Poventud v. City of New York, No. 12-1011 (2d Cir. 2013)

Annotate this Case

Plaintiff was convicted of attempted murder in the second degree and subsequently pled guilty to a lesser charge for which the penalty was a one-year sentence - a jail term that he had already served. Plaintiff then brought the instant action under 42 U.S.C. 1983, alleging Brady violations against the officials who conducted his original investigation and prosecution. The district court granted defendants' motion for summary judgment, ruling that plaintiff's section 1983 claims were barred under Heck v. Humphrey. The court concluded, however, that because plaintiff was no longer in custody, and therefore could no longer bring a federal habeas suit, Heck's narrow exception to section 1983's otherwise broad coverage did not apply. Plaintiff may bring suit under section 1983 regardless of any defenses which might arise based on his subsequent guilty plea to the lesser charge. Accordingly, the court vacated the district court's decision granting summary judgment and remanded for further proceedings.

The court issued a subsequent related opinion or order on January 16, 2014.

Download PDF

12-1011-cv Poventud v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: December 20, 2012 Decided: April 19, 2013) Docket No. 12-1011-cv Marcos POVENTUD, Plaintiff-Appellant, v. CITY OF NEW YORK; Robert T. JOHNSON, in his official capacity as District Attorney for Bronx County; Frankie ROSADO, Kenneth UMLAUFT, Christopher DOLAN, and Daniel TOOHEY, individually and as members of the New York City Police Department, Defendants-Appellees. Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges. Appeal from a decision of the United States District Court for the Southern District of New York (Batts, J.) granting summary judgment to defendants and dismissing plaintiff s 42 U.S.C. § 1983 claims as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Because plaintiff is no longer in custody, federal habeas relief is unavailable to him. Under the law of this Circuit, plaintiff must have access to a federal remedy, either under the habeas statute or under § 1983. As plaintiff cannot avail himself of habeas relief, he must be allowed to pursue his claims under § 1983. Accordingly, Heck s exception to § 1983 s broad coverage does not apply to his claims. We therefore VACATE the decision of the district court and REMAND for further proceedings. Chief Judge Jacobs dissents in a separate opinion JOEL B. RUDIN, Esq., Law Offices of Joel B. Rudin, New York, NY, and Julia P. Kuan, Romano & Kuan, New York, NY, for Plaintiff-Appellant. MORDECAI NEWMAN, Larry A. Sonnenshein, and Rachel Seligman Weiss, of counsel, for Michael A. 1 Cardozo, Corporation Counsel of the City of New York, for Defendants-Appellees. CALABRESI, Circuit Judge: In June 1998, plaintiff-appellant Marcos Poventud was convicted of attempted murder in the second degree, attempted robbery in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree. He was sentenced to 10 to 20 years in prison. Poventud ultimately succeeded in having his conviction vacated, but the prosecution appealed, and Poventud was denied bail. Rather than await a new trial in custody, Poventud pled guilty to a lesser charge for which the penalty was a one-year sentence a jail term that Poventud had already served. In May 2007, Poventud brought the instant action under 42 U.S.C. § 1983, alleging Brady violations against the officials who conducted his original investigation and prosecution. In July 2009, Poventud stayed this proceeding pending the outcome of a state-court motion to invalidate his guilty plea. Poventud later withdrew the state motion without prejudice and resumed this suit. In June 2011, defendants moved for summary judgment. The District Court (Batts, J.) granted the motion in March 2012, ruling that Poventud s § 1983 claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994). See Poventud v. City of New York, No. 07 Civ. 3998 (DAB), 2012 WL 727802, at *3 (S.D.N.Y. Mar. 6, 2012). We disagree. Because Poventud is no longer in custody, and therefore can no longer bring a federal habeas suit, Heck s narrow exception to § 1983 s otherwise broad coverage does not apply. Poventud may bring suit under § 1983 regardless of any defenses which might arise based on his subsequent guilty plea to the lesser charge. 2 Accordingly, we vacate the District Court s decision granting summary judgment and remand for further proceedings. BACKGROUND The parties dispute various points in the factual record. When, as here, we review a grant of summary judgment dismissing a complaint, we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in his favor. Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006). In March 1997, Younis Duopo was robbed and shot in the head or neck by two men sitting in the back seat of a livery cab that Duopo was driving through the Bronx. Later, Frankie Rosado, a detective, found a wallet on the floor of the cab by the front passenger seat. Somehow the NYPD Crime Scene Unit had missed the wallet. The wallet contained a pair of old photo I.D. cards belonging to Francisco Poventud, brother of the plaintiff-appellant. When investigators showed Duopo a photo array containing one of the photos of Francisco Poventud (who allegedly looks nothing like his brother), Duopo positively identified it as a picture of his assailant. At the time, however, Francisco Poventud was incarcerated and could not possibly have committed the crime. Detectives then showed Duopo photo arrays containing a picture of Marcos Poventud. Only upon seeing Marcos s photo for the fourth time did Duopo identify Marcos as the shooter. Marcos was arrested, identified (by Duopo) at a line-up, and indicted, along with a co-defendant, Robert Maldonado, whom Duopo also identified. Investigators left no record of the false identification of Francisco Poventud; they also did not disclose it 3 to defense counsel or to the Bronx County prosecutors; and they did not preserve the photo array. Marcos Poventud learned all of this only during the 2003 retrial of Robert Maldonado. In December 2004, Poventud filed a motion under N.Y. C.P.L.R. § 440.10 to vacate his conviction on the ground that the prosecution withheld exculpatory evidence. The New York Supreme Court for Bronx County granted this motion in October 2005. The prosecution filed a notice of appeal; successfully argued that Poventud be denied bail; and offered him immediate release in exchange for a guilty plea to a non-violent, Class E felony charge of third-degree attempted robbery. By this time, Poventud had been incarcerated for nearly nine years. Poventud testifies that during his imprisonment he endured gruesome and repetitive physical and sexual abuse; that he attempted suicide; and that he suffered from depression and posttraumatic stress disorder. In January 2006, Poventud accepted the terms of the plea bargain and went home. Poventud now contends that he was deceived into pleading guilty. He alleges that the assistant district attorney knew, but did not disclose, that the district attorney s office had decided not to perfect its appeal. Poventud alleges further that the ADA withheld crucial information from the defense. When he learned of these omissions, Poventud stayed the instant federal suit and moved in state court to have his guilty plea vacated as involuntarily given. The New York Supreme Court for Bronx County granted an evidentiary hearing on the question of voluntariness, but Poventud withdrew his motion without prejudice. He says he did this after learning that he had multiple myeloma, after nearly dying from kidney failure, and after undergoing bone and stem cell transplants and chemotherapy. Poventud asserts that he thought the stress and 4 infection risks of a new trial, together with the possibility, however remote, of returning to jail, would kill him. After withdrawing his state motion, Poventud resumed this federal action under 42 U.S.C. § 1983, in which he alleges violations of his federal due process and fair trial rights under Brady v. Maryland, 373 U.S. 83 (1963). He also sues the City of New York for failing properly to train its officers. The district court found that, because plaintiff s guilty plea was to conduct that necessarily required his presence at the scene of the crime, success on a § 1983 claim arising out of the suppression of evidence relevant to his alleged misidentification would logically imply the invalidity of his guilty plea. Poventud, 2012 WL 727802, at *3. This being so, the court continued, Poventud could survive summary judgment under Heck only by showing that the challenged conviction has been reversed, expunged, invalidated, or called into question. Id. Poventud could do none of this, the court concluded, either as to his first conviction or to his guilty plea. Moreover, Poventud s decision not to pursue in the state court an available remedy by which he could invalidate his [guilty plea] does not relieve him of his obligation to demonstrate its invalidity if he is to avoid the bar established in Heck. Id. at *4. The district court granted defendants motion for summary judgment, and this appeal followed. DISCUSSION We review grants of summary judgment de novo. See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011). We conclude that Heck does not bar Poventud s § 1983 claims. Under the law of this Circuit, a plaintiff asserting the unconstitutionality of his conviction or incarceration must have access to a federal remedy. Normally that remedy is through a 5 § 1983 action. If, however, the plaintiff is in custody, Heck may apply and require that the plaintiff assert his claim first in a habeas petition. As Poventud is no longer in custody, Heck does not bar his claims under § 1983. The district court erred, then, in granting summary judgment against him on the basis of Heck. The law of this Circuit in this matter derives from the interplay of two Supreme Court decisions: Heck v. Humphrey itself, and the subsequent Spencer v. Kemna, 523 U.S. 1 (1998). Heck and Spencer The petitioner in Heck was a state prisoner who sought relief under § 1983. Earlier, Heck had twice sought and failed to secure relief under the federal habeas statute. In upholding the dismissal of Heck s § 1983 claims, the Supreme Court held that when the success of a § 1983 claim would necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, the complaint must be dismissed unless the plaintiff can prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court s issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87. In other words, the Court continued, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. 6 Id. at 487. This statement tracked the fact pattern in Heck, which involved a state prisoner that is, someone still in custody. In a footnote, and in dicta, the Court suggested, however, that the rule should similarly apply to plaintiffs no longer in custody: We think the principle barring collateral attacks . . . is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated. Id. at 490 n.10. In a concurrence, Justice Souter, joined by three colleagues, expressed reservations about denying relief to plaintiffs seeking damages under § 1983 for unconstitutional convictions or imprisonment who, because they were no longer imprisoned, could have no relief under habeas. Extending Heck s favorable termination requirement to plaintiffs not in custody, Justice Souter wrote, would deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling. Id. at 500 (Souter, J., concurring). A better way to read the majority s opinion is as saying nothing more than that now, after enactment of the habeas statute and because of it, prison inmates seeking § 1983 damages . . . must satisfy a . . . favorable-termination requirement. Id. (emphasis added). Four years after Heck, Justice Souter repeated these views in another concurrence. Spencer, 523 U.S. at 18-21 (Souter, J., concurring). This time he was joined by four Justices. Three joined Justice Souter s concurrence, which stated (again in dicta, as the case ultimately turned on other grounds) that a former prisoner, no longer in custody, may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination 7 requirement that it would be impossible as a matter of law for him to satisfy. Id. at 21.1 And Justice Stevens, in dissent, went out of his way to adhere to Justice Souter s position. Id. at 25 n.8 (Stevens, J., dissenting). The Law of the Circuit Our Court has adopted Justice Souter s dicta in Spencer. In Jenkins v. Haubert, we reversed the dismissal of a former inmate s § 1983 challenge to the validity of two prison disciplinary hearings. 179 F.3d 19 (2d Cir. 1999). We held that a § 1983 suit by a prisoner . . . challenging the validity of a disciplinary or administrative sanction that does not affect the overall length of a prisoner s confinement is not barred by Heck. Id. at 27. To hold otherwise, we noted, would contravene the pronouncement of five justices that some federal remedy either habeas corpus or § 1983 must be available. Id. (emphasis added). In Leather v. Eyck, decided the same day as Jenkins, we held that Heck did not bar the § 1983 suit of an arrestee who was convicted (but fined rather than imprisoned) for driving while impaired. 180 F.3d 420 (2d Cir. 1999). Because Leather is not and never was in the custody of the State, we explained, he, like Jenkins, 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. Id. at 424. Since Jenkins and Leather, we have repeatedly affirmed that Heck s favorabletermination requirement applies only to plaintiffs who are in custody, and that all other claimants those who have no remedy in habeas may pursue their claims under 1 Between Heck and Spencer, Justice Ginsburg revised her view of the matter. See Spencer, 523 U.S. at 21 (Ginsburg, J., concurring) ( I have come to agree with Justice SOUTER s reasoning: Individuals without recourse to the habeas statute because they are not in custody (people merely fined or whose sentences have been fully served, for example) fit within § 1983 s broad reach. ) (internal quotation marks omitted). 8 § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) ( Over time, [Heck s] implicit exception [to § 1983 s otherwise broad coverage] has been carefully circumscribed. ); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) ( In light of our holding in Leather, and in light of . . . the fact that the Spencer concurrences and dissent revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be, we conclude that Huang s Section 1983 claim must be allowed to proceed. ) (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) ( 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 does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck. (internal citations omitted)). The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud s original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a 2 Although we think it unnecessary to reach the issue in light of our conclusion that Heck s bar does not apply to a § 1983 plaintiff who is not in custody, even if Heck did apply, we are doubtful that success on Poventud s § 1983 suit would necessarily imply the invalidity, Heck, 512 U.S. at 487, of his subsequent guilty plea. The alleged Brady violation resulted in a conviction that was later vacated. Because that conviction was vacated regardless of whether Poventud then pled guilty or was retried victory in his § 1983 suit would no longer implicate the validity of an outstanding criminal judgment. See Smith v. Gonzalez, 222 F.3d 1220, 1222 (10th Cir. 2000); Davis v. Zain, 79 F.3d 18, 19 (5th Cir. 1996) (per curiam). Moreover, Poventud s § 1983 suit cannot call into question the validity of his guilty plea, inasmuch as it is undisputed that at the time he pled guilty Poventud was aware of the Brady violation on which his present lawsuit is based. See Smith, 222 F.3d at 1222 (where conviction was vacated and case remanded due to Brady violation, success on plaintiff s § 1983 suit had no relevance to a later criminal trial, since the prosecution could not withhold the same exculpatory evidence at a subsequent trial). 9 claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud s guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck. To repeat, the law of this Circuit makes clear that a plaintiff alleging civil rights violations in connection with his conviction or imprisonment must have access to a federal remedy either under habeas or under § 1983. Because Poventud is not in custody, he has no remedy under habeas. He must be able, therefore, to pursue relief under § 1983. CODA We would end here, but for the apocalyptic tone of the dissent, which requires a brief answer. Among its many flaws are the following. First. Contrary to the dissent s assertion, the majority does not rely principally on Leather. It relies at least as much on Jenkins. It does so because Jenkins, an opinion written by Judge Walker and concurred in by Judge Miner and Judge Sack,3 most clearly embraced, and most thoroughly recited the history behind, the proposition that we reaffirm today: that some federal remedy either habeas corpus or § 1983 must be available. 179 F.3d at 27. To be sure, the panel in Jenkins also had other grounds for its decision. Id. ( We do not rest our holding solely on our tally of votes on the [Supreme] Court for Justice Souter s view of Heck. ). And it is true, as the dissent points out, that Jenkins dealt with prison discipline rather than a conviction. But that, for purposes of the case before us, is a distinction without a difference. The court in Jenkins did not 3 We mention the names of individual judges only because the dissent goes out of its way to do so. 10 limit its endorsement of Justice Souter s position to the facts before it. It stated that endorsement as a general proposition and, having done so, made it one basis for its holding. It is significant, moreover, that Jenkins and Leather (which dealt with an actual criminal conviction, and not only with conditions of confinement) came down the same day. As is well known, the normal practice, when two panels are dealing with closely related issues at the same time, is for the panels to communicate with each other to ensure, if at all possible, that the opinions are consistent. One can therefore assume that, together, Jenkins and Leather reflected the law of the Circuit at the time, and that the law was, as Jenkins stated it, that some federal remedy either habeas corpus or § 1983 must be available. 179 F.3d at 27. Significantly, within a year, this view was affirmed again in Green v. Montgomery, which stated 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). 219 F.3d at 60 n.3 (Kearse, J.; Calabresi, J.; Katzmann, J.). Less than a year after Green, this position was stated yet again in Huang v. Johnson. 251 F.3d at 75 ( In light of our holding in Leather, and in light of both the Spencer majority s dictum and the fact that the Spencer concurrences and dissent revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be, Jenkins, 179 F.3d at 26, we conclude that Huang s Section 1983 claim must be allowed to proceed. ) (Feinberg, J.; Winter, J.; Cabranes, J.). 11 Within a period of two years, then, four unanimous panels of the Second Circuit, including a majority of active judges sitting throughout that time,4 affirmed the position of the Circuit that Heck s bar on § 1983 relief applies only when federal relief can be sought under habeas. These panels so ruled because, as the Jenkins Court noted, to do otherwise would contravene the pronouncement of five justices that some federal remedy either habeas corpus or § 1983 must be available. 179 F.3d at 27. And this is the principle the majority follows today. Indeed, this position is so clearly the current law of the Circuit that the majority considered this case a candidate for disposition by summary order on this ground only, rather than on the alternate ground discussed below. Second. The dissent suggests, nonetheless, that Jenkins, Leather, Green, and Huang and the judges who participated in those three decisions flew in the face of a Supreme Court holding that remained the law despite subsequent Supreme Court dicta to the contrary. If that were true, these opinions would have been wrong,5 and one would have expected that fact to have been raised at the time. The Supreme Court in Heck decided a case in which habeas was available. In dicta, in a footnote, which was 4 That is, seven active judges (Judges Kearse, Walker, Calabresi, Cabranes, Straub, Sack, and Katzmann) out of thirteen. Judge Winter, who served as Chief Judge when Jenkins, Leather, and Green were decided, had assumed senior status before writing the panel opinion in Huang. 5 This was not always necessarily so, see W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (affirming a district court decision that parted with clear Supreme Court precedent in the belief that the Supreme Court would now decide the matter differently), but it is so now, see Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ( If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. ). 12 completely unnecessary to the decision in Heck, there is language suggesting that the holding might well be extended to a future case where habeas was not available. Heck, 512 U.S. at 490 n.10. It was to distance himself from this dicta that Justice Souter wrote his concurrence. And, when one of the Justices who had joined the Heck footnote changed her mind, see Spencer, 523 U.S. at 21 (Ginsburg, J., concurring), it became clear that the Heck dicta no longer commanded the support of a majority of Supreme Court Justices. In such circumstances i.e., where there is no Supreme Court holding in one direction, and there are powerful statements by a majority of the Justices in an opposite direction it is perfectly appropriate (though not required) for a lower court to embrace the position adopted (albeit in dicta) by that majority. This is precisely what the panels in Jenkins, Leather, Green, and Huang did. Third. The dissent claims that in doing this, the Jenkins, Leather, Green, and Huang Courts improperly altered the law of the Circuit without going in banc. There is no need, however, to discuss today what the Circuit law was before the Supreme Court decided Heck and Spencer. For, even assuming, very much, arguendo that the dissenter is correct as to our Circuit s pre-Heck law,6 it is readily accepted that a panel of this 6 We note that the two Second Circuit decisions Roesch v. Otarola, 980 F.2d 850 (2d Cir. 1992) and Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980) that the dissent adduces for the proposition that our pre-Heck cases did not turn on whether the plaintiff was incarcerated or at liberty when suit was filed, both involved § 1983 claims sounding in malicious prosecution. Of course these cases didn t turn on whether the plaintiff was in or out of custody. They turned on the fact that favorable termination is an element of malicious prosecution. These decisions did not anticipate Heck; they simply applied an old common law rule from which the Heck majority drew a controversial analogy. Whatever the vices of the Jenkins-Leather-Green-Huang line of cases, we do not think that even so hardened a foe as the dissenter can accuse them of straying from the notion that a claim must be dismissed if one of its elements i.e., favorable termination in malicious prosecution suits is missing. The dissent also cites two cases 13 Court may depart from a prior decision when that earlier decision s rationale is overruled, implicitly or expressly, by the Supreme Court. In re Sokolowski, 205 F.3d 532, 535 (2d Cir. 2000) (per curiam) (internal quotation marks omitted). As far as we can determine, our Court has not clearly decided whether such undermining must happen in a holding by the Supreme Court, or whether clear dicta also suffices.7 In any event, had anyone cared to disagree with Jenkins or Leather or Green or Huang on the ground that they deviated from prior holdings, the time to say so was when those four cases were decided. Accordingly, one would have expected a request for in banc reconsideration at that time. There was no such request, which comes as no surprise given the unanimity of support in those cases for the position we reaffirm today. The dissenter obviously disagrees, as is his right, with the position our Court then took. But, given those holdings, we would think it preferable for the dissent to state that disagreement by concurring in today s result and expressing distaste for the settled law that requires such a concurrence. Fourth. Quite apart from whether the absence of habeas, by itself, means that a § 1983 action may lie, the dissent is incorrect in its statement that this § 1983 action Amaker v. Weiner, 179 F.3d 48 (2d Cir. 1999), and Channer v. Mitchell, 43 F.3d 786 (2d Cir. 1994) (per curiam) that were not malicious prosecution cases, but were cases in which the petitioner was still incarcerated and could bring habeas. The bar on § 1983 suits in those circumstances, of course, continues to apply. 7 In one case, in which the Supreme Court had suggested a certain direction in dicta but then explicitly left the question open, we concluded that the Supreme Court s dicta do not outweigh prior circuit authority. Meacham v. Knolls Atomic Power Lab., 381 F.3d 56, 70 (2d Cir. 2004), rev d on other grounds by KAPL, Inc. v. Meacham, 544 U.S. 957 (2005). As a general matter, however, [w]e have also observed that we may depart from a prior decision when it merely has been called into question by an intervening United States Supreme Court decision. Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 101 n.12 (2d Cir. 2005) (quoting Meacham, 381 F.3d at 69). 14 calls into question Poventud s second conviction. It does nothing of the sort. It asserts that his constitutional rights were violated by the state through a Brady violation. Under Heck, this could not have been brought up prior to the quashing of his first conviction because a finding of a Brady violation would undercut that conviction. But once that conviction was quashed, the Brady violation if one were established, and if it injured Poventud would constitute an independent infringement of Poventud s constitutional rights, regardless of his subsequent conviction. To give a dramatic example: suppose a defendant is tortured viciously, confesses, and is convicted on the basis of that confession. Under Heck, he cannot, while in jail on that conviction, bring a § 1983 action for being tortured because that would undercut the conviction. But once his conviction is quashed (through habeas or in other ways), he is free to assert that he was tortured and seek a § 1983 remedy. Does the dissent really believe that this becomes less true if that defendant later freely confesses, even to the same crime? At that point, the claim for damages for torture in no way undercuts the second, and only existing, conviction and hence is in no way barred by Heck. At core, this is what Poventud claims today. He seeks damages for the harm caused by a Brady violation in connection with his first (invalidated) conviction; he makes no claims at all with respect to his second (outstanding) conviction. See Appellant s Br. 32 ( Seeking damages only for punishment he suffered in excess of the one-year imprisonment he accepted as part of his plea, the lawsuit, if successful, would not be inconsistent with that plea. ). As noted earlier, whether there was such a violation, and whether there were such damages, will be determined in a § 1983 trial. But whatever the result of that trial, Poventud s subsequent guilty plea is not undermined by his § 1983 action. 15 Finally, the dissent makes the extraordinary argument that habeas might be available to Poventud because his inability to bring a § 1983 action alone may constitute a collateral consequence sufficient to overcome a mootness challenge and support a . . . post-release habeas petition. This argument, which has not been made by anyone in this case, is circular. It posits a result the unavailability of § 1983 relief and on the basis of that result creates the premise for that result. It is, in short, absolutely Ptolemaic in the uselessness of its epicycles. CONCLUSION For the foregoing reasons, we VACATE the district court s judgment and REMAND the case to the district court for further proceedings consistent with this opinion. 16 1 2 DENNIS JACOBS, Chief Judge, dissenting: Marcos Poventud s 1998 New York State conviction for 3 holding up a livery-car driver was vacated by the courts of 4 New York on a Brady violation, and he was released from 5 custody in 2005 after pleading guilty--on lesser charges--to 6 the same hold-up at the same place and time, on the same 7 date. 8 § 1983, for achieving his conviction for a crime that he 9 committed--as he has conceded under oath and in open court. 10 The United States District Court for the Southern District 11 of New York (Batts, J.) dismissed the complaint on the 12 ground that, under Heck v. Humphrey, 512 U.S. 477 (1994), he 13 cannot sue under § 1983 unless the conviction has been 14 overturned. 15 have been introduced on appeal. 16 He has sued prosecutors and police, under 42 U.S.C. I would affirm. The only errors in this case The majority holds that Heck is no bar to a civil suit 17 once the sentence has been served, regardless of whether the 18 conviction was overturned. 19 concurrence in Heck and dicta in other Supreme Court cases, 20 and on Second Circuit case law that has accrued along these 21 lines. 22 23 I respectfully dissent. The majority relies on a My objection goes deep, to the root of the error in Second Circuit cases that prefer dicta 1 in Heck to its holding--a holding that confirmed 2 longstanding Second Circuit law. 3 states, concurrences in Heck and Spencer v. Kemna, 523 U.S. 4 1 (1998) posited the idea that Heck might not bar a civil 5 claim for damages notwithstanding that the claim necessarily 6 called into question an undisturbed criminal conviction, if 7 habeas is unavailable to challenge the conviction under the 8 federal Constitution. 9 with some Circuits recognizing a few narrow exceptions to As the majority opinion Spencer precipitated a Circuit split, 10 Heck, and others countenancing no exception at all. 11 majority opinion follows and extends a line of cases in this 12 Circuit that cannot be located on either side of that 13 Circuit split. 14 bar to suit under § 1983 only until the convict is released 15 from custody (because habeas is no longer available to a 16 person at liberty); and this stretch is widened to discount 17 a post-vacatur plea of guilt to lesser charges on the same 18 crime. 19 The The majority opinion holds that Heck is a The majority opinion thus places at risk of 20 constitutional litigation--for decades--prosecutors and 21 police who obtained convictions of persons who indisputably 22 or even admittedly committed the crimes charged. 23 24 I would affirm the district court s judgment. The unconstitutional conduct for which Poventud seeks damages is 2 1 the failure to disclose the identification of another person 2 as having committed the crime. 3 that Poventud was denied the opportunity to effectively 4 challenge his identification as the perpetrator--necessarily 5 implies the invalidity of the unchallenged, subsisting 6 conviction that was entered on Poventud s plea of guilty to 7 that crime. 8 § 1983 claim. Heck therefore bars Poventud from asserting his 9 10 The premise of that claim-- I In 1998, a jury convicted Poventud of attempted murder 11 in the second degree, attempted robbery in the first degree, 12 and criminal possession of a weapon in the first degree, in 13 connection with the armed robbery and shooting of Younis 14 Duopo as he was driving a livery cab. 15 were: approximately 8:40 p.m. on March 6, 1997, between 16 Oliver Place and Marion Avenue in the Bronx. 17 and the 10-to-20 year sentence were affirmed on appeal. 18 People v. Poventud, 300 A.D.2d 223, 224 (1st Dep t 2002). The time and place The conviction See 19 In 2005, the New York Supreme Court, Bronx County, 20 vacated the conviction and ordered a re-trial on the ground 21 that the prosecution had withheld potentially exculpatory 22 evidence. 23 rights; in fact, the evidence withheld might as easily be 24 viewed as inculpatory. This ruling was highly solicitous of Poventud s 3 After the hold-up, photo ID of Poventud s brother 1 2 Francisco was found in a wallet in Duopo s vehicle. When 3 shown the photograph of Francisco, Duopo opined that it 4 looks like the perpetrator, or looks a lot like him. 5 98. 6 See Maj. Op. at 3.) 7 was and had been in prison, Duopo positively identified 8 Marcos Poventud, as he later did in a line-up and for a 9 third time in the courtroom. A (The majority calls this a positive identification.1 After it was ascertained that Francisco A 98, 114. The state court 10 ordered a re-trial on the ground that Brady was violated by 11 the State s failure to disclose Duopo s observation that 12 Francisco s photo resembled the perpetrator. 13 Poventud, 802 N.Y.S.2d 605, 608 (Brx. Cnty. 2005). See People v. 14 Poventud claims that he looks nothing like his own 15 brother (which would certainly make Duopo s observation 16 uncanny), and that it is just one of those coincidences that 17 his jailed brother s photo ID was left at the scene of the 18 crime. 19 Poventud had the opportunity to test those explanations 20 before a jury on retrial. Instead, Poventud pled guilty to 21 attempted robbery in the third degree. 22 admitted to holding up Duopo as he was driving a livery cab 1 At his hearing, he The Bronx District Attorney s Office considered this statement a tentative identification, A 59, that tended to inculpate Poventud, A 75. 4 1 at: approximately 8:40 p.m. on March 6, 1997, between Oliver 2 Place and Marion Avenue in the Bronx. 3 thus resolved the issue: Duopo s identification of Poventud 4 was sound. 5 prison and, because he had already served nine years, was 6 released. 7 A 93. The plea colloquy Poventud was re-sentenced to one year in Upon release from prison, Poventud filed a motion 8 challenging the voluntariness of his plea, but later 9 withdrew the motion. He then filed this damages action 10 under 42 U.S.C. § 1983 alleging that the prosecution s Brady 11 violation deprived him of a fair trial. 12 Maryland, 373 U.S. 83 (1963). 13 Poventud s claims were barred by Heck v. Humphrey, 512 U.S. 14 477 (1994), and dismissed the case. 15 N.Y., No. 07 Civ. 3998 (DAB), 2012 WL 727802, at *3 16 (S.D.N.Y. Mar. 6, 2012). See Brady v. Judge Batts ruled that See Poventud v. City of 17 18 19 II Even before Heck, our Circuit (like many others) barred 20 § 1983 claims that necessarily implied the invalidity of 21 outstanding convictions--and did so regardless of whether 22 the plaintiff remained in jail. 23 Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986), which 24 explained why a plaintiff s outstanding conviction (for 5 The seminal case was 1 possession of stolen property) barred his damages action for 2 false arrest under § 1983: the common-law rule, equally 3 applicable to actions asserting false arrest, false 4 imprisonment, or malicious prosecution, was and is that the 5 plaintiff can under no circumstances recover if he was 6 convicted of the offense for which he was arrested. 7 388 (emphasis added). 8 § 1983 actions, observing: The right to bring suit under § 9 1983 is designed both to allow an injured person to obtain 10 compensation for the loss of his civil rights and to deter 11 public officials from further violation of such rights. 12 806 F.2d at 388. 13 minimally implicated where the [claimant] was convicted. 14 Id.; see also Singleton v. City of N.Y., 632 F.2d 185, 195 15 (2d Cir. 1980) (dismissing malicious prosecution claim 16 brought under § 1983 on the same grounds). 17 The rule was given broad application. Id. at Cameron extended that principle to Yet, neither interest is more than In Roesch v. 18 Otarola, 980 F.2d 850 (2d Cir. 1992), we explained that a 19 § 1983 plaintiff who seeks to challenge his conviction must 20 pursue the criminal case to an acquittal or an unqualified 21 dismissal, or else waive his Section 1983 claim. 22 853. 23 violations, Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 24 1999), as well as related claims under §§ 1981, 1985, and Id. at We later held that this bar applied to Brady 6 1 1986, id. at 51-52.2 2 several courts in this Circuit have held (and we have 3 affirmed) that the bar applies even if the subsequent guilty 4 plea is to a lesser charge. 5 State, No. 06-CV-4843(NGG), 2006 WL 3050867, at *3 (E.D.N.Y. 6 Oct. 24, 2006), summarily aff d, 242 F. App x 777 (2d Cir. 7 2007); Papeskov v. Brown, No. 97 Civ. 5351(SS), 1998 WL 8 299892, at *5 (S.D.N.Y. June 8, 1998) (Sotomayor, J.), 9 summarily aff d, 173 F.3d 845 (2d Cir. 1999); see also Stein And, as discussed infra at 29-30, See McNeill v. People of City & 10 v. Cnty. of Westchester, N.Y., 410 F. Supp. 2d 175, 179 11 (S.D.N.Y. 2006). 12 None of these cases turned on whether the plaintiff was 13 incarcerated or at liberty when suit was filed, or suggested 14 that this consideration had any weight or bearing. 15 of these cases, the plaintiff was not in custody. 16 e.g., Roesch, 980 F.2d at 850; Singleton, 632 F.2d at 195; 2 In most See, Heck confirmed that this bar is not limited to false arrest, false imprisonment, and malicious prosecution claims: the plaintiff alleged, inter alia, that prosecutors knowingly destroyed evidence which was exculpatory in nature and could have proved [petitioner s] innocence[.] 512 U.S. at 479 (citation omitted); see also Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) (per curiam); Rosato v. N.Y. Cnty. District Attorney s Office, No. 09 Civ. 3742, 2009 WL 4790849, at *3-4 (S.D.N.Y. Dec. 14, 2009); Davison v. Reyes, 11-CV-167 ENV LB, 2012 WL 948591, at *3 (E.D.N.Y. Mar. 20, 2012). The majority opinion here mistakenly suggests that the bar is so limited, Maj. Op. at 13 n.6, but prudently concludes that there is no need to consider this case law in any depth, id. at 13. 7 1 McNeill, 2006 WL 3050867, at *2-3; Papeskov, 1998 WL 299892, 2 at *5; Stein, 410 F. Supp. 2d at 179. 3 These decisions consistently and methodically applied 4 the rule that plaintiffs may not use § 1983 to call into 5 question an outstanding criminal conviction, a rule that 6 avoided the prospect of harassment, waste and endless 7 litigation, contrary to principles of federalism. 8 Singleton v. City of N.Y., 632 F.2d 185, 195 (2d Cir. 1980). 9 The majority relies on Leather v. Ten Eyck, 180 F.3d 10 420 (2d Cir. 1999) (Calabresi, J.) and cases that cited or 11 followed it;3 but these cases could not have undone the law 12 of this Court without review in banc.4 See United States v. 3 Among other cases, the majority cites Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999) (Walker, J.), which was decided the same day as Leather. But, as discussed infra at 14, Jenkins involved a challenge to a prison disciplinary sanction (not the plaintiff s conviction itself), which plainly did not trigger the Heck bar. See id. at 27 ( [Nothing in Supreme Court precedent requires that the Heck rule be applied to a challenge by a prisoner to a term of disciplinary segregation[.] ). 4 The majority opinion wonders aloud why such cases were not challenged in banc. See Maj. Op. at 13-14. First, there is little point in mobilizing the Court in banc to excise dicta. Second, this Court is notoriously reluctant to sit in banc. See Ricci v. DeStefano, 530 F.3d 88, 93 (2d Cir. 2008) (Jacobs, C.J., dissenting from denial of rehearing in banc) (arguing that to rely on [Circuit] tradition to deny rehearing in banc starts to look very much like abuse of discretion ); see id. at 89 (Calabresi, J., concurring in denial of rehearing in banc) (concluding that in banc review is unnecessary even when [d]ifficult issues are presented). 8 1 King, 276 F.3d 109, 112 (2d Cir. 2002). In any event, our 2 Circuit law, as it was settled before Leather, was validated 3 and confirmed by the Supreme Court in Heck v. Humphrey, 512 4 U.S. 477 (1994). 5 sentence for voluntary manslaughter and his direct appeal 6 was still pending, he brought a § 1983 action alleging that 7 prosecutors and police officers had destroyed exculpatory 8 evidence. 9 dismissal of the claim because civil tort actions are not While Heck was serving a fifteen-year Id. at 478-79. The Supreme Court affirmed the 10 appropriate vehicles for challenging the validity of 11 outstanding criminal judgments, and because success on the 12 plaintiff s § 1983 claim would necessarily imply the 13 invalidity of his conviction or sentence[.] 14 To recover damages for allegedly unconstitutional conviction 15 or imprisonment, a § 1983 plaintiff must prove that the 16 conviction or sentence has been reversed on direct appeal, 17 expunged by executive order, declared invalid by a state 18 tribunal authorized to make such determination, or called 19 into question by a federal court s issuance of a writ of 20 habeas corpus[.] 21 Id. at 486-87. Id. This requirement is animated by the values of finality 22 and consistency, and a strong judicial policy against the 23 creation of two conflicting resolutions arising out of the 24 same or identical transaction. 9 Id. at 484 (citation and 1 quotation marks omitted). Heck, which strengthened and 2 validated our existing precedent, remains the rule until--if 3 ever--the Supreme Court alters its holding. 4 5 6 III A Circuit split has opened as to whether some 7 exceptions to Heck may be permitted on the basis of self- 8 described dicta signed by five Justices (three of whom are 9 no longer on the Court). The majority opinion patches 10 together the various concurrences and passages of dicta, 11 identifying the Justices (some active, some retired) who 12 wrote or signed the opinions. 13 (discussing Spencer v. Kemna, 523 U.S. 1, 18-21 (1998) 14 (Souter, J., concurring)). 15 posited that a former prisoner, no longer in custody, may 16 bring a § 1983 action establishing the unconstitutionality 17 of a conviction or confinement without being bound to 18 satisfy a favorable-termination requirement that it would be 19 impossible as a matter of law for him to satisfy. 20 523 U.S. at 21 (Souter, J., concurring) (emphasis added). 21 While some Circuits carve out a narrow exception to Heck s 22 holding based on the Spencer concurrences, the majority in 23 our case adopts a view that would have no basis even in 24 Supreme Court dicta. See Maj. Op. at 7-8 In a nutshell, these Justices 10 Spencer, 1 Several courts of appeals have concluded (as I do) that 2 the Spencer concurrences cannot override Heck s binding 3 precedent. 4 (8th Cir. 2007); Gilles v. Davis, 427 F.3d 197, 209-10 (3d 5 Cir. 2005); Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 6 2000); Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998). 7 These opinions heed the Supreme Court s admonition 8 that, even if binding precedent appears to rest on reasons 9 rejected in some other line of decisions, the Court of 10 Appeals should follow the case which directly controls, 11 leaving to this [Supreme] Court the prerogative of 12 overruling its own decisions. 13 203, 237 (1997) (citations and internal quotation marks 14 omitted). 15 purview to anticipate whether the Supreme Court may one day 16 overrule its existing precedent. 17 Santiago, 268 F.3d 151, 155 n.6 (2d Cir. 2001). 18 See, e.g., Entzi v. Redmann, 485 F.3d 998, 1003 Agostini v. Felton, 521 U.S. We adhere to that rule: It is not within our United States v. Other Circuits have nevertheless held that Spencer s 19 dicta does allow for unusual and compelling circumstances in 20 which Heck s holding does not absolutely foreclose a claim. 21 See, e.g., Burd v. Sessler, 702 F.3d 429, 435-36 (7th Cir. 22 2012); Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 23 2010); Wilson v. Johnson, 535 F.3d 262, 267 68 (4th Cir. 24 2008); Powers v. Hamilton Cnty. Public Defender Comm n, 501 11 1 F.3d 592, 603 (6th Cir. 2007); Guerrero v. Gates, 442 F.3d 2 697, 704 (9th Cir. 2006); Harden v. Pataki, 320 F.3d 1289, 3 1298 (11th Cir. 2003). 4 But even the courts that recognize certain narrow 5 exceptions to Heck emphatically reject the idea that the 6 rule in Heck no longer applies once a convict exits the 7 prison gates. 8 dismissed a claim by a released convict who argued that 9 § 1983 must be made available if habeas relief is not. The Seventh Circuit, for instance, recently See 10 Burd, 702 F.3d at 435-36 (holding that Heck applies where a 11 § 1983 plaintiff could have sought collateral relief at an 12 earlier time but declined the opportunity and waited until 13 collateral relief became unavailable before suing ). 14 Likewise the Ninth Circuit: The fact that [a criminal 15 defendant] is no longer in custody and thus cannot overturn 16 his prior convictions by means of habeas corpus does not 17 lift Heck s bar. 18 Sixth Circuit: It seems unlikely that Justice Souter 19 intended to carve out a broad Heck exception for all former 20 prisoners. Guerrero, 442 F.3d at 704.5 And the Powers, 501 F.3d at 603. 5 The Ninth Circuit qualified its endorsement of the Spencer dicta further: the exception posited by Justice Souter affects only former prisoners challenging loss of good-time credits, revocation of parole or similar matters, not challenges to an underlying conviction such as those Guerrero brought. Guerrero, 442 F.3d at 705 (quoting Nonnette v. Small, 316 F.3d 872, 878 n.7 (9th Cir. 2002)). 12 1 Our Court has gone its own way, without adhering to 2 either side of this broad Circuit split. This Circuit first 3 invoked the Spencer dicta in Leather v. Ten Eyck, 180 F.3d 4 420 (2d Cir. 1999) (Calabresi, J.), to allow an individual 5 fined for drunk driving to seek damages in federal court 6 even though he chose to forgo an appeal in state court. 7 year later, the Spencer dicta was adopted as a holding, in a 8 broadened and generalized form, in Green v. Montgomery, 219 9 F.3d 52 (2d Cir. 2000) (Calabresi, J.): Heck acts only to 10 bar § 1983 suits when the plaintiff has a habeas corpus 11 remedy available to him (i.e., when he is in state 12 custody). 13 A builds on this error. 14 Id. at 60 n.3. The majority s present opinion The final segment of the majority opinion cites several 15 Second Circuit opinions to argue for a spurious consensus. 16 Two of those cases allowed § 1983 claims to proceed when the 17 plaintiff challenged conditions of confinement rather than 18 the fact or duration of confinement. 19 Haubert, 179 F.3d 19, 25 (2d Cir. 1999) (Walker, J.); Sims 20 v. Artuz, 230 F.3d 14, 24 (2d Cir. 2000) (Kearse, J.). 21 These uncontroversial decisions are straightforward 22 applications of Supreme Court precedent. 23 Rodriguez, 411 U.S. 475, 490 (1973). 24 the majority, Huang ex rel. Yu v. Johnson, 251 F.3d 65 (2d 13 See Jenkins v. See Preiser v. Another case cited by 1 Cir. 2001) (Winter, J.), is likewise inapposite. See id. at 2 67 (considering whether New York law required court to 3 credit a juvenile for time spent in a different institution 4 on an unrelated charge); see also Huang ex rel. Yu v. 5 Johnson, 274 F.3d 682, 682-83 (2d Cir. 2001) (per curiam) 6 (dismissing case after New York Court of Appeals held that 7 government agency properly calculated juvenile s sentence). 8 The majority devotes considerable space to these dissimilar 9 cases, see Maj Op. at 8-9, 10-14, and counts on fingers the 10 judges involved in their dispositions, see id. at 12 n.4. 11 It is true that these opinions cited the Spencer dicta with 12 approval, expressing support for a very narrow exception 13 that the majority opinion here expands immoderately and 14 adopts as a holding. 15 distilled from dicta--especially when the Supreme Court, ten 16 sister Circuits, and numerous cases in this Circuit counsel 17 otherwise. But I decline to argue over dicta See supra at 5-8, 11-12. 18 19 20 IV The majority s holding--that Heck is inapplicable 21 because Poventud was no longer in custody when he filed 22 suit--relies (as I have shown) on Justice Souter s dicta in 23 Spencer v. Kemna, 523 U.S. 1, 3 (1998), which the majority 24 opinion presumes to elevate as the better rule. 14 See Maj. 1 Op. at 7. 2 rule--or a worse one, for that matter--but we are not.) 3 Heck, the Court made its choice perfectly clear. 4 (The Justices are free to choose the better In Heck involved a challenge by a plaintiff in custody, 5 but the opinion left no doubt that its holding applied 6 regardless of whether the plaintiff was in custody or at 7 liberty: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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, 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. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 22 Heck, 512 U.S. at 486-87. 23 concludes that Heck s holding is expressed with careless 24 overbreadth, and is not intended to apply to all § 1983 25 actions including those filed by released convicts.6 The majority here presumptuously 6 Of course, the Supreme Court is not obligated to adopt the narrowest holding possible. See Citizens United v. Fed. Election Comm n, 558 U.S. 310, 130 S. Ct. 876, 919, 175 L. Ed. 2d 753 (2010) (Roberts, C.J., concurring) ( It should go without saying . . . that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. ); In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000) ( [A] holding . . . extends beyond a statement of who won or lost a case. A court can choose among different holdings that offer broader or narrower ways of resolving a 15 1 Heck s reasoning confirms that its holding means what 2 it says. 3 to § 1983 actions that seek damages arising from unlawful 4 incarceration: We do not engraft an exhaustion requirement 5 upon § 1983, but rather deny the existence of a cause of 6 action. 7 § 1983 so long as the plaintiff stands convicted of the 8 crime, it cannot matter whether a plaintiff whose conviction 9 subsists is in custody or at liberty, or has (or could have) 10 11 Favorable termination is an absolute prerequisite Id. at 489. Since no cause of action exists under pursued habeas relief. The incompatibility between Heck s holding and Justice 12 Souter s dicta is acknowledged by Justice Souter s 13 expression of his views in terms of disagreement.7 dispute. ). Lower courts therefore may not escape the reach of a Supreme Court opinion by limiting it to its facts. See generally Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2040 (1994) (explaining that courts should not cast aside as mere dictum an earlier ruling, regardless of the relative merits of a broad or narrow decisional principle in the initial case ); Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 986 (2005) ( [B]readth does not make statements dicta. ). 7 The Justice observed that although the case arose at the intersection of § 1983 and the federal habeas statute, the majority nonetheless appear[ed] to take the position that the statutes were never on a collision course in the first place. Id. at 492 (Souter, J., concurring). As Justice Souter explained, the Court reached this conclusion because, like the common-law tort of malicious prosecution, § 1983 requires (and, presumably, has always required) plaintiffs seeking damages for unconstitutional conviction or confinement to show the favorable termination of the underlying proceeding. Id. Justice Souter then said why, 16 1 Reciprocally, the majority opinion in Heck rejected Justice 2 Souter s bid to narrow its holding: 3 4 5 6 7 8 9 10 11 12 13 14 15 Justice Souter also adopts the common-law principle that one cannot use the device of a civil tort action to challenge the validity of an outstanding criminal conviction, but thinks it necessary to abandon that principle in those cases (of which no real-life example comes to mind) involving former state prisoners who, because they are no longer in custody, cannot bring postconviction challenges. We think the principle barring collateral attacks-a longstanding and deeply rooted feature of both the common law and our own jurisprudence--is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated. 16 Id. at 490 n.10 (emphasis added) (internal citation 17 omitted). 18 The majority in our case deprecates this footnote as 19 dictum, Maj. Op. at 7 (though it is unclear to me why this 20 would make it less compelling to the majority, whose entire 21 argument here rests on nothing else). 22 passage does not address some ancillary issue; it responds 23 directly to Justice Souter s criticism, emphasizing that the 24 scope and rationale of the holding are broad enough to be 25 unaffected by whether the plaintiff is in jail or not. 26 dictum . . . is an assertion in a court s opinion of a 27 proposition of law [that] does not explain why the court s 28 judgment goes in favor of the winner. I disagree: the Barclays Capital 29 in his view, this approach was flawed. 17 A Id. 1 Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876, 899 (2d 2 Cir. 2011) (quoting Pierre N. Leval, Judging Under the 3 Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 4 1256 (2006)). 5 the rule did not impose an exhaustion requirement and did 6 not turn on the availability of habeas relief or whether the 7 plaintiff is still in jail. 8 n.10. 9 rule is, it may also state (in terms equally binding) what 10 11 As illustrated above, Heck made clear that Heck, 512 U.S. at 489, 490 Just as a court may state (in binding terms) what the the rule is not. In any event, footnote ten only reinforces what Heck s 12 holding makes plain: a claim for damages that necessarily 13 implies the invalidity of an outstanding conviction is not 14 cognizable under § 1983. 15 16 Heck, 512 U.S. at 486-87. * * * The concurrences in Heck and Spencer could not narrow 17 or redefine or otherwise alter the Supreme Court s holding. 18 Unlike plurality opinions, in which the holding of the 19 Court may be viewed as that position taken by those Members 20 who concurred in the judgment on the narrowest grounds, 21 Marks v. United States, 430 U.S. 188, 193 (1977), a majority 22 opinion dictates the precise contours of the Court s 23 holding. 24 Critically, this is so even if a Justice concurring in the See Abramowicz & Stearns, supra n.6, at 1059. 18 1 judgment would have preferred instead to resolve the case on 2 a narrower ground[.] 3 concedes, as it must, that Supreme Court dicta does not 4 outweigh Circuit precedent; only an intervening Supreme 5 Court decision will have that effect. 6 n.7 (citing Meacham v. Knolls Atomic Power Lab., 381 F.3d 7 56, 70 (2d Cir. 2004) and Consol. Edison Co. of N.Y., Inc. 8 v. UDGI Utils., Inc., 423 F.3d 90, 101 n.12 (2d Cir. 2005)). Id. Likewise, the majority here See Maj. Op. at 14 9 10 11 12 13 V The majority opinion runs counter to the several values that animate Heck (and our pre-Heck jurisprudence). The Supreme Court has long expressed . . . concerns 14 for finality and consistency and has generally declined to 15 expand opportunities for collateral attack. 16 at 484-85. 17 the opportunity for inconsistent collateral attack eternal. 18 Heck, 512 U.S. The majority opinion posits a rule that makes A § 1983 action that necessarily impugns an outstanding 19 conviction subverts the longstanding and deeply rooted 20 principle barring collateral attacks, id. at 490 n.10, 21 whether or not the challenge is issued from prison. 22 exception for released inmates would violate the hoary 23 principle that civil tort actions are not appropriate 24 vehicles for challenging the validity of outstanding 19 An 1 criminal judgments. 2 fortuity that a convicted criminal is no longer 3 incarcerated. 4 Id. at 486. It is an irrelevant Id. at 490 n.10. The majority s approach here also undermines 5 federalism. Federal post-trial intervention, in a fashion 6 designed to annul the results of a state trial, . . . 7 deprives the States of a function which quite legitimately 8 is left to them[.] 9 609 (1975). Huffman v. Pursue, Ltd., 420 U.S. 592, To allow collateral attacks on criminal 10 convictions in federal court upon the convict s release from 11 state prison would fly in the teeth of Heck, Figueroa v. 12 Rivera, 147 F.3d 77, 81 (1st Cir. 1998), and would impair 13 the fundamental principles that compelled its holding. 14 The majority opinion has the single virtue of assuring 15 that there is absolutely no residual unavailability of 16 federal remedies to any state criminal defendant. 17 there is no support in the Constitution or in § 1983 for the 18 principle that every person asserting a federal right is 19 entitled to one unencumbered opportunity to litigate that 20 right in a federal district court. 21 U.S. 90, 103 (1980). 22 everywhere be available. 23 24 However, Allen v. McCurry, 449 A § 1983 action need not always and Spencer, 523 U.S. at 17. Section 1983 aside, a convicted criminal is not without recourse. Upon release from custody, a convict may seek 20 1 habeas relief if the State continues to impose significant 2 restraints on his liberty, such as probation or parole. 3 Jones v. Cunningham, 371 U.S. 236, 242 (1963). 4 such a showing, courts are now willing to presume that a 5 criminal conviction has continuing collateral consequences 6 that could support a post-release habeas petition. 7 Spencer v. Kemna, 523 U.S. 1, 8 (1998); see also Nonnette v. 8 Small, 316 F.3d 872, 878 n.7 (9th Cir. 2002) ( [T]he status 9 of prisoners challenging their underlying convictions or See Even absent See 10 sentences does not change upon release, because they 11 continue to be able to petition for a writ of habeas 12 corpus. ). 13 constitute a collateral consequence sufficient to overcome a 14 mootness challenge and support a convict s post-release 15 habeas petition.8 The inability to bring a § 1983 action alone may See Leonard v. Nix, 55 F.3d 370, 373 (8th 8 The majority satirizes this statement as circular (because I posit the unavailability of § 1983 as a possible basis for seeking habeas relief, the existence of which, in the majority s view, would render § 1983 unavailable). See Maj. Op. at 15-16. But this text paragraph of my opinion merely lists remedies (aside from § 1983) that remain available to convicted criminals; it does not form a basis for concluding that Poventud s § 1983 claim must be dismissed. Here, § 1983 is unavailable because the claim would undermine an outstanding conviction--without regard to whether habeas relief is also available. See Heck, 512 U.S. at 503 (Souter, J., concurring) (criticizing the majority for imposing a favorable-termination requirement rather than constru[ing] § 1983 in light of the habeas statute and its explicit policy of exhaustion ); Channer v. Mitchell, 43 F.3d 786, 787-88 (2d Cir. 1994) (per curiam). The majority s error illuminates a more significant 21 1 Cir. 1995) ( Leonard s section 1983 action gives this case 2 life, for if Leonard wins this habeas action, the state 3 becomes vulnerable to his section 1983 damages claim. 4 Leonard s petition is therefore not moot. ); see also 5 O Neill v. City of Phila., 32 F.3d 785, 788 n.7 (3d Cir. 6 1994); Sule v. Warden, ADX Florence Colo., 133 F.3d 933, at 7 *2 (10th Cir. Jan. 13, 1998) (unpublished). 8 all criminal defendants may pursue a direct appeal--whether 9 or not they remain in jail--through the state court system And, of course, 10 and on to the Supreme Court of the United States. Supreme 11 Court review is itself sufficient to preserve the role of 12 the federal courts as the ultimate guardians of federally 13 guaranteed rights. 14 614 F.2d 138, 141 (7th Cir. 1980). 15 then, the convicted criminal has post-release remedies 16 available in both federal and state court.9 Waste Mgmt. of Wis., Inc. v. Fokakis, Under any circumstance, defect that pervades its entire analysis: a willingness to view this case through the eyes of a concurring opinion rather than the opinion of the Court. 9 Additionally, a convict may seek a writ of error coram nobis from the court that rendered judgment against him--here, the New York Supreme Court. See United States v. Morgan, 346 U.S. 502, 507 n.9 (1954); Finkelstein v. Spitzer, 455 F.3d 131, 133-34 (2d Cir. 2006). If successful, he may then pursue damages under § 1983. To the extent that the majority relies on an implicit notion that New York courts are inadequate protectors of Poventud s federal rights, I disagree for several reasons. [1] It was the New York Supreme Court that overturned Poventud s original conviction on Brady grounds, a ruling 22 1 The majority opinion falls victim to the judicial 2 fallacy of viewing the ramifications of any legal principle 3 through the single prism of the plaintiff s interests. 4 it should be obvious that important interests are dis-served 5 when every prosecutor and every police officer remains 6 subject to suit for acts alleged to have happened years and 7 decades in the past, after memory fades, witnesses move on, 8 and evidence is discarded. 9 the plaintiff was convicted, the longer the sentence, and But The worse the crime for which 10 thus the worse the peril for public officials, who may years 11 later no longer be indemnified or defended. 12 The majority opinion likewise disadvantages the class 13 of persons who achieve vacatur of their convictions. 14 Allowing defendants to seek damages under § 1983 after 15 pleading guilty would create an incentive for prosecutors to 16 retry the case rather than offer a plea based on time 17 served. Cf. Olsen v. Correiro, 189 F.3d 52, 69 (1st Cir. that was quite solicitous given that the evidence withheld was arguably inculpatory (or, at best, a wash). [2] It would be unwise to base a rule on the assumption that state judges will not be faithful to their constitutional responsibilities. Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975). [3] Plaintiffs may be able to file a § 1983 action seeking an injunction against any individuals who are impeding their efforts to appeal a conviction. See Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir. 1999) (dismissing § 1983 claim for damages under Heck because injunction was the appropriate remedy where plaintiff alleged that various state officials were illegally blocking his access to state postconviction remedies ). 23 1 1999) (observing that if the court were to recognize a 2 § 1983 action following a plea of nolo contendere, it would 3 make prosecutors, faced with the prospect of continuing 4 litigation and a possible damages award, much less likely to 5 offer such a deal). 6 of plea bargains and jeopardize society s interest in a 7 system of compromise resolution of criminal cases. 8 Finality is a vital principle, not a bureaucratic means of 9 closing the judicial books.10 It would also undermine the finality Id. The majority opinion offers no 10 appreciable counterweight to these rooted values and vital 11 interests. 12 13 VI 14 Even if we were free to prefer Spencer s dicta to the 15 holding of Heck (not to mention Second Circuit precedent), 16 the narrow exception articulated by Justice Souter would not 17 be applicable here. 18 concern in the Spencer dicta was that circumstances beyond 19 the control of a criminal defendant might deprive him of the As discussed above, the motivating 10 See Custis v. United States, 511 U.S. 485, 497 (1994) ( [I]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures and inevitably delay and impair the orderly administration of justice. ) (quoting United States v. Addonizio, 442 U.S. 178, 184, n.11 (1979)). Moreover, when a guilty plea is at issue, the concern with finality served by the limitation on collateral attack has special force. Id. (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)). 24 1 opportunity to challenge a federal constitutional violation 2 in federal court. 3 Poventud is not such a person. Poventud challenged his first conviction in state court 4 and won--making it unnecessary for him to seek federal 5 habeas relief. 6 fighting at a new untainted trial or pleading guilty to the 7 same crime on reduced charges and accepting a reduced 8 sentence. 9 of filing a motion to challenge the voluntariness of his At that point, Poventud had the option of He chose to plead. He withdrew it.11 Poventud then had the option 10 plea. It was therefore by no means 11 impossible as a matter of law for Poventud to challenge 12 his conviction and thereby satisfy Heck s favorable 13 termination requirement, Spencer v. Kemna, 523 U.S. 1, 21 14 (1998) (Souter, J., concurring); he simply decided not to. 15 A guilty plea represents a break in the chain of 16 events which has preceded it in the criminal process, 11 Poventud s allegations of gruesome and repetitive physical and sexual abuse in prison are cited by the majority, presumably to imply that the government s plea offer, resulting in immediate release, was one that could not be refused. Maj. Op. at 4. But it is naive to think that any plea is free from powerful pressures and influences, and that it is only the exceptional defendant who has reason to fear prison. Moreover, this argument is a red herring; Poventud withdrew his § 440 motion challenging the voluntariness of his guilty plea. However tantalizing the government s offer, Poventud swore in open court that he participated in the armed robbery charged in the indictment -which is of course the same crime of which he was convicted originally. 25 1 Tollett v. Henderson, 411 U.S. 258, 267 (1973), and is 2 accorded a great measure of finality, Blackledge v. 3 Allison, 431 U.S. 63, 71 (1977). 4 has solemnly admitted in open court that he is in fact 5 guilty of the offense with which he is charged, he may not 6 thereafter raise independent claims relating to the 7 deprivation of constitutional rights that occurred prior to 8 the entry of the guilty plea. 9 see also United States v. Gregg, 463 F.3d 160, 164 (2d Cir. When a criminal defendant Tollett, 411 U.S. at 267;12 10 2006) (per curiam) ( [A] guilty plea . . . conclusively 11 resolves the question of factual guilt supporting the 12 conviction, thereby rendering any antecedent constitutional 13 violation bearing on factual guilt a non-issue[.] ). 14 Poventud s ability to attack his conviction therefore ended 15 when he pled guilty to the hold-up. 12 Cf. Pouncey v. Ryan, The Tollett bar, distinct from the rule in Heck, is grounded in collateral estoppel rather than the plaintiff s inability to prove a key element of his claim. See Tollett, 411 U.S. at 267; United States v. Podell, 572 F.2d 31, 35 (2d Cir. 1978) ( It is well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case. ). Certainly, some analytical overlap exists, and in this arena too the Supreme Court has rejected the notion that a federal remedy must be available to criminal defendants seeking to challenge state convictions. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84 (1984) ( § 1983 did not open the way to relitigation of an issue that had been determined in a state criminal proceeding[.] ). 26 1 396 F. Supp. 126, 128 (D. Conn. 1975) (Newman, J.) (relying 2 on the settled rule of law that a civil suit may not be 3 used to attack a criminal conviction and rejecting 4 plaintiffs attempt to undermine the finality that must be 5 accorded the tactical decision the plaintiffs made in 6 tendering their pleas of guilty ); Molina-Aviles v. Dist. of 7 Columbia, 797 F. Supp. 2d 1, 6-7 (D. D.C. 2011)13 (dismissing 8 § 1983 claims following guilty pleas because plaintiffs had 9 opportunities to challenge their pleas but instead filed 10 damages claims, thereby undermining Plaintiffs argument 11 that Spencer applies because there are no habeas-type 12 procedures available ).14 13 The Molina-Aviles court also held that the fractured group of five concurring and dissenting Justices in Spencer cannot be found to have overruled the majority decision in Heck. Molina-Aviles, 797 F. Supp. at 5-6. Up to this point, Molina-Aviles is the only decision within the D.C. Circuit to reach this issue. 14 See also Domotor v. Wennet, 630 F. Supp. 2d 1368, 1380 (S.D. Fla. 2009) aff d, 356 F. App x 316 (11th Cir. 2009) (Heck applied where the plaintiff, although no longer in custody, entered into a plea agreement with knowledge of all or substantially all of the allegations that now form the basis of a § 1983 action for damages ); Lewis v. City of Clarksburg, 1:11-CV-192, 2013 WL 529954, at *8 (N.D. W. Va. Feb. 11, 2013) (internal citation omitted) (defendants, who pleaded guilty and then filed § 1983 claim upon release from custody, are not exempt from Heck s favorable termination requirement because their inability to obtain habeas relief is self-imposed, and not the consequence of any unforeseen turn of the law ). To allow defendants, after pleading guilty, to file § 1983 actions that call into question their convictions would enable them to end-run Heck, and, at bottom, would confer on them the benefit of their plea bargain while shielding them from its consequences. Lewis, 2013 WL 529954, at *8 (internal citation omitted). 27 1 The majority hedges on this point: Poventud s guilty 2 plea may (or may not) supply defendants with a defense[.] 3 Maj. Op. at 9. 4 supply defendants with a defense--one that is complete and 5 categorical. 6 806 F.2d 380, 389 (2d Cir. 1986). 7 But a valid outstanding conviction does See Heck, 512 U.S. at 489; Cameron v. Fogarty, Additionally, it cannot matter that Poventud s guilty 8 plea was to a lesser charge. The question remains whether 9 success on Poventud s § 1983 claim would necessarily imply 10 the invalidity of the outstanding conviction. 11 U.S. at 487. 12 same facts . . . is fundamentally inconsistent with the 13 unlawful behavior for which section 1983 damages are sought, 14 the 1983 action must be dismissed. 15 394 F.3d 689, 695 (9th Cir. 2005) (in banc) (citation and 16 quotation marks omitted). 17 Heck, 512 [I]f a criminal conviction arising out of the Smith v. City of Hemet, Several courts of this Circuit have dismissed § 1983 18 claims that sought damages for unlawful incarceration after 19 the plaintiffs (like Poventud) pled guilty to lesser charges 20 and were released from custody. 21 People of City & State, No. 06-CV-4843 (NGG), 2006 WL 22 3050867 (Oct. 24, 2006), summarily aff d, 242 F. App x 777 23 (2d Cir. 2007), the vacatur of plaintiff s conviction for 24 (inter alia) murder in the second degree was followed by his 25 plea of guilty to assault (to avoid retrial) and his 28 For example, in McNeill v. 1 immediate release. 2 Heck, dismissed the plaintiff s § 1983 claims alleging false 3 arrest, false imprisonment, and malicious prosecution. 4 This Court affirmed, with no opinion needed to do so, 5 because although [a]ppellant s state court conviction was 6 vacated, his subsequent guilty plea stands as a bar, under 7 Heck, to a § 1983 action. 8 State of N.Y., 242 F. App x 777, 778 (2d Cir. 2007). 9 Id. at *1. The district court, citing Id. McNeill v. People of City & District Judge Sotomayor (as she was then) reached a 10 similar conclusion in Papeskov v. Brown, and this Court 11 agreed. 12 (S.D.N.Y. June 8, 1998), summarily aff d, 173 F.3d 845 (2d 13 Cir. Apr. 23, 1999) (dismissing § 1983 action brought by 14 former inmate who was charged with assault and criminal 15 possession of a weapon and pled guilty to harassment); see 16 also Stein v. Cnty. of Westchester, N.Y., 410 F. Supp. 2d 17 175, 179 (S.D.N.Y. 2006) (dismissing § 1983 action brought 18 by former inmate who successfully challenged conviction for, 19 inter alia, rape and sodomy, later pled guilty to 20 endangering the welfare of a child, and filed suit upon 21 release). 22 No. 97 Civ. 5351(SS), 1998 WL 299892, at *5 These cases, non-binding as they are, nevertheless 23 reflect the continued vitality of the Cameron line of 24 precedent. McNeill is especially persuasive as a close 25 29 1 analog; and both of my colleagues in the majority on the 2 present panel sat on the panel in McNeill. 3 The majority relies on other courts opinions in cases 4 that bear no resemblance whatsoever to the present. 5 Maj. Op. at 9 n.2 (citing Smith v. Gonzales, 222 F.3d 1220 6 (10th Cir. 2000) (holding that Heck was inapplicable where 7 court vacated defendant s conviction and government filed 8 nolle prosequi indicating that it would not prosecute 9 defendant s case further); Davis v. Zain, 79 F.3d 18, 19 10 (5th Cir. 1996) (holding that Heck was inapplicable where 11 court vacated defendant s conviction, defendant filed § 1983 12 action while second trial was pending, and court found it 13 highly unlikely that Davis s § 1983 suit will implicate the 14 validity of his pending retrial )). 15 search for support is telling.15 16 See The majority s labored Some cases may present a difficult question as to 17 whether the § 1983 action is fundamentally inconsistent with 18 the defendant s guilty plea. 19 102 F.3d 654, 659 (2d Cir. 1996) (Jacobs, J., concurring) 20 (observing that a conviction on a lesser charge of drug 21 possession might not bar the plaintiff s malicious Cf. DiBlasio v. City of N.Y., 15 The majority observes that at the time he pled guilty Poventud was aware of the Brady violation on which his present lawsuit is based. Maj. Op. at 9 n.2. This statement is puzzling. Of course Poventud was aware of the alleged Brady violation; his conviction had just been overturned on that basis. Surely the point is that he chose to plead guilty to the crime rather than face retrial. 30 1 prosecution claim for drug trafficking).16 2 inquiry may sometimes be needed, see Covington v. City of 3 New York, 171 F.3d 117, 122 (2d Cir. 1999), but Poventud s 4 allocution is clear enough: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 [THE COURT:] A fact-intensive In this case it s charged that on or about March 6, 1997, at approximately 8:40 in the evening, in the area of Oliver Place and Marion . . . Avenue here in the County of the Bronx, you did attempt to steal personal property from another person by using force, in that you used a weapon in your attempt to steal personal property. Are those charges true? THE DEFENDANT: Yes. A 93. Poventud s guilty plea placed him at the scene of the crime of which he was originally convicted, at the same time 16 United States v. Gregg, 463 F.3d 160, 163-65 (2d Cir. 2006) (per curiam) offers another helpful contrast. There, we considered whether a defendant s guilty plea to a state charge of criminal impersonation barred him from raising a Fourth Amendment challenge to a federal firearms charge arising from the same events. Id. at 162. Because the firearm seizure simply was not at issue when the defendant pleaded guilty to criminal impersonation, his guilty plea did not bar a subsequent challenge to the search. Id. at 166. However, were Gregg challenging . . . the discovery of the evidence supporting the criminal impersonation charge to which he pled guilty, then . . . Gregg s Fourth Amendment claims would be foreclosed. Id. (emphasis added). If Poventud had pled guilty to an unrelated charge, or if his § 1983 claim had alleged unrelated police misconduct, then Poventud s § 1983 action might not have undermined his plea, making the case arguably more akin to Gregg and DiBlasio. 31 1 of the same day, wielding a weapon, and holding up the 2 victim. 3 plea into question, challenging the victim s identification 4 of him as one of his attackers, and asserting that Poventud 5 spent the entire evening of March 6, 1997, through the 6 morning of March 7, 1997, at the home of his friend . . . 7 playing video games. 8 vicinity of Oliver Place and Marion Avenue, where the 9 shooting occurred. Poventud s § 1983 action calls that conviction and He was never anywhere near the A 106. Success on Poventud s § 1983 10 action would necessarily imply the invalidity of his 11 outstanding conviction. 12 therefore barred by Heck. 13 14 Heck, 512 U.S. at 487. * * It is * The final section of the majority opinion introduces 15 the idea that Poventud s suit calls into question only his 16 first conviction, not his second. 17 As I have already shown, Poventud s claim is premised on his 18 innocence of a crime to which he pled guilty. 19 32-33. 20 both an action to recover damages for unconstitutional 21 conviction or confinement, as well as an action that does 22 not seek damages directly attributable to conviction or 23 confinement but whose successful prosecution would 24 necessarily imply that the plaintiff s criminal conviction 25 was wrongful. See Maj. Op. at 14-16. See supra at Accordingly, it is foreclosed by Heck, which bars Heck, 512 U.S. at 487 n.6. 32 Poventud s claim 1 does both: [i] he seeks damages directly attributable to his 2 confinement, and [ii] success on his claim would necessarily 3 imply that his conviction (by guilty plea) was wrongful. 4 Poventud cannot evade this fact by [s]eeking damages only 5 for punishment he suffered in excess of the one-year 6 imprisonment he accepted as part of his plea. 7 15 (quoting Appellant Br. 32). 8 9 Maj. Op. at Turning elsewhere, the majority posits the hypothetical of a defendant who is tortured, then confesses, then 10 successfully challenges his conviction, then pleads guilty 11 prior to retrial (under no compulsion), and is then released 12 from prison. 13 ¢ I have three short responses: Such a defendant would not need to rely on § 1983 14 because he could pursue intentional tort claims 15 against the offending officers--state or federal. 16 See N.Y. Ct. Cl. Act § 8 (McKinney) (waiving 17 sovereign immunity); Millbrook v. United States, 18 133 S. Ct. 1441, 1446 (2013) (holding that waiver 19 of sovereign immunity under Federal Tort Claims Act 20 for intentional acts committed by federal law 21 enforcement was not limited to investigative 22 activities). 23 ¢ I agree with the majority that the claim for 24 damages for torture [would] in no way undercut[] 25 the second, and only existing, conviction and hence 33 1 [would] in no way [be] barred by Heck, Maj. Op. at 2 15. 3 would not necessarily imply the invalidity of the 4 defendant s conviction. 5 Cnty. Homicide Bureau, 135 F.3d 254, 257 (2d Cir. 6 1998) (holding that Heck did not bar Fifth 7 Amendment claim for excessive force because a 8 finding that excessive force had in fact been used 9 would not necessarily require invalidation of the That is because a claim for torture damages Cf. Jackson v. Suffolk 10 conviction ). 11 categorically may not do is seek damages for 12 unlawful confinement for criminal conduct that he 13 freely admitted. 14 ¢ However, what the defendant The majority opinion thus illustrates the hazard of 15 creating constitutional law under the influence of 16 a seminar hypothetical. 34

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.