Petition for Writ of Certiorari — Louis Taylor, Petitioner v. Pima County, Arizona, et al.
Supreme Court briefDec 12, 2019
Ask Donna
What actually matters in this document.
Text
No. 19-____
IN THE
Supreme Court_________
of the United States
LOUIS TAYLOR,
Petitioner,
v.
COUNTY OF PIMA; CITY OF TUCSON,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
JOHN P. LEADER
NEAL KUMAR KATYAL
Counsel of Record
LEADER LAW FIRM
MITCHELL P. REICH
405 W. Cool Dr., Ste. 107
Tucson, AZ 85704
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
PETER TIMOLEON LIMPERIS
Washington, D.C. 20004
TIMOTHY P. STACKHOUSE
(202) 637-5600
STANLEY G. FELDMAN
neal.katyal@hoganlovells.com
MILLER, PITT, FELDMAN &
MCANALLY, P.C.
1 S. Church Ave., Ste. 900
Tucson, AZ 85701
Counsel for Petitioner
QUESTIONS PRESENTED
In Heck v. Humphrey, 512 U.S. 477 (1994), this
Court held that federal habeas corpus is the sole
avenue by which a “state prisoner” may bring a claim
that would “necessarily imply the invalidity of his
conviction or sentence.” Id. at 487. In Spencer v.
Kemna, 523 U.S. 1 (1998), five Justices concluded
that Heck has no application to a prisoner who has
been “release[d] from custody” and who lacked an
opportunity to raise his claims through federal
habeas while incarcerated. Id. at 19 (Souter, J.,
concurring); id. at 25 n.8 (Stevens, J., dissenting).
Louis Taylor was wrongfully imprisoned for 42
years. After compelling evidence of Taylor’s innocence—and of egregious prosecutorial misconduct at
Taylor’s trial—came to light, the prosecution consented to the vacatur of Taylor’s conviction. But it
insisted, as a condition of Taylor’s release, that he
plead “no contest” to time served. The Ninth Circuit
held that, under Heck, that no-contest plea barred
Taylor from recovering any damages for his 42 years
of wrongful incarceration.
The questions presented are:
1. Whether Heck applies to a former prisoner who
lacked an opportunity to challenge his conviction
through federal habeas while incarcerated.
2. Whether Heck bars a plaintiff from recovering
damages for his period of incarceration if the plaintiff’s conviction has been vacated and he has been
released from prison pursuant to a plea of “no contest” to time served.
(i)
ii
PARTIES TO THE PROCEEDING
Louis Taylor, petitioner on review, was the plaintiff-appellee below.
The County of Pima and City of Tucson, respondents on review, were the defendants-appellants
below.
iii
RELATED PROCEEDINGS
The following proceedings are directly related to
this petition:
Taylor v. County of Pima, No. CV-15-00152TUC-RM (D. Ariz. Mar. 16, 2017) (available at
2017 WL 6550590), aff’d in part, No. 17-16980
(9th Cir. Jan. 17, 2019) (reported at 913 F.3d
930), reh’g denied (Aug. 14, 2019) (reported at
933 F.3d 1191).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDING ............................ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES....................................... vi
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 5
STATUTORY PROVISION INVOLVED.................... 5
STATEMENT .............................................................. 5
A.
Factual Background ................................. 5
B.
Procedural History ................................... 9
REASONS FOR GRANTING THE PETITION ....... 12
I.
THE NINTH CIRCUIT’S DECISION
DEEPENS MULTIPLE SPLITS OF
AUTHORITY ON THE SCOPE OF
HECK .............................................................. 13
A.
The Ninth Circuit’s Decision
Deepens A Split Regarding
Whether Heck Applies To A Former Prisoner Who Lacked An
Opportunity To Seek Habeas Relief While Incarcerated ........................... 14
B.
The Ninth Circuit’s Decision
Deepens A Split Regarding
Whether Heck Applies To A
Plaintiff Whose Conviction Was
Vacated And Who Pled No Contest To Time Served................................ 21
v
TABLE OF CONTENTS—Continued
Page
II.
THE NINTH CIRCUIT’S DECISION
IS WRONG...................................................... 26
III. THE QUESTIONS PRESENTED ARE
OF
ENORMOUS
PRACTICAL
IMPORTANCE ............................................... 32
CONCLUSION .......................................................... 36
APPENDIX
APPENDIX A—Ninth Circuit’s Opinion
(Jan. 17, 2019) ................................................... 1a
APPENDIX B—District Court’s Order
Denying Plaintiff’s Motion for Reconsideration and Certifying Interlocutory Appeal (June 6, 2017) ....................... 22a
APPENDIX C—District Court’s Order
Granting in Part and Denying in
Part Defendants’ Motions to Dismiss
(Mar. 16, 2017) ................................................ 39a
APPENDIX D—District Court’s Order
Granting in Part and Denying in
Part Defendant’s Motion for Reconsideration (June 1, 2016) ................................ 68a
APPENDIX E—District Court’s Order
Granting in Part and Denying in
Part Defendants’ Motions to Dismiss
(Feb. 8, 2016) ................................................... 73a
APPENDIX F—Order Denying Rehearing and Rehearing En Banc (Aug. 14,
2019) ................................................................ 98a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Agostini v. Felton,
521 U.S. 203 (1997) .............................................. 17
Black v. Hathaway,
616 F. App’x 650 (5th Cir. 2015).......................... 17
Blumberg v. Hewitt,
2019 WL 2353012 (C.D. Cal. Apr. 19, 2019) ....... 33
Bronowicz v. Allegheny County,
804 F.3d 338 (3d Cir. 2015) ................................. 23
Brown v. Williams,
644 F. App’x 117 (3d Cir. 2016) ........................... 19
Burd v. Sessler,
702 F.3d 429 (7th Cir. 2012) ................................ 19
Cohen v. Longshore,
621 F.3d 1311 (10th Cir. 2010) ...................... 15, 16
Deemer v. Beard,
557 F. App’x 162 (3d Cir. 2014) ............... 16, 19, 28
Dennis v. City of Philadelphia,
379 F. Supp. 3d 420 (E.D. Pa. 2019) ............. 24, 33
Entzi v. Redmann,
485 F.3d 998 (8th Cir. 2007) .................... 17, 19, 28
Figueroa v. Rivera,
147 F.3d 77 (1st Cir. 1998) ................ 17, 19, 28, 34
Geness v. Cox,
902 F.3d 344 (3d Cir. 2018) ............... 23, 24, 25, 30
Griffin v. Baltimore Police Dep’t,
804 F.3d 692 (4th Cir. 2015) ................................ 15
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Guerrero v. Gates,
442 F.3d 697 (9th Cir. 2006) ................................ 18
Harden v. Pataki,
320 F.3d 1289 (11th Cir. 2003) ............................ 16
Harrison v. Michigan,
722 F.3d 768 (6th Cir. 2013) ................................ 15
Heck v. Humphrey,
512 U.S. 477 (1994) ...................................... passim
Huang v. Johnson,
251 F.3d 65 (2d Cir. 2001) ................................... 18
Kitchen v. PA Board of Probation & Parole,
2017 WL 4151170 (M.D. Pa. Sept. 19,
2017) ............................................................... 24, 34
Lopez v. City of Chicago,
464 F.3d 711 (7th Cir. 2006) .................... 24, 26, 30
Lyall v. City of Los Angeles,
807 F.3d 1178 (9th Cir. 2015) .................. 10, 18, 20
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019), petition for
cert. filed, No. 19-247 (Aug. 22, 2019) ................. 18
McDonough v. Smith,
139 S. Ct. 2149 (2019) .......................................... 31
McFarlane v. Carothers,
2018 WL 4625660 (S.D. Ind. Sept. 27, 2018) ...... 25
Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299 (1986) .............................................. 29
Morrow v. Fed. Bureau of Prisons,
610 F.3d 1271 (11th Cir. 2010) ............................ 16
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Muhammad v. Close,
540 U.S. 749 (2004) ........................................ 27, 28
Myatt v. Fries,
2013 WL 3776480 (N.D. Ind. July 17, 2013) ....... 25
Nelson v. Campbell,
541 U.S. 637 (2004) .............................................. 27
Newmy v. Johnson,
758 F.3d 1008 (8th Cir. 2014) .............................. 20
Nonnette v. Small,
316 F.3d 872 (9th Cir. 2002) ................................ 17
North Carolina v. Pearce,
395 U.S. 711 (1969) .............................................. 29
Olsen v. Correiro,
189 F.3d 52 (1st Cir. 1999) ................ 22, 23, 29, 34
Pete v. Metcalfe,
8 F.3d 214 (5th Cir. 1993) .............................. 21, 22
Poventud v. City of New York,
715 F.3d 57 (2d Cir. 2013) ................................... 18
Poventud v. City of New York,
750 F.3d 121 (2d Cir. 2014) ............... 18, 22, 23, 34
Powers v. Hamilton County Public Defender
Commission,
501 F.3d 592 (6th Cir. 2007) .......................... 15, 20
Preiser v. Rodriguez,
411 U.S. 475 (1973) ........................................ 27, 28
Randell v. Johnson,
227 F.3d 300 (5th Cir. 2000) .............. 16, 19, 28, 34
Roberts v. City of Fairbanks,
2018 WL 5259453 (Oct. 22, 2018)........................ 34
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Rosales-Martinez v. Palmer,
2017 WL 3710068 (D. Nev. Aug. 28, 2017) ......... 34
Savory v. Cannon,
912 F.3d 1030 (7th Cir. 2019) .............................. 19
Spencer v. Kemna,
523 U.S. 1 (1998) .......................................... passim
Stein v. County of Westchester,
410 F. Supp. 2d 175 (S.D.N.Y. 2006) ................... 34
Taylor v. County of Pima,
913 F.3d 930 (9th Cir. 2019) ................................ 33
Teichmann v. New York,
769 F.3d 821 (2d Cir. 2014) ................................. 19
Thomas v. City of Philadelphia,
2019 WL 4039575 (E.D. Pa. Aug. 27,
2019) ......................................................... 23, 24, 34
Town of Newton v. Rumery,
480 U.S. 386 (1987) .................................... 4, 31, 32
Wallace v. Kato,
549 U.S. 384 (2007) ........................................ 27, 28
Wilson v. Johnson,
535 F.3d 262 (4th Cir. 2008) ................................ 15
CONSTITUTIONAL PROVISION:
U.S. Const. amend. XI ............................................ 11
STATUTES:
28 U.S.C. § 1254(1) .................................................. 5
42 U.S.C. § 1983 ............................................. passim
x
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
60 Minutes: Arizona’s Pioneer Hotel Fire ReExamined (CBS News television broadcast
Mar. 31, 2013), available at
https://www.youtube.com/watch?v=UKecV
bSwKKw ................................................................. 8
Stephanie Clifford, Wrongly Convicted, They
Had to Choose: Freedom or Restitution,
N.Y. Times (Sept. 30, 2019),
https://www.nytimes.com/2019/09/30/us/wr
ongful-convictions-civil-lawsuits.html ................ 33
Lucian E. Dervan & Vanessa A. Edkins, The
Innocent Defendant’s Dilemma: An
Innovative Empirical Study of Plea
Bargaining’s Innocence Problem,
103 J. Crim. L. & Criminology 1 (2013) .............. 33
Restatement (Second) of Torts § 9 (1965) .............. 30
Restatement (Second) of Torts § 660 (1977) .......... 30
IN THE
Supreme Court_________
of the United States
No. 19-___
_________
LOUIS TAYLOR,
Petitioner,
v.
COUNTY OF PIMA; CITY OF TUCSON,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Louis Taylor respectfully petitions for a writ of
certiorari to review the judgment of the Ninth Circuit in this case.
INTRODUCTION
This case concerns a profound injustice and a deeply important question of civil rights law: Whether a
local government can bar a wrongfully incarcerated
person from recovering any damages for his term of
imprisonment by insisting, as a condition of release,
that the prisoner plead “no contest” to time served.
In recent years, local governments have increasingly
turned to this coercive tactic as a means of foreclosing recovery even by the demonstrably innocent.
And the Circuits are now sharply and intractably
split as to whether such pleas do in fact immunize
jurisdictions from liability—with the decision below
(1)
2
only the latest and most dramatic extension yet of
that division.
Louis Taylor is an African-American man who was
sentenced to life imprisonment in 1972 for allegedly
setting a fire that killed 28 people. Throughout his
term of imprisonment, Taylor resolutely maintained
his innocence. And in 2006, compelling evidence of
Taylor’s innocence began to come to light. An independent arson review commission and the Tucson
Fire Department both determined that the fire for
which Taylor had been convicted could not be classified as arson at all. Further, Taylor discovered that
the prosecution had withheld critical exculpatory
evidence from the defense at his trial; that law
enforcement officers had suborned perjury from a
critical witness; and that the state’s arson “expert”
believed Taylor to be guilty because “ ‘black boys’ like
to set fires.” Pet. App. 18a (Schroeder, J., dissenting
in part).
In light of this compelling new evidence of Taylor’s
innocence—and of egregious prosecutorial misconduct at his trial—the prosecution acknowledged that
it could no longer sustain Taylor’s conviction. Yet
rather than agree to Taylor’s unconditional release,
the prosecution insisted that Taylor plead “no contest” to the original, discredited charges against him
and enter a stipulated sentence of time served.
Faced with the Hobson’s Choice of immediate release
pursuant to a no-contest plea, or indefinite further
imprisonment while the prosecution fought his
postconviction petition in court, Taylor accepted the
plea. In 2013, his original conviction was vacated
and he was immediately released.
3
Taylor then brought a § 1983 suit against Pima
County, seeking recovery for the constitutional
violations that had robbed him of 42 years of his
freedom. Pima County, however, argued that the nocontest plea prevented Taylor from recovering any
damages for his period of incarceration. A sharply
divided panel of the Ninth Circuit agreed: Aligning
itself with “factually indistinguishable” decisions
from the First and Second Circuits, the majority held
that Heck v. Humphrey, 512 U.S. 477 (1994), barred
Taylor from recovering damages for a single day of
his imprisonment. Pet. App. 10a-11a. It reasoned
that such damages would imply the invalidity of
Taylor’s no-contest plea, which the panel understood
to be the “sole legal cause” of his preceding 42 years
of imprisonment. Id. at 8a-11a.
This Court’s review is urgently warranted. The
Ninth Circuit’s decision deepens two severe splits
regarding the scope of Heck: It extends an intractable 5-4 split as to whether Heck applies to a prisoner,
like Taylor, who has been released from imprisonment and could not challenge his conviction (here,
the no-contest plea) through federal habeas while
incarcerated; and it deepens a separate 4-2 split over
whether, even if Heck applies, it forecloses recovery
by a former prisoner who has been released pursuant
to a no-contest plea to time served. These divisions
are widely acknowledged, frequently recurring,
and—as multiple Circuits have indicated—incapable
of resolution absent this Court’s intervention.
Moreover, the Ninth Circuit’s decision is gravely
incorrect. In Spencer v. Kemna, 523 U.S. 1 (1998),
five Justices expressly stated that Heck does not
limit § 1983 relief for a plaintiff, like Taylor, who
4
never had an opportunity to challenge the pertinent
conviction through federal habeas while incarcerated. See id. at 19 (Souter, J., concurring); id. at 25
n.8 (Stevens, J., dissenting). Moreover, basic principles of causation, the common-law understanding of
favorable termination, and this Court’s decision in
Town of Newton v. Rumery, 480 U.S. 386 (1987), all
make clear that a plea to time served does not retroactively immunize an unlawful term of imprisonment
from § 1983 liability.
This issue is of utmost importance to the lives and
liberties of Americans. The Ninth Circuit and three
of its sister Circuits have handed local governments
a foolproof means of immunizing themselves from
liability for prosecutorial misconduct after a prisoner
is exonerated: just insist on a plea to time served as a
condition of release. That coercive tactic has become
regrettably common throughout the country. And
unless this Court steps in, persons most deserving of
§ 1983’s protection—including individuals, like Louis
Taylor, who have suffered incomprehensible abuses
at the hands of their governments—will be left
without redress for the most severe constitutional
wrongs.
The petition should be granted.
OPINIONS BELOW
The Ninth Circuit’s opinion (Pet. App. 1a-21a) is
reported at 913 F.3d 930. The District Court’s order
granting in part and denying in part Pima County’s
motion to dismiss (Pet. App. 39a-67a) is available at
2017 WL 6550590. The Ninth Circuit’s order denying panel rehearing and rehearing en banc (Pet. App.
98a-99a) is reported at 933 F.3d 1191.
5
JURISDICTION
The Ninth Circuit entered judgment on January
17, 2019. Taylor filed a timely petition for panel
rehearing and rehearing en banc, which the Ninth
Circuit denied on August 14, 2019. On October 29,
2019, Justice Kagan extended the time within which
to file a petition for a writ of certiorari until December 12, 2019. See No. 19A464. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
Section 1983 of Title 42, United States Code, provides in pertinent part:
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
*** .
STATEMENT
A. Factual Background
1. Shortly after midnight on December 20, 1970, a
fire broke out at the Pioneer Hotel in Tucson, Arizona. ER 059, 118.1 Louis Taylor, a 16-year old African-American, was attending a Christmas party in
1
All record citations are to Appellant’s Excerpts of Record in
the Ninth Circuit. See Dkt. 12.
6
the hotel when the fire started. Id. at 059. Taylor
remained inside the hotel for several hours, assisting
emergency workers and helping guests to safety. Id.
at 059-060.
At approximately 2 a.m., a hotel employee told a
police officer that he had heard that “two Negro boys
with bushy hair were fighting” when the fire began.
Id. at 060. The officer spent 30 to 45 minutes searching for a “Negro boy,” and eventually located Taylor,
who was still assisting the evacuation. Id. The
officer escorted Taylor to a police station, where
police interrogated him for the rest of the night. Id.
Taylor denied any involvement in the fire, crying and
screaming, “I didn’t kill those people!” Id. at 061.
Taylor requested a polygraph test, which was administered at 7:15 a.m.; the test gave no indication that
he was lying. Id. at 061-062.
Nonetheless, at approximately 9:00 a.m., police
arrested Taylor and charged him with arson. Id. at
062. Police had not yet conducted any investigation
to ascertain whether the fire was actually caused by
arson. Id. Nor had police questioned a man named
Donald Anthony, who was the suspect in three prior
fires at the Pioneer Hotel. Id. at 221. Their principal evidence against Taylor was simply that he was a
“Negro boy” and that Taylor—a smoker, who was
permitted to smoke during his interrogation—had
matches in his pocket. Id. at 062.
2. Taylor’s trial took place in early 1972. Id. at 068.
The lead prosecutor was Horton Weiss, who at the
time was subject to five separate misconduct charges
(for which he was later jailed), and who had previously referred to a white lawyer representing a black
defendant as a “nigger lover.” Id. at 223-225. The
7
prosecution charged Taylor with 28 counts of murder, and tried him as an adult before an all-white
jury. Id. at 067-068.
At trial, the prosecution’s theory was that Taylor
had set the fire using matches and a liquid accelerant. To substantiate its claim of arson, the prosecution relied on the testimony of a “fire prevention
officer” named Cyrillis Holmes, who testified that he
could infer that the fire had at least two points of
origin. Id. at 063-065, 087-090. The prosecution also
introduced the testimony of a jailhouse witness,
Robert Jackson, who testified that while detained
pending trial, Taylor confessed that he set the fire
using lighter fluid and matches. Id. at 070.
In March 1972, the jury convicted Taylor of 28
counts of murder, and a judge sentenced him to 28
concurrent life sentences. Id. at 068. Taylor filed a
direct appeal, a motion for state postconviction relief,
and a federal habeas petition. Each was denied. Id.
at 073-075.
3. For the following 42 years, Taylor was incarcerated in Arizona state prison. Throughout that period, Taylor unwaveringly maintained his innocence.
In 2006, powerful new evidence of Taylor’s innocence began to come to light. That year, an arson
review committee comprised of national experts in
the field of fire science reviewed the available evidence concerning the Pioneer Hotel fire. Id. at 085.
The committee determined, using modern fire science techniques, that there was no factual or scientific basis to classify the fire as arson. Id. at 076-077,
085-086. The Tucson Fire Department reviewed the
same evidence and came to the same conclusion. Id.
at 123.
8
Taylor and his attorneys also uncovered disturbing
new evidence of prosecutorial misconduct at Taylor’s
trial. They learned that the prosecution had withheld from the defense an expert report indicating,
contrary to its central theory of the case, that no
accelerants were used in the fire. Id. at 077-078.
Albert Jackson, the brother of Robert Jackson (who
died in 1983), provided an affidavit stating that
police had instructed his brother to falsely inculpate
Taylor as part of a deal not to prosecute Jackson for
a separate offense. Id. at 073-074. Taylor’s attorneys also conducted a deposition of Holmes, the
prosecution’s fire “expert,” who testified that he
believed Taylor was guilty of arson because “black
boys” like to start fires. Id. at 227.2
In 2012, Taylor filed a petition for state postconviction relief. Id. at 053-055. Pima County acknowledged that the newly discovered evidence entitled
Taylor to a new trial. Id. at 124, 155-156. It also
conceded that “the state of the evidence is such that
the State would be unable to proceed with a retrial,
and the convictions would not stand.” Id. at 124; see
also id. at 172. But the County refused to consent to
Taylor’s unconditional release. Instead, it stated
that it would agree to release Taylor only if he pled
“no contest” to the original charges against him and
entered a stipulated sentence of time served. Id. at
131.
2
An excerpt of Holmes’s deposition testimony may be viewed at
60 Minutes: Arizona’s Pioneer Hotel Fire Re-Examined at 9:039:32 (CBS News television broadcast Mar. 31, 2013), available
at https://www.youtube.com/watch?v=UKecVbSwKKw.
9
Taylor thus faced an impossible choice: He could
plead no contest and obtain immediate release, or he
could remain incarcerated indefinitely while Pima
County fought his postconviction petition in court.
Having already lost 42 years of his life to a term of
wrongful imprisonment, Taylor acceded to the County’s demand, while maintaining his innocence. Id. at
127-131, 172-173. In April 2013, an Arizona court
vacated Taylor’s 1972 conviction, sentenced Taylor to
time served, and ordered him immediately released.
Id. at 145, 149, 173, 175-176.
B. Procedural History
1. In 2015, Taylor filed a 42 U.S.C. § 1983 suit
against Pima County and the City of Tucson. ER
002. Taylor alleged that respondents and their
agents had committed severe constitutional violations during his trial, including soliciting false testimony, withholding exculpatory evidence, and engaging in racial discrimination. ER 012-024. Taylor
sought compensatory damages for his 42 years of
wrongful imprisonment. Id.
Pima County moved to dismiss the complaint, arguing that Taylor’s claims for relief and his request
for incarceration damages were barred by Heck. The
District Court denied the motion in pertinent part.
It held that Heck did not bar Taylor’s claims of
prosecutorial misconduct, because his 1972 convictions were “no longer outstanding,” and because his
later no-contest plea was “untainted” by the earlier
violations. Pet. App. 87a-88a, 90a-91a. The court
further held that Heck did not prohibit Taylor from
“seek[ing] compensatory damages for the 42 years
that he spent in prison.” Id. at 93a. The court
explained that, in Spencer v. Kemna, five Justices
10
recognized that “Heck [does] not bar a released
prisoner unable to pursue habeas relief from bringing a § 1983 claim.” Id. at 91a-92a. That “exception
to Heck” applied here, the court concluded, because
Taylor “was sentenced to time served and immediately released from custody” pursuant to his 2013 nocontest plea, and so “never had the opportunity to
seek habeas relief with respect to his 2013 convictions.” Id. at 92a-93a.
Shortly after the parties completed briefing on the
motion to dismiss, the Ninth Circuit issued its decision in Lyall v. City of Los Angeles, 807 F.3d 1178
(9th Cir. 2015). There, the court largely repudiated
the exception to Heck recognized by five Justices in
Spencer. Id. at 1191-92. Pima County moved for
reconsideration in light of Lyall, and the District
Court granted the motion in part. Pet. App. 68a-72a.
It held that, “[p]ursuant to Lyall, it is now clear that
[Taylor] is Heck-barred from challenging his 2013
convictions in this action.” Id. at 70a. It deferred a
decision on how this conclusion affected Taylor’s
“claim for compensatory damages.” Id. at 70a-71a.
Taylor filed an amended complaint, which Pima
County again moved to dismiss. The District Court
granted the motion in part. Pet. App. 66a-67a. The
court reaffirmed its prior holding that Taylor could
pursue most of his claims without calling into question the validity of his 2013 plea. Id. at 56a-60a.
But, in light of Lyall, it held that Taylor was barred
from recovering any incarceration damages, because
those damages would ostensibly call into question
the validity of his “outstanding 2013 convictions and
time-served sentence.” Id. at 54a, 65a.
11
On a motion for reconsideration, however, the District Court expressed “concern” with this decision.
Id. at 35a. It observed that “Heck and its progeny
may have unintentionally created a financial incentive for prosecutors to require convicted defendants
asserting actual innocence claims to enter no-contest
pleas in exchange for immediate release,” a practice
that “undermines the fairness and integrity of the
justice system.” Id. The court thus certified for
immediate appeal the question of whether Taylor
could recover incarceration damages. Id. at 37a.
2. In a sharply divided decision, the Ninth Circuit
affirmed. Id. at 7a-11a.3 The majority observed that
“Taylor’s 1972 jury conviction has been vacated by
the state court, so Heck poses no bar to a challenge to
that conviction or the resulting sentence.” Id. at 8a9a. “But Taylor’s 2013 conviction, following his plea
of no contest, remains valid.” Id. at 9a. Thus, the
panel reasoned, “Taylor may not state a § 1983 claim
if a judgment in his favor ‘would necessarily imply
the invalidity of his [2013] conviction or sentence.’ ”
Id. (alteration in original) (quoting Heck, 512 U.S. at
487).
The panel then concluded that an award of incarceration damages would imply the invalidity of
Taylor’s 2013 plea. In the panel’s view, “all of the
time that Taylor served in prison is supported by the
valid 2013 state-court judgment,” because “[t]he
state court * * * sentenced Taylor to time served.” Id.
3
The Ninth Circuit dismissed a separate appeal by Pima
County seeking review of a decision denying it Eleventh
Amendment immunity. Pet. App. 7a.
12
Indeed, the panel stated that, “[a]s a matter of law,
the 2013 conviction caused the entire period of his
incarceration.” Id. (emphasis added). Thus, it held,
“Taylor cannot seek to collect damages for the time
that he served pursuant to his plea agreement.” Id.
at 11a. The panel noted that this decision accorded
with “factually indistinguishable” decisions from the
First and Second Circuits. Id. at 10a-11a. The
majority added that it “t[ook] no pleasure in reaching
this unfortunate result, given Taylor’s serious allegations of unconstitutional actions by the County,” but
stated that it believed its decision compelled by this
Court’s precedents. Id. at 11a.
Judge Schroeder dissented, writing that “our law is
not that unjust.” Id. at 19a. She explained that
Taylor “served decades of imprisonment as a result
of his first, vacated conviction.” Id. “That Taylor
later, in order to gain prompt release, pleaded no
contest to the charges and to a sentence of time
served, does not undo the causal sentencing chain set
in motion after the original, invalid conviction.” Id.
“To say such a plea justifies the loss of 42 years,”
Judge Schroeder concluded, “is to deny the reality of
this situation and perpetuate an abuse of power that
§ 1983 should redress.” Id. at 21a.
Taylor petitioned for panel rehearing and rehearing en banc. Over Judge Schroeder’s dissent, the
Ninth Circuit denied the petition. Id. at 99a.
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s decision extends a disturbing
trend in the lower courts that threatens to vitiate
§ 1983 for those most deserving of its protection. In
four Circuits, including the Ninth, local governments
may now immunize themselves from § 1983 liability
13
for the most egregious constitutional violations
simply by insisting, as a condition of release, that a
person plead “no contest” to time served. That
perceived loophole in the law has become a widespread and increasingly successful means by which
local governments seek to foreclose recovery for
exonerated defendants. And this case presents an
all-too-vivid representation of the real-world costs:
After 42 years of wrongful imprisonment, Louis
Taylor will—if the Ninth Circuit’s decision is permitted to stand—recover nothing for a lifetime stolen by
his government.
This Court’s review is urgently needed. The Ninth
Circuit’s holding extends two deep and intractable
sharp splits of authority in the Circuits. On each
question, the Ninth Circuit gravely erred. And these
issues are of unparalleled importance to the integrity
of our criminal justice system and to the lives of
Americans, like Louis Taylor, whom the government
has grievously and irreversibly wronged.
I. THE
NINTH
CIRCUIT’S
DECISION
DEEPENS
MULTIPLE
SPLITS
OF
AUTHORITY ON THE SCOPE OF HECK.
The decision below implicates two highly consequential and recurring circuit splits. First, it extends a widely acknowledged circuit split as to
whether Heck applies to a former prisoner, like
Taylor, who could not challenge his conviction—in
this case, the no-contest plea—while incarcerated.
Second, the decision also implicates a profoundly
important split as to whether, even if Heck applies, it
prevents a prisoner from recovering damages for his
period of incarceration if he was released pursuant to
a plea of no contest to time served. These questions
14
arise frequently in the lower courts, are have proven
incapable of resolution without this Court’s intervention, and were outcome-determinative in this case.
A. The Ninth Circuit’s Decision Deepens A
Split Regarding Whether Heck Applies To
A Former Prisoner Who Lacked An Opportunity To Seek Habeas Relief While Incarcerated.
In Heck, this Court reconciled “the two most fertile
sources of federal-court prisoner litigation”—§ 1983
and the federal habeas corpus statute—by holding
that a “state prisoner” may not “seek[ ] damages in a
§ 1983 suit” that “would necessarily imply the invalidity of his conviction or sentence” unless criminal
proceedings have been “terminat[ed] * * * in favor of
the accused.” 512 U.S. at 480, 484, 487. Every
Member of the Court agreed that this holding applies
to persons “in custody” for purposes of the habeas
statute. See id. at 487. But Justice Souter, joined by
three other Justices, argued that this limitation does
not extend to “individuals not ‘in custody’ for habeas
purposes” who were unable to “invoke federal habeas
jurisdiction” before their release. Id. at 500 (Souter,
J., concurring in the judgment) (emphasis added).
Four years later, in Spencer v. Kemna, five Justices
joined opinions expressly agreeing with that view.
See Spencer, 523 U.S. at 19 (Souter, J., joined by
O’Connor, Ginsburg, and Breyer, JJ., concurring); id.
at 21 (Ginsburg, J., concurring); id. at 25 n.8 (Stevens, J., dissenting).
In the wake of Heck and Spencer, the Circuits have
deeply split as to whether the limitation on Heck
recognized by Justice Souter is correct. Four Circuits have expressly adopted Justice Souter’s view;
15
five Circuits—including the Ninth—have largely or
entirely rejected that view; and two Circuits have
expressed deep and unresolvable internal division on
the question.
1. Four Circuits—the Fourth, Sixth, Tenth, and
Eleventh—expressly follow Justice Souter’s Spencer
concurrence. In Wilson v. Johnson, 535 F.3d 262
(4th Cir. 2008), the Fourth Circuit explained that
while “the circuits are split” on the validity of Justice
Souter’s view, it found persuasive “the reasoning
employed by the plurality in Spencer.” Id. at 267268. It therefore held that Heck does not apply to an
individual who “seeks damages for past confinement”
and who “could not, as a practical matter, seek
habeas relief” prior to his release. Id.; see Griffin v.
Baltimore Police Dep’t, 804 F.3d 692, 697 (4th Cir.
2015) (reaffirming this position).
In Powers v. Hamilton County Public Defender
Commission, 501 F.3d 592 (6th Cir. 2007), the Sixth
Circuit likewise stated that it was “persuaded by the
logic of those circuits that have held that Heck’s
favorable-termination requirement cannot be imposed against § 1983 plaintiffs who lack a habeas
option for the vindication of their federal rights.” Id.
at 603. It thus permitted a § 1983 suit by a former
prisoner whose “term of incarceration—one day—
was too short to enable him to seek habeas relief.”
Id. at 601; see Harrison v. Michigan, 722 F.3d 768,
774 (6th Cir. 2013) (reaffirming this position).
The Tenth and Eleventh Circuits have adopted the
same position. In Cohen v. Longshore, 621 F.3d 1311
(10th Cir. 2010), the Tenth Circuit “adopt[ed] the
reasoning of th[o]se circuits” that “hold that a petitioner who has no available remedy in habeas,
16
through no lack of diligence on his part, is not barred
by Heck from pursuing a § 1983 claim.” Id. at 131517. So too in Harden v. Pataki, 320 F.3d 1289 (11th
Cir. 2003), the Eleventh Circuit aligned itself with
those Circuits that “hold the view that, where federal
habeas corpus is not available to address constitutional wrongs, § 1983 must be.” Id. at 1298-99 (internal quotation marks omitted); see Morrow v. Fed.
Bureau of Prisons, 610 F.3d 1271, 1272 (11th Cir.
2010).
2. In acknowledged conflict with these Circuits,
five Circuits—the First, Third, Fifth, Eighth, and
Ninth—have largely or entirely rejected Justice
Souter’s Spencer concurrence.
In Deemer v. Beard, 557 F. App’x 162 (3d Cir.
2014), the Third Circuit explained that it disagreed
with those “courts of appeals [that] have found that
the Heck favorable termination rule does not apply to
plaintiffs for whom federal habeas relief is unavailable.” Id. at 165-166. Rather, it “interpreted Heck to
impose a universal favorable termination requirement on all § 1983 plaintiffs attacking the validity of
their conviction or sentence.” Id. at 166. The Third
Circuit acknowledged that a “majority of the justices
in Spencer endorsed a different course,” but concluded that it was bound to “leav[e] it to the Supreme
Court to scale back or overrule Heck’s holding.” Id.
at 166-167.
The Fifth Circuit reached the same conclusion in
Randell v. Johnson, 227 F.3d 300 (5th Cir. 2000) (per
curiam). It read Heck as “unequivocally” imposing a
“universal favorable termination requirement,” and
refused to join its sister Circuits in following the
“concurring and dissenting opinions in Spencer.” Id.
17
at 301. Although the Fifth Circuit acknowledged
that it was possible that “the Supreme Court—if
presented with the question—would relax Heck’s
favorable termination requirement for plaintiffs who
have no procedural vehicle to challenge their conviction,” it “decline[d] to announce for the Supreme
Court that it has overruled one of its decisions.” Id.;
see Black v. Hathaway, 616 F. App’x 650, 653-654
(5th Cir. 2015) (per curiam) (reaffirming this position).
The Eighth and First Circuits agree. In Entzi v.
Redmann, 485 F.3d 998 (8th Cir. 2007), the Eighth
Circuit concluded that Heck “rejected the proposition” that favorable termination is not required when
“the writ of habeas corpus is no longer available.” Id.
at 1003. “Absent a decision of the Court that explicitly overrules what we understand to be the holding
of Heck,” the Eighth Circuit added, “we decline to
depart from that rule.” Id. So too in Figueroa v.
Rivera, 147 F.3d 77 (1st Cir. 1998), the First Circuit
reasoned that while “dicta from concurring and
dissenting opinions in [Spencer] may cast doubt upon
the universality of Heck’s ‘favorable termination’
requirement,’ ” lower courts must “leave to th[is]
Court ‘the prerogative of overruling its own decisions.’ ” Id. at 81 & n.3 (quoting Agostini v. Felton,
521 U.S. 203, 236 (1997)).
The Ninth Circuit recently aligned itself with these
Circuits. For several years, it took the view that “the
unavailability of a remedy in habeas corpus * * *
permit[s]” a plaintiff “to maintain a § 1983 action for
damages.” Nonnette v. Small, 316 F.3d 872, 876 (9th
Cir. 2002). But in 2014, the Ninth Circuit dramatically limited that precedent, holding that “Nonnette’s
18
relief from Heck ‘affects only former prisoners challenging loss of good-time credits, revocation of parole
or similar matters, not challenges to an underlying
conviction.’ ” Lyall, 807 F.3d at 1192 (quoting Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006)).
Further, it held that even as to that narrow class of
claimants, Heck still applies if the plaintiff could
have sought relief “through direct appeal or postconviction relief.” Id. at 705 n.12 (emphasis added);
see Martin v. City of Boise, 920 F.3d 584, 613 (9th
Cir. 2019) (same), petition for cert. filed, No. 19-247
(Aug. 22, 2019). The Ninth Circuit has thus reduced
the exception to Heck to miniscule scope—applying
only to persons who challenge the loss of good-time
credits or the revocation of parole, and who never
had any state or federal avenue for seeking relief.
3. The two remaining Circuits—the Second and
Seventh—have expressed sharp and unresolvable
internal conflict on this question. For a time, the
Second Circuit appeared to follow the position taken
by Justice Souter’s concurrence in Spencer. See, e.g.,
Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001).
But in Poventud v. City of New York, 715 F.3d 57 (2d
Cir. 2013), the panel split as to whether the court
should continue to follow that approach. Compare
id. at 58 (majority opinion), with id. at 66 (Jacobs,
C.J., dissenting). The Second Circuit granted rehearing en banc to resolve the “relationship of access
to habeas relief and the use of § 1983,” but, in the
face of deep and intractable disagreement on that
question, ultimately resolved the case on the assumption that Heck did apply. Poventud v. City of
New York, 750 F.3d 121, 125 n.1, 127 & n.6 (2d Cir.
2014) (en banc); see infra at p. 22. Second Circuit
judges continue to disagree as to the court’s prevail-
19
ing approach. Compare Teichmann v. New York, 769
F.3d 821, 829-830 (2d Cir. 2014) (Calabresi, J.,
concurring); with id. at 827 (Livingston, J., concurring in part and concurring in the judgment in part).
For several years, the Seventh Circuit likewise
appeared to follow the approach taken by Justice
Souter’s Spencer concurrence. See, e.g., Burd v.
Sessler, 702 F.3d 429, 435 (7th Cir. 2012). Earlier
this year, however, a panel of the Seventh Circuit
repudiated that position, dismissing the court’s
earlier statements as “confus[ing]” dicta irreconcilable with “the core holding of Heck.” Savory v. Cannon, 912 F.3d 1030, 1034-38 (7th Cir. 2019). In
March, the Seventh Circuit granted rehearing en
banc to resolve this conflict in its precedents. Order
Granting Rehearing En Banc, Savory, No. 17-3543
(7th Cir. Mar. 6, 2019).
4. In short, the Circuits are sharply and intractably
divided as to whether Heck applies to former prisoners who could not challenge their convictions through
habeas while incarcerated. Every regional Circuit
has taken a position on this question. Nearly every
Circuit has acknowledged disagreement with some of
its sister courts on the issue. And several Circuits
have made clear that they will not revisit their
precedents unless this Court intervenes, with a
number of judges urging this Court to take up the
issue. See, e.g., Deemer, 557 F. App’x at 166-167;
Entzi, 485 F.3d at 1003; Randell, 227 F.3d at 301;
Figueroa, 147 F.3d at 81 n.3; see also Deemer, 557 F.
App’x at 167-168 (Rendell, J., concurring) (urging the
Court to “decide[ ] this issue”); Brown v. Williams,
644 F. App’x 117, 120 n.2 (3d Cir. 2016) (Ambro and
Greenberg, JJ., concurring in the judgment) (same);
20
Newmy v. Johnson, 758 F.3d 1008, 1012 (8th Cir.
2014) (Kelly, J., concurring) (similar). This important and recurring split is simply incapable of
resolution without this Court’s intervention.
The split was also outcome-determinative in this
case. It is beyond dispute that Louis Taylor lacked
an opportunity to challenge his 2013 plea and sentence through habeas: He was released from incarceration the very same day that his 2013 plea was
entered. ER 149, 175-176. Accordingly, applying the
Spencer concurrence, the District Court initially
concluded that Heck imposed no bar to his § 1983
damages claim. Pet. App. 91a-93a. But after the
Ninth Circuit largely repudiated the Spencer concurrence in Lyall, the District Court reversed course.
Id. at 70a-71a. The Ninth Circuit then affirmed on
the ground that Heck shielded Taylor’s 2013 plea and
sentence from attack. Id. at 8a-11a.
Had Taylor’s claim arisen in the Fourth, Sixth,
Tenth, or Eleventh Circuits, Heck would thus have
interposed no bar to his claim—as numerous cases
involving similarly situated plaintiffs in those courts
demonstrate. See, e.g., Powers, 501 F.3d at 601
(holding that Heck does not preclude recovery by
plaintiff whose “term of incarceration—one day—was
too short to enable him to seek habeas relief”). Only
because the Ninth Circuit largely abandoned the
Spencer concurrence was Taylor foreclosed from
obtaining relief for his decades of wrongful imprisonment.
21
B. The Ninth Circuit’s Decision Deepens A
Split Regarding Whether Heck Applies To
A Plaintiff Whose Conviction Was Vacated
And Who Pled No Contest To Time Served.
The Ninth Circuit’s decision also implicates a second, highly consequential split. Even where Circuits
deem Heck applicable to claims by former prisoners,
they disagree as to whether Heck bars the specific
type of claim at issue here: a § 1983 suit seeking
incarceration damages after the plaintiff has succeeded in obtaining vacatur of his sentence and been
released on a plea of time served. Four Circuits—the
First, Second, Fifth, and now the Ninth—hold that
Heck categorically bars such suits. In contrast, two
Circuits—the Third and the Seventh—have adopted
rules that permit plaintiffs like Taylor to overcome
the Heck bar and recover damages for their term of
imprisonment.
1. Four Circuits have expressly held that a plaintiff
may not recover damages for his term of imprisonment where his initial conviction was vacated and he
entered a no-contest plea to time served.
In Pete v. Metcalfe, 8 F.3d 214 (5th Cir. 1993), the
plaintiff was convicted of sexual assault, succeeded
in overturning his conviction on appeal, and then
agreed to “plead nolo contendere to the charges and
receive a sentence of the two years he had already
served in prison.” Id. at 215-216. Upon release, Pete
brought a malicious prosecution claim under § 1983.
Id. at 216. The Fifth Circuit dismissed the suit. It
reasoned simply that the “prosecution ended with a
plea of nolo contendere and resulting conviction and
thus the action did not terminate in [Pete’s] favor.”
22
Id. at 219. Pete therefore could not bring a claim of
malicious prosecution under § 1983. Id.
The First Circuit followed similar reasoning in
Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999). There,
too, the plaintiff was convicted of murder, successfully challenged his conviction on appeal, and pleaded
“nolo contendere to a charge of manslaughter” and
“was sentenced to the time he had already served for
the original conviction.” Id. at 55. The First Circuit
held that the plaintiff could not recover incarceration
damages for his initial murder conviction, because
the plaintiff’s plea to time served was “the sole legal
cause of the incarceration imposed in the sentence,”
and allowing recovery would “call into question * * *
the legal validity of [that] unimpeached criminal
sentence.” Id. at 68-69.
The Second Circuit joined this view in its en banc
decision in Poventud. In that case, the plaintiff was
convicted of attempted murder, obtained vacatur of
his conviction after several years, and then pleaded
guilty to attempted robbery with a sentence of one
year of time served. 750 F.3d at 126. The en banc
court held that Poventud was not categorically
barred from challenging his initial conviction under
§ 1983. Id. at 135-136. But, citing Olsen, the Second
Circuit held that “Poventud cannot seek to collect
damages for the time that he served pursuant to his
plea agreement (that is, for the year-long term of
imprisonment),” because such recovery would impermissibly “impugn[ ] the validity” of his plea. Id.
The Ninth Circuit expressly followed the holdings
of these Circuits in the decision below. Pet. App.
10a-11a. It held that “[a] plaintiff in a §1983 action
may not recover incarceration-related damages for
23
any period of incarceration supported by a valid,
unchallenged conviction and sentence.” Id. at 11a.
And just as in Olsen and Poventud—which the Ninth
Circuit said it “agree[d] with” and described as
“factually indistinguishable”—it held that Taylor
could not recover any damages for his time of imprisonment because, in its view, “Taylor’s valid 2013
conviction and sentence are the sole legal causes of
his incarceration.” Id. at 10a-11a.
2. The Third and Seventh Circuits, in contrast,
have adopted rules that permit plaintiffs like Taylor
to obtain recovery after entry of no-contest pleas.
The Third Circuit has permitted such claims by
adopting a broad understanding of Heck’s favorabletermination requirement. It holds that “favorable
termination is established by showing that the
proceeding ended in any manner ‘that indicates the
innocence of the accused.’ ” Geness v. Cox, 902 F.3d
344, 356 (3d Cir. 2018). And it “eschew[s] an overly
mechanical approach” in applying that standard, in
favor of an inquiry into “the particular circumstances” of the plaintiff’s case and the “judgment as a
whole.” Bronowicz v. Allegheny County, 804 F.3d
338, 346 (3d Cir. 2015) (internal quotation marks
omitted). Thus, for example, it has concluded that a
proceeding is favorably terminated where the prosecution “abandon[ed] * * * charges” against the plaintiff because it “anticipated it would be ‘unable to
prove the case.’ ” Geness, 902 F.3d at 356.
Applying that flexible standard, multiple district
courts in the Third Circuit have held that plaintiffs
like Taylor establish favorable termination where
prosecutors consented to their immediate release or
agreed to a time-served sentence. In Thomas v. City
24
of Philadelphia, 2019 WL 4039575 (E.D. Pa. Aug. 27,
2019), for instance, the plaintiff obtained vacatur of
his sentence after 24 years of wrongful incarceration,
and the government filed a nolle prosequi declining
to bring new charges. Id. at *1, *5. The court held
that this outcome “[wa]s indicative of the plaintiff’s
innocence,” because it rested on the prosecution’s
determination that “it did not ‘believe sufficient
evidence exists to prove [the plaintiff] guilty beyond
a reasonable doubt.’ ” Id. at *8 (citing Geness, 902
F.3d at 356). Similarly, in Kitchen v. PA Board of
Probation & Parole, 2017 WL 4151170 (M.D. Pa.
Sept. 19, 2017), the plaintiff secured vacatur of his
sentence after sixteen months’ imprisonment, and
was issued a new sentence with credit for time
served. Id. at *1-2. The court held that this outcome
amounted to favorable termination because the
plaintiff’s initial sentence was “vacated by an appropriate state tribunal,” and “upon remand he received
a more favorable sentence.” Id. at *4; see also Dennis
v. City of Philadelphia, 379 F. Supp. 3d 420, 423
(E.D. Pa. 2019) (similar).
The Seventh Circuit has likewise permitted plaintiffs to recover damages for periods of incarceration
covered by a time-served sentence, although on a
different theory. In Lopez v. City of Chicago, 464
F.3d 711 (7th Cir. 2006), the Seventh Circuit held
that a plaintiff could “recover compensatory damages
for the unlawful duration of his [pre-trial] confinement,” even though the plaintiff later “stipulated
there was probable cause to arrest him.” Id. at 722.
Rejecting the contention that the plaintiff’s incarceration was solely the result of the after-the-fact finding of probable cause, the court held that a jury
“could rationally conclude” that the defendant would
25
not have suffered the same injuries “if [he] had
received the * * * hearing to which he was constitutionally entitled” at the outset. Id.
Applying that principle, district courts in the Seventh Circuit have repeatedly permitted full recovery
by claimants like Taylor. In McFarlane v. Carothers,
2018 WL 4625660 (S.D. Ind. Sept. 27, 2018), the
court held that a class of plaintiffs could recover
damages for their periods of incarceration even
though the plaintiffs were later issued sentences for
time served. Id., adopting report and recommendation, 2018 WL 5914848 (S.D. Ind. July 10, 2018).
The court found no basis in the law of causation for
the principle that “credit at sentencing for time
served always erases an otherwise proven constitutional injury.” Id. at *1. Likewise, in Myatt v. Fries,
2013 WL 3776480 (N.D. Ind. July 17, 2013), the
court held that “evidence of later sentences” for time
served “should not operate to lessen the Defendant’s
liability for violating the [plaintiffs’] constitutional
rights,” given that “the first portion of the time they
served” was still “unconstitutional.” Id. at *5.
Had Taylor’s case arisen in either the Third or
Seventh Circuits, he would thus have been eligible
for recovery. The prosecution expressly stated that it
abandoned its case against Taylor because it determined that it “would be unable to proceed with a
retrial, and the convictions would not stand”—the
very standard the Third Circuit applies for favorable
termination. ER 124; see id. at 172; Geness, 902 F.3d
at 356 (favorable termination occurs where the state
abandoned prosecution because it “anticipated it
would be ‘unable to prove [its] case’ ”). And Taylor
had his conviction vacated and received a sentence of
26
time served, enabling a jury to “rationally conclude”
that he would not have been incarcerated but for his
original, tainted conviction. Lopez, 464 F.3d at 722.
Yet because of the Ninth Circuit’s adoption of the
position taken by the First, Second, and Fifth Circuits, the Ninth Circuit deemed Heck an absolute bar
to Taylor’s claims.
*
*
*
All told, then, the Circuits are split 6-4 on the
availability of recovery in a case like Taylor’s. Four
Circuits (the Fourth, Sixth, Tenth, and Eleventh)
deem Heck categorically inapplicable to former
prisoners who lacked a habeas remedy while incarcerated, and two more Circuits (the Third and Seventh) deem Heck inapplicable to persons, like Taylor,
who have been effectively exonerated and released
pursuant to pleas of time served. In contrast, four
Circuits (the First, Second, Fifth, and Ninth), have
held that Heck applies both to former prisoners
generally and to persons like Taylor in particular.
These splits are deep, widely acknowledged, and
manifestly incapable of resolution without this
Court’s intervention. The rights of the wrongfully
incarcerated should not vary based on geography and
which local jurisdiction wronged them. Certiorari
should be granted, and the divisions in the Circuits
should be resolved.
II. THE NINTH
WRONG.
CIRCUIT’S
DECISION
IS
Certiorari is also warranted because the Ninth
Circuit’s decision is gravely incorrect.
1. Five Members of this Court correctly concluded
in Spencer that Heck does not apply to a prisoner,
like Taylor, who has been released from prison and
27
who lacked an opportunity to raise his claims
through habeas. Heck resolved a narrow problem of
statutory interpretation: how to address “the intersection of the two most fertile sources of federal-court
prisoner litigation,” § 1983 and “the federal habeas
corpus statute.” 512 U.S. at 480. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Court held that
“the specific federal habeas corpus statute” takes
precedence over the “general” terms of § 1983 when a
prisoner directly challenges his conviction or sentence by requesting an injunction shortening his
sentence. Id. at 489. In Heck, the Court concluded
that the same principle bars “inmates from doing
indirectly through damages actions what they could
not do directly by seeking injunctive relief—
challenge the fact or duration of their confinement
without complying with the procedural limitations of
the federal habeas statute.” Nelson v. Campbell, 541
U.S. 637, 646-647 (2004). To “prevent” that statutory conflict, Heck thus adopted the “favorable termination” requirement, which bars a prisoner from
bringing under the guise of a § 1983 damages action
a claim that Congress sought to channel through
federal habeas. Id.; see Heck, 512 U.S. at 486-487.
Since Heck, this Court has repeatedly made clear
that Heck’s favorable termination rule serves simply
to avoid a conflict between § 1983 and the habeas
statute. In Muhammad v. Close, 540 U.S. 749 (2004)
(per curiam), the Court explained that “conditioning
the right to bring a § 1983 action on a favorable
result in state litigation or federal habeas serve[s]
the practical objective of preserving limitations on
the availability of habeas remedies.” Id. at 751.
Likewise, in Wallace v. Kato, 549 U.S. 384 (2007),
Justice Scalia—Heck’s author—wrote that Heck
28
rested on the rationale that “Congress * * * has
determined that habeas corpus is the appropriate
remedy for state prisoners attacking the validity of
the fact or length of their confinement, and that
specific determination must override the general
terms of § 1983.” Id. at 392 (quoting Heck, 512 U.S.
at 482).
It follows that Heck’s favorable termination requirement has no application where, as here, the
plaintiff never had an opportunity to bring his claims
through federal habeas. See Spencer, 523 U.S. at 20
(Souter, J., concurring). In that circumstance, there
is no statutory conflict to avoid; the plaintiff is not
“evad[ing] th[e] requirement[s]” of the habeas statute
that he was not subject to in the first place. Preiser,
411 U.S. at 489-490. And there is no basis for courts
to read limits into the broad and unqualified language of § 1983 not compelled by a statutory conflict
or some other weighty consideration. See Spencer,
523 U.S. at 19 (Souter, J., concurring).
Those Circuits to hold otherwise have not offered
any coherent theory to the contrary. Instead, they
have stated simply that they believe their positions
compelled by unqualified language in Heck. See, e.g.,
Figueroa, 147 F.3d at 81 n.3; Randell, 227 F.3d at
301; Deemer, 557 F. App’x at 166; Entzi, 485 F.3d at
1003. But Heck did not involve a former prisoner,
and so did not address the circumstances of this case.
See Heck, 512 U.S. at 487 (describing the rule for “a
state prisoner seek[ing] damages in a § 1983 suit”).
And, since Heck, this Court has made clear that it
has not yet “settle[d] the issue.” Muhammad, 540
U.S. at 752 n.2. It is critical that this Court clarify
what the logic of Heck should make plain: where
29
habeas corpus is unavailable, Heck interposes no
barrier to § 1983 relief.
2. Furthermore, even if Heck applied to persons
who never had an opportunity to challenge their
convictions through federal habeas, it still would not
follow that plaintiffs are barred from recovering
damages for their terms of imprisonment in the
circumstances of this case—that is, where the plaintiff’s conviction has been vacated, and the plaintiff
has been released from imprisonment on a plea to
time served. That is true for several reasons.
First, awarding a plaintiff damages for his term of
imprisonment does not “necessarily imply the invalidity” of his subsequent sentence to time served.
Heck, 512 U.S. at 487. Under the Double Jeopardy
Clause, a court is constitutionally compelled to credit
a sentence served for a given offense against a later
sentence imposed for that same offense, even if the
prior conviction has been deemed invalid. See North
Carolina v. Pearce, 395 U.S. 711, 717-719 (1969).
Accordingly, holding that this first period of imprisonment was unlawful—and that the defendant must
be compensated for it—does not imply that it was
improper for a court to credit the time served. To the
contrary, the constitutional obligation to credit the
time served exists regardless of whether the first
period of imprisonment was lawful.
The Ninth Circuit, echoing the reasoning of the
First Circuit in Olsen, asserted that a sentence to
time served is the “sole legal cause[ ]” of the preceding term of imprisonment. Pet. App. 10a. But that
understanding of causation has no discernible legal
basis. Section 1983 borrows ordinary tort-law principles of causation, see Memphis Cmty. Sch. Dist. v.
30
Stachura, 477 U.S. 299, 305-306 (1986), and under
no known conception of causation can an after-thefact event be deemed the legal cause—let alone the
sole legal cause—of a preceding injury. A legal cause
is an “act or omission” that is “a substantial factor in
bringing about the [plaintiff’s] harm.” Restatement
(Second) of Torts § 9 cmt. b (1965). In law, as in
reality, an act can only “bring[ ] about [a] harm” if it
happens at an earlier point in time—not 42 years
after that harm was first suffered. Accord Lopez, 464
F.3d at 722.
Second, a plaintiff like Taylor has established “favorable termination” under Heck. At common law,
“[t]he abandonment of the proceedings because the
accuser believes that the accused is innocent or that
a conviction has, in the natural course of events,
become impossible or improbable, is a sufficient
termination in favor of the accused.” Restatement
(Second) of Torts § 660 cmt. d (1977); see Heck, 512
U.S. at 484-485 (invoking common-law standard).
Here, the government acquiesced to Taylor’s release
because it determined it “would be unable to proceed
with a retrial, and the convictions would not stand.”
ER 124. That is precisely the type of termination
“indicat[iv]e [of] innocence” that the common law
deemed favorable to the accused.
Restatement
(Second) of Torts § 660 cmt. a; see Geness, 902 F.3d at
356.
It is true that, as a condition of release, prosecutors
demanded that Taylor plead “no contest,” and the
trial court consequently imposed a time-served
sentence. But this Court noted last Term that “prosecutors’ broad discretion over such matters as the
terms on which pleas will be offered or whether
31
charged will be dropped * * * might call for a contextspecific and more capacious understanding of what
constitutes ‘favorable’ termination,” particularly in
light of “valid” concerns about creating “perverse
incentives for prosecutors.” McDonough v. Smith,
139 S. Ct. 2149, 2160 n.10 (2019). That admonition
rings particularly true here, where Taylor’s plea
imposed no further penalty, reflected no credible
assessment of Taylor’s guilt, and arose from plainly
“coercive tactics,” Pet. App. 21a (Schroeder, J., dissenting in part) that were designed, by all indications, to shield Pima County from § 1983 liability.
And that leads to a third point. In Town of Newton
v. Rumery, this Court imposed limits on the enforceability of “release-dismissal agreements,” under
which “a criminal defendant releases his right to file
an action under 42 U.S.C. § 1983 in return for a
prosecutor’s dismissal of pending criminal charges.”
480 U.S. at 389, 392. The Court explained that these
agreements “may infringe important interests of the
criminal defendant and of society as a whole,” including by “intimidat[ing] [criminal] defendant[s]” into
abandoning meritorious constitutional claims. Id. at
392-393. A majority of the Court thus held that such
agreements may bar a prisoner from pursuing § 1983
claims only where they are “voluntary,” where “there
is no evidence of prosecutorial misconduct,” and
where “enforcement of th[e] agreement would not
adversely affect the relevant public interests.” Id. at
398; see id. at 401-402 (O’Connor, J., concurring in
part and concurring the judgment).
Taylor’s plea agreement is a release-dismissal
agreement in all but name. No-contest pleas to time
served do not accomplish any of the ordinary aims of
32
plea bargaining, such as forgoing the risks of trial in
exchange for leniency. Rather, their only evident
purpose is to leverage the state’s custody over the
prisoner to obtain acquiescence to an agreement that
it perceives will prevent the prisoner from seeking
§ 1983 relief. If prosecutors could bar criminal
defendants from pursuing § 1983 claims in this way,
this Court’s decision in Town of Newton would be a
dead letter for a broad class of criminal defendants,
as prosecutors could insist on the very agreements
that Town of Newton prohibits through the guise of
plea bargaining.
III. THE QUESTIONS PRESENTED ARE OF
ENORMOUS PRACTICAL IMPORTANCE.
This case is of enormous importance to the lives
and liberties of Americans. Section 1983 is a vital
tool for vindicating constitutional rights, deterring
official misconduct, and compensating Americans for
the injuries suffered when their governments violate
the Constitution. And the importance of § 1983 is
nowhere greater than in cases of wrongful incarceration. Few abuses of the public trust are more egregious than unconstitutionally procuring the conviction of the innocent. And few persons are more
deserving of compensation than those who have
spent years—or decades—imprisoned because of
government malfeasance.
The Ninth Circuit, like the First, Second, and Fifth
Circuits, has now handed local governments a foolproof means of foreclosing § 1983 relief for the wrongfully incarcerated. The tactic is simple: just demand
that a prisoner plead no contest to time served as a
condition of release. Under the law of each Circuit,
such a plea will bar recovery for every single day of
33
the person’s incarceration. And in light of the pressure that even demonstrably innocent defendants
face when presented with such pleas, many prisoners
have no real choice but to accept. See Lucian E.
Dervan & Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of
Plea Bargaining’s Innocence Problem, 103 J. Crim. L.
& Criminology 1 (2013).
Local governments have responded accordingly. In
recent years, no-contest pleas to time served have
become “an emerging strategy in potentially costly
wrongful conviction cases.”
Stephanie Clifford,
Wrongly Convicted, They Had to Choose: Freedom or
Restitution,
N.Y.
Times
(Sept.
30,
2019),
https://www.nytimes.com/2019/09/30/us/wrongfulconvictions-civil-lawsuits.html. “[A]s the number of
overturned convictions mounts,” many jurisdictions
have turned to time-served pleas as “a potential out”
to avoid “payment for [an exoneree’s] years in prison.” Id.
The case law is now replete with examples of such
pleas. In Dennis, the City of Philadelphia sought to
deny § 1983 relief to an individual who was exonerated “after spending over a quarter-century on death
row” because, as a condition of his release, the plaintiff “entered [a] no contest plea” and “was sentenced
to time served.” 379 F. Supp. 3d at 424. In Blumberg v. Hewitt, 2019 WL 2353012 (C.D. Cal. Apr. 19,
2019), the court barred recovery by a § 1983 claimant
whose conviction was overturned after 12 years of
wrongful imprisonment because of a plea and a timeserved sentence. Id. at *3 (citing Taylor v. County of
Pima, 913 F.3d 930, 935 (9th Cir. 2019)). Other
decisions throughout the country—most arising in
34
just the last few years, and with growing frequency—
involve similar fact patterns. See, e.g., Roberts v.
City of Fairbanks, 2018 WL 5259453 (Oct. 22, 2018);
Rosales-Martinez v. Palmer, 2017 WL 3710068 (D.
Nev. Aug. 28, 2017); Thomas, 2019 WL 4039575;
Kitchen, 2017 WL 4151170; Poventud, 750 F.3d 121;
Stein v. County of Westchester, 410 F. Supp. 2d 175
(S.D.N.Y. 2006); Olsen, 189 F.3d 52; Pet. App. 2a.
Unless this Court intervenes, this practice will
continue to grow. The Circuits that deem such pleas
effective in foreclosing § 1983 relief are deeply entrenched in their views—they have ratified such
pleas by en banc decision, see Poventud, 750 F.3d at
136, refused to reconsider their holdings, Pet. App.
99a, and stated that they will not revisit their precedents absent a contrary decision of this Court, see,
e.g., Randell, 227 F.3d at 301; Figueroa, 147 F.3d at
81 n.3. It is improbable that local governments will
cease to take advantage of a tool to which four Circuits have given express sanction and that promises
governments near-total immunity from liability.
This case is an ideal vehicle to resolve this vitally
important question. Taylor’s plea is “factually indistinguishable” from the pleas that have been considered by other courts. Pet. App. 10a. The Ninth
Circuit issued a published decision, on direct appeal,
that drew a vigorous dissent. And as the Ninth
Circuit recognized, further proceedings in the district
court would not shed light on this question. Id. at
7a-8a. On the contrary, requiring Taylor—who is
already in his mid-sixties—to spend years more
litigating this case in the teeth of a ruling barring
him from seeking any damages would only compound
an already severe injustice. Id. at 8a.
35
This case also illustrates the enormous stakes of
the question presented. Louis Taylor was charged,
tried, and convicted of 28 counts of murder as a
result of a grotesque campaign of racial discrimination and prosecutorial misconduct. After serving 42
years in prison—a lifetime of unwarranted suffering—Taylor obtained “virtual exoneration” of his
non-existent crime, to the point that even Pima
County admitted it could not sustain his conviction.
Id. at 20a (Schroeder, J., dissenting in part). Yet
rather than own up to its debt to Taylor, Pima County insisted that Taylor enter a no-contest plea of time
served, then turned around to argue, successfully,
that the plea required that Taylor recover nothing
for his period of incarceration.
“[O]ur law is not that unjust.” Id. at 19a. Review
should be granted, and the Ninth Circuit’s decision
should be reversed.
36
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
JOHN P. LEADER
LEADER LAW FIRM
405 W. Cool Dr., Ste. 107
Tucson, AZ 85704
PETER TIMOLEON LIMPERIS
TIMOTHY P. STACKHOUSE
STANLEY G. FELDMAN
MILLER, PITT, FELDMAN &
MCANALLY, P.C.
1 S. Church Ave., Ste. 900
Tucson, AZ 85701
NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioner
DECEMBER 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.