Amicus Curiae Brief — Jeryme Morgan, Petitioner v. Minh Schott, et al.

No. 19-47

IN THE

Supreme Court of the United States

___________

JERYME MORGAN,

Petitioner,

v.

MIHN SCHOTT, TIM VEATH, AND HUDSON MAYNARD,

Respondents.

___________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

___________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

___________

BARBARA E. BERGMAN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1201 East Speedway Blvd.

Tucson, AZ 85721

(520) 621-3984

bbergman@email.arizona.edu

August 7, 2019

ANTHONY F. SHELLEY

Counsel of Record

DAWN E. MURPHY-JOHNSON

CALVIN LEE

MILLER & CHEVALIER

CHARTERED

900 Sixteenth St. NW

Washington, DC 20006

(202) 626-5800

ashelley@milchev.com

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ........................ 1

SUMMARY OF ARGUMENT.................................. 1

ARGUMENT ............................................................ 2

A. The Circuit Split Has Significant,

Negative Practical Consequences ................. 3

B. The Seventh Circuit’s Decision Below

Departs from This Court’s Precedents ......... 8

CONCLUSION ....................................................... 14

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Carr v. O’Leary,

167 F.3d 1124 (7th Cir. 1999) ............................ 9

DeWalt v. Carter,

224 F.3d 607 (7th Cir. 2000) .............................. 9

Gardner v. Lanigan,

No. 13-7064, 2018 U.S. Dist.

LEXIS 148058 (D.N.J. Aug. 30,

2018) .................................................................... 6

Harris v. Elam,

No. 17-cv-147, 2019 U.S. Dist.

LEXIS 25716 (W.D. Va. Feb. 19,

2019) .................................................................... 6

Harris v. Perry,

No. 15-cv-222, 2015 U.S. Dist.

LEXIS 107249 (D.R.I. July 15,

2015) .................................................................... 6

Haywood v. Hathaway,

842 F.3d 1026 (7th Cir. 2016) ........................ 8, 9

Heck v. Humphrey,

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

Henry Schein, Inc. v. Archer & White

Sales, Inc.,

139 S. Ct. 524 (2019)......................................... 12

Hughes v. Parker,

No. 17-cv-0009, 2018 U.S. Dist.

34583 (M.D. Tenn. Mar. 1, 2018) ....................... 6

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019)..................................11, 12

iii

Morrison v. Nat’l Australia Bank Ltd.,

561 U.S. 247 (2010)........................................... 12

Morrison v. Rochlin,

___ F. App’x ___, 2019 U.S. App.

LEXIS 18774 (3d Cir. June 24,

2019) ................................................................ 4, 5

Muhammed v. Close,

540 U.S. 749 (2004)........................................... 10

Paladin v. Rivas,

No. 05-cv-79, 2007 U.S. Dist.

LEXIS 73416 (D.N.H. Sept. 28,

2007) .................................................................... 6

Patrick v. Hirbst,

No. 19-cv-65, 2019 U.S. Dist.

LEXIS 95244 (S.D. Tex. May 20,

2019) .................................................................... 6

Patsy v. Bd. of Regents of Fla.,

457 U.S. 496 (1982)........................................... 11

Peralta v. Vasquez,

467 F.3d 98 (2d Cir. 2006) .............................. 3, 6

Petties v. Caruso,

No. 06-cv-72, 2007 U.S. Dist.

LEXIS 23120 (W.D. Mich. Mar. 29,

2007) .................................................................... 6

Preiser v. Rodriguez,

411 U.S. 475 (1973)................................10, 12, 13

Sawyer v. Smith,

497 U.S. 227 (1990)........................................... 10

Simpson v. Nickel,

450 F.3d 303 (7th Cir. 2006) .............................. 9

iv

Skinner v. Dep’t of Justice,

584 F.3d 1093 (D.C. Cir. 2009) ........................... 5

Statutes

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

Federal Arbitration Act,

9 U.S.C. §§ 1-16 (2011) .................................... 12

Privacy Act of 1974,

5 U.S.C. § 552 (2014) .......................................... 5

Other Authorities

28 C.F.R. § 541.3 ...................................................... 5

Sup. Ct. R. 37 ........................................................... 1

Neb. Legis. Performance Audit Comm.,

Nebraska Dep’t of Correctional

Services:

Disciplinary

Process,

Programs,

and

Commitment

Processes

(Nov.

17,

2014),

https://nebraskalegislature.gov/pdf/

reports/audit/corrections_2014.pdf .................... 4

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit professional bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crimes or misconduct. Founded in 1958,

NACDL has a membership of many thousands of

direct members and approximately 40,000 affiliated

members.

NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers. The American Bar

Association recognizes NACDL as an affiliated

organization and awards it full representation in its

House of Delegates.

NACDL has participated as amicus in many of

the Court’s most significant criminal cases. It has a

keen interest in having this Court confirm the

appropriate path for any necessary legal challenges

for inmates facing sanctions both affecting their

duration in confinement and their basic living

conditions and privileges.

SUMMARY OF ARGUMENT

A. The circuit split identified by Petitioner has

serious practical consequences, reinforcing the need

for this Court’s review. Nationwide, there are a

sizable number of litigated cases annually where a

prisoner seeks to challenge non-durational aspects

1 Pursuant to Rule 37.2, both parties received notice of the

filing of this brief more than ten days prior to the due date. A

letter of consent from each party accompanies this filing.

Pursuant to Rule 37.6, amicus states that no counsel for a party

authored this brief in whole or in part, and no person or entity,

other than amicus and its counsel, made a monetary

contribution to the preparation or submission of the brief.

2

of mixed disciplinary sanctions, and prisoners in

different jurisdictions are – as a result of the circuit

division – currently subject to disparate remedies.

Additionally, the uneven results extend not just to

state prisoners suing under 42 U.S.C. § 1983, but

also to federal prisoners pursuing various federal

causes of action. And in the circuits not yet to have

spoken on the mixed-sanctions issue, prisoners

(usually suing pro se) are left to navigate, with

unpredictable results, a threshold, controverted

procedural issue, an issue whose presence in this

genre of litigation also burdens district courts

attempting efficiently to process prisoner cases.

B. The Seventh Circuit’s approach to mixedsanctions cases conflicts with this Court’s

precedents.

First of all, the Seventh Circuit

perceived a collateral-estoppel underpinning for

Heck v. Humphrey, 512 U.S. 477 (1994), that is

nowhere present in Heck. Indeed, insisting that

issue preclusion applies to a non-durational

sanction, so that the sanction cannot be challenged

under § 1983 until completion of habeas

proceedings, envisions prisoners pursuing relief

(such as the alteration of prison conditions) in

habeas that traditionally habeas does not afford.

The Seventh Circuit also deviated from this Court’s

jurisprudence cautioning against judge-made rules

that negate statutory text. Here, the Seventh

Circuit extended the judge-made Heck bar to negate

§ 1983, which at its core authorizes a prisoner suit

(like Petitioner’s) to challenge the circumstances of

confinement.

ARGUMENT

The Court should grant the Petition to answer

important question of whether Heck v.

the

3

Humphrey, 512 U.S. 477 (1994), bars an inmate’s 42

U.S.C. § 1983 claim arising from prison disciplinary

sanctions consisting of both a loss of good-time

credits and additional penalties. In particular, the

Court should resolve the circuits’ dispute over

whether an inmate may proceed under § 1983 where

he expressly waives any challenge to the loss of goodtime credits in order solely to advance claims arising

from the other sanctions. It should do so, and then

decide the case in a manner contrary to the Seventh

Circuit’s substantive holding, because: (A) the

current circuit split has significant, intolerable

practical ramifications for prisoners and the lower

courts; and (B) the Seventh Circuit’s decision

conflicts with this Court’s Heck jurisprudence and

with the Court’s precedents obligating respect for

statutory text.

A.

The Circuit Split Has Significant,

Negative Practical Consequences

The Petition identifies the circuit split on the

Question Presented. Amicus writes separately to

emphasize the practical necessity of granting the

Petition. The circuit split has real-life consequences.

That is, the split among the circuits on the proper

avenue for challenging mixed sanctions results in

unequal application of statutory and constitutional

rights across state and federal prison systems,

thereby engendering confusion for prisoners and

taxing judicial resources.

It should be uncontroversial that a prisoner in

Illinois should not have different avenues to federal

statutory and constitutional redress than a prisoner

in New York facing the same mixed sanctions. But

that is the practical outcome of the current split

between the Seventh Circuit’s position below and

4

the leading decision on the other side, Peralta v.

Vasquez, 467 F.3d 98 (2d Cir. 2006). And with the

split, overall, being among several circuits (i.e., not

just the Seventh and Second), disparate remedies for

prisoners based on their location becomes all the

more prevalent. In just the last few weeks, still

another circuit has noted the conflict in the lower

courts regarding challenges to mixed sanctions. See

Morrison v. Rochlin, ___ F. App’x ___, 2019 U.S. App.

LEXIS 18774, at *5 n.4 (3d Cir. June 24, 2019) (“We

do not appear to have addressed how to apply Heck

in a ‘mixed sanctions’ case such as this, and other

courts have come to different conclusions.”).

This disparate treatment impacts a large number

of litigated cases.

Prisons regularly impose

disciplinary sanctions consisting of both the

forfeiture of good-time credits and the alteration of

confinement conditions. In one state, Nebraska, a

recent audit found that nearly one in four guilty

dispositions from disciplinary hearings resulted in

the loss of good-time credits, along with the altering

of living conditions, like solitary confinement; plus,

the total number of mixed-sanctions cases was

substantial. See Neb. Legis. Performance Audit

Comm., Nebraska Department of Correctional

Services: Disciplinary Process, Programs, and

Commitment Processes 22-23 (Nov. 17, 2014),

https://nebraskalegislature.gov/pdf/reports/audit/co

rrections_2014.pdf (finding that 732 out of 3,212

guilty dispositions resulted in mixed sanctions).

Statistical results from other states are similar. See

Pet. 20 (noting that mixed sanctions occurred in

7,000 of a total of 17,000 disciplinary proceedings in

New York in a particular year).

5

These empirical findings are unsurprising; after

all, prison regulations expressly contemplate the

award of mixed sanctions. See 28 C.F.R. § 541.3,

Table 2. With, then, thousands of mixed-sanctions

cases nationwide, and with amicus’s experience

indicating that a fair share of those are challenged

in federal court, a wide swath of prisoner cases are

being remedied differently, even potentially under

identical facts.

Additionally, the circuit split – and its

concomitant disparate results – manifests itself not

just for state prisoners seeking to sue under § 1983,

but also in cases where federal prisoners challenge

mixed sanctions. Courts have applied the Heck line

of cases to federal inmates suing under other causes

of action for damages that arguably would affect the

inmate’s length of confinement if successful. In

Skinner v. Dep’t of Justice, 584 F.3d 1093, 1100 (D.C.

Cir. 2009), the D.C. Circuit dismissed a claim under

the Privacy Act for damages associated with nondurational sanctions, because, if successfully won by

the federal inmate, “he would necessarily have

demonstrated the invalidity” of the durational

sanctions he likewise received. Similarly, in its

recent Morrison decision, the Third Circuit applied

the Heck bar to a federal prisoner challenging a

disciplinary proceeding under Bivens, since the

prisoner had not properly preserved the argument

that the case involved mixed sanctions. See 2019

U.S. App. LEXIS 18774, at *5 & n.4. With the circuit

conflict leading to disparate results not just for state

prisoners pursuing § 1983, but also potentially for

federal inmates pursuing damages under other

federal causes of action, the Court’s intervention is

necessary to resolve a division now increasing both

6

in the number of circuits implicated and in the

categories of prisoners affected.

Finally, the split at the circuit level is

accompanied too by a wide divergence among the

district courts in circuits where the courts of appeals

have not yet spoken to the issue.2 As Petitioner

noted, there are currently three circuits holding that

Heck applies to § 1983 claims in mixed-sanctions

cases, and at least three that hold oppositely. See

Pet. 9. The remaining circuits have yet to decide

their approaches, leaving their respective district

courts to determine the appropriate path forward, as

both state and federal litigants cite conflicting

decisions from other circuits to make their cases.

2 Compare Gardner v. Lanigan, No. 13-7064, 2018 U.S. Dist.

LEXIS 148058, at *6 (D.N.J. Aug. 30, 2018) (applying Peralta

to permit an inmate’s prison-conditions case to move forward

on waiver of durational claims); Paladin v. Rivas, No. 05-cv-79,

2007 U.S. Dist. LEXIS 73416, at *25 (D.N.H. Sept. 28, 2007)

(citing Peralta and stating that the Heck bar “did not apply to

prisoner suits brought under § 1983 which did not seek a

judgment at odds with a prisoner’s conviction or with the

state’s calculation of time to be served”); Petties v. Caruso, No.

06-cv-72, 2007 U.S. Dist. LEXIS 23120, at *34 n.17 (W.D. Mich.

Mar. 29, 2007) (citing Peralta’s understanding of the Heck

requirement); Hughes v. Parker, No. 17-cv-0009, 2018 U.S.

Dist. 34583, at *1-2 (M.D. Tenn. Mar. 1, 2018) (citing Peralta

as consistent with Heck); with Patrick v. Hirbst, No. 19-cv-65,

2019 U.S. Dist. LEXIS 95244, at *18-20 (S.D. Tex. May 20,

2019) (applying Heck bar where prisoner lost good-time credits,

along with receiving a reduction in line class and other thirtyday restrictions); Harris v. Elam, No. 17-cv-147, 2019 U.S.

Dist. LEXIS 25716, at *2, *15-16 (W.D. Va. Feb. 19, 2019)

(applying Heck bar where prisoner lost good-time credits, along

with receiving segregation); Harris v. Perry, No. 15-cv-222,

2015 U.S. Dist. LEXIS 107249, at *4, *12-14 (D.R.I. July 15,

2015) (applying Heck bar where prisoner lost good-time credits,

along with receiving segregation and lost visitation rights).

7

This is, in short, a conflict not only ensnaring the

circuits that have weighed in, but also the district

courts left to decide on their own. Ten years ago, in

a similar case, the federal government conceded

there is a circuit split on the mixed-sanctions issue,

but persuaded the Court that further percolation in

the lower courts should occur before certiorari

should be granted. See Skinner v. U.S. Dep’t of

Justice, No. 09-1188, Br. of United States in Opp’n

12 (U.S. July 21, 2010) (arguing that circuit dispute

was of “limited and recent vintage” and that

certiorari should await “additional consideration of

the question by lower courts”). Much percolating

has now occurred, and the lower courts’ division is

far worse.

And the uneven situation in the “open” circuits

has its own nefarious practical consequences. For

prisoners, they do not know which legal avenue to

pursue when they seek to focus a challenge on the

non-durational aspects of their sanction; their cases

– usually brought pro se – get bogged down at the

outset on the complex procedural issue of what is the

correct form and forum for challenging the nondurational sanction if mixed sanctions occurred, an

issue entirely separate from the merits of the

discipline itself. For the district courts – which must

decide the procedural issue usually, and

unfortunately, without adequate briefing from the

pro se plaintiff – their dockets are burdened with an

unnecessary threshold question in a large number of

prisoner cases. For the benefit of all interested

stakeholders, the Court should grant the Petition

and resolve the festering question of which civil

remedy applies to a challenge in a mixed-sanctions

case.

8

B.

The Seventh Circuit’s Decision Below

Departs from This Court’s Precedents

The Court should grant certiorari not just

because of the division in the lower courts but also

because the Seventh Circuit’s decision deviates from

this Court’s precedents. The Petition, again, welldescribes the various ways in which the Seventh

Circuit diverged from the Court’s decisions. See Pet.

16-19. Amicus amplifies on one, and adds another:

the Seventh Circuit’s decision departs from this

Court’s cases by delineating an issue-preclusion

basis for the Heck bar, see id. at 17, and, more

generally, conflicts with the Court’s jurisprudence

on the respect to be accorded to statutory text

Congress has enacted.

1. The circuits that apply the Heck bar in mixedsanctions cases purport to be acting consistently

with the purpose of the Heck line of decisions, in

order to determine when a prisoner’s challenge to

disciplinary sanctions can be brought pursuant to §

1983 or, instead, exclusively through the federal

habeas statute. Nonetheless, the Seventh Circuit’s

approach below threatens the delicate balance

between the two federal statutes that Heck sought

to accomplish. One glaring example is the Seventh

Circuit’s reliance on collateral estoppel. By

interpreting Heck to be about issue preclusion –

without citing any cases from this Court in support

– the Seventh Circuit illogically forbids a § 1983

lawsuit in deference to a potential habeas

adjudication in which the relevant issue could not

even be raised and remedied. Habeas artificially is

inflated; § 1983, diminished.

Quoting its earlier decision in Haywood v.

Hathaway, 842 F.3d 1026, 1029 (7th Cir. 2016), the

9

Seventh Circuit reasserted its position that the Heck

rule was a version of issue preclusion: a disciplinary

sanction collaterally estops “‘any inconsistent civil

judgment.’” Pet. App. 8a-9a. But even in Haywood,

the source of the Seventh Circuit’s issue-preclusion

approach to Heck, the court did not cite any of this

Court’s cases as precedent – only Seventh Circuit

cases. See Haywood, 842 F.3d at 1029 (citing

Simpson v. Nickel, 450 F.3d 303 (7th Cir. 2006);

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Carr

v. O’Leary, 167 F.3d 1124 (7th Cir. 1999)). The

reference to, and reliance on, issue preclusion is not

just without support from this Court’s Heck

jurisprudence or any other cases from this Court,

but in defiance of it.

Petitioner rightly notes that this Court expressly

declined to discuss the preclusion doctrines in Heck.

See Pet. 17; see also Heck, 512 U.S. at 480 n.2 (“We

also decline to pursue . . . another issue . . . that if

petitioner’s conviction were proper, this suit would

in all likelihood be barred by res judicata.”) (internal

quotation marks and citation omitted). Rather, all

that Heck accomplished was to close a possible

avenue of collateral attack to a prisoner’s sentence,

through the mere election of damages remedies. See

id. at 487 (key to barring the § 1983 remedy is

“whether a [§ 1983] judgment . . . would necessarily

imply the invalidity of his conviction or sentence”).

In that sense, the Heck bar is designed to protect the

habeas remedy by disallowing alternative lawsuits

that can fit within habeas. See infra p. 12. On the

other hand, this Court has gone on to affirm that

where there is “no consequence” for the basis of an

inmate’s conviction and sentence duration, he may

bring a § 1983 claim without needing to start with

10

the habeas process. Muhammed v. Close, 540 U.S.

749, 751 (2004).

In fact, where, as here, a state prisoner

challenges

solely

his

“circumstances

of

confinement,” there is “no claim on which habeas

relief could have been granted on any recognized

theory,” with § 1983 being the exclusive remedy. Id.

at 750, 755. The “purpose of federal habeas corpus

is to ensure that state convictions comply with the

federal law in existence at the time the conviction

became final.” Sawyer v. Smith, 497 U.S. 227, 234

(1990). The Court has maintained this limited

understanding of habeas throughout the entire Heck

line of cases, including the line’s progenitor case.

See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)

(“the essence of habeas corpus is an attack by a

person in custody upon the legality of that custody,

and . . . the traditional function of the writ is to

secure release from illegal custody”). In turn,

“requests for relief turning on circumstances of

confinement” are within the province of “a § 1983

action.” Muhammed, 540 U.S. at 750.

The upshot is that the Seventh Circuit found a

preclusion element in Heck that does not exist, and

it then applied issue preclusion to a non-durational

sanction (i.e., altered conditions of confinement)

supposedly subject to habeas, when this Court’s

decisions regularly have held habeas traditionally

does not reach the topic. Other courts might now

rely on the Seventh Circuit’s faulty collateralestoppel reasoning to thwart cases similar to

Petitioner’s. The Court should grant certiorari, and

reverse, in order to stop the Seventh Circuit’s

misreading of the basis and scope of Heck from

proliferating.

11

Of significance, the Court has very recently

emphasized the importance of § 1983 in the federal

constellation, and it has warned against

unnecessarily hampering its use. Less than two

months ago, the Court reaffirmed the “settled rule”

that because the § 1983 statute “guarantees ‘a

federal forum for claims of unconstitutional

treatment at the hands of state officials,’” the

exhaustion of state remedies “‘is not a prerequisite

to an action under [42 U.S.C.] § 1983.’” Knick v.

Twp. of Scott, 139 S. Ct. 2162, 2167 (2019) (citing

Heck, 512 U.S. at 480 (quoting Patsy v. Bd. of

Regents of Fla., 457 U.S. 496, 501 (1982)). In Knick,

the Court overruled its prior takings-clause

jurisprudence that required a property owner to

seek just compensation in state court initially and

that treated the state-court proceeding as preclusive

in any subsequent federal suit. These rules were,

the Court said, an “unjustifiable burden” on the

right to seek relief under § 1983. Id. The burden

here on § 1983 is even greater than in Knick: the

Seventh Circuit finds a claim not even within the

confines of another remedy (i.e., habeas) must be

pursued and won there, to the preclusion of § 1983

cases in the meantime.3

3 Perhaps the Seventh Circuit’s point with collateral estoppel

was that the disciplinary proceeding plus habeas review

precludes a § 1983 case because, in a mixed-sanctions case, the

prisoner could challenge the loss of good-time credits

emanating from the disciplinary hearing in habeas. If he did,

then the habeas ruling would have issue-preclusion effect in a

subsequent § 1983 case. Were that the Seventh Circuit’s

reasoning, then the Seventh Circuit would be compelling

Petitioner to challenge a durational sanction with which he

may not disagree and in a format not of his choosing, in order

to later challenge a non-durational sanction with which he does

12

2. The Seventh Circuit’s extension of Heck to

mixed-sanctions cases is at odds with this Court’s

decisions treating cautiously judge-made doctrines

that are ungrounded in statutory text. Though Heck

“lies at the intersection” of two federal statutes

(namely, habeas and § 1983), the doctrine is not

prescribed by the text of either. Heck, 512 U.S. at

480. At its heart, the Heck bar is a casemanagement tool that the Court created for the

orderly division of disputes between two competing

federal statutes. See Preiser, 411 U.S. at 488

(relying on the Court’s canons for reconciling two

federal statutes where a dispute falls within the

“literal terms” of both); id. at 482 (noting that

creation of the rule favoring habeas in durational

cases resolves an “important problem in the

administration of federal justice”).

As recently as this past January, the Court

reaffirmed its hesitation to extend judge-made

doctrines that lack connection to statutory text. See

Henry Schein, Inc. v. Archer & White Sales, Inc., 139

S. Ct. 524, 529 (2019) (invalidating the judicially

created “wholly groundless” exception to the Federal

Arbitration Act because it lacked support from the

text, even though the exception helped judges block

frivolous actions). The “text of the statute controls

[the] decision” concerning the scope of a statute even

if “[the] entire area of law is replete with judge-made

rules.” Morrison v. Nat’l Australia Bank Ltd., 561

disagree in a format of his choosing. Such a scenario not only

has no basis in this Court’s rulings, but may also compel

litigants essentially to fabricate threshold cases in order to

pursue their real grievance. The compulsion raises dueprocess concerns, as well as alarm that the prisoner’s § 1983

right has been “burden[ed].” Knick, 139 S. Ct. at 2167.

13

U.S. 247, 261 n.5 (2010) (internal quotation marks

and citation omitted).

In this instance, the Seventh Circuit extended

the judge-made Heck bar to a case that, under the

plain wording of § 1983, is actionable under § 1983.4

Whereas an extra-textual result might be

appropriate when the dispute likewise falls within

the core of habeas (see Preiser, 411 U.S. at 487), it

should not be the outcome where the controversy is

instead at the center of § 1983. In the latter

situation, respect for the terms Congress adopted in

§ 1983 – broadly inclusive of “challenge[s] [to] . . .

prison conditions,” id. at 499 – warrants the

rejection of Heck’s rule favoring habeas. That

outcome is especially fitting here, given that

Petitioner’s dispute (as ultimately narrowed by his

abandonment of any good-time credits challenge)

comes only within the text of § 1983, with habeas

historically not covering Petitioner’s stated

grievance.

4 The familiar language of § 1983, in relevant part, is: “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 within the jurisdiction thereof 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 proper

proceeding for redress . . . .” 42 U.S.C. § 1983.

14

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Anthony F. Shelley

Counsel of Record

Dawn E. Murphy-Johnson

Calvin Lee

Miller & Chevalier Chartered

900 Sixteenth St. NW

Washington, DC 20006

(202) 626-5800

ashelley@milchev.com

dmurphyjohnson@milchev.com

clee@milchev.com

Barbara E. Bergman

Co-Chair, Amicus Curiae

Committee

National Association of

Criminal Defense Lawyers

1201 East Speedway Blvd.

Tucson, AZ 85721

(520) 621-3984

bbergman@email.arizona.edu

August 7, 2019