Has all Heck broken loose? Examining Heck's favorable-termination requirement in the Second Circuit after Poventud v City of New York.

• Author: Collins, John P.
• Position: II. The Circuit Split over Custody and Heck's Favorable Termination Requirement B. Circuit Courts Finding That the Spencer "Majority" Permits Exceptions to the Heck Bar in Limited Circumstances 5. The Tenth Circuit through Conclusion, with footnotes, p. 475-502

5. The Tenth Circuit

   In 2010, the Tenth Circuit in Cohen v. Longshore (171) confronted Heck's applicability to false imprisonment claims based on allegedly unlawful immigration detention. The court held that "[i]f a petitioner is unable to obtain habeas relief--at least where this inability is not due to the petitioner's own lack of diligence--it would be unjust to place his claim for relief beyond the scope of [section] 1983." (172) The Tenth Circuit acknowledged the split and analyzed the merits of each side's position. (173) The court could not agree with those circuits holding that the Heck favorable-termination requirement unequivocally prevents [section] 1983 claims where a prisoner's release forecloses a remedy under habeas. Given the Supreme Court's own admission in Muhammad v. Close, (174) and the fact that the prisoner in Heck was still incarcerated, the court considered this to be an unsettled question of law and was not persuaded that Heck must always be applied to petitioners without a habeas remedy. (175) The court further held that this approach "is both more just and more in accordance with the purpose of [section] 1983." (176) But, like the Fourth Circuit in Wilson, the Tenth Circuit applied a "practicality-based" exception and would only lift Hecks bar where the petitioner, for reasons outside of his own control, could not first seek to invalidate the conviction through habeas. (177)

6. The Seventh Circuit

   Finally, in Burd v. Sessler, (178) the Seventh Circuit addressed whether a plaintiff may seek damages against prison officials in their individual capacities for the alleged violation of an individual's right to access the courts without satisfying Heck's favorable-termination requirement. In Burd, the plaintiff alleged that the defendant prison officials deprived him of access to the courts by preventing him from using the prison library during the thirty-day window in which to file a motion to withdraw his guilty plea. (179) Burd never sought to set aside his conviction through federal or state habeas petitions prior to filing his [section] 1983 suit. (180) Burd was released from prison in November 2011, with parole scheduled to end one year later. (181) The district court dismissed Burd's suit, finding the claim barred by Heck. (182)

   The Seventh Circuit affirmed. First, the court held that success on Burd's claim--that he was denied access to the courts by prison officials--would necessarily demonstrate that there was merit to his claim and that he should have been able to withdraw his plea. (183) This result placed Burd's claim squarely in Heck's scope. Second, the court rejected Burd's claim that, because he was no longer in custody, and therefore ineligible for habeas relief, Heck was inapplicable and he should have been permitted to pursue his claim under [section] 1983. (184) However, the court's decision was not premised on a broad reading of Heck's bar; rather, Burd's claim was rejected because he "could have sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing." (185) Adhering to the concerns of the concurring Justices in Spencer, while at the same time refusing to permit an end-run around Heck, the court in Burd took the position that only when a [section] 1983 plaintiff ignores the opportunity to seek collateral relief while incarcerated will his action be barred by Heck upon release. (186)

   Although the circuits have split on the issue of whether Heck's, bar is absolute regardless of the claimant's custodial status, those circuits following Justice Souter's approach have limited their holdings, finding Heck inapplicable most often when habeas relief is unavailable through no fault of the plaintiff. Indeed, no circuit court has read the Spencer concurrences to imply an absolute entitlement to a federal remedy at any time for a constitutional violation. That is, of course, until Poventud.

   C. Heck in the Second Circuit

   The Court in Poventud II claimed that "[u]nder the law of this Circuit, a plaintiff asserting the unconstitutionality of his conviction or incarceration must have access to a federal remedy." (187) In the wake of Poventud II's, vacatur, the question of how far the Second Circuit took Justice Souter's proposed Heck exception remains unanswered. (188) This Section catalogues the application of Heck and Spencer in the Second Circuit prior to the Poventud line of cases, informing the basis for Part IV's discussion.

1. Jenkins v. Haubert

   The Second Circuit's first occasion to analyze the dual application of Heck and Spencer arose in Jenkins v. Haubert. (189) In Jenkins, the court confronted the question of whether a [section] 1983 claim is cognizable "where a prisoner (or former prisoner) alleges a constitutional violation arising out of the imposition of intra-prison disciplinary sanctions that have no effect on the duration of the prisoner's overall confinement." (190)

   Jenkins, a prisoner at Green Haven Correctional Facility, was the subject of two disciplinary proceedings. (191) At the first disciplinary hearing on July 26, 1994, defendant Lieutenant Haubert denied Jenkins' request to call four witnesses on his behalf because none of the individuals had witnessed the events precipitating the hearing. (192) Haubert sentenced Jenkins to thirty days in "keep-lock." (193) After unsuccessfully appealing to the Green Haven superintendent, Jenkins filed a New York C.P.L.R. Article 78 claim alleging that Haubert's refusal to let the four witnesses testify amounted to a violation of Jenkins' due process rights. (194) On November 23, 1994, Jenkins found himself again before Lieutenant Haubert in a second disciplinary hearing. (195) Jenkins requested that Haubert recuse himself on bias grounds, but Haubert denied the request. (196) Haubert found Jenkins guilty and sentenced him to an additional thirty days in keep-lock. (197) Jenkins' administrative appeal was denied as meritless. (198)

   After the New York Supreme Court dismissed his Article 78 claim, Jenkins filed suit under [section] 1983, alleging violations of his Fourteenth Amendment right to due process. (199) The district court dismissed Jenkins' claim, in relevant part, as barred by Heck's favorable-termination requirement. (200) The district court reasoned that the Supreme Court's application of Heck in Edwards v. Balisok (201) foreclosed challenges to intra-prison disciplinary decisions without first showing favorable termination, even though the disciplinary decision in Edwards affected the duration of the sentence. (202)

   The Court of Appeals disagreed, recognizing a distinction between challenges to the conditions of confinement, including disciplinary sanctions such as keep-lock, and challenges to the fact or duration of confinement. (203) The court held that a [section] 1983 claimant challenging only the conditions of confinement does not need to satisfy Heck's favorable-termination requirement because the challenged disciplinary "convictions" were irrelevant to the fact or duration of Jenkins' sentence. (204) The court further reasoned that applying Heck's bar in this situation "would contravene the pronouncement of five justices that some federal remedy--either habeas corpus or [section] 1983--must be available." (205)

2. Leather v. Eyck

   On the same day that Jenkins was issued, the Second Circuit issued Leather v. Eyck, (206) relying on Jenkins' implied secondary holding that a [section] 1983 claim is not barred by Heck when a claimant is not in the custody of the state and therefore has no remedy under habeas. John Leather brought suit alleging that he was selectively prosecuted in retaliation for the lawful exercise of his right to free speech. (207) Leather claimed that members of the Putnam County Sheriff's Department, in retaliation for Leather's opposition of the Department's control of the county's E-911 communications center, waited for him to leave a restaurant where Leather had been dining with his wife for the purpose of affecting an arrest for driving while intoxicated. (208) Leather was successfully prosecuted on a lesser charge, assessed a $300 fine, and had his license suspended for ninety days. (209) Because Leather was never in custody, he never had access to habeas as a means of challenging his conviction. Recognizing that even though the facts of Jenkins presented a challenge to conditions of prison confinement, and thus did not trigger Heck's favorable-termination requirement, the Leather panel nevertheless followed Jenkins' pronouncement that "to apply the Heck rule in such circumstances [where habeas is not available] would contravene the pronouncement of five justices that some federal remedy ... must be available." (210)

3. Green v. Montgomery

   Months later, the Second Circuit reaffirmed the holding in Leather; albeit in dicta in a footnote. In Green v. Montgomery, (211) the court certified questions to the New York Court of Appeals to determine whether the district court's grant of summary judgment was proper under New York law. (212) Defendants, who had won summary judgment in the district court on collateral estoppel grounds, argued in the alternative that permitting Green's [section] 1983 claim to continue would run afoul of Heck because a finding that the officers used excessive force would imply the invalidity of Green's conviction for reckless endangerment. (213) Writing for the panel, Judge Calabresi rejected the defendants' contention, pointing to the holding in Leather. "We have held, however, that Heck acts only to bar [section] 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody)." (214) This was not, however, the basis for the court's ultimate holding, which certified questions to the New York Court of Appeals because the resolution of the federal questions presented in Green's suit turned on unsettled questions of state law...