Petition for Writ of Certiorari — Ian T. Cooke, Petitioner v. John R. Williams, et al.

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IN THE SUPREME COURT OF THE UNITED STATES

filed

FEB 0 2 2022

Ian T. Cooke 9

JtiaiyEbS^^

Petitioner.

v.

John R. Williams,

Respondent.

On Petition for Writ of Certiorari to the

Connecticut Supreme Court

PETITION FOR WRIT OF CERTIORARI

Ian T. Cooke

Petitioner

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

Tel. 203-651-6280

Petitioner Pro Se

received

FEB - 8 2022

QUESTION PRESENTED

Does the justiciability bar articulated by Heck v. Humphrey, 512

U.S. 477 (1994) requiring criminal plaintiffs to favorably

terminate their conviction prior to commencing certain tort

actions apply to a cause of action sounding in legal malpractice?

i .

LIST OF PARTIES

- Ian T. Cooke, petitioner (plaintiff)

- John R. Williams, respondent (defendant)

- John R. Williams & Associates, LLC., respondent (defendant)

LIST OF CASES

Cooke v. Williams

NNH-CV18-5041290-s (Conn. Super. Ct.)

- Cooke v. Williams, 206 Conn. App. 151,

Cooke v. Williams, 339 Conn. 919,

li

A.3d

A.3d

(2021)

(2021)

TABLE OF CONTENTS

1

Question Presented

• v

Table of Authorities

I. Petition for Writ of Certiorari

1

II. Opinions Below

1

III. Jurisdiction

1

IV. Constitutional Provisions Involved

1

V. Statement of the Case

2

A. Introduction

2

B. How the Question Presented was Raised

and Decided Below .......................................

4

a. The trial court declared petitioner’s case

unripe and non-justiciable because if

successful it would undermine the validity

of the criminal conviction...............................

4

b. The Appellate Court declined to address

arguments distinguishing the case from

Heck..........................................................................

5

c. In denying certification the Supreme Court

held that the Heck justiciability bar

requiring favorable termination applies to

all legal malpractice claims brought by a

convicted criminal plaintiff regardless of

whether the claim would necessarily imply

the conviction is invalid...................................

.6

VI. Reasons for Granting the Writ ............................................

7

A. Reading Heck to foreclose all legal malpractice

claims creates a conflict among the twenty seven

jurisdictions that, have adopted the favorable

termination requirement and the eighteen

jurisdictions that have not............................................

8

B. This Court's intervention is warranted because

lower courts continue to apply an unfairly strict

justiciability bar to cases that are otherwise

ripe resulting in justice delayed and denied. . .

11

VII. Conclusion and Prayer for Relief ...................................

15

in

INDEX OF APPENDICES

Appendix A - Connecticut Appellate Court opinion affirming in part

Cooke v. Williams,

and reversing in part the case

A.3d

206 Conn. App. 151,

(2021) .... A001

Appendix B - Connecticut Superior Court memorandum of decision

dismissing the case, Cooke v. Williams, NNH-CV185041290, 2018 WL 4865688 (Conn. Super. Ct. 9/17/18)

........................................ ..... A028

Appendix C - Connecticut Supreme Court order denying certification

Cooke v. Williamsv 339 Conn. 919,

A.3d

(2021)

A033

Appendix D - Text of statutory provisions involved; Connecticut

General Statute §4-141 et.seq. (Claims Against the

State) (includes statutory immunity of Public

A034

Defenders)

xv

*

TABLE OF AUTHORITIES

Federal Cases

Amato v. Bray, 83 Fed. App'x. 380 (2d Cir. 2003) . . .

11

Carr v. Baynham No. 6:08-cv-12, 2008 U.S. Dist. LEXIS

28917, 2008 WL 1696881 (E.D. Tex. 4/9/2008) . . . .

11

Delaney v. District of Columbia, 659 F.Supp.2d 185

(D.C.Cir. 2009)

10-11

Edwards v. Balisok

8

520 U.S. 641 (1997)

Heck v. Humphrey, 5.12 U.S. 477 (1994) .

passim

Hoffenberg v. Meyers, 73 Fed. App'x. 515 (2d Cir. 2003) .... 14

Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018),

rehearing en banc denied, 920 F.3d 584 (9th Cir. 2019) ... 14

Mayle v. Felix, 545 U.S. 644 (2005) ................

8

McCord v. Bailey, 636 F.2d 606 (D.C.Cir. 1980)

10

McCurvin v. Law Offices of Koffsky & Walkley,

No. 3:98-CV-182 (SRU), 2003 WL.223428 (D.Conn. 1/27/2003) . . 14

McKithen v. Brown, 481 F.3d 89 (2d Cir. 2007) .

7

Morton v. State Bar of Arizona, No. cvl4-^1647,

2014 U.S. Dist. LEXIS 113640,j 2014 WL 4059710

(D.Ariz. 8/15/2014) ....

11

Pelullo v.. Nat'l Union Fire Ins. Co., No. cvOO-5647,

2004 U.S. Dist. LEXIS 9138, 2004 WL 1102782

(E.D.Pa. 5/17/2004) ............................................

11

Skinner v. Switzer, 562 U.S. 521 (2011)

8

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

8, 12

State Cases

Barker v. Capotosto, 875 N.W.2d 157 (Iowa 2016) .

10

Britt v. Legal Aid Soc. Inc.

14

95 N.Y.2d 443 (2000)

v

Browne v. Robb, 583 A.2d 949 (Del. 1990)

14

Cooke v. Commissioner of Correction 194 Conn. 807 j

222 A.3d 1000 (2019), cert, denied 335 Conn. 911,

(2020) ........................................................

A ..3d

3

Dressier v. Riccio, 205 Conn. App. 533,

A.3d

(2021) ... 6

Drollinger v. Mallon, 260 P.3d 482 (Or. 2011) . . .

12

503 N.W.2d 771 (Minn. 1993) . . .

14

Kraklio v. Simmons, 909 N.W.2d 427 (Iowa 2018) . .

10

Morgano v. Smith, 879 P.2d 735 (Nev. 1994) ....

14

Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)

9

State v. Cooke, 134 Conn. App. 573, 39 A.3d 1178,

cert. denied, 305 Conn. 903, 43 A.3d 662 (2012)

2

Stevens v. Bispham, 851 P.2d 556 (Or. 1993) . . . .

13

Taylor v. Wallace, 184 Conn. App. 43, 194 A.3d 343

(Conn. 2018) ....................................................................

3, 4, 5

Dziubak v. Mott

Statutes

Connecticut General Statute §4-141 et.seq

14

Rules

1

Supreme Court Rule 13.1

Other

N. Van Cleve i Amending the Peeler Doctrine: How to

Provide Convicted Plaintiffs an Equitable

Opportunity to Pursue Legal.Malpractice Claims,

56 Hous. L. Rev. 927 (2019)

vi

9, 10

I. PETITION FOR WRIT OF CERTIORARI

Ian T. Cooke petitions the Court for a writ of certiorari to

review the judgment of the Supreme Court for the state of

Connecticut.

II. OPINIONS BELOW

The Connecticut Appellate Court's published opinion affirming

in part and reversing in part the petitioner's appeal from the

pre -trial dismissal of the case is reported at 206 Conn. App. 151,

(2021) and attached as Appendix A.

A.3d

The Connecticut Superior Court's unpublished opinion dismissing

the case is unreported at NNH-CV18-5041290, 2018 WL 4865688 (Conn.

Super. Ct. 9/17/18) and attached as Appendix B.

The Connecticut Supreme Court's published decision denying

certification to review is reported at 339 Conn. 919

A.3d

(2021) and attached as Appendix C.

III. JURISDICTION

The Connecticut Supreme Court entered judgment on November 9,

2021.

See Appendix C.

Supreme Court Rule 13.1.

This petition is timely filed pursuant to

This Court has jurisdiction under 28 USC

§1257 (a).

IV. CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the application of the justiciability bar

enunciated by Heck v. Humphrey, 512 U.S. 477 (1994) to legal

malpractice claims brought by a convicted criminal plaintiff against

1

their former defense counsel,

This application of Heck implicates

plaintiffs'■ rights to access the courts to seek redress and the

concomitant right to due process of law as protected by the First

and Fourteenth Amendments to the United States Constitution.

U.S. Const. Amendment I - Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech or of the press,

or the right of the people peacably to assemble, and to

petition the Government for a redress of grievances.

U.S. Const. Amendment XIV §1 - All persons born or naturalized

in the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein

they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,

liberty, or property without due process of law, nor.deny to

any person within its jurisdiction the equal protection of the

laws.

V. STATEMENT OF THE CASE

A. Introduction

This petition arises from the pre-trial dismissal of a case

alleging misconduct committed by an attorney and his law firm

acting in a professional capacity during the representation of the

petitioner in a post-conviction habeas corpus petition in state

court.

Petitioner is incarcerated upon conviction for, inter alia,

capital felony,

appeal.

Petitioner's conviction was affirmed on direct

State v. Cooke, 134 Conn. App. 573, 39 A.3d 1178, cert.

denied 305 Conn. 903, 43 A.3d 662 (2012).

Petitioner then filed

a habeas corpus petition alleging ineffective assistance of trial

counsel.

Petitioner privately retained the respondents to

represent all efforts at obtaining a full exoneration.

2

Respondents were professionally negligent throughout their

representation.

These deficiencies included the failure to

comprehend the facts of the underlying criminal case, failure to

investigate the claims being presented, failure to obtain and direct

relevant expert witnesses, and failure to present necessary legal

argument.

Respondents committed further misconduct wherein they

misled petitioner as to their billing rates and likely expenditures

Respondents also misappropriated

incident to the habeas petition.

funds intended for investigation and expert witnesses.

The habeas petition was denied.

were fired.

Thereafter the respondents

The appeal from this denial was presented by petitioner

proceeding pro se.

The denial was affirmed.

of Correction, 194 Conn. App. 807

denied 335 Conn. 911,

Cooke v. Commissioner

222 A.3d 1000 (2019), cert.

(2020).

A.3d

Petitioner filed a civil action alleging, inter alia, legal

malpractice against the respondents,

Respondents moved to dismiss

arguing that the case is unripe and that the court lacks subject

matter jurisdiction due to the petitioner's outstanding criminal

conviction.

The trial court dismissed the case following the

"favorable termination" requirement enunciated by Heck v. Humphrey,

supra, 512 U.S. 477 and adopted by Connecticut to legal malpractice

claims in Taylor v. Wallace, 184 Conn. App. 43, 194 A.3d 343 (2018).

Petitioner appealed arguing the inapplicability of Heck/Taylor

to the case.

The Connecticut Appellate Court disagreed, holding

that Heck bars a legal malpractice action brought by a criminal

plaintiff against their former defense counsel, commonly referred

3

to as "criminal malpractice," if the criminal conviction has not

been favorably terminated through, e.g., habeas corpus or a pardon.

See Appendix A at A006-015.

The Appellate Court further opined

that claims couched in fraud for alleged billing irregularities

See Appendix

were not barred by Heck, remanding the case in part.

A at A015-027.

Petitioner sought certification to the Connecticut Supreme

Court citing numerous distinctions between Heck/Taylor and the

instant case rendering the favorable termination requirement

inapplicable.

The Connecticut Supreme Court denied certification.

See Appendix C at A033.

B. How the Question Presented was Raised and Decided Below

a. The trial court declared petitioner's case unripe and^

non-justiciable because if successful it would undermine

the validity of the criminal conviction.

The trial court's memorandum of decision dismissing

Petitioner's case contains just two pages of analysis.

Appendix B.

See .

It begins by reciting Heck that "if success in a tort

action would necessarily imply the invalidity of a conviction, the

action is to be dismissed unless the underlying conviction has

been invalidated."

Appendix B at A030 citing Heck v. Humphrey,

supra, 512 U.S. 489-90.

The trial court ignored the distinctions argued by petitioner,

namely that the instant case is against habeas counsel not trial

counsel

thus insulating the criminal conviction,

In other words

proof of malpractice may imply deficiency of the respondents in

4

the habeas but this has no bearing on the validity of the criminal

trial nor the effectiveness of trial counsel.

b. The Appellate Court declined to address arguments

distinguishing the case from Heck.

The Appellate Court's opinion affirming the dismissal of legal

malpractice declined the opportunity to address several arguments

made by petitioner distinguishing the case from Heck/Taylor.

Appendix A at A006-015.

See

In a somewhat contradictory manner the

court did recognize a distinction between causes of action; legal

malpractice and fraud, holding that certain claims would be

permissible if properly framed such that they don t undermine the

conviction.

See Appendix A at A015-027.

The Appellate Court extended

the holding in Heck to equate

the malpractice cause of action to a collateral attack on the

underlying conviction,

See Appendix A at A012.

The court reasoned

that proof of malpractice in this case would necessarily imply the

invalidity of the conviction because to prove malpractice a

criminal plaintiff "would have to prove that he would not have

sustained the injury had professional negligence not occurred,

(id.)

The supposed injury being wrongful incarceration.

Petitioner argued that the malpractice cause of action is

presently ripe because all of the elements of malpractice have

been satisfied and the injury has already occurred making the

claims justiciable, n.l

n.l The elements of legal malpractice are (l.) the existence of an

attorney-client relationship; (2.) the attorney's wrongful act

or omission; (3.) causation; and (4.) damages. See Appendix A

at A010.

5

The only injury claimed by petitioner is the loss of funds

paid to the respondents incident to their representation of the

habeas case.

The damages resulting from this injury are direct and

calculable by a trier of fact, not hypothetical based on a theory

of incarceration that hasn't yet been proven wrongful,

In

declining to acknowledge this distinction the Appellate Court found

the pro se pleadings tantamount to a collateral attack on the

conviction and therefore barred by Heck.

See Appendix A at

A014-015.

c. In denying certification the Supreme Court held that the

Heck justiciability bar requiring favorable termination

applies to all legal malpractice claims brought by a

convicted criminal plaintiff regardless of whether the

claim would necessarily imply the conviction is invalid.

The Connecticut Supreme Court's decision denying certification

was a lost opportunity to assess the application of the Heck

justiciability bar to legal malpractice, n.2

Petitioner argued that a singular standard requiring favorable

termination based on the conclusions of Heck was inappropriate

because the Appellate Court had ignored the fundamental principle

of Heck requiring an individualized assessment of the facts in the

Heck bars a cause of action if and

context of the cause of action.

only if the outcome of the proceedings will "necessarily" imply the

invalidity of the conviction.

487 n.7.

Heck v. Humphrey, supra, 512 U.S.

Courts outside of Connecticut have interpreted Heck to

n.2 Connecticut's Appellate Court has addressed Heck in this context

on three occassions: Taylor, Dressier v. Riccio, 205 Conn. App.

(2021); and the instant case. The Connecticut

A.3d

533,

Supreme Court has never reviewed this application of Heck.

6

permit cases that may make subsequent efforts at exoneration "more

likely" as long as the judgment itself "necessarily implies

nothing at all about the plaintiff's conviction."

McKithen v. Brown

See, e.g. ,

481 F.3d 89, 103 (2d Cir. 2007).

Petitioner highlighted the difference between the standards

of proof for habeas corpus and legal malpractice,

Ineffective

assistance of counsel is comparatively more difficult to prove than

deficiency and causation for malpractice,

Proof of the latter does

not necessarily imply anything of the former.

This distinction also emphasizes the fallacy in the concern

over inconsistent judgments that has been spirited by the Appellate

and trial courts.

The courts

See Appendix A at 013-014; Appendix B at 031-032.

concern is that a judgment against the respondents

finding them liable for malpractice could be inconsistent with any

future claim against them alleging their ineffecitive assistance

during the habeas proceedings,

See Appendix A at A013-014.

The

fallacy being that this concern fails to heed the disparate .

standards of proof between habeas and malpractice.

It also fails

to recognize the instances where inconsistent judgments already

may occur and are permissible.

For example, consider a criminal

case and a civil suit brought by the alleged victim of said crime.

there is no mandated consistency between these cases because the

common

arbiters are trying two different issues regardless of the

factual predicates.

VI. REASONS FOR GRANTING THE WRIT

This Court's intervention is necessary to resolve a conflict

7

among the states regarding the application of the favorable

termination requirement enunciated by Heck v. Humphrey, supra, 512

U.S. 477 to legal malpractice claims brought by convicted criminal

plaintiffs against their former attorneys,

Lower courts have

repeatedly required this Court's guidance on the application of

Heck in different circumstances, n.3

This court has not assessed

the Heck favorable termination requirement in legal malpractice

cases previously.

This case presents an issue of first impression

for this Court.

A. Reading Heck to foreclose all legal malpractice claims

creates a conflict among the twenty seven jurisdictions

that have adopted the favorable termination requirement

and the eighteen jurisdictions that have not.

The favorable termination requirement has been assessed by

45 different states and the District of Columbia, at either the

Appellate or Supreme Court level

albeit not always under the

i

logic and guidance of Heck,

There are at least ten different legal

standards utilized across the country ranging from a very strict

favorable termination requirement to no restriction on cases

alleging criminal malpractice.

n.3 See e.g. , Edwards v. Balisok, 520 U.S. 641 (1997) (analyzes

Heck in prison disciplinary proceedings); Wilkinson v. Dotson,

544 U.S. 74 (2005) (analyzes Heck in parole eligibility);

Mayle v. Felix, 545 U.S. 644 (2005) (analyzes Heck in federal

habeas alleging tortious police misconduct); Skinner v. Switzer,

562 U.S. 521 (2011) (analyzes Heck in lawsuit seeking DNA

testing relating to underlying criminal case).

8

On the strict interpretation side are the jurisdictions

requiring, e.g., actual innocence plus legal innocence: Florida,

Nevada, New Hampshire, Virginia, and Washington; innocence of the

charge and all lesser included offenses: West Virginia; and post­

conviction relief plus proof that the attorney acted recklessly:

Pennsylvania.

In total there are twenty seven jurisdictions

requiring some form of favorable termination pre-requisite to a

criminal malpractice claim becoming ripe. i.:See

N. Van Cleve

Amending the Peeler Doctrine: How to Provide Convicted Plaintiffs

an Equitable Opportunity to Pursue Legal Malpractice Claims,

56 Hous. L. Rev. 927 (2019) (collecting cases), n.4

On the more lenient side there are a number of jurisdictions

with equivalent civil and criminal malpractice standards: Arkansas,

Colorado, Delaware, Indiana, Louisiana, Michigan, Montana, New

Mexico, North Dakota, Ohio, and Utah,

Others require a "legally

cognizable injury," before commencement of the action: Alabama,

District of Columbia, Georgia, Nebraska, and Rhode Island.

One

jurisdiction permits claims against habeas attorneys but not

trial attorneys: Oregon,

In total there are eighteen jurisdictions

that do not follow a favorable termination requirement, (id*) n.5

Combined these jurisdictions have considered issues against

criminal malpractice including: consistency of judgments, preventing

ri.4 The Peeler doctrine is Texas formulation of the favorable

termination requirement as articulated in Peeler v. Hughes &

Luce, 909 S.W.2d 494 (Tex. 1995).

n.5 There are currently five jurisdictions that have not addressed

this issue: Hawaii, Maine, South Dakota, Vermont, and Wyoming.

Connecticut was undecided at the time of this publication.

9

criminals from shifting responsibility for their crimes, preserving

judicial resources where criminal malpractice claims could over­

burden courts, protecting the defense bar where the availability

of criminal malpractice may discourage practitioners, and

preventing criminals from profiting from their crimes.

Also

considered were issues favoring the availability of criminal

malpractice including: protecting individuals from negligent

attorneys, promoting confidence in the criminal defense bar,

treating attorneys equally instead of providing the criminal

defense bar with special protections, and permitting individuals

to seek refunds when their attorneys breach contractual or

fiduciary obligations.

See, N. Van Cleve, supra, 56 Hous. L. Rev.

945-952.

Even a cursory review of these jurisdictions' jurisprudence

on the matter reveals highly disparate interpretations.

Barker v. Capotosto, 875 N.W.2d 157

See

e.g. ,

166 (Iowa 2016) (plaintiff

must obtain judicial relief from his/her conviction as a pre­

requisite to malpractice); but see, Kraklio v. Simmons, 909 N.W.2d

427, 439 (Iowa 2018) (holding that "a criminal defendant suing

his defense lawyer over a sentencing error must obtain post­

judgment relief on the sentencing issue, but need not prove relief

from the underlying conviction"),

On those opportunities when

federal courts have delved into the issue they too have had mixed

results.

See, McCord v. Bailey, 636 F.2d 606, 611 (D.C.Cir. 1980)

(legally cognizable injury requirement); cf Delaney v. District of

Columbia, 659 F.Supp.2d 185, 200 n.13 (D.C.Cir. 2009) (holding

10

that plaintiff may sue individual attorney or assert ineffective

assistance of counsel as basis for habeas relief); Amato v. Bray,

83 Fed. App'x. 380, 381 (2d Cir. 2003) (post-conviction relief

required); Carr v. Baynham, No. 6:08-cv-12, 2008 U.S. Dist.

LEXIS 28917, 2008 WL 1696881 * 2-3 (E.D.Tex. 4/9/2008) (no private

cause of action for malpractice, exoneration required, magistrate

recommends that the case is Heck barred); Mortonty. State Bar of

Arizona, No. cvl4-1647, 2014 U.S. Dist. LEXIS 113640, 2014 WL

4059710 (D.Ariz. 8/15/2014) (no private cause of action under the

Sixth Amendment right to counsel, relief from conviction required);

Pelullo v. Nat'l Union Fire Ins. Co., No. cvOO-5647

2004 U.S.

Dist. LEXIS 9138 *53, 2004 WL 1102782 (E.D.Pa. 5/17/2004) (lawyer's

liability for proximately causing conviction requires proof of

innocence of crime and lesser offenses).

The variability between these jurisdictions is broad,

The

instant case would currently be ripe in nearly half of the country,

while in the other half the exact same case is unripe and nonjusticiable.

Some of the foregoing considerations were addressed

by this Court in Heck and its progeny, while others were not.

The

intricacies of a legal malpractice case militate in favor of

granting the writ such that specific guidance may be given by this

Court.

B. This Court's intervention is warranted because lower

courts continue to apply an unfairly strict justiciability

bar to cases that are otherwise ripe resulting in justice

delayed and denied.

Courts have repeatedly misread the Heck favorable termination

11

requirement to preclude any claim of legal malpractice against an

attorney involved in the criminal defense process.

This Court has

already stated that a claim should be permitted so long as it does

not "necessarily imply the invalidity of the underlying criminal

conviction." Heck v. Humphrey, supra, 512 U.S. 487 n.7.

This

distinction has been favorably cited by this Court on its prior

attempts to clarify the scope of Heck.

Dotson, supra, 544 U.S. 82.

See, e.g.

Wilkinson v.

In spite of this, lower courts ignore

the importance of the word "necessarily" and automatically bar

cases simply because they possess some relationship to the criminal

case.

This occurs regardless of how far removed the subject case

is from the conviction and how benign the nature of the relief

sought.

The only jurisdiction that currently uses a mixed favorable

termination rule is Oregon.

They prohibit all claims against trial

counsel but permit most claims against habeas counsel.

In

Drollinger v. Mallon, 260 P.3d 482 (Or. 2011) the Oregon Supreme

Court reflected that "to the extent that plaintiff alleges damages

that do not depend on the certainty of success in obtaining relief

from his conviction, .pleading and proving that plaintiff would

have obtained relief from his conviction would be unnecessary.

example of such an allegation would be one that alleged that

plaintiff incurred litigation-related costs that, except for

defendant's negligence he would not have incurred." (id., 491).

This is precisely what has been alleged by petitioner in the

12

An

instant case: money was misappropriated by respondents due to

See Appendix

their neglect in understanding and managing the case.

A at A007-008.

The Oregon Supreme Court had previously analyzed legal

*

malpractice claims against trial counsel and applied the favorable

termination requirement.

1993).

Stevens v. Bispham, 851 P.2d 556 (Or.

In his dissent.Justice Unis opined that the creation of a

"no exoneration/no harm" rule was riddled with flaws.

Namely

that a case can remain stale for years, even decades before a

plaintiff is exonerated; the court is supplanting the legislature

in determining the statute of limitations for a whole class of

cases; negligent lawyers are permitted to hide behind their

negligence; and that the criminal defendantrcum-plaintiff is

having his access to court and due process violated, (id., 571-575)

(dissent Unis , J.) .The misuse of the favorable termination requirement to

improperly bar criminal plaintiff cases is further exemplified

when lower courts conflate a reluctance to permit claims against

appointed counsel - those who were not paid by the criminal

plaintiff - with the ability to prove injury and damages,

It is

logical to prohibit malpractice claims against, e.g., public

defenders because there could be no pecuniary loss proximate

to alleged malpractice,

malpractice claims.

This is not a reason to bar all criminal

Many jurisdictions already have laws protecting

13

certain classes of attorneys, n.6

Some, like Connecticut, even

provide public defenders with statutory immunity, n.7

The sum total of these examples is that lower courts improperly

deny criminal plaintiffs their ability to access the courts and

their accompanying right to due process through a fundamental,

misunderstanding of when cases should be Heck barred.

As one

circuit judge reflected "we are not the first court to struggle

applying Heck to 'real life examples,

nor will we be the last."

Martin v. City of Boise, 902 F.3d 1031, 1051 (9th Cir. 2018)

(dissent Owens., J.), rehearing en banc denied, 920 F. 3d 584 (9th

Cir. 2019) (analyzes Heck in suit challenging the constitutionality

of a public vagrancy ordinance).

This confusing miasma of rules and rights spreading out from

the foundation of Heck desperately needs this Court's intervention

for clarification as to the appropriate application in legal

•

malpractice cases.

n.6 Delaware gives public defenders qualified immunity, Browne v.

Robb, 583 A.2d 949, 950-51 (Del. 1990); Minnesota and Nevada

do not permit suit against public defenders, Dziubak v. Mott, .

503 N.W.2d 771, 773 (Minn. 1993); Morgano v. Smith, 879 P.2d

735, 736-37 (Nev. 1994)(per curiam); See also, Hoffenberg v.

Meyers, 73 Fed. App'x. 515 (2d Cir. 2003) citing Britt v.

Legal Aid Soc. Inc. 95 N.Y.2d 443 (2000) (New York's actual

innocence favorable termination rule began with the effort

to protect non-profit legal aid groups); McCurvin v. Law

Offices of Koffsky & Walkley, No.3:98cvl82(SRU), 2003 WL

223428 *2 (D.Conn. 1/27/03) (same)

n.7 See, Conn. Gen. Stat. §4-141 et.seq.

14

VII. CONCLUSION AND PRAYER FOR RELIEF

The country's lower courts need guidance about how to apply

the Heck v. Humphrey, supra, 512 U.S. 477 favorable termination

requirement to legal malpractice cases brought by criminally

convicted plaintiffs,

The law is unclear and unevenly applied

implicating important constitutional rights.

This Court should grant certiorari to review the Connecticut

Supreme Court's judgment denying certification on the issues raised

to the Connecticut Appellate Court, summarily reverse the dismissal

of the underlying cause of action sounding in malpractice

or grant

such other relief as justice requires.

Respectfully Submitted,

Ian T. Cooke

petitioner

Cheshire Corr. Inst.

900 Highland Avenue

Cheshire, CT 06410

Tel. 203-651-6280

15