Petition for Writ of Certiorari — Randell v. Johnson

(1) ae i as oe

0

7 0105 4 DEC 2 6

Urrict OF THE CLERK

IN THE

Supreme Court of the United States

TOMMY RANDELL,

Petitioner,

vy,

GARY L. JOHNSON, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KENNETH CHESEBRO*

EMILY J. STEVENS

1600 Massachusetts Avenue

No. 801

Cambridge, MA 02138

(617) 661-4423

Counsel for Petitioner

*Counsel of Record

December 26, 2000

POTS

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

OMELET °" §

QUESTION PRESENTED

Whether a former state prisoner, not “in custody” under 28

U.S.C. § 2254(a), may bring an action under 42 U.S.C.-§ 1983 to

establish the unconstitutionality of past confinement “without

being bound to satisfy a favorable-termination requirement that

it would be impossible as a matter of law for him to satisfy,” in

line with Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Souter, J.,

joined by O’Connor, Ginsburg, and Breyer, JJ.); id. at 21-22

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

PARTIES TO THE PROCEEDING

The petitioner in this case is Tommy Randell, plaintiff-

appellant in the U.S. Court of Appeals for the Fifth Circuit.

The respondents, defendants-appellees in the Fifth Circuit,

are Gary L. Johnson, Director, Texas Department of Criminal

Justice, Institutional Division; Melinda Bozarth, Director, Texas

Board of Pardons and Paroles; and John Does I and II.

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TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING .......... ccc ccc cc cccees ul

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STATUTORY PROVISIONS INVOLVED ................. l

PUPRUMIEINSE GO BRM GAADE 6c ccc ccc cncncccccccccsaccees 2

REASONS FOR GRANTING THE WRIT ............. 4

TABLE OF AUTHORITIES

CASES: PAGE:

Board of Pardons & Paroles ex rel. Keene

v. Court of Appeals for Eighth Dist.,

910 S.W.2d 481 (Tex. Crim. App. 1995) ........... 2

Cabrera v. City of Huntington Park,

RP De APO CEG BOM on cnn ccnscccasecesnr 14

Carr v. O'Leary, 167 F.3d 1124 (7th Cir. 1999) ......... 13

Dean v. Texas, 900 S.W.2d 367 (Tex. App.

—Texarkana 1995) pet. dism’d,

928 S.W.2d 567 (Tex. Crim. App. 1996) ........... 2

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) ......... 13

Edwards v. Balisok, 520 U.S. 641 (1997) ............... )

Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998) ......... 13

Franklin v. Kyle, 899 S.W.2d 405

(Tex. App.—Waco 1995, no pet.) ...............-. 2

Green v. Montgomery, 219 F.3d 52 (2d Cir. 2000) ....... 12

Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000) ..... . 14

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

Hoard v. Reddy, 175 F.3d 531 (7th Cir. 1999) .......... 13

Huey v. Stine, 230 F.3d 226 (6th Cir. 2000). ............ 14

Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999) ...... 11,12

Kim v. Hurston, 182 F.3d 113 (2d Cir. 1999) ........... 12

Leather v. Eyck, 180 F.3d 420 (2d Cir. 1999) ........... 12

Preiser v. Rodriguez, 411 U.S. 475 (1973) ......... 5,7,8

Schamaeizadeh v. Cunigan, 182 F.3d 391 (6th Cir.),

cert. denied, 528 U.S. 1021 (1999) ............... 14

Spencer v. Kemna, 523 U.S. 1 (1998) ....... 4,9, 11, 13, 14

Tower v. Glover, 467 U.S. 914 (1984) ...........0....4.. 7

Wolff v. McDonnell, 418 U.S. 539 (1974) ............... 7

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STATUTES AND RULES: PAGE:

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BOOKS AND ARTICLES:

Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro,

Hart & Wechsler’s The Federal Courts and the

Federal System (4th ed. 2000 Supp.).............. 10

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OPINIONS BELOW

The decision of the U.S. Court of Appeals for the Fifth

Circuit (App. la-4a) is reported at 227 F.3d 300. The decision

of the district court (App. Sa-7a) is unreported.

JURISDICTION

The court of appeals decision was entered on September 26,

2000. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 1 of the Civil Rights Act of 1871, codified at 42

U.S.C. § 1983, provides in relevant part:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

. .. Subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress ... .

The federal habeas corpus statute covering persons in state

custody, 28 U.S.C. § 2254, provides in relevant part:

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the

United States.

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STATEMENT OF THE CASE

On June 18, 1999, petitioner Tommy Randell filed this

federal court lawsuit pursuant to 42 U.S.C. § 1983. App. Sa. He

alleged that officials of the State of Texas (respondents in this

Court) had caused him to serve sixty-eight (68) months on a

sentence of only sixty (60) months. Complaint § 4. He was

incarcerated for the extra eight months in connection with a DWI

charge between September 27, 1996, and June 25, 1997, on a

“blue warrant” that prevented him from making bail. App. 2a."

Randell was never given credit for the eight months in

serving the remainder of his 60-month sentence “and therefore

had to serve the time over again.” App. 2a; Complaint ¥ 5. On

the date Randell filed his Section 1983 lawsuit he had already

served the entire 60-month sentence, plus the eight months he

was forced to serve again. /d. As relief for the eight months he

was forced to serve twice, Randell sought solely money damages.

Complaint § 6. |

The district court dismissed Randell’s lawsuit based on this

Court’s decision in Heck v. Humphrey, 512 U.S. 477, 486-87

(1994). App. 7a. The court held that because Randell was

challenging the fact or duration of his confinement. . .

he must pursue his claim through a writ of habeas

corpus before seeking damages under § 1983.

Therefore, Plaintiff's civil mghts complaint is

dismissed without prejudice to Plaintiff's right to seek

federal habeas relief after his state remedies have been

exhausted.

' A “blue warrant” is a warrant issued by the Parole Division of the

Texas Department of Criminal Justice for the arrest of a person suspected of

violating his or her parole. See, e.g., Board of Pardons & Paroles ex rel.

Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 482 (Tex. Crim.

App. 1995); Dean v. Texas, 900 S.W.2d 367, 367 (Tex. App.—Texarkana

1995), pet. dism‘d, 928 S.W.2d 567 (Tex. Crim. App. 1996); Franklin v. Kyle,

899 S.W.2d 405, 406 n.1 (Tex. App.—Waco 1995). See also Tex. Govt.

Code §§ 508.251(a), 508.252(2) & (3), 508.254.

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App. 7a; see also App. 6a (“When a state prisoner seeks to

challenge the fact of confinement and resolution of his claim

results in speedier or immediate relief, the appropriate federal

remedy is a writ of habeas corpus.”).

Randell, having fully served his 60-month sentence (and

then some), was no longer “a person in custody” within the

meaning of 28 U.S.C. § 2254(a) and thus was unable to pursue

habeas relief. App. 2a. He appealed the dismissal of the case to

the U.S. Court of Appeals for the Fifth Circuit. On appeal,

Randell reiterated that he had already fully served his 60-month

sentence, that his Section 1983 lawsuit did not seek his release

from custody, and that his sole claim was for money damages on

account of having been forced to serve eight months beyond his

lawful sentence. Notice of Appeal filed September 24, 1999, at

2-3, 5; Appellant’s Brief filed January 26, 2000, at 1, 6-9.

The court of appeals affirmed. In so doing, it agreed that on

the date Randell filed his Section 1983 lawsuit he “was no longer

in custody for the term of confinement in dispute and therefore

was ineligible for federal habeas relief.” App. 2a & n.2 (citing

28 U.S.C. § 2254(a)). Nonetheless, the court held that Randell’s

lawsuit could not be heard in light of the following passage of

the opinion of this Court in Heck v. Humphrey:

We hold that, in order to recover damages for

allegedly unconstitutional conviction or imprison-

ment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence

invalid, [footnote omitted] 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 nabeas corpus,

28 U.S.C. § 2254.

App. 2a-3a (quoting Heck, 512 U.S. at 486-87). Based on Heck,

the court of appeals stated: “Because Randell is seeking

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damages pursuant to § 1983 for unconstitutional imprisonment

and has not satisfied the favorable termination requirement of

Heck, he is barred from any recovery and fails to state a claim

upon which relief may be granted.” App. 3a.

The court of appeals acknowledged that the Second, Sixth

and Seventh Circuits had reached a contrary result. These

circuits predict, based on statements of five current Justices of

this Court delivered in Spencer v. Kemna, 523 U.S. 1 (1998), that

“if presented with the question” this Court “would relax Heck’s

universal favorable termination requirement for plaintiffs who

have no procedural vehicle to challenge their conviction.” App.

3a & n.4 (citing cases).? The court instead sided with the First

and Ninth Circuits which do not view the Spencer opinions as

decisive. It stated that “we decline to announce for the Supreme

Court that it has overruled one of its decisions,” and it affirmed

the dismissal of Randell’s case based on the broad statement in

Heck. App. 4a & n.5 (citing cases).

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to resolve the existing

circuit split over the import of several past opinions of this Court

concerning the jurisdictional relationship between 28 U.S.C.

§ 2254 and 42 U.S.C. § 1983. By granting certiorari this Court

can settle a jurisdictional issue that frequently arises in the

federal courts, providing needed guidance on the interrelation-

ship between habeas corpus and Section 1983 litigation.

? In this connection, the court stated that “Randell has not shown that

such a procedural vehicle is lacking; he speaks only of inability to obtain

habeas relief.” App. 3a. The district court held that habeas relief was the

proper remedy for Randell’s challenge to his confinement, and made no

suggestion that Randell was required to pursue some sort of other procedural

vehicle. App. 6a. Nor did the district court (or defendants) identify any other

potentially relevant procedural vehicle.

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1. In several decisions handed down over the course of the

past three decades, this Court has worked to harmonize the

functioning of two separate federal statutes whose text permits

state prisoners access to federal court to redress grievances

related to their confinement in state prisons. The most specific

statute, 28 U.S.C. § 2254(a), provides that “a person in custody

pursuant to the judgment of a State court” may file a habeas

corpus action alleging a violation of federal law. A much more

general statute, 42 U.S.C. § 1983, entitles any “person within the

jurisdiction” of the United States — including prisoners in state

custody — to file suit against state actors who deprive them of

their federal rights.

The basic problem that this Court and lower courts have

confronted is that if Section 1983 were interpreted to permit state

prisoners to bring al// claims alleging any sort of federal law

violation by state actors, state prisoners could circumvent the

various restrictions on federal habeas corpus relief simply by

citing Section 1983 instead of Section 2254(a) in requesting that

their convictions be overturned and/or that the length of their

confinement be cut short. This Court has declined to read

Section 1983 as authorizing such circumvention.

Initially, state prisoners relied on Section 1983 to challenge

the deprivation of good-time credits, explicitly seeking to shorten

the period of their confinement. After a divided en banc Second

Circuit authorized such use of Section 1983, this Court granted

certiorari to address what it viewed as an “important problem in

the administration of federal justice” arising from “the

interrelationship of two important federal laws.” Preiser v.

Rodriguez, 411 U.S. 475, 482 (1973).

The prisoner plaintiffs in Preiser who sought to shorten

their confinement through the restoration of good-time credits

were explicit in attempting to circumvent the normal habeas

corpus process. They conceded “that they could have proceeded

by way of habeas corpus” and sought “to avoid the necessity of

first seeking relief in a state forum,” insisting that they had the

right to seek early release under “the literal terms” of Section

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1983. Jd. at 488. This Court rejected that argument. It stated

that although Section 1983 is a “general” statute,

despite the literal applicability of its terms, the

question remains whether the specific federal habeas

corpus statute, explicitly and historically designed to

provide the means for a state prisoner to attack the

validity of his confinement, must be understood to be |

the exclusive remedy available in a situation like this

where it so clearly applies.

Id. at 489. Instead, the Court ruled that the habeas corpus statute

provided the exclusive remedy in such circumstances, observing

that “[i]n amending the habeas corpus laws in 1948, Congress

clearly required exhaustion of adequate state remedies as a

condition precedent” to habeas relief, and that the congressional

purpose would be “wholly frustrate[d]” if prisoners “could evade |

this requirement by the simple expedient of putting a different

label on their pleadings.” Jd. at 489-90. The Court added that

policy concerns, including “considerations of federal-state

comity,” also favored this result. Jd. at 490-92.

The Preiser holding was narrow in one key respect. The

Court noted that the prisoners who had brought the litigation

were seeking only the equitable relief of “restoration of their

good-time credits,” and hence earlier release, and had “sought no

damages,” so that the Court’s holding was “limited to that

situation.” Jd. at 494. Thus, the Preiser holding would not

prevent prisoners from filing Section 1983 claims for damages:

If a state prisoner is seeking damages, he is attacking

something other than the fact or length of his

confinement, and he is seeking something other than |

immediate or more speedy release — the traditional

purpose of habeas corpus. In the case of a damages

claim, habeas corpus is not an appropriate or available

federal remedy. Accordingly, as petitioners them-

selves concede, a damages action by a state prisoner

could be brought under the Civil Rights Act in federal

-

court without any requirement of prior exhaustion of

state remedies.

Id. at 494 (citation omitted). See also Wolff v. McDonnell, 418

U.S. 539, 579 (1974) (summarizing Preiser rule that “only in

habeas actions may relief be granted which will shorten the term

of confinement.”).

Given the factual posture of Preiser, in which the prisoners

had not sought damages, left open was the issue of whether a

prisoner’s “§ 1983 suit for damages stemming from an unlawful

conviction” could be entertained before the prisoner had

exhausted state-court attacks on the conviction itself. Tower v.

Glover, 467 U.S. 914, 923 & n.6 (1984). The Court addressed

that issue in Heck v. Humphrey, 512 U.S. 477 (1994), involving

a prisoner’s Section 1983 claim for damages “challenging the

legality of his conviction.” Jd. at 479-80 & n.2, 482.

In that case, petitioner Roy Heck was serving a 15-year

sentence for killing his wife. While the direct appeal from his

Indiana state court conviction was pending, Heck filed a Section

1983 action in federal court complaining of unconstitutional

conduct involving the investigation of his wife’s death and the

procedures at his trial. He seught money damages but, in light

of Preiser, he refrained from seeking an injunction ordering his

release. Jd. at 478-79. The court of appeals upheld the dismissal

of the lawsuit because it directly implicated the legality of

Heck’s confinement and, if Heck obtained a ruling that his

conviction was illegal, the State of Indiana would be obliged to

release him even though he had not sought that relief. Jd. at

479-80.

Arguing for affirmance in this Court, the State of Indiana

and its amici States emphasized that if incarcerated prisoners

such as Heck could pursue Section 1983 litigation simply by

limiting their request for relief to money damages, nothing would

be left of the Preiser rule, as practically speaking prisoners

would be able to win their release by simply winning their

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Section 1983 litigation.’ The Court in Heck unanimously refused

to permit this result. Jd. at 483-90 (opinion of the Court); id. at

490-91 (Thomas, J., concurring); id. at 498-99 (Souter, J., joined

by Blackmun, Stevens and O’Connor, JJ., concurring in the

judgment). The Justices in Heck all agreed that Heck’s Section

1983 claim should be dismissed, as he was currently in custody

and had filed a Section 1983 damages action challenging his

conviction or confinement without having previously won habeas

relief, and that all similarly situated prisoners should likewise

have their Section 1983 claims dismissed.

However, the Justices disagreed by a 5-to-4 vote over what

effect, if any, the Court’s holding in Heck would have on “former

state prisoners who, because they are no longer in custody,

cannot bring postconviction challenges.” /d. at 490 n.10

(opinion of the Court). The majority of the Court noted that this

concern was a speculative one, as “no real-life example comes to

mind.” /d. But the majority suggested that in such a situation

“the principle barring collateral attacks” on criminal convictions

would not be “rendered inapplicable by the fortuity that a

> See Brief for Respondents at 23-24 (No. 93-6188) (“the fact that

petitioner has sought only damages does nothing to alter that he is demanding

a ‘determination that he is entitled to immediate release.’ Preiser, 411 U.S.

at 500. ... Petitioner contends that he is entitled to damages because he

should not be confined, yet insists that he does not want in this proceeding to

be released. The courts surely must assume, however, that a favorable

judgment in this case would inexorably lead to another proceeding in which

petitioner does seek his release. It is wholly unrealistic to view the limited

request for relief as anything but a temporary form of self-restraint, designed

only to avoid the exhaustion requirement but not meaningfully to alter what

will ultimately be the result.”); Brief of the States of Arizona, et al., as Amici

Curiae in Support of Respondents at 26 (No. 93-6188) (“If a prisoner is not

required to exhaust his state remedies before bringing a § 1983 action raising

issues that call into question the validity of his conviction — the fact or

duration of his confinement — no matter what forms of relief he directly

requests in that § 1983 action, he may use that federal ruling to eventually

obtain release. He will also avoid the other limitations of habeas. This type

of end run around habeas procedures cannot be permitted.”).

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convicted criminal is no longer incarcerated.” Jd.

The majority’s discussion of the impact of its Heck holding

on a hypothetical future case brought by a person no longer in

custody was addressed in the opinion of Justice Souter

concurring in the judgment, which drew four votes. The holding

in Heck, as Justice Souter understood it, was that to avoid a

conflict between the “general” Section 1983 statute and the

“specific” habeas corpus statute, a “person in custody” who is

attacking his or her conviction or length of confinement must

proceed under the habeas corpus statute. Jd. at 497-500. “The

Court’s opinion can be read as saying nothing more than” this,

Justice Souter observed. Jd. at 500. He added that this “would

be a sensible way to read the opinion,” as any broader reading

that would require a person not in custody to obtain habeas relief

before he or she could file a Section 1983 action would “deny

any federal forum for claiming a deprivation of federal rights to

those who cannot first obtain a favorable state ruling,” such as

those “who were merely fined . . . or who have completed short

terms of imprisonment, probation, or parole, or who discover

(through no fault of their own) a constitutional violation after full

expiration of their sentences.” Jd.

Four years later, this Court’s consideration of how the Heck

ruling might affect persons not in custody moved beyond the

hypothetical to the actual.‘ In Spencer v. Kemna, 523 U.S. 1

(1998), the Court addressed whether a state prisoner’s habeas

corpus claim attacking the revocation of his parole had become

moot upon the expiration of his sentence. Petitioner Randy

Spencer argued that one reason his claim could not be moot was

that, under Heck, even though he was no longer in custody he

‘ In the interim, this Court applied its Heck’ ruling, in another case

brought by a prisoner who was still in custody, to unanimously block the

Section 1983 lawsuit brought by the prisoner to the extent that his attack on

the procedures that had been used to revoke his good-time credits implied the

invalidity of that revocation. Edwards v. Balisok, 520 U.S. 641, 645-48

(1997); id. at 649-50 (Ginsburg, J., joined by Souter and Breyer, JJ.,

concurring).

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could not file a Section 1983 lawsuit seeking damages for the

parole revocation unless he first obtained habeas relief. Jd. at 17.

The Court, by an 8-to-1 vote, rejected this argument. /d.

(opinion of the Court); id. at 19 (Souter, J., jomed by O’Connor,

Ginsburg and Breyer, JJ., concurring).

Justice Souter’s concurring opinion elaborating on this

aspect of the mootness analysis, which drew the explicit support

of five Justices, rejected Spencer’s characterization of the Heck

holding as follows: “Heck did not hold that a released prisoner

in Spencer’s circumstances is out of court on a § 1983 claim, and

for reasons explained in my Heck concurrence, it would be

unsound to read either Heck or the habeas statute as requiring

any such result.” Jd. at 19; see also id. at 19-20 (noting that Heck

“did not present” the situation of “a released prisoner,” so that

the majority opinion addressed only a “possibility”; id. at 21-22

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

(stating that it is “perfectly clear” that Justice Souter’s analysis

of the Heck holding is correct).

Although the opinion of the Court in Spencer did not

explicitly endorse this aspect of the opinion of Justice Souter,

neither did it explicitly reject it. Instead, the main opinion only

briefly discussed Spencer’s argument concerning the Heck

holding, stating that this argument rested on the contestable

assumption that “a § 1983 action for damages must always and

everywhere be available,” and adding that “[i]t is not certain, in

any event, thata § 1983 damages claim” by Spencer “would be

foreclosed.” Jd. at 17. Cf Richard H. Fallon, Daniel J. Meltzer

& David L. Shapiro, Hart and Wechsler’s The Federal Courts

and the Federal System 218 (4th ed. 2000 Supp.) (stating that in

Spencer “[t]he Court did not rule on whether Heck barred a

§ 1983 action initiated by Spencer,” and observing that because

five Justices joined Justice Souter’s opinion in Spencer, “Justice

Souter’s position in Heck now appears to command a majority.”).

This Court should grant certiorari to resolve, in a concrete

context, the scope of the Court’s holding in Heck. This case

squarely presents the issue of whether a former state prisoner

1}

who is no longer “a person in custody” within the meaning of 28

U.S.C. § 2254(a) (and hence not eligible for habeas relief) is, by

virtue of his release from custody, thereby jurisdictionally

stripped of the ability to bring a lawsuit under 42 U.S.C. § 1983

to establish the unconstitutionality of his past confinement and

win damages as the appropriate relief. Under the approach set

out by Justice Souter in his Heck concurrence, which was

endorsed by a total of five Justices in Spencer, it would appear

that Randell should be permitted to pursue his Section 1983

lawsuit. Under the approach tentatively suggested in footnote 10

of the opinion of the Court in Heck, the matter would appear to

be in doubt. A grant of certiorari in this case is warranted so that

this Court can provide clear guidance to the lower courts,

through a definitive holding concerning not a hypothetical claim

but an actual claim brought by a person no longer in custody.

2. The absence of a clear holding from this Court resolving

a claim brought by a Section 1983 plaintiff who is no longer in

custody has left the lower courts in conflict over how to read this

Court’s opinions in Heck and Spencer. That conflict was

succinctly summarized by the Fifth Circuit in its decision below.

App. 3a-4a. We briefly review the relevant decisions.

Second and Seventh Circuits. Two circuits follow the

narrow view of this Court’s holding in Heck that was enunciated

by Justice Souter in his Heck and Spencer concurrences.

The Second Circuit has issued several decisions adopting

this approach. In Jenkins v. Haubert, 179 F.3d 19, 20-21 (2d Cir.

1999), the court considered a Section 1983 lawsuit brought by a

former state prisoner who alleged that he had been forced to

serve 30 days of his sentence in disciplinary segregation, in

violation of procedural due process. The court permitted the

lawsuit. Noting that the Heck decision had “generated confusion

in the lower courts,” id. at 25, the Second Circuit relied on the

opinions in Spencer v. Kemna which “revealed that five justices

hold the view that, where federal habeas corpus is not available

to address constitutional wrongs, § 1983 must be.” Jd. at 26. On

12

that basis, it concluded “that nothing in Supreme Court precedent

requires that the Heck rule be applied to a challenge by a prisoner

to a term of disciplinary segregation” and, indeed, “that to apply

the Heck rule in such circumstances would contravene the

pronouncement of five justices that some federal remedy —

either habeas corpus or § 1983 — must be available.” Jd. at 27

(citing Spencer, 118 S. Ct. at 988-90, 992 n.8 (concurring and

dissenting opinions)). Similarly, in Kim v. Hurston, 182 F.3d

113, 115, 118 & n.3 (2d Cir. 1999), the Second Circuit ruled that

Heck did not block a prisoner’s Section 1983 lawsuit alleging

that she was removed from a work release program in violation

of procedural due process.

The Second Circuit expanded on its Jenkins holding in

Leather v. Eyck, 180 F.3d 420 (2d Cir. 1999) (Calabresi, J.).

There it held that Heck did not prevent a person who was

convicted in state court and fined, and who never appealed the

conviction, from pursuing Section 1983 litigation alleging that

he had been selectively prosecuted by the sheriff in retaliation for

speech critical of the sheriff's office. The Second Circiut stated

that Heck left open the question “whether a plaintiff, convicted

of a criminal offense, could proceed with a § 1983 ciaim where

no remedy of habeas corpus existed.” Jd. at 424. It concluded:

Because Leather is not and never was in the custody

of the State, he . . . has no remedy in habeas corpus.

Having escaped the jaws of Heck, Leather should

therefore be permitted to pursue his § 1983 claim in

the district court unless principles of res judicata or

collateral estoppel preclude his suit.

Id. (citation omitted). In Green v. Montgomery, 219 F.3d 52 (2d

Cir. 2000) (Calabresi, J.), the Second Circuit extended this

holding to permit suit by a Section 1983 plaintiff who was

incarcerated and who after release filed suit for malicious

prosecution. Jd. at 60 n.3 (“We have held. . . that Heck acts only

to bar § 1983 suits when the plaintiff has a habeas corpus remedy

available to him (i.e., when he is in state custody). Because it

13

does not appear that Green is presently in custody, his § 1983

action is not barred by Heck.”) (citations omitted).

The Seventh Circuit has not yet had occasion to issue a

square holding on this issue in a case brought by a Section 1983

plaintiff who is not in custody and who alleges damage flowing

from his or her state court conviction. But in several decisions

it has indicated that it agrees with the Second Circuit that the

concurring opinions of Justice Souter in Heck and Spencer set

forth the applicable law in this area. DeWalt v. Carter, 224 F.3d

607, 613, 615 & n.4, 616-17 & n.5 (7th Cir. 2000) (indicating

that a state prisoner may use Section 1983 to challenge a

disciplinary sanction if he is unable to do so through a habeas

corpus petition, an “open question” that was not at issue in

Heck); Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir. 1999)

(Posner, C.J.) (observing that “there is probably an exception to

the rule of Heck for cases in which no route other than a damages

action under section 1983 is open to the person to challenge his

conviction”); Carr v. O'Leary, 167 F.3d 1124, 1127 (7th cz:

1999) (Posner, C.J.) (considering a Section 1983 lawsuit by a

released state prisoner complaining of the loss of six months

good-time credits in violation of due process and observing that

“b]jecause Carr was released from prison after the suit was filed,

he could no longer bring a habeas corpus proceeding . . . to get

the disciplinary sanction reversed,” and that given Spencer, “in

all likelihood . . . five Justices would not consider the sanction a

bar to a section 1983 suit, even though that suit calls into

question the validity of the sanction”).

First, Sixth, and Ninth Circuits. By contrast, the First,

Sixth, and Ninth Circuits — in addition to the Fifth Circuit

below — read the opinion of the Court in Heck as blocking any

Section 1983 lawsuit that is brought by a state prisoner, either

during or after incarceration, if the plaintiff has not previously

won habeas relief or other relief wiping away the conviction or

sanction at issue.

In Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998), the First

Circuit considered a Section 1983 lawsuit brought by the family

14

members of a state prisoner who had died before exhausting his

habeas corpus remedies, leading to his habeas petition being

dismissed as moot. The lawsuit alleged that the prisoner had

been framed by local authorities and sought damages. The First

Circuit held that because the Section 1983 claim asserted that the

prisoner’s “conviction and subsequent imprisonment were

unconstitutional,” it “must uphold” the dismissal of the claim

given this Court’s holding in Heck, notwithstanding the views set

forth by five Justices in Spencer. Id. at 80-81 & n.3.

In two decisions involving statute of limitations issues, the

Ninth Circuit has articulated a similar view of Heck as blocking _

any Section 1983 suit founded upon the invalidity of a conviction

unless and until that conviction is invalidated, despite the

opinions of five Justices in Spencer. Cabrera v. City of

Huntington Park, 159 F.3d 374, 377, 380 & n.6 (9th Cir. 1998);

Harvey v. Waldron, 210 F.3d 1008, 1013, 1014-15 n.6, 1016 (9th

Cir. 2000) (reaffirming Cabrera).

In the aftermath of Spencer, the Sixth Circuit initially

observed in dictum that “[t]he majority of the Court . . . now

clearly excludes from Heck’s favorable termination requirement

former prisoners no longer in custody.” Schamaeizadeh v.

Cunigan, 182 F.3d 391, 296 n.3 (6th Cir.), cert. denied, 528 U.S.

1021 (1999). Recently, however, the court affirmed the

dismissal of a Section 1983 lawsuit brought by a prisoner even

though he had “long since served his thirty days’ detention” of

which he complained. Huey v. Stine, 230 F.3d 226, 229 (6th Cir.

2000). In doing so, the Sixth Circuit explicitly adopted the view

of the First Circuit, concluding:

Although Spencer may cast doubt upon the universal-

ity of the “favorable termination” requirement, we

will continue to follow the Supreme Court’s directly

applicable precedent and “leave to the Court ‘the

prerogative of overruling its own decisions.’”

Id. at 230 (quoting Figueroa, 137 F.3d at 81 n.3) (in turn quoting

Agostini v. Felton, 521 U.S. 203, 237 (1997)).

15

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

KENNETH CHESEBRO*

EMILY J. STEVENS

1600 Massachusetts Ave.

No. 801

Cambridge, MA 02138

(617) 661-4423

Counsel for Petitioner

* Counsel of Record

December 26, 2000

TABLE OF APPENDICES

APPENDIX A

Decision of the United States Court of Appeals for

the Fifth Circuit entered September 26, 2000 .......... la

APPENDIX B

Decision of the United States District Court for the

Northern District of Texas entered September 3, 1999... 5a

APPENDIX A

FILED

SEP 26, 2000

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 99-11092

TOMMY RANDELL,

Plaintiff-Appellant,

VERSUS

GARY L. JOHNSON, Director, Texas Department

of Criminal Justice, Institutional Division;

MELINDA BOZARTH, Director, Texas Board of

Pardons and Paroles; JOHN DOE, I; JOHN DOE, I,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

Before WOOD", DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

The district court held that Tommy Randell’s 42 U.S.C.

§ 1983 complaint for damages was frivolous and therefore

dismissed his complaint. Because we determine that the

complaint fails to state a cause of action upon which relief may

be granted, we affirm.

* Circuit Judge of the Seventh Circuit, sitting by designation.

ee

2a

I.

Randell was arrested and charged with driving while

intoxicated. He alleges that he was incarcerated from

September 27, 1996 until June 25, 1997, pursuant to a warrant

from the Texas Board of Pardons and Paroles but was not given

credit for this time and therefore had to serve the time over

again.

By June 18, 1999, the date on which he commenced this

litigation, Randell was no longer in custody for the term of

confinement in dispute and therefore was ineligible for federal

habeas relief.’ He therefore pursued relief in forma pauperis

(“IFP”) under § 1983, requesting compensatory damages of

$1000 for each day he had “served over his sentence.” The

district court dismissed Randell’s § 1983 complaint as

frivolous and Randell appealed. We affirm the district court

on the grounds that Randell’s complaint fails to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).

II.

Randell points out, pro se, that he is no longer in custody

and thus can not file a habeas petition. Randell therefore

asserts that he does not need to prove that the underlying

proceedings upon which his conviction was based have been

terminated in his favor, since he can no longer seek habeas

relief. However, in Heck v. Humphrey, 512 U.S. 477, 486-87

(1994), the Court unequivocally stated:

? See 28 U.S.C. § 2254(a) (stating that “a district court shall entertain an

application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United

States.”’).

3a

We hold that, in order to recover damages for

allegedly unconstitutional conviction or

imprisonment, or for other harm caused by

actions whose unlawfulness would render a

conviction or sentence invalid, [footnote

omitted] 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, 28 U.S.C. § 2254.

Therefore, the Court unequivocally held that unless an

authorized tribunal or executive body has overturned or

otherwise invalidated the plaintiff's conviction, his claim “is

not cognizable under [section] 1983.”? Because Randell is

seeking damages pursuant to § 1983 for unconstitutional

imprisonment and has not satisfied the favorable termination

requirement of Heck, he is barred from any recovery and fails

to state a claim upon which relief may be granted.

Based on dicta from concurring and dissenting opinions in

Spencer v. Kemna, 523 U.S. 1 (1998), three circuits’ have

concluded that the Supreme Court — if presented with the

question — would relax Heck’s universal favorable termination

requirement for plaintiffs who have no procedural vehicle to

challenge their conviction. Randell has not shown that such a

procedural vehicle is lacking; he speaks only of inability to

obtain habeas relief.

3 Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372 (1994).

‘ See Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir. 1999); Shamaeizadeh

v. Cunigan, 182 F.3d 391, 396 n.3 (6th Cir. 1999); and Carr v. O'Leary,

167 F.3d 1124, 1127 (7th Cir. 1999).

ss

In the alternative, we decline to announce for the Supreme

Court that it has overruled one of its decisions.

We agree with the First Circuit,* which stated:

4a

We are mindful that dicta from concurring and

dissenting opinions in a recently decided case,

Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, i

140 L. Ed. 2d 43 (1998), may cast doubt upon

the universality of Heck’s “favorable

termination” requirement. See id. at 19, 118 S.

Ct. at 989 (Souter, J., concurring); id. at 21,

118 S. Ct. at 990 (Ginsberg, J.; concurring); id.

at 18 n.8, 118 S. Ct. at 992 n.8 (Stevens, J.,

dissenting). The Court, however, has admon-

ished the lower federal courts to follow its

directly applicable precedent, even if that

precedent appears weakened by pronounce-

‘ ments in its subsequent decisions, and to leave

to the Court “the prerogative of overruling its

own decisions.” Agostini v. Felton, 521 U.S.

203, 236, 117 S.Ct. 1997, 2017, 138 L.Ed.2d

391 (1997); see also Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S.

477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526

(1989). We obey this admonition.

Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998).

rs es. wuueete. — Fiat ass

It.

For the above reasons, the judgment is AFFIRMED.

5 The Ninth Circuit also follows this course. See Cabrera v. City of

Huntington Park, 159 F.3d 374, 380 n.6 (9th Cir. 1998).

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TOMMY RANDELL, §

TDCJ-ID NO. 844659 §

§

Plaintiff, §

V. § FILED

§ SEP 3 1999

GARY JOHNSON, et al., §

§ CIVIL ACTION NO.

§ 5:99-CV-188 C

Defendants. §

ORDER

Plaintiff Tommy Randell, acting pro se, filed suit pursuant

to 42 U.S.C. § 1983 on June 18, 1999, complaining that he was

being denied credit for time he had served. Specifically,

Plaintiff alleges that he was arrested in Plainview, Texas, and

charged with driving while intoxicated. He remained

incarcerated in Plainview from September 27, 1996, to June

25, 1997, pursuant to a warrant from the Texas Board of

Pardons and Paroles, but he was not given credit for this time

and had actually had to serve the time over again. Plaintiff

requests that he be granted compensatory damages in the

amount of $1000.00 for each day that he had “served over his

sentence.”

When a party seeks to proceed in forma pauperis, the

Court shall dismiss the complaint at any time if the court

determines that the complaint is frivolous or malicious, fails to

state a claim on which relief may be granted, or seeks

monetary relief from a defendant who is immune from such

6a

relief. 28 U.S.C. § 1915(e)(2)(B). See 28 U.S.C. 1915A

(providing that a court shall review a prisoner complaint as

soon as practicable and dismiss it if it is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks

monetary relief from an immune defendant). A claim is

frivolous if it has no arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319 (1989). A claim has no arguable basis

in the law if it is based on an indisputably meritless legal

theory, “such as if the complaint alleges the violation of a legal

interest which clearly does not exist.” Davis v. Scott, 157 F.3d

1003, 1005 (Sth Cir. 1998) (quotation omitted). A claim has no

arguable basis in fact if “after providing the plaintiff the

opportunity to present additional facts when necessary, the facts

alleged are clearly baseless.” Talib v. Gilley, 138 F.3d 211, 213

(Sth Cir. 1998).

When a state prisoner seeks to challenge the fact of

confinement and resolution of his claim results in a speedier or

immediate release, the appropriate federal remedy is a writ of

habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 488-490

(1973). See Davis v. Fechtel, 150 F.3d 486, 490 (Sth Cir.

1998) (holding that a challenge to the execution of an inmate’s

sentence and the duration of his confinement should be pursued

in a habeas action under 28 U.S.C. § 2241 rather than a civil

rights suit under 42 U.S.C. § 1983). The core issue in

determining whether a prisoner must pursue habeas relief rather

than civil rights actions is to determine whether the prisoner

challenges the “fact or duration” of his confinement, or merely

the rules, customs, and procedures affecting the “conditions” of

his confinement. Cook v. Texas Dept. of Criminal Justice

Transitional Planning Dept., 37 F.3d 166, 168 (Sth Cir. 1994).

Moreover, if Plaintiff is challenging the “duration” of his

confinement, he must first pursue his claim through a writ of

habeas corpus in the state courts before he can seek a writ of

habeas corpus in federal court. McGrew v. Texas Board of

Pardons and Paroles, 47 F.3d 158, 161 (Sth Cir. 1995).

7a

To the extent that Plaintiff is seeking monetary damages

for an allegedly unconstitutional imprisonment, he cannot bring

a § 1983 claim until he has had the term of imprisonment

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal, or called into question by

a federal court’s issuance of a writ of habeas corpus. Heck v.

Humphrey, 512 U.S. 477, 486-487 (1994). See Parker v. Fort

Worth Police Dept., 980 F.2d 1023, 1025 (Sth Cir. 1993)

(holding that a civil rights claim for damages for illegal

detention must exhaust state habeas remedies before pursuing

federal habeas remedies).

The Court finds that Plaintiff is challenging the fact or

duration of his confinement; therefore, he must pursue his

claim through a writ of habeas corpus before seeking damages

under § 1983. Therefore, Plaintiffs civil rights complaint is

dismissed without prejudice to Plaintiff's right to seek federal

habeas relief after his state remedies have been exhausted.

The dismissal of Plaintiff's complaint does not release

Plaintiff or the institution where he is incarcerated from the

obligation to pay any filing fee previously imposed.

SO ORDERED.

Judgment shall be entered accordingly.

Any pending motions are denied.

Plaintiff is advised that if he appeals this Order, he shall be

required to pay the appeal fee of $105.00 pursuant to the Prison

Litigation Reform Act, and he must submit an application to

proceedin forma pauperis and a certified copy of his 6-month

Certificate of Inmate Trust Account along with his notice of

appeal.

Dated September 3, 1999.

/s/

SAM R. CUMMINGS

United States District Judge