# Petition for Writ of Certiorari — Randell v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 971

## Text

(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.

a

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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

(iv)

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

4 ‘

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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5

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

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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

SS ee

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1577%3A1. Public record. Not legal advice.