Opposition Brief — Louis Taylor, Petitioner v. Pima County, Arizona, et al.

NO. 19-756

In the

Supreme Court of the United States

________________

LOUIS TAYLOR,

v.

Petitioner,

COUNTY OF PIMA; CITY OF TUCSON,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF IN OPPOSITION BY RESPONDENT

PIMA COUNTY

________________

NANCY JANE DAVIS

Counsel of Record

PIMA COUNTY

ATTORNEY’S OFFICE

32 N. Stone, Ste. 2100

Tucson, AZ 85701

(520) 724-4070

nancy.davis@pcao.pima.gov

Counsel for Pima County

February 12, 2020

QUESTION PRESENTED

Whether the Court should review this case

involving “highly unusual circumstances” where, inter

alia, petitioner’s first question presented was neither

pressed nor passed on before the panel below, and

petitioner’s second question presented is not one on

which the courts of appeals are divided.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

A. Petitioner’s

1972

Conviction

and

Sentence. ....................................................... 3

B. Petitioner’s 2013 No-Contest Plea,

Conviction, and Sentence. ............................ 4

C. Petitioner’s § 1983 Claim. ............................ 6

D. The Interlocutory Appeal to the Ninth

Circuit. .......................................................... 9

REASONS FOR DENYING THE PETITION ......... 12

I.

The Court Should Deny Review Of

Petitioner’s First Question Presented. ............. 14

A. Petitioner Did Not Timely Raise the

Spencer Exception Before the Ninth

Circuit, Which Did Not Pass on the

Question. ..................................................... 14

B. The Alleged Circuit Split Is Overstated

And Not Implicated Here. .......................... 17

C. Additional Vehicle Issues Warrant

Denial. ......................................................... 20

D. Petitioner is Incorrect on the Merits. ........ 21

E. The Question Is Not of Sufficient

Importance. ................................................. 24

II. The Court Should Deny Review Of

Petitioner’s Second Question Presented. .......... 25

iii

A. The

Question

Presented

Was

Inadequately Explored in the Court of

Appeals. ...................................................... 25

B. The Alleged Circuit Split Is Illusory.......... 26

C. The Decision Below Was Correct. .............. 29

D. The Question Is Not of Sufficient

Importance. ................................................. 35

CONCLUSION ......................................................... 36

iv

TABLE OF AUTHORITIES

Cases

Am. Sur. Co. v. Baldwin,

287 U.S. 156 (1932) ................................................ 16

Blackledge v. Allison,

431 U.S. 63 (1977) .................................................. 34

Bronowicz v. Allegheny County,

804 F.3d 338 (3d Cir. 2015) ................................... 27

Brown v. Rawson-Neal Psychiatric Hosp.,

840 F.3d 1146 (9th Cir. 2016)................................ 16

Burd v. Sessler,

702 F.3d 429 (7th Cir. 2012).................................. 18

Carafas v. LaVallee,

391 U.S. 234 (1968) ................................................ 24

Cardwell v. Taylor,

461 U.S. 571 (1983) .................................................. 4

Cohen v. Longshore,

621 F.3d 1311 (10th Cir. 2010).............................. 19

Corbitt v. New Jersey,

439 U.S. 212 (1978) ................................................ 34

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................ 15

Gause v. Haile,

574 U.S. 824 (2014) ................................................ 24

Geness v. Cox,

902 F.3d 344 (3d Cir. 2018) ............................. 26, 27

Godchaux Co. v. Estopinal,

251 U.S. 179 (1919) ................................................ 16

Griffin v. Balt. Police Dept.,

804 F.3d 692 (4th Cir. 2015).................................. 17

v

Harden v. Pataki,

320 F.3d 1289 (11th Cir. 2003).............................. 19

Harrison v. Michigan,

722 F.3d 768 (6th Cir. 2013).................................. 17

Heck v. Humphrey,

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

Henderson v. Kibbe,

431 U.S. 145 (1977) ................................................ 31

Lopez v. City of Chicago,

464 F.3d 711 (7th Cir. 2006)............................ 27, 28

Lyall v. City of Los Angeles,

807 F.3d 1178 (9th Cir. 2015).................................. 7

McDonough v. Smith,

139 S. Ct. 2149 (2019)............................................ 23

Monell v. Department of Social Services,

436 U.S. 658 (1978) .................................................. 6

Muhammad v. Close,

540 U.S. 749 (2004) .......................................... 22, 23

Newmy v. Johnson,

574 U.S. 1047 (2014) .............................................. 24

Nonnette v. Small,

316 F.3d 872 (9th Cir. 2002).................................... 7

North Carolina v. Alford,

400 U.S. 25 (1970) .................................................. 31

Olsen v. Correiro,

189 F.3d 52 (1st Cir. 1999) .................. 30, 31, 34, 35

Pete v. Metcalf,

8 F.3d 214 (5th Cir. 1993)...................................... 35

Poventud v. City of New York,

750 F.3d 121 (2d Cir. 2014) ............................. 30, 31

vi

Powers v. Hamilton County Public Defender

Commission,

501 F.3d 592 (6th Cir. 2007)............................ 17, 19

Roberts v. City of Fairbanks,

___ F.3d ___, 2020 WL 356959 (9th Cir.

Jan. 22, 2020) ......................................................... 36

Rosales-Martinez v. Palmer,

2017 WL 3710068 (D. Nev. Aug. 28, 2017) ........... 35

Santobello v. New York,

404 U.S. 257 (1971) ................................................ 34

Savory v. Cannon,

947 F.3d 409 (7th Cir. 2020)...................... 18, 22, 23

Spencer v. Kemna,

523 U.S. 1 (1998) ...................................................... 7

State v. Taylor,

537 P.2d 938 (Ariz. 1975) ........................................ 4

Topa v. Melendez,

739 F. App’x 516 (11th Cir. 2018) ......................... 17

Town of Newton v. Rumery,

480 U.S. 386 (1987) .......................................... 32, 33

United States v. Rios-Barboza,

58 Fed. Appx. 746 (9th Cir. 2003) ......................... 16

United States v. Wells,

519 U.S. 482 (1997) ................................................ 15

United States v. Williams,

504 U.S. 36 (1992) .................................................. 15

Wilkinson v. Dotson,

544 U.S. 74 (2005) .................................................. 21

Wills v. Texas,

511 U.S. 1097 (1994) .............................................. 16

vii

Wilson v. Johnson,

535 F.3d 262 (4th Cir. 2008)............................ 17, 19

Statutes

28 U.S.C. § 1292 ......................................................... 9

42 U.S.C. § 1983 ............................................... 1, 6, 32

INTRODUCTION

In 1972, a jury found petitioner guilty of 28 counts

of felony murder for starting a deadly fire. Over 40

years later, citing supposed advances in fireinvestigation techniques, petitioner sought state postconviction relief.

The state vigorously disputed

petitioner’s entitlement to relief. In 2013, petitioner

and the state reached an agreement: rather than have

to prove his entitlement to post-conviction relief,

petitioner agreed to plead no contest to 28 counts of

felony murder with a sentence of time served, in

exchange for the state’s agreement to immediate

release and acknowledgment that if the court found

the updated fire-investigation techniques constituted

newly discovered evidence, it could not retry him given

the passage of time and destruction of evidence.

Represented by highly competent counsel, petitioner

abandoned his other claims of post-conviction relief

(including actual innocence) and affirmed in court that

he accepted this mutually beneficial agreement, was

entering into it “knowingly, voluntarily, and

intelligently,” and had not been “threatened or forced”

into it.

Without challenging that 2013 conviction and

sentence, petitioner then sued respondents under 42

U.S.C. § 1983, claiming constitutional violations and

demanding damages for his 42 years of incarceration.

The district court allowed most of his § 1983 claims to

proceed but denied his incarceration-based damages

claim because, under Heck v. Humphrey, 512 U.S. 477

(1994), success on that claim would have called into

question petitioner’s valid 2013 plea, conviction, and

sentence, which fully supported the period of

2

incarceration for which he sought damages. In a

series of “highly unusual circumstances,” Pet.App.7a,

the district court certified that issue and others for

interlocutory appeal; the Ninth Circuit rejected

immediate appeal of that issue but accepted the

County’s request for immediate appeal of an

immunity-related issue; and the Ninth Circuit, after

full briefing and oral argument on the issue over

which it granted immediate appeal, retroactively

granted interlocutory review of the incarcerationbased damages issue, ultimately agreeing with other

courts of appeals that, under Heck, petitioner’s 2013

conviction and sentence barred him from recovering

incarceration-related damages.

Petitioner now asks this Court to review two

questions.

The first—whether an antecedent

exception to Heck (the so-called Spencer exception)

exists and applies here—was never pressed or passed

on before the panel below. Petitioner raised it in the

district court, but then failed to preserve it on appeal,

and the Ninth Circuit lacked jurisdiction over it

regardless. In any event, this case does not implicate

that question or the overstated, alleged circuit split;

petitioner is wrong on the merits; and petitioner does

not contend that the issue is one of such importance

that certiorari is warranted.

Petitioner’s second question—whether Heck bars

incarceration-damages for a former prisoner released

on a time served sentence entered pursuant to an

unchallenged no contest plea and conviction—was

raised below, but only on partial briefing and without

oral argument given the unusual procedural posture.

Furthermore, this question does not remotely

3

implicate a circuit split. And as the unbroken line of

precedent reflects, the Ninth Circuit’s decision was

plainly correct. This issue also is not one of such

exceptional, recurring importance to merit this

Court’s review.

In apparent recognition that this case does not

meet this Court’s criteria for certiorari, petitioner

resorts to distraction and diversion. He conflates the

two questions presented in an attempt to paper over

the weaknesses in each. He mischaracterizes the

record in an attempt to paint himself as

“demonstrably innocent” and “irreversibly wronged”

when neither has been established. And he accuses

respondents of “coercive” tactics that resulted in an

“impossible” choice, despite previously affirming that

he accepted his plea knowingly, voluntarily, and

intelligently and was not threatened or coerced into

doing so. Petitioner’s flawed and misguided petition

for certiorari should be denied.

STATEMENT OF THE CASE

A. Petitioner’s

Sentence.

1972

Conviction

and

In 1972, a jury convicted petitioner of 28 counts of

felony murder for starting a deadly fire at a Tucson

hotel. Among other things, petitioner was placed at

the scene by multiple witnesses; had five books of

matches on him; gave inconsistent statements as to

why he was at the hotel; repeatedly changed his story

about other people starting the fire; and volunteered

that it was “‘awful that someone would set a fire like

that,’” before anyone knew that the fire was the

4

product of arson. ER120-21. Petitioner was tried,

convicted, and sentenced to life imprisonment.1

Petitioner unsuccessfully pursued direct appeal.

Among other things, the Arizona Supreme Court

rejected

petitioner’s

claims

of

prosecutorial

misconduct, false testimony, and insufficient evidence.

See State v. Taylor, 537 P.2d 938 (Ariz. 1975).

Petitioner also unsuccessfully sought state postconviction relief and federal habeas relief.

See

Cardwell v. Taylor, 461 U.S. 571 (1983) (per curiam).

B. Petitioner’s 2013 No-Contest

Conviction, and Sentence.

Plea,

In 2012, petitioner filed another state petition for

post-conviction relief.

Pet.App.2a; ER52-114.

Petitioner invoked a report by the Arson Review

Committee (ARC)—a panel established by the

Innocence Project—concluding that fire-investigation

methods used in 1972 were no longer valid and the

fire’s cause could not be determined. ER123. The

Pima County Attorney asked the Tucson Fire

Department to conduct its own independent review.

Id. Given the passage of time and inability to examine

the scene, the Tucson Fire Department concluded that

it was no longer possible to determine the fire’s cause.

Id. The State’s original expert, who continues to

practice arson investigation, testified that, based on

Space precludes a response to all of petitioner’s record

mischaracterizations, see Pet.5-8, but one example is illustrative.

Petitioner asserts that he “was attending a Christmas party in

the hotel when the fire started.” Pet.5-6. True—but only because

he had put on a busboy’s jacket to steal drinks; in reality, he was

not an invited party guest. ER118, 121.

1

5

his experience then and since, he continues to believe

that the fire was intentionally set. Id.

In 2013, petitioner and the state reached an

agreement. In exchange for the state’s stipulation

that the post-conviction court “may find” that the fireinvestigation advances constitute newly discovered

evidence, petitioner agreed to “enter a plea of no

contest” for 28 counts of felony murder and a sentence

of time served. ER131.

During the plea hearing, the state’s prosecutor

stated that if post-conviction proceedings continued,

the state would present “significant … evidence” that

the fire was intentionally set, while petitioner would

present findings that the fire’s cause was

indeterminable. ER171-72. The state added that if

the court were to find “that this was, in fact, legally,

newly discovered evidence,” then a new trial could not

proceed “given the passage of time, the destruction of

evidence, and the death of many of the witnesses.”

ER172. But if the court found that “this was not newly

discovered evidence,” then petitioner could obtain “no

relief.” Id. Because both sides had “something to

gain” and “something to lose,” the parties agreed to

“the entering of a no contest plea.” ER171-72. The

state reiterated its belief that, based on the evidence

and testimony, petitioner “was, in fact, guilty of these

crimes.”

ER172-73.

The state submitted a

memorandum detailing the factual basis for

petitioner’s no-contest plea. ER118-25. The trial

court found that the plea was factually supported and

incorporated the memorandum into its findings in

adjudicating petitioner guilty on all counts. ER173.

6

For his part, petitioner—represented by nine

prominent private attorneys, including a former Chief

Justice of the Arizona Supreme Court—did not contest

that “the prosecution would be able to offer into

evidence” what the state had described, but stated

that petitioner would “dispute” such evidence. ER173.

Petitioner’s counsel made no objection to the factual

basis set forth in the memorandum, but merely noted

that petitioner “maintain[s] his innocence, and the no

contest plea allows him to do so.” ER139, 154-55, 173.

The court found that petitioner “knowingly,

voluntarily, and intelligently” entered “a plea of no

contest to the charges set forth in the plea agreement.”

ER139-40. The court determined that it was “in the

interest of justice to accept the plea in achieving

finality,” and it sentenced petitioner to “time served on

each of th[e] counts” as to which he had pleaded no

contest. ER173, 175. Petitioner was immediately

released. ER174-75.

C. Petitioner’s § 1983 Claim.

Following his release, petitioner filed suit against

respondents in state court under 42 U.S.C. § 1983. As

to the County, petitioner alleged municipal liability

under Monell v. Department of Social Services, 436

U.S. 658 (1978), for customs or practices of racial

discrimination; inadequate training of employees; and

failure to terminate prosecutors in deliberate

indifference to the constitutional rights of criminal

defendants. Pet.App.78a. Petitioner alleged that he

was “wrongly charged in December, 1970 with

multiple counts of homicide” and “wrongly convicted of

those crimes,” resulting in “42 years” in prison. See

ER2-24. Petitioner did not challenge any aspect of his

7

2013 plea agreement—including his 2013 conviction

or sentence.

The City of Tucson, without County objection,

removed to federal court and both respondents moved

to dismiss. The district court dismissed five of

petitioner’s six counts but permitted petitioner’s claim

of deliberate indifference to constitutional rights to

proceed. The district court also addressed both

respondents’ contention that petitioner’s claims were

barred by Heck.

The court acknowledged that

petitioner’s claims would “be Heck-barred if success ...

would necessarily imply the invalidity of his

outstanding 2013 convictions.” Pet.App.88a. But

citing Spencer v. Kemna, 523 U.S. 1 (1998) (Souter, J.,

concurring); id. at 25 n.8 (Stevens, J., dissenting), and

Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002), the

court noted that the Ninth Circuit “has found an

exception to Heck where a plaintiff is unable to pursue

habeas relief … because he has been released from

incarceration,” Pet.App.91a, and applied it in this

case. Pet.App.93a.

The County moved for reconsideration, arguing

that the district court’s holding was inconsistent with

a recent Ninth Circuit decision, Lyall v. City of Los

Angeles, 807 F.3d 1178 (9th Cir. 2015). In Lyall, the

Ninth Circuit noted that it has “recognized” the

“narrow exception” set forth in Spencer and Nonnette.

Id. at 1192.

Nevertheless, without overruling

Nonnette or addressing the Spencer “exception,” the

Ninth Circuit held that, on the facts of the case before

it, Heck barred a §1983 claim. The district court found

Lyall instructive and withdrew the portion of its

8

previous order “finding that an exception to Heck

applies in this case.” Pet.App.70a.

Petitioner filed an amended complaint, adding

more allegations to support his previously-dismissed

counts. Petitioner again alleged that as a result of

respondents’ conduct, he was “wrongly charged in

December, 1970 with multiple counts of homicide” and

“wrongly convicted of those crimes,” resulting in “42

years” in prison. ER219-250. Petitioner again did not

challenge his 2013 plea, convictions, or sentence.

Respondents again moved to dismiss.

On March 16, 2017, the district court granted in

part and denied in part the motions to dismiss. The

court noted that given its previous determination that

the Spencer “exception” was not applicable, it “must

now apply Heck in analyzing the § 1983 claims.”

Pet.App.50a.

The court held that Heck “bars

[petitioner] from premising his claims on the alleged

constitutional injuries of being wrongfully charged,

convicted, and imprisoned,” but “does not bar

[petitioner] from raising claims premised on alleged

constitutional violations that affect his 1972

convictions but do not taint his 2013 convictions.”

Pet.App.53a. The court accordingly concluded that

Heck did not “require[] dismissal of Counts One

through Six of [petitioner’s] SAC to the extent that

those claims are construed as alleging that”

petitioner’s constitutional rights “were violated during

his original trial proceedings by” the non-disclosure of

supposedly exculpatory evidence, the hiring of a

purportedly prejudiced expert, and the use of allegedly

false testimony from two informants. Pet.App.60a61a. On that basis, the court held that five of

9

petitioner’s six claims could proceed. Id. The court

also held that, while Heck barred petitioner from

recovering “compensatory damages for the time he

spent incarcerated” given his 2013 plea, convictions,

and time-served sentence, petitioner could still

“establish non-incarceration-based compensatory

damages.” Pet.App.24a, 30a. Finally, the court

rejected Pima County’s argument that it was entitled

to Eleventh Amendment immunity because the 1972

prosecution was undertaken on behalf of the state.

Pet.App.63a-65a.

Petitioner sought reconsideration of the court’s

holding that he could not recover incarceration-related

compensatory damages, which the court denied.

Pet.App.38a. The court did, however, grant the

parties’ joint request for interlocutory review under 28

U.S.C. § 1292(b), certifying the following three

questions: (1) “Is Plaintiff barred from obtaining

incarceration-based compensatory damages in light of

his outstanding 2013 convictions and sentence?”; (2)

“Is Defendant Pima County entitled to Eleventh

Amendment immunity on the grounds that the State

of Arizona, rather than Pima County, prosecuted

Plaintiff?”; and (3) “Has Plaintiff met the pleading

requirements

for

asserting

Monell

claims?”

Pet.App.38a.

D. The Interlocutory Appeal to the Ninth

Circuit.

All three parties petitioned the Ninth Circuit to

accept an interlocutory appeal. The motions panel

denied the petitions.

ER366.

Nevertheless, it

construed the County’s request “as a timely notice of

interlocutory appeal from the district court’s denial of

10

the County of Pima’s motion to dismiss based on

Eleventh Amendment immunity,” which, the panel

concluded, independently gave the court jurisdiction

under the collateral-order doctrine to address the

Eleventh Amendment issue. ER367; Pet.App.3a. The

Ninth Circuit directed the district court to “process as

an appeal” its March 16 order “denying the County of

Pima’s motion to dismiss based on Eleventh

Amendment immunity.” ER367.

Accordingly, the parties proceeded to brief the

limited Eleventh Amendment appeal permitted by the

Ninth Circuit. Pima County’s opening and reply briefs

were devoted almost entirely to the Eleventh

Amendment issue. In his response brief, petitioner

improperly attempted to argue whether Heck bars

incarceration-related damages; even then, he did not

address whether the Spencer exception applied.

Before oral argument, the Ninth Circuit directed

the parties to address: (1) whether Pima County was

asserting immunity from liability or suit; and

(2) whether the appellate court lacked interlocutory

appellate jurisdiction over petitioner’s Monell claims.

Circuit.Dkt.30.

At oral argument, the County

addressed the Eleventh Amendment issue. Petitioner

continued to press his Heck argument, though even

that improper argument was confined to whether

Heck barred incarceration-related damages, not

whether the Spencer exception to Heck applied.

Over a month after oral argument, the Ninth

Circuit ordered “simultaneous supplemental briefs not

exceeding 15 pages” on “whether [petitioner’s]

incarceration damage claim is barred by Heck v.

Humphrey.” Circuit.Dkt.33. The order did not

11

mention the Spencer exception. See id. In their

supplemental briefs, the parties addressed only

whether Heck barred incarceration-related damages;

they did not address whether the Spencer exception

applied.

The Ninth Circuit affirmed. In a decision by

Judge Graber, the court first held that it did not have

appellate jurisdiction over the Eleventh Amendment

question after all. Because the court concluded Pima

County was “asserting only immunity from liability,”

not from suit, and the County’s “asserted immunity

from liability can be vindicated fully after final

judgment,” the “collateral-order doctrine does not

apply here.” Pet.App.7a.

Next, citing the “rare” and “highly unusual

circumstances” of this case, the Ninth Circuit

retroactively granted § 1292 interlocutory review of

the district court’s ruling that Heck barred petitioner’s

claim for incarceration-related damages. Pet.App.7a8a. The court then proceeded to address only that

narrow question presented; it did not address whether

the Spencer exception to Heck applied.

The court held that Heck did not bar a challenge

to petitioner’s now-vacated 1972 conviction or

resulting sentence. Citing decisions from the First

and Second Circuits, the court stated that it “agree[d]

with the analyses and conclusions of our sister

circuits” in holding that “[a] plaintiff in a § 1983 action

may not recover incarceration-related damages for

any period of incarceration supported by a valid,

unchallenged conviction and sentence.” Pet.App.11a.

Because “all of the time that [petitioner] served in

prison is supported by the valid 2013 state-court

12

judgment,” Pet.App.9a, petitioner could not obtain

incarceration-related damages.

Judge Graber concurred in her own opinion to

provide additional reasons why the Ninth Circuit

“wrongly exercised jurisdiction over an interlocutory

appeal” in this case.

Pet.App.12a (Graber, J.,

concurring).

Senior Judge Schroeder dissented. Citing preHeck precedent from this Court, she opined that “our

law is not that unjust” as to bar petitioner from

recovering

wrongful-incarceration

damages.

Pet.App.19a (Schroeder, J., dissenting).

Petitioner sought en banc rehearing. For the first

time before the Ninth Circuit, petitioner argued that

the Spencer “exception” to Heck applied. The County

separately sought en banc review on its immunity

issue.

The Ninth Circuit denied rehearing.

Pet.App.98a-99a.

REASONS FOR DENYING THE PETITION

I. Petitioner’s first question presented, regarding

the existence and applicability of the so-called Spencer

exception, does not warrant review.

First and

foremost, this question was not pressed or passed on

before the panel below. This Court typically does not

review such questions, a practice that applies with

especial force here given the issue’s complexity and

the fact that the Ninth Circuit lacked jurisdiction over

it based on petitioner’s failure to raise it. Second,

although petitioner claims a deep and intractable

circuit split, the reality is that most circuits have

rejected the Spencer exception, several others have

unsettled law, and the handful that have gestured

toward accepting it have subsequently either qualified

13

that acceptance or rejected it en banc. Furthermore,

this case does not implicate the question presented or

any alleged split. Here, petitioner did in fact seek

federal habeas review of the only conviction he

currently challenges—the 1972 conviction. Petitioner

argues only that he lacked an opportunity to challenge

his 2013 conviction through habeas, which is

irrelevant because he is not actually challenging it.

Third, additional vehicle problems exist because the

petition comes in an interlocutory posture and the

County may be entitled to Eleventh Amendment

immunity at the end of the day. Fourth, petitioner is

wrong on the merits. Heck explicitly extended its

favorable-termination rule to convicted criminals who

are no longer incarcerated, and that holding is not

undercut by the cobbled-together concurring and

dissenting opinions in Spencer, especially where

petitioner actually sought habeas review of the only

conviction he currently challenges.

Finally, as

demonstrated by this Court’s denials of petitions

raising this issue, the question is not sufficiently

important to warrant review—and petitioner does not

argue otherwise.

II.

Petitioner’s second question presented,

concerning whether he is entitled to incarcerationrelated damages notwithstanding Heck, likewise does

not warrant review. First, because of the tortured

procedural path of this case, the panel did not have the

benefit of full briefing or oral argument on the issue.

Second, the alleged circuit split on this issue is wholly

illusory. While four courts of appeals have squarely

addressed and rejected petitioner’s position, not one

has accepted it. The decisions cited by petitioner

supposedly staking out the opposite side of the split do

14

not involve the issue or circumstances here. Third, the

decision below was correct. Petitioner concedes that

he is not challenging his 2013 conviction, and that

indisputably valid conviction fully supports the

incarceration for which petitioner now demands

damages. Petitioner’s arguments to the contrary are

uniformly unavailing, and his approach would

undercut plea bargaining. Fourth, the question is not

of sufficient, recurring importance to warrant review.

Indeed, petitioner identifies only a handful of recent

cases purportedly implicating the issue. The petition

should be denied.

I.

The Court Should Deny Review

Petitioner’s First Question Presented.

Of

A. Petitioner Did Not Timely Raise the

Spencer Exception Before the Ninth

Circuit, Which Did Not Pass on the

Question.

Petitioner’s first question presented asks the

Court to resolve an alleged circuit split over the

existence of the so-called Spencer exception to Heck—

i.e., the proposition that the limitations announced in

Heck are categorically inapplicable to “a former

prisoner who lacked an opportunity to challenge his

conviction through federal habeas while incarcerated.”

Pet.i; see also Pet.13-15. The Court should deny

review of this question for several reasons, but

principally because it was neither pressed in nor

passed on by the panel below and is not squarely

presented here anyway.

This Court is a “court of review, not of first view.”

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Accordingly, the Court’s “traditional rule” is that it

15

will address a question presented in a petition for

certiorari only “if it was pressed in or passed on by the

Court of Appeals.” United States v. Wells, 519 U.S.

482, 488 (1997) (brackets omitted); Cutter, 544 U.S. at

718 n.7 (declining to consider issues “not addressed by

the Court of Appeals”); United States v. Williams, 504

U.S. 36, 41 (1992). The Court has applied this rule

where an issue was raised in and addressed by the

district court but not the court of appeals. See Cutter,

544 at 718 n.7.

Here, the existence and scope of the Spencer

exception was pressed in and passed on by the district

court, which ultimately held that the exception was

inapplicable here. Pet.App.70a. But petitioner never

pressed this issue before the Ninth Circuit panel—not

in initial briefing, at oral argument, or in

supplemental briefing.2 Likewise, the panel did not

mention, much less pass on, the issue—not in its order

preceding oral argument, at oral argument itself, in

the supplemental briefing order, or its decision. See

pp.10-12, supra.

Only at the petition for rehearing stage did

petitioner resuscitate and press the Spencer exception.

Circuit.Dkt.52. But this Court’s “traditional practice”

is “to decline to review claims raised for the first time

on rehearing in the court below.” Wills v. Texas, 511

U.S. 1097 (1994) (O’Connor, J., concurring in denial of

Petitioner’s supplemental brief cited Spencer once in

reviewing the procedural history. See Circuit.Dkt.40. But

petitioner did not further mention this issue, much less argue

that the Spencer exception exists and applies here. Indeed,

petitioner’s supplemental brief was premised on the proposition

that the Spencer exception did not apply.

2

16

certiorari); see also Am. Sur. Co. v. Baldwin, 287 U.S.

156, 163-64 (1932); Godchaux Co. v. Estopinal, 251

U.S. 179, 181 (1919). That practice is understandable:

not only is such a claim likely forfeited below, see, e.g.,

Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d

1146, 1149 (9th Cir. 2016), but petitions for rehearing

seldom meaningfully explore an issue’s merits,

instead addressing purported decisional conflicts or

the issue’s importance. Further, when rehearing is

denied, as here, the court of appeals does not address

the merits at all. Accordingly, petitioner’s first

question presented is not appropriate for certiorari.

Petitioner may argue, in reply, that it was futile

for him to have raised this issue before the Ninth

Circuit panel given Ninth Circuit precedent—

specifically, the Lyall decision that the district court

cited in granting respondents’ motion for

reconsideration. But even when a party considers an

argument futile given controlling precedent, that

party must still preserve the issue in order to have that

precedent overruled or abrogated. See, e.g., United

States v. Rios-Barboza, 58 Fed. Appx. 746, 747 (9th

Cir. 2003). In any event, petitioner could have sought

to distinguish Lyall before the Ninth Circuit—just as

he did in the district court, where he argued that Lyall

was “inapposite,” D.Ariz.Dkt.68, and just as he did in

his petition for rehearing, where he did not seek to

have Lyall overruled or abrogated (as one would

expect if it were futile to raise the Spencer exception

before the panel), but argued that its “limitation on

relief does not apply here,” Circuit.Dkt.52.

In sum, petitioner’s first question presented was

neither pressed in nor passed upon by the panel below,

17

which lacked jurisdiction to address it regardless. The

Court should deny review on this basis alone.

B. The Alleged Circuit Split Is Overstated

And Not Implicated Here.

1. Petitioner asks this Court to resolve an alleged

circuit split over whether the so-called Spencer

exception to Heck’s favorable termination requirement

exists. But petitioner overstates the supposed circuit

split. For example, while petitioner argues that the

Eleventh Circuit has “aligned itself” with circuits that

have accepted the Spencer exception, Pet.16, the

Eleventh Circuit recently stated that “[t]his circuit

has not definitively answered the question,” Topa v.

Melendez, 739 F. App’x 516, 519 n.2 (11th Cir. 2018)

(citing cases). Similarly, subsequent to Wilson v.

Johnson, 535 F.3d 262 (4th Cir. 2008), the Fourth

Circuit qualified its prior acceptance of the Spencer

exception. See Griffin v. Balt. Police Dept., 804 F.3d

692, 696 (4th Cir. 2015) (explaining that “the Heck

exception does not extend to just any petitioner who,

by virtue of no longer being in custody, cannot seek

habeas relief”). And the Sixth Circuit, subsequent to

Powers v. Hamilton County Public Defender

Commission, 501 F.3d 592 (6th Cir. 2007), criticized

Powers because “[i]t seems clear that Justice Souter’s

ruminations in his concurring opinion in Spencer were

dicta,” Harrison v. Michigan, 722 F.3d 768, 773 n.1

(6th Cir. 2013), thus indicating that it may, in an

appropriate case, overrule Powers en banc.

Indeed, the Seventh Circuit did exactly that in a

recent decision, Savory v. Cannon, 947 F.3d 409 (7th

Cir. 2020) (en banc). As petitioner notes, in Burd v.

Sessler, 702 F.3d 429 (7th Cir. 2012), the Seventh

18

Circuit had previously “follow[ed] the approach taken

by Justice Souter’s Spencer concurrence.” Pet.19. In

Savory, however, the Seventh Circuit, sitting en banc,

rejected the Spencer exception. Savory, 947 F.3d at

428. Savory powerfully demonstrates that even a

panel decision squarely adopting the Spencer

exception may not be a circuit’s final word on the

issue.

Savory also increases to six the number of courts

of appeals that, by petitioner’s own account, have

rejected the Spencer exception, rendering the split

even more lopsided and undeserving of this Court’s

review. And even petitioner’s characterization of the

circuits going against him is fuzzy, underscoring that

the split is less clear-cut than presented. For example,

although petitioner includes the Ninth Circuit in that

bucket, he admits that the Ninth Circuit has not

actually rejected the Spencer exception but instead

applied it in some circumstances and not in others.

Pet.17-18, 19. Petitioner also acknowledges that

Second Circuit law is similarly unsettled. Pet.18-19.

Thus, although petitioner contends that “the

Circuits are sharply and intractably divided” on this

question, Pet.19, the reality is that most circuits have

rejected the Spencer exception, several circuits have

unsettled law, and the handful of circuits that have

gestured toward accepting the proposition have either

qualified that acceptance or rejected it en banc—the

very opposite of “intractabl[e].” Importantly, no

circuit has embraced the Spencer exception en banc.

Further percolation is warranted to determine

whether a sharper circuit split actually develops or,

19

instead, any differences among the circuits dissipate

through opinions like the Seventh Circuit’s in Savory.

2. Furthermore, any split that may exist is not

implicated here. None of the decisions cited by

petitioner did so under circumstances analogous to

this case—namely, where federal habeas is

unavailable only with respect to a conviction the

former prisoner is not challenging and where the

prisoner actually did file unsuccessful habeas

challenges to the conviction he is challenging. For

example, the Fourth Circuit’s decision in Wilson

involved the allegation that the Virginia Department

of Corrections improperly extended the plaintiff’s

sentence. See 535 F.3d at 263. Unlike here, that

sentence had not been vacated pursuant to a plea deal,

nor had the plaintiff been released under a sentence

for time served. See id. Similarly, the Sixth Circuit’s

decision in Powers did not involve a plaintiff whose

sentence had been vacated pursuant to a plea, or who

had been released under a time-served sentence. See

501 F.3d at 592. Likewise, in neither Cohen v.

Longshore, 621 F.3d 1311 (10th Cir. 2010), nor Harden

v. Pataki, 320 F.3d 1289 (11th Cir. 2003), had

plaintiffs’ convictions been vacated.

Even more significant, the plaintiffs in the

foregoing cases were permitted to bring § 1983 claims

because they were supposedly unable to seek federal

habeas relief. Here, however, petitioner not only had

access to federal habeas corpus but actually availed

himself of that remedy for the conviction and sentence

actually challenged. Thus, while petitioner argues

that “[i]t is beyond dispute” that he “lacked an

opportunity to challenge his 2013 plea and sentence

20

through habeas” because he was released the day his

2013 plea was entered, Pet.20, that is irrelevant

because petitioner is not challenging “his 2013 plea

and sentence.” See Pet.App.9a (panel noting that

petitioner “does not challenge his 2013 ‘no contest’

pleas or sentence”).

Petitioner has repeatedly

maintained that he is challenging only his 1972

conviction and sentence—a conviction and sentence as

to which he did seek federal habeas relief. See pp.3-4,

6-8 supra. In short, petitioner is mixing apples and

oranges in an attempt to shoehorn himself into the

alleged Spencer exception.

C. Additional

Denial.

Vehicle

Issues

Warrant

Further vehicle problems counsel against

certiorari. First, the petition comes to this Court in an

interlocutory posture because the district court

allowed five out of six of petitioner’s § 1983 claims—

including every claim against respondent Pima

County—to proceed. The court also held that while

petitioner could not recover incarceration-related

damages, he may be able to “establish nonincarceration-based

compensatory

damages.”

Pet.App.65a; p.9, supra.

Second, it remains to be determined whether

Pima County is entitled to Eleventh Amendment

immunity from liability on the basis that the

prosecutor alleged to have violated petitioner’s

constitutional rights was acting on behalf of the state.

Although the Ninth Circuit initially exercised

interlocutory review over the County’s Eleventh

Amendment argument, it ultimately declined to

resolve that issue because it concluded the County was

21

“asserting only immunity from liability,” not suit.

Pet.App.7a. The court noted that “[t]he County’s

asserted immunity from liability can be vindicated

fully after final judgment.” Id. Because the County

may well be immune from any damages to which

petitioner might ultimately be entitled, this case is a

poor vehicle for resolving whether an exception to

Heck exists to allow petitioner to seek those damages

in the first place.

D. Petitioner is Incorrect on the Merits.

Petitioner is also wrong on the merits. See Pet.2629. Heck’s limitation on § 1983 claims applies even

when a plaintiff is no longer in custody, particularly in

the unusual circumstances presented here.

Heck articulated the “favorable-termination”

requirement: “[I]n order to recover damages for

allegedly

unconstitutional

conviction

or

imprisonment,” a § 1983 plaintiff “must prove that the

conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid

by a state tribunal authorized to make such

determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” Heck, 512

U.S. at 486-87. The requirement applies if “success in

[the] action would necessarily demonstrate the

invalidity of confinement or its duration.” Wilkinson

v. Dotson, 544 U.S. 74, 82 (2005).

In Heck, the Court, in an opinion by Justice

Scalia, expressly extended its holding to individuals

no longer imprisoned, stating that “the principle

barring collateral attacks—a longstanding and deeply

rooted feature of both the common law and our own

jurisprudence—is not rendered inapplicable by the

22

fortuity that a convicted criminal is no longer

incarcerated.”

512 U.S. at 490 n.10 (citations

omitted). This comment was in direct response to

Justice Souter’s concurrence, joined by three other

Justices, which argued that Heck’s limitation does not

extend to “individuals not ‘in custody’ for habeas

purposes,” and who could not “invoke federal habeas

jurisdiction” before their release. Id. at 500 (Souter,

J., concurring). Justice Souter’s view did not convince

either Justice Scalia or the Court.

Petitioner nonetheless argues that “five Members

of this Court correctly concluded in Spencer that Heck

does not apply to a prisoner … who has been released

from prison and who lacked an opportunity to raise his

claims through habeas.” Pet.26-27. Specifically,

petitioner invokes Justice Souter’s concurrence for

four Justices in Spencer, and Justice Stevens’s dissent

in Spencer. Pet.14. But this sort of vote-counting from

dicta in separate opinions “may not overrule majority

opinions.” Savory, 947 F.3d at 421. Justice Souter did

not write for the Court in either Heck or Spencer and

footnote 10 of Justice Scalia’s majority opinion was

part of the Court’s holding and “ma[de] clear how

broadly [the Court] intended its holding to apply.” Id.

at 422.3

3 Petitioner cites Muhammad v. Close, 540 U.S. 749 (2004) (per

curiam), in arguing that this Court has “made clear that it has

not yet ‘settle[d] the issue.’” Pet.28. But Muhammad was a per

curiam summary reversal concluding that Heck did not apply for

a different reason—namely, that petitioner’s suit “threatens no

consequence for his conviction or the duration of his sentence.”

Muhammad, 540 U.S. at 751. A footnote opaquely commented

that “[m]embers of the Court have expressed the view that

23

Petitioner argues that the favorable-termination

rule is inapplicable here because it “serves simply to

avoid a conflict between § 1983 and the habeas

statute.” Pet.27. But Heck was based not just on this

principle but on the compelling policy of avoiding

collateral attacks on state-court convictions. Heck,

512 U.S. at 484-85. As the Seventh Circuit explained,

the favorable-termination requirement “avoids

parallel litigation over the issues of probable cause

and guilt, and precludes the possibility … of

conflicting judgments arising out of the same

transaction.” Savory, 947 F.3d at 421 (citing Heck, 512

U.S. at 485-86).

This Court’s recent decision in McDonough v.

Smith, 139 S. Ct. 2149 (2019), is instructive. Because

the plaintiff in that case had been acquitted, there was

no possible collision between habeas and § 1983. Yet

the Court cited the favorable-termination rule as

being “rooted in pragmatic concerns with avoiding

parallel criminal and civil litigation over the same

subject matter and the related possibility of conflicting

civil and criminal judgments.” Id. at 2156-57. These

fundamental principles do not dissipate simply

because a convicted individual is no longer

incarcerated.

unavailability of habeas for other reasons may also dispense with

the Heck requirement,” and added that “[t]his case is no occasion

to settle the issue.” Id. at 752 n.2. Members of the Court have

expressed that view, but only in separate opinions, and some of

those Justices joined the per curiam in Muhammad. The

diplomacy embodied in Muhammad is hardly sufficient to

indicate that Heck’s footnote 10 somehow no longer controls.

24

E. The Question

Importance.

Is

Not

of

Sufficient

Finally, petitioner’s first question presented is not

sufficiently important to warrant this Court’s review.

Notably, petitioner does not even argue otherwise.

Although he contends in a heading that “the questions

presented are of enormous practical importance,”

Pet.32 (capitalization altered), petitioner’s ensuing

“importance” argument focuses entirely on his second

question presented, not the first.

Petitioner’s silence is well-taken, for the first

question presented is not of such exceptional,

recurring importance that certiorari is warranted. To

begin with, the question arises only in a very limited

set of circumstances: when a prisoner brings a § 1983

claim challenging his conviction or sentence after the

completion of his sentence and the defendant

purportedly could not have sought federal habeas

relief during his sentence for reasons beyond his

control.

The universe of individuals these

circumstances encompass is extraordinarily small.

Even defendants with a brief sentence can avail

themselves of habeas before their release, and a

properly filed habeas petition remains valid

notwithstanding the plaintiff’s release from custody so

long as there are collateral consequences, as is often

the case. See Carafas v. LaVallee, 391 U.S. 234, 238

(1968). In recognition of the relative unimportance of

this question, this Court has denied review of cases

presenting the issue. See e.g., Newmy v. Johnson, 574

U.S. 1047 (2014); Gause v. Haile, 574 U.S. 824 (2014).

25

II. The Court Should Deny Review Of

Petitioner’s Second Question Presented.

A. The

Question

Presented

Was

Inadequately Explored in the Court of

Appeals.

Petitioner’s second question presented asks

“[w]hether 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.” Pet.i. Unlike petitioner’s first question

presented, his second question was at least pressed in

and passed on by the Ninth Circuit panel. But even

then, the “rare” and “highly unusual” set of procedural

circumstances of the appeal, Pet.App.7a, caused this

issue to be addressed in a belated and limited fashion.

The Ninth Circuit motions panel denied petitioner’s

request for interlocutory review of this issue and

permitted interlocutory review only of the County’s

Eleventh Amendment issue. As a result, the parties’

merits briefing focused on that issue (though

petitioner improperly devoted several pages of his

response brief to the incarceration-damages issue).

Only after oral argument did the panel ask the

parties to brief the incarceration-damages issue. And

even then, the panel requested simultaneous fifteenpage briefs, with no opportunity for response. The

court conducted no oral argument on the issue, and its

opinion offered only a short discussion of the issue.

This limited treatment does not provide the robust

examination and analysis that this Court typically

expects in cases that it reviews. If the Court were ever

to grant certiorari on this question, it should wait for

26

a case in which the merits were fully debated in the

court of appeals, including through full briefing and

oral argument. If petitioner is correct in asserting

that “[t]he case law is now replete with examples of

such pleas” entered into by “many jurisdictions,” a

more suitable case should present in the near future.

Pet.33.4

B. The Alleged Circuit Split Is Illusory.

Petitioner argues that there is a 4-2 circuit split

over his second question presented, but the split is

illusory. Petitioner is correct that four circuits—the

First, Second, Fifth, and now the Ninth—have held

that 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.” Pet.i; see also Pet.21-23 (discussing cases).

But no court of appeals has held to the contrary, or

anything close to it.

Attempting to manufacture a split, petitioner first

invokes the Third Circuit’s decision in Geness v. Cox,

902 F.3d 344 (3d Cir. 2018). But that decision is far

afield from the issue or circumstances here. Geness

examined

whether

the

favorable-termination

requirement is satisfied “when charges are formally

abandoned by way of” a nolle prosequi order that did

not, on its face, “indicate [defendant’s] innocence.” Id.

at 356. The Third Circuit merely held that a court

4 As with the first question presented, the second question

presented also suffers from the vehicle problems of the petition’s

interlocutory posture and the County’s potential Eleventh

Amendment immunity from liability. See pp.20-21, supra.

27

evaluating whether there was a favorable termination

of an earlier conviction or sentence, must “look beyond

the four corners of [an] order” and “conduct a factbased inquiry.” Id. The court concluded that the facts

giving rise to the order in that case indicated that

there was a “favorable termination” of the charges

against the plaintiff. Id. Unlike here, Geness did not

involve a conviction based on a no-contest plea (or even

a plea), a time-served sentence, earlier and later

convictions and sentences, or anything else material

to the decisions by the four circuits that have held that

Heck bars claims like petitioner’s. Indeed, Geness did

not even cite Heck. Geness thus does not remotely

suggest that, in the Third Circuit, petitioner would

“have been eligible for recovery” notwithstanding

Heck. Pet.25.5

The Seventh Circuit’s decision in Lopez v. City of

Chicago, 464 F.3d 711 (7th Cir. 2006), is equally

inapposite. Like Geness, Lopez does not mention Heck

and does not involve a conviction arising out of guilty

or no-contest plea, a time-served sentence, or earlier

and later convictions and sentences. Instead, Lopez

held that, on the merits of his claim for

unconstitutional duration of confinement, a § 1983

plaintiff was entitled to judgment as a matter of law

5 Petitioner’s other Third Circuit case, Bronowicz v. Allegheny

County, 804 F.3d 338 (3d Cir. 2015), is equally unavailing. There,

the court held that the favorable-termination requirement can be

met without the vacating court explicitly declaring that a prior

judgment was “illegal,” so long as the “totality of the

circumstances surrounding the prior proceedings reflect a

favorable outcome for the plaintiff.” Id. at 345-47. Like Geness,

Bronowicz did not involve a no-contest conviction, a plea, or a

time-served sentence.

28

because he was detained without a warrant or

probable-cause hearing past the constitutional

maximum of 48 hours. Id. at 721-22. Petitioner points

to language in which the court observed that the

plaintiff “could recover compensatory damages for the

unlawful duration of his confinement” despite

“stipulat[ing] there was probable cause to arrest him.”

Pet.24 (quoting Lopez, 464 F.3d at 722). But the court

was simply explaining that the stipulation regarding

the arrest was insufficient to hold that the plaintiff

could not recover any compensatory damages for the

excessive confinement, given the evidence of “physical

and mental injuries” that could have been avoided

absent the unconstitutional confinement. Lopez, 464

F.3d at 722.

In short, the Third and Seventh Circuit decisions

that petitioner cites to gin up a circuit split have

nothing to do with the second question presented here.

They do not involve prior convictions that have been

vacated pursuant to a later conviction based on a nocontest plea; they do not involve time-served sentences

pursuant to such convictions; and they do not address

whether Heck bars plaintiffs from recovering

incarceration-related damages in such circumstances.

Petitioner is thus forced to invoke district court

decisions he claims demonstrate the split. Pet.23-25.

District court decisions, of course, seldom provide a

basis for this Court to grant certiorari. Regardless,

the decisions cited by petitioner merely apply the

unremarkable and inapposite principles set forth in

Geness and Lopez. None implicates petitioner’s second

question or suggests that even one court anywhere in

the country has taken a position contrary to the

29

unanimous view of the First, Second, Fifth, and Ninth

Circuits on this issue.

C. The Decision Below Was Correct.

1. The Ninth Circuit—and every other court to

address the question—correctly held that a § 1983

plaintiff “may not recover incarceration-related

damages for any period of incarceration supported by

a valid, unchallenged conviction and sentence.”

Pet.App.11a.

As the court explained, because

petitioner’s 1972 conviction was vacated, Heck poses

no bar to a challenge to that conviction or the resulting

sentence. But because petitioner’s 2013 conviction

and sentence are indisputably valid, Heck bars a §

1983 claim that “would necessarily imply the

invalidity” of that conviction or sentence. 512 U.S. at

487.

Recognizing this limitation, petitioner has

conceded that he is only challenging his 1972

conviction and sentence, and not his 2013 conviction

or sentence. See Pet.App.9a; pp.7-8, 13, supra.

The problem for petitioner is that, as the Ninth

Circuit observed, “all of the time that [petitioner]

served in prison,” and for which he seeks

incarceration-related damages, “is supported by the

valid 2013” judgment in which the state court accepted

the no-contest plea—an agreement supported by

specific facts and findings of guilt—and sentenced

petitioner to time served. Pet.App.9a. Therefore, “[a]s

a matter of law,” petitioner’s valid 2013 conviction—

which he does not, and cannot, challenge—“caused the

entire period of his incarceration.” Id. And “when a

valid, unchallenged conviction and sentence”—here,

the 2013 conviction and sentence—“justify the

plaintiff’s period of imprisonment, then the plaintiff

30

cannot prove that the challenged conviction and

sentence”—here, the 1972 conviction and sentence—

“caused his imprisonment and any resulting

damages.” Pet.App.10a; see also Olsen v. Correiro, 189

F.3d 52, 70 (1st Cir. 1999) (holding that § 1983

plaintiff “is not free to question the finality of his valid

imprisonment by an action for incarceration-based

damages”); Poventud v. City of New York, 750 F.3d

121, 135 (2d Cir. 2014) (finding Olsen “analogous and

instructive” and holding that § 1983 plaintiff “cannot

seek to collect damages for the time that he served

pursuant to his plea agreement”).

2.

Petitioner resists this straightforward

conclusion with three unavailing arguments. First, he

challenges the notion that his 2013 conviction could

have been the “sole legal cause” of his incarceration,

because an “after-the-fact event” cannot have caused

a “preceding injury.” Pet.29-30. But this ignores the

particular nature of the time-served sentence to which

petitioner agreed, which is necessarily backwardslooking and is independently supported by the 2013

conviction. Cf. Olsen, 189 F.3d at 66-70 (examining

causation

principles

in

materially

identical

circumstances).

Second, petitioner contends that he “has

established ‘favorable termination’ under Heck”

because the state “determined it ‘would be unable to

proceed with a retrial, and the convictions would not

stand.’” Pet.30. This assertion fails twice over. For

one, it does not advance the ball for petitioner. There

is no dispute that the district court concluded

petitioner had satisfied the favorable-termination rule

as to his 1972 conviction and sentence. And whether

31

petitioner has satisfied the favorable-termination rule

as to his 2013 conviction and sentence is irrelevant

because petitioner is not challenging them. Even if

petitioner were, he could not establish “favorable

termination,” for “as to the validity of the sentence

rendered, a [no-contest] plea is the equivalent of a

guilty plea.” Olsen, 189 F.3d at 68 (citing North

Carolina v. Alford, 400 U.S. 25, 35 n.8 (1970)); cf.

Poventud, 750 F.3d at 130-31 (noting that a

“termination is not favorable … if the charge is

withdrawn or the prosecution abandoned pursuant to

a compromise”).

For another, although petitioner insists that the

County “determined it ‘would be unable to proceed

with a retrial, and the convictions would not stand,’”

the County did no such thing. The state made this

statement not because of petitioner’s actual innocence

(which the state vigorously disputed), but because of

the difficulty with a retrial given the passage of time

and loss of other evidence if the state were to lose the

novel legal issue over newly discovered evidence.

Pet.30; see Henderson v. Kibbe, 431 U.S. 145, 154 n.13

(1977) (“[A] collateral attack may be made many years

after the conviction when it may be impossible, as a

practical matter, to conduct a retrial”). Furthermore,

the statement was offered as part of the agreement

that allowed petitioner to plead no-contest, accept

time served, and obtain immediate release. Petitioner

cannot accept the benefit of his agreement regarding

a retrial, yet escape its consequences (a no-contest

plea, an adjudication of guilt, and a sentence of time

served). See Olsen, 189 F.3d at 69 (explaining that

plaintiff “now attempts to enforce a bargain that is

quite different from the bargain society offered him”).

32

Third, petitioner contends that in Town of Newton

v. Rumery, 480 U.S. 386 (1987), 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.’” Pet.31 (quoting 480 U.S. at 389,

392).

Petitioner maintains that his 2013 plea

agreement “is a release-dismissal agreement in all but

name.” Id. But petitioner mischaracterizes Rumery,

which upheld enforcement of a “release-dismissal

agreement” and rejected precisely the sort of “per se

rule” against enforcement that petitioner seeks for

plaintiffs in his situation. 480 U.S. at 392, 398.

Furthermore, petitioner’s 2013 plea agreement is

hardly “a release-dismissal agreement in all but

name.” Among other critical differences, petitioner’s

plea was “concluded under some form of judicial

supervision,” which Justice O’Connor—who provided

the fifth vote in Rumery—stated would have made

Rumery an even “easier case.” Id. at 403 (O’Connor,

J., concurring in part and concurring in the judgment).

Moreover, like the plaintiff in Rumery, petitioner

made a “voluntary decision to enter [his] agreement,”

aided by “experienced” counsel. Id. at 394; see also

ER139-40 (district court finding that petitioner

“knowingly, voluntarily, and intelligently” entered his

plea). Because petitioner “voluntarily” entered into

the plea agreement and never challenged its factual

basis, judgment of guilt, and accompanying sentence,

the “public interest” is “no reason to hold [that]

agreement invalid.” Id. And the “benefits of the

agreement to [petitioner] are obvious,” id.: he gained

immediate release from prison and the ability to

33

“maintain his innocence,” ER173, without having to

prove that he was actually entitled to relief, much less

actually innocent—which the state was prepared to

dispute vigorously. See pp.4-6, supra.6

Petitioner repeatedly insists that he was the

subject of “coercive” tactics, faced an “impossible

choice,” and had “no real choice but to accept” his

agreement to plead no-contest and time served. Pet.1,

4, 9, 31, 33. As an initial matter, there is no evidence

of “coercive” tactics in this case. There is “no evidence

of prosecutorial misconduct” in the procurement of

petitioner’s plea agreement, Rumery, 480 U.S. at 398,

which petitioner admitted to entering “knowingly,

voluntarily, and intelligently.” ER139-40. Indeed,

petitioner affirmed in court that “no one has

threatened or forced [him] to take this agreement.”

ER164.

Nor was petitioner presented with an

“impossible choice.” Petitioner had two choices, each

with advantages and disadvantages:

immediate

release without having to prove entitlement to postconviction relief, while accepting a no-contest plea and

To that end, petitioner’s repeated assertions that he was

“wrongfully incarcerated,” “demonstrably innocent,” “grievously

and irreversibly wronged,” and so forth, see Pet.1, 13, are all

based on allegations that remain unproven, are contradicted by

the record, and are steadfastly disputed by the County in this

action and by the State in the criminal proceeding. The only basis

for petitioner’s insistence that he is “demonstrably innocent” is

the statement that the state would “be unable to proceed with a

retrial” if the recent arson reports legally constituted “newly

discovered evidence.” ER124, 155-56, 172; Pet.8. But as

explained, that statement simply reflected the passage of time—

not an admission of innocence—and the state only made it as part

of, and in support of, the agreement with petitioner in which he

pled no contest to grave criminal charges. See pp.4-6, supra.

6

34

time served; or declining the plea and time served but

having to prove entitlement to post-conviction relief to

a neutral judge while remaining imprisoned. See

Olsen, 189 F.3d at 69 (explaining how no-contest pleas

“are of benefit to defendants”). Petitioner’s options

were not materially different from those of any

criminal defendant—including older defendants—

every day in the plea-bargaining process. Just as

those defendants are not coerced or given an

impossible choice, neither was petitioner.

Petitioner’s approach runs counter to “the

established policy of enforcing plea bargains.” Olsen,

189 F.3d at 69. Plea bargaining is an “important

component[] of this country’s criminal justice system.”

Blackledge v. Allison, 431 U.S. 63, 71 (1977); see also

Santobello v. New York, 404 U.S. 257, 261 (1971)

(describing the “[d]isposition of charges after plea

discussions” as “not only an essential part of the

process but a highly desirable part for many reasons”).

This Court “has several times recognized the benefits

of plea bargaining to the defendant as well as to the

State.” Corbitt v. New Jersey, 439 U.S. 212, 222 n.12

(1978).

The “advantages” of plea bargaining, however,

“can be secured … only if dispositions by guilty plea

are accorded a great measure of finality.” Blackledge,

431 U.S. at 71. Here, petitioner pleaded no contest “as

part of a plea bargain with the prosecution,” but “he

now attempts to enforce a bargain that is quite

different from the bargain society offered him.” Olsen,

189 F.3d at 69-70. To allow petitioner now “to call into

question, through a civil jury’s award of damages for

incarceration, the legal validity of [his] unimpeached

35

criminal sentence would lead to inconsistency and an

undermining of the criminal process.” Id. at 69.

Furthermore, permitting plaintiffs to challenge pleas

to which they voluntarily agreed and seek civil

damages “would undermine the availability of [no

contest] pleas,” for if such pleas come “with the

prospect of continuing litigation and a possible

damages awards, prosecutors will not agree” to them,

making such pleas “less available to defendants.” Id.

D. The Question

Importance.

Is

Not

of

Sufficient

Finally, petitioner’s second question presented is

not of such recurring, exceptional importance to

warrant certiorari. Decisions by courts of appeals

rejecting petitioner’s argument have been on the books

for over twenty years. See Olsen, 189 F.3d at 52; Pete

v. Metcalf, 8 F.3d 214 (5th Cir. 1993). Yet petitioner

can identify only a handful of cases involving

purportedly

similar

circumstances,

Pet.33-34,

indicating that—like petitioner’s first question

presented—this issue implicates only a very small

universe of § 1983 claimants. Moreover, petitioner

admits that these decisions have largely arisen “in just

the last few years,” id., which, if anything, militates in

favor of further percolation, particularly given the

absence of a circuit split.

Furthermore, these recent decisions underscore

that, as noted—and as is the case here—§ 1983 claims

routinely proceed even if plaintiffs are unable

specifically to obtain incarceration-related damages.

See, e.g., Rosales-Martinez v. Palmer, 2017 WL

3710068, at *5 (D. Nev. Aug. 28, 2017) (holding that

two of three § 1983 claims “are not barred by Heck”);

36

pp.8-9, supra. Indeed, citing the decision below, the

Ninth Circuit recently held that § 1983 plaintiffs may

“recover damages if the convictions underlying their

claims were vacated pursuant to a settlement

agreement.” Roberts v. City of Fairbanks, ___ F.3d

___, 2020 WL 356959, at *2 (9th Cir. Jan. 22, 2020).

The case law thus provides even more reason to

decline review of this splitless, narrow issue on which

the Ninth Circuit was clearly correct.

CONCLUSION

The Court should deny the petition.

Respectfully submitted,

NANCY JANE DAVIS

Counsel of Record

PIMA COUNTY

ATTORNEY’S OFFICE

32 N. Stone, Ste. 2100

Tucson, AZ 85701

(520) 724-4070

nancy.davis@pcao.pima.gov

Counsel for Pima County

February 12, 2020