with the findings and

principles of the Heck and Wallace decisions. In Heck,

this Court did not state that a plaintiff must prove that

he received a “favorable termination” of any criminal

prosecution in order to have a § 1983 claim for a

wrongful conviction. Rather, the Heck Court provided

the plaintiff must “demonstrate the invalidity of any

outstanding criminal judgment.” 512 U.S. at 487

(emphasis added). As such, the plain language of

Heck’s findings provides that the statute of limitations

should commence when the “outstanding criminal

judgment” has been “invalidated.”

The principles underlying Heck, likewise, support

this position. Under its ruling, the Heck Court

established that a § 1983 action based on a wrongful

conviction that has already been “invalidated” cannot

attack the validity of a “outstanding” conviction and

thus is cognizable. 512 U.S. at 486-487. Following this

principle, the commencement of the statute of

limitations based on the “invalidation” date does not

threaten the validity of any conviction because the

“outstanding criminal judgment” has already been

invalidated through a post-conviction proceeding.

Although in the context of a false

imprisonment/false arrest claim, the Wallace decision

supports that the statute of limitations should

commence on the “invalidation” date based on the

principles of Heck. The Wallace Court stated that the

“deferred accrual” rule under Heck is “called into play

only when” there is not an “invalidation” of an

“outstanding criminal judgment.” 549 U.S. at 393. As

explained by the Wallace Court, any deferred accrual

of a claim based on a threat of a § 1983 claim

invalidating a “future anticipated conviction” is not

proper when there is “no criminal conviction that the

cause of action would impugn.” 549 U.S. at 393

(emphasis in original). As such, per Wallace, the

reason for the “deferred accrual” rule under Heck

(preventing an attack of an “outstanding criminal

judgment” through a § 1983 action) is not relevant

when an “outstanding criminal judgment” has already

been “invalidated.”

Accordingly, the findings and the principles

underlying Heck and Wallace provide that the statute

of limitations for a § 1983 claim for Brady violations

and other like violations should commence to run when

the “outstanding criminal judgment” has been

“invalidated.”

The purpose of § 1983 supports that the statute of

limitations should commence when the underlying

criminal conviction is “invalidated.” § 1983 was

enacted as a ‘“species of tort liability in favor of persons

who are deprived of ‘rights, privileges, or immunities

secured’ to them by the Constitution.” Carey v. Piphus,

435 U.S. 247, 253 (1978) (citing Imbler v. Pachtman,

424 U.S. 409, 417 (1976)). To further this purpose,

§ 1983 gives plaintiffs a vehicle to be awarded damages

for compensable injuries. Carey, 435 U.S. at 253.

Carpenter submits that any plaintiff that is subject

to a purported Brady violation suffers compensable

injuries from the first criminal proceeding in the form

of attorney fees, the distress of the judicial process, and

the distress associated with being subject to Brady

violations. Carey, 435 U.S. at 266; Poventud, 750 F.3d

at 135; Olson v. Correiro, 189 F.3d 52, 55 & 69 (1st Cir.

1999).15 Furthermore, as stressed by the Carey Court,

damages (even if nominal) should be awarded based on

certain due process violations due to the “importance to

organized society that procedural due process be

observed.” Carey, 435 U.S. at 266 (citing Boddie v.

Connecticut, 401 U.S. 371, 375 (1971)).

When a serious case is “invalidated,” the State could

prevent a cause of action from accruing simply by not

re-trying the matter. Where an offense carries a

lengthy statute of limitations or no statute of

limitations, a State could manipulate the procedure in

order to prevent a “favorable termination.” State postconviction orders, unlike most federal habeas corpus

conditional release orders, often do not require retrial

to occur within a specified time.

See also, United States v. Marion, 404 U.S. 307, 320 (1971);

Goodwin v. Metts, 885 F.2d 157, 163 (4th Cir. 1989) (citing

Jennings v. Shuman, 567 F.2d 1213, 1220 (3rd Cir. 1977)). In

Marion, this Court stated that a prosecution is:

[A] public act that may seriously interfere with the

defendant’s liberty, whether he is free on bail or not, and

that may disrupt his employment, drain his financial

resources, curtail his associations, subject him to public

obloquy, and create anxiety in him, his family, and his

friends.

404 U.S. at 320.

Accordingly, if a plaintiff’s cause of action accrues

and thus the statute of limitations commences to run

when his conviction is “invalidated,” the plaintiff will

have a recourse for the injuries (even if nominal) that

he suffered because of the due process violations under

Brady. Otherwise, if the plaintiff has to receive a

“favorable termination” for his § 1983 to accrue, the

plaintiff may never recover for the injuries he suffered

due to a violation of his Due Process rights recognized

under Brady. As an example, a criminal defendant

could be convicted of first-degree murder based on a

Brady violation. Then a retrial could result in a

conviction for criminally negligent homicide. Surely,

there has been a deprivation of a constitutional right,

but there may not have been a favorable termination.

As such, the purpose of § 1983 to permit persons to

vindicate violations of their Due Process Rights

supports permitting a plaintiff to file a wrongful

conviction claim when his wrongful conviction is

“invalidated.”

Closely related, a plaintiff lacking knowledge of the

full extent of his damages does not support the use of

the “favorable termination” requirement rule. The

Wallace Court stated that, under the “traditional rule of

accrual,” a “the statute of limitations commences to run,

when the wrongful act or omission results in damages.

The cause of action accrues even though the full extent

of the injury is not then known of predictable.” 549 U.S.

at 391 (citing 1 C. Corman, Limitation of Actions § 7.4.1,

pp. 526-527 (1991) (footnote omitted)). As noted above,

a plaintiff suffers injuries (even if nominal) from a

wrongful conviction based on a Brady violation even if

convicted in a subsequent criminal prosecution. Carey,

435 U.S. at 266; Poventud, 750 F.3d at 135-136 (citing

Brody v. Village of Port Chester, 345 F.3d 103, 121 (2nd

Cir. 2003). As such, even if the “full extent of his

damages” (i.e., damages from the number of years

incarcerated) is not yet known or established, the

plaintiff has suffered injuries from which he can recover.

Wallace, 549 U.S. at 391. Thus, the traditional rules

regarding accrual espoused in Wallace supports that a

wrongful conviction claim should accrue when the

conviction is “invalidated.”

Moreover, the uncertainty of a conviction in

subsequent criminal conviction and the concern with

the prospect of parallel criminal and civil litigation

does not support that a § 1983 should accrue only after

a “favorable termination.” This Court has made clear

that a Court’s ability to issue a “stay” in a § 1983 action

eliminates any concern that a § 1983 action would

interfere with a subsequent criminal prosecution, will

hinder a proper determination of the full extent of the

plaintiff’s damages, or “imply the invalidity of any

outstanding future conviction.” Wallace, 549 U.S. at

393-394 (citing Heck, 512 U.S. at 487-488).

Lastly, the commencement of the statute of

limitations based on the “invalidation” date best serves

the purpose of the statute of limitations to “promote

justice.”16 Defendants in § 1983 claims for Brady

See CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014)

(quoting Railroad Telegraphers v. Railway Express Agency, Inc.,

321 U.S. 342, 348-349 (1944)) (finding that the “Statutes of

limitations ‘promote justice by preventing surprises through

[plaintiff’s] revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded, and witnesses

have disappeared”’).

violations have an interest in timely notice of these

claims so as to “preserve beyond the normal limitations

period evidence that will be need for their defense” and

so that the governmental entities have “timely notice of

alleged misconduct by their agents.” Wallace, 549 U.S.

at 395 & 397.

Like in this case, post-conviction procedures can

span over many years due to the nature of such

proceedings.

During this time, the individual

defendants may not have knowledge of the postconviction proceedings or otherwise may not have the

same invested interest. As with Carpenter in this case,

the individual defendant may have changed careers or

employment and therefore would not have the same

ability, capacity, or interest to preserve evidence that

would be relevant to a § 1983 claim against him.

Furthermore, defendants will likely lose memory of the

underlying facts.

Thus, as with Carpenter in this case, individual

defendants involved in § 1983 wrongful conviction

claims already face a substantial burden related to the

preservation of evidence. If the accrual date was

further delayed until after a “favorable termination” of

a subsequent criminal prosecution, these individual

defendants would encounter a substantial likelihood of

undue prejudice. However, if the accrual date was on

the “invalidation” date, this prejudice would be

lessened. Accordingly, the purpose of a statute of

limitations supports that the accrual date for a § 1983

wrongful conviction claim should be based on the

“invalidation” date.

III.

This Case is Appropriate to Resolve the

Split of Authoritie s as to the

Commencement of the Statute of

Limitations of a § 1983 Wrongful

Conviction Claim for Brady and like

Constitutional Violations.

The factual record of this case is well-developed.

Jordan was convicted in 2002 for second-degree

murder. Pet. App. 8a. Plaintiff challenged his

conviction based on alleged Brady violations that

occurred in between March 1998 and 2002 under the

state-law post-conviction statues. Pet. App. 8a. In

2011, the Tennessee Court of Criminal Appeals granted

Jordan post-conviction relief by “vacating and setting

aside” Jordan’s 2002 conviction based on a “denial or

infringement” of his due process rights recognized

under Brady. Pet. App. 2a-3a. When Jordan was

retried for second-degree murder without the Brady

issues, Jordan was acquitted in 2015. Pet. App. 3a.

Jordan filed this instant lawsuit within a year of his

acquittal. Pet. App. 3a. Based on this well-developed

factual record, this case is appropriate for this Court to

decide the statute of limitations issue. The factual

record does not pose any concern that would prevent

this Court from deciding the pertinent statute of

limitations issue.

The divergent opinions between the District Court

and the Sixth Circuit in this case supports that this

case is appropriate to decide the pertinent statute of

limitations issue. The District Court, relying on the

“invalidation” rule based on certain Sixth Circuit

precedent, found that dismissal of the 2016 filing of the

lawsuit was proper based on the statute of limitations.

Pet. App. 10a-13a. The Sixth Circuit, however, reversed

by relying on an opinion issued after the District

Court’s Order that required both an “invalidation” and

a subsequent “favorable termination.” Pet. App. 4a.

Based on these different decisions, this case highlights

the split in authority on the issue at bar between the

Circuits and even within certain jurisdictions.

Importantly, these differing decisions within this case

show the uncertainty litigants and Courts face due to

the lack of uniformity as to this issue.

Furthermore, the case involves relief based on postconviction procedures outlined in Heck and a plaintiff

receiving a “favorable termination” after a subsequent

criminal prosecution. As such, this Court has a lawsuit

wherein it can provide clear guidance to all Courts

because it involves the circumstances (“invalidation” &

“favorable termination”) for which has caused Circuits

to split. Therefore, this case is appropriate to provide

uniformity and clarity on this important issue

regarding the statute of limitations of a § 1983

wrongful conviction claim based on Brady and other

like violations.

IV.

The Issue in this Case is an Important

Federal Question that will Affect Litigants

involved in Lawsuits where the Plaintiff

alleges a Wrongful Conviction under § 1983.

The “invalidation” of criminal convictions are

numerous and may continue to rise. As reflected in the

National Registry of Exonerations, there was 139

“exonerations” or “invalidations” of criminal convictions

in 2017 while there was 171 in 2016.

National

Registry of Exonerations, Newkirk Center for Science

and Society 1 & 3 (2018), http://www.law.umich.edu/

special/exoneration/Documents/ExonerationsIn2017.

pdf. There were also 96 convicted criminals exonerated

in 2017 as part of a “group exoneration.” Id. Of the 139

individual wrongful convictions, 84 of them involved

“official misconduct,” including Brady violations.

National Registry of Exonerations, Newkirk Center for

Science and Society 6 (2018), http://www.law.umich.

edu/special/exoneration/Documents/ExonerationsIn2

017.pdf. Due to this large percentage, there is and is

likely to be considerable § 1983 litigation over wrongful

convictions. Thus, this Court needs to provide clarity

on an issue for which Courts have different holdings

and for which Courts will likely face an increase in

litigation.

Courts dealing with the statute of limitations issue

at bar have recognized that there is a split of authority.

Recently, the Eighth Circuit in Buckley discussed that

there is a split of authority of when a wrongful

conviction action under § 1983 accrues and thus the

statute of limitations commences. 848 F.3d at 867.

Likewise, the Bradford Court highlighted different

decisions on this issue. 803 F.3d at 387-388. Now, the

Eighth Circuit explained that the principles espoused

in Wallace settles this issue such that the statute of

limitations commences when the conviction is

“invalidated.” Buckley, 848 F.3d at 867. However, as

shown above, the Courts are still divided on this issue

that is of vital importance to the litigants in these

cases.

Two petitions for writ of certiorari from the Buckley

and the Owens decision further demonstrate this lack

of uniformity and need for review. In Buckley, the

plaintiff filed a petition for writ of certiorari asking this

Court to reverse the Eight Circuit’s decision dismissing

his claims because his claims accrued when his

conviction was “invalidated.” Buckley, 848 F.3d at 855,

certiorari denied, 2017 U.S. LEXIS 4206 (U.S. June 26,

2017). In Owens, the defendants filed a petition for

writ of certiorari asking this Court to reverse the

Fourth Circuit’s decision providing that plaintiff’s

claim was timely because his claims accrued after a

“favorable termination” of a subsequent criminal

prosecution. Owens, 767 F.3d at 379, cert. denied, 135

S. Ct. 1893 (2015).

As shown, this lack of uniformity and the

significance of the issue demonstrates the importance

of review by this Court. Courts need guidance on the

statute of limitations regarding § 1983 claims based on

Brady and other like violations. This case presents an

appropriate vehicle because there is a clear factual

record that involves both an “invalidation” of the

underlying criminal conviction and a “favorable

termination” in a subsequent criminal proceeding.

Ultimately, if the writ of certiorari is granted, this

Court can provide uniformity for federal courts on an

important statute of limitations issue as to § 1983

wrongful conviction claims based on Brady and other