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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 13, 2024
No. 22-50998
Lyle W. Cayce
____________ Clerk
Erma Wilson,
Plaintiff—Appellant,
versus
Midland County, Texas; Weldon (Ralph) Petty, Jr., sued
in his individual capacity; Albert Schorre, Jr., sued in his individual
capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CV-85
______________________________
Before Richman, Chief Judge, and King, Jones, Smith, Stewart,
Elrod, Southwick, Haynes, Graves, Higginson, Willett,
Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and
Ramirez, Circuit Judges.
Andrew S. Oldham, Circuit Judge, joined by Richman, Chief Judge,
and Jones, Smith, Ho, Duncan, Engelhardt, Wilson, and
Ramirez, Circuit Judges:
Erma Wilson was convicted of cocaine possession and given an eight-year term of supervised release. That felony conviction created an
insuperable obstacle to Wilson’s life-long dream of becoming a nurse. Then,
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many years after her sentence expired, Wilson discovered that her criminal
trial was tainted by egregious due process violations. State law afforded her
numerous avenues for setting aside that conviction, clearing her record, and
achieving her nursing dream. But Wilson chose to forgo all of them. She instead sued in federal court for money damages under 42 U.S.C. § 1983. The
district court dismissed the suit because § 1983 cannot be used to challenge a
“tainted” state-law conviction unless and until that conviction has been set
aside, expunged, or otherwise favorably terminated. See Heck v. Humphrey,
512 U.S. 477 (1994). We affirm.
I
In 2001, a jury in Midland County, Texas, convicted Erma Wilson of
cocaine possession. As a first-time offender, Wilson faced no jail time. She
was instead given an eight-year sentence of community supervision. She appealed to the intermediate court of appeals and lost. See Wilson v. Texas, No.
08-01-00319-CR, 2003 WL 1564237 (Tex. App.—El Paso Mar. 27, 2003, no
pet.). She did not seek review in the Texas Court of Criminal Appeals. She
did not seek review in the Supreme Court of the United States. She did not
seek postconviction relief under Texas law. And she did not seek relief in
federal court under the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”).
Long after her community-supervision sentence expired, Wilson filed
suit in federal court under 42 U.S.C. § 1983. What happened at Wilson’s trial
23 years ago was, according to our panel decision, “utterly bonkers.” Wilson
v. Midland Cnty.,
89 F.4th 446, 459 (5th Cir. 2023), reh’g en banc granted,
opinion vacated,
92 F.4th 1150 (5th Cir. 2024) (mem.). Wilson alleged that, at
the time of her trial, a man named “Weldon ‘Ralph’ Petty Jr. was working
both as a Midland County prosecutor and as a law clerk for the Midland
County district judges.”
89 F.4th at 450 (emphasis in original). When Petty’s
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egregious misconduct came to light, he was forced to surrender his law
license. And the Texas Court of Criminal Appeals found Petty’s misconduct
so egregious as to violate due process. Ex Parte Young, No. WR-65, 137-05
WL 4302528 (Tex. Crim. App. Sept. 22, 2021) (granting relief to capital defendant convicted in Midland County and remanding for a new trial).
Wilson, though, chose not to seek relief from her conviction. That
choice was curious—both because the state courts made clear that their
doors were open to overturn Wilson’s conviction, and because the entire
premise of this lawsuit is that Wilson’s criminal conviction created an insuperable obstacle to her lifelong dream of becoming a nurse. See 89 F.4th at
448. But for whatever reason, Wilson chose to seek only money damages under
42 U.S.C. § 1983 and attorneys’ fees under
42 U.S.C. § 1988. The key
allegation in Wilson’s complaint, which she repeated for emphasis, was that
she was entitled to relief under federal law because her criminal conviction
was “tainted” by violations of the Fourteenth Amendment’s Due Process
Clause.
The federal district court held that, under the Heck doctrine, Wilson
could not press her § 1983 claim unless and until she received a favorable
termination of her cocaine-possession conviction. See Heck, 512 U.S. at 486–
87. A panel of our court affirmed—but emphasized that it did so only because
controlling precedent embraced an “expansive reading” of Heck’s favorable-termination requirement. See Wilson, 89 F.4th at 459 (citing Randell v. Johnson,
227 F.3d 300 (5th Cir. 2000)). The panel urged our en banc court to “relax[]” the favorable-termination requirement by holding that “Heck does not
bar a § 1983 claim when the plaintiff is not in custody.” Id. at 457 (emphasis
in original).
Our en banc court granted rehearing. 92 F.4th 1150 (5th Cir. 2024).
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II
Wilson’s entire case is built on the premise that the favorable-termination requirement applies only to custodial plaintiffs. But the favorable-termination requirement is unconcerned with custody. It is instead concerned
with all § 1983 claims by all civil plaintiffs who seek civil remedies against
defective criminal processes. We first (A) explain the pre-Heck rule and the
so-called “collision” between § 1983 and federal habeas law. Then we (B)
explain Heck itself, which held that favorable termination is an element in a §
1983 claim brought by someone like Wilson—regardless of whether she was,
is, or never could be “in custody.” Finally, we (C) explain that post-Heck
precedent confirms our understanding of the favorable-termination element.
A
The canonical pre-Heck precedent involved a collision between habeas
and § 1983. See Preiser v. Rodriguez, 411 U.S. 475 (1973). That apparently led
some to think that this entire area of law is predicated on such a collision (or
avoiding it). But that is wrong.
Start with Preiser. In that case, New York state prisoners lost good-time credits in prison disciplinary proceedings. Id. at 476. The prisoners
brought § 1983 actions attacking the constitutionality of those proceedings.
Ibid. They sought “injunctive relief to compel restoration of the credits,
which in each case would result in their immediate release from confinement
in prison.” Id. at 476–77. The prisoners’ claims had obvious textual appeal.
After all, the plain text of § 1983 affords injunctive relief to “any citizen of
the United States or other person within the jurisdiction thereof” who suffers a “deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” by a person acting under color of state law.
42 U.S.C.
§ 1983. The New York prisoners were citizens protected by that statute; they
alleged deprivations of their due process rights; and the prison officials who
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allegedly committed those due process violations were acting under color of
New York state law. Thus, if the Supreme Court simply applied the plain text
of § 1983, it would be duty bound to find the prisoners’ claims cognizable.
But the Court rejected that approach. Why? Because a wooden approach to § 1983’s text would pit it against the federal habeas statute,
28 U.S.C. §§ 2241, et seq. The federal habeas statute also affords injunctive
relief to a prisoner who suffers a deprivation of rights secured by federal law
by state actors. See
id. § 2241(c)(3). That is not to say the statutes are duplicative. To the contrary, they are distinct in two important ways. First, the
federal habeas statute is specific: It applies to a specific kind of plaintiff (a
prisoner) seeking a specific and exceedingly powerful injunction (release
from custody1) under specific legal standards unique to habeas (and today
include AEDPA). Section 1983 by contrast is general: It applies to constitutional and statutory claimants generally and affords an array of remedies (including a variety of injunctions but also money damages) without regard to
the common-law and statutory restrictions on habeas. See, e.g., Patsy v. Bd. of
Regents of Fla.,
457 U.S. 496, 501 (1982) (holding that, unlike the federal
_____________________
1
“At the time of § 1983’s adoption, the federal habeas statute mirrored the
common-law writ of habeas corpus, in that it authorized a single form of relief: the
prisoner’s immediate release from custody.” Wilkinson v. Dotson, 544 U.S. 74, 85 (2005)
(Scalia, J., concurring). It is difficult to overstate the power of that habeas injunction:
The singular habeas remedy of release is a powerful one—so powerful that
it transformed the common-law courts from agents of the Crown to
independent guardians of liberty. See, e.g., Darnel’s Case, 3 How. St. Tr. 1
(K.B. 1627). Habeas is so powerful that its 1679 codification in England
was the ‘second magna carta.’ 1 W. Blackstone, Commentaries
*133. And today, the habeas remedy is so powerful that it allows federal
courts to vitiate long-final judgments from co-sovereign state courts
notwithstanding res judicata principles that would otherwise apply.
McNeal v. LeBlanc, 93 F.4th 840, 842 (5th Cir. 2024) (Oldham, J., dissenting from denial
of rehearing en banc).
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habeas statute, § 1983 generally does not require exhaustion of state remedies). Second and relatedly, if § 1983 and habeas afforded prisoners like the
ones in Preiser an unfettered choice of remedies, 100% of them would choose
the former because it would afford an injunction without the additional requirements imposed by federal habeas law (like exhaustion, default, abuse of
the writ, &c.).
The Preiser Court avoided this would-be collision between § 1983 and
habeas by holding the specific controls the general: “Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific
determination must override the general terms of § 1983.” 411 U.S. at 490.
The Court found the prisoners’ suits “fell squarely within [the] traditional
scope of habeas corpus,”
id. at 487, because what they really wanted was to
get released from confinement sooner than they otherwise would. And the
Court explained that habeas corpus was always and forever the only remedy
for a litigant seeking immediate or speedier release or challenging the “fact
or duration of his confinement” in prison.
Id. at 489.
Accordingly, the Preiser Court identified “an implicit exception from
§ 1983’s otherwise broad scope for actions that lie ‘within the core of habeas
corpus.’” Wilkinson, 544 U.S. at 79 (quoting Preiser,
411 U.S. at 487); accord
Heck,
512 U.S. at 481 (explaining that Preiser rendered habeas-type claims
“not cognizable” under § 1983). That is, the Preiser Court avoided a conflict
between § 1983 and habeas by reading an exception into the former for claims
that sound in the latter:
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Universe of all
claims embraced
by Section 1983's
text
Prisoners
seeking
immediate or
speedier
release: Habeas
While Preiser carved habeas claims out from § 1983’s scope, some of
its language created confusion that the Court would later be forced to clarify.
For example, the Preiser Court suggested that any suit attacking the “validity
of the fact or length of [a prisoner’s] confinement” must be brought in habeas. 411 U.S. at 490. Does that include damages claims? The Preiser Court
suggested no because damages are not “an appropriate or available federal
remedy” in habeas.
Id. at 494. But because the New York good-time-credit
plaintiffs sought only injunctive relief, the Preiser Court did not have occasion
to explain how its rule would map onto damages claims.
Ibid.
B
The damages question finally reached the Court in Heck. In that case,
an Indiana state prisoner claimed that county prosecutors engaged in an unlawful investigation and prosecution that tainted his conviction. 512 U.S. at
478–79. He brought a § 1983 action against the officials and sought damages.
Id. at 479. Importantly, the prisoner did not seek injunctive relief or release
from custody. Ibid.
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The Supreme Court held that, when “the invalidity of [a] conviction”
is an element of a § 1983 damages claim, the plaintiff cannot bring suit unless
and until the conviction is favorably terminated. Id. at 481–82. Or put differently, favorable termination is itself an element of any § 1983 claim that seeks
money damages for a tainted conviction. Id. at 484. Until that tainted conviction is favorably terminated—that is, reversed on direct appeal, expunged by
executive process, set aside by a state court of competent jurisdiction, or set
aside by a federal habeas court—the § 1983 damages claim does not accrue.
See id. at 486–87, 489–90. That is because unless and until the tainted conviction is favorably terminated, the facts authorizing the § 1983 damages suit
have not come into existence. See McDonough v. Smith, 588 U.S. 109, 115
(2019) (explaining that the statute of limitations begins to run “when the
plaintiff has a complete and present cause of action” (quotation omitted));
Piotrowski v. City of Houston,
51 F.3d 512, 516 (5th Cir. 1995) (“Under federal
law, the limitations period begins to run the moment the plaintiff becomes
aware that he has suffered an injury or has sufficient information to know that
he has been injured . . . . A plaintiff need not realize that a legal cause of action
exists; a plaintiff need only know the facts that would support a claim.” (quotations omitted)).
The Court based that holding in tort law. See Heck, 512 U.S. at 483
(“[T]o determine whether there is any bar to the present suit, we look first
to the common law of torts.”). Reasoning by analogy, the Court looked to the
cause of action for malicious prosecution, which has always required proof of
favorable termination. See
id. at 484 (citing a tort treatise and multiple state
court decisions). The Court noted that the justifications for this element—
finality, consistency, and a distaste for collateral attacks—were present in
some of its previous decisions in other contexts. See
id. at 484–85 (citing, inter
alia, Teague v. Lane,
489 U.S. 288, 308 (1989); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923)). Accordingly, the Court held that:
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[T]he hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal
judgments applies to § 1983 damages actions that necessarily
require the plaintiff to prove the unlawfulness of his conviction
or confinement, just as it has always applied to actions for malicious prosecution.
Id. at 486. The Court went on to outline what we now call the favorable-termination requirement:
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.
Id. at 486–87.
The Court concluded its analysis with one final thought. The lower
courts had “wrestled” with the question of statutes of limitations. Id. at 489.
But the majority dismissed this concern. Looking again to sources of tort law,
see ibid. (citing a treatise and a state court decision), the Court held that this
use of § 1983’s cause of action would not accrue “until the conviction or sentence has been invalidated.” Id. at 489–90. To the end of that sentence, the
Court appended footnote 10:
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
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prisoners who, because they are no longer in custody, cannot
bring postconviction challenges. Post, at 2379. 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.
Id. at 490 n.10 (emphasis added).
Heck thus broke quite expressly from Preiser. See id. at 481–82. Preiser
suggested that damages claims should always be cognizable in § 1983 because
money claims obviously do not involve “immediate or more speedy release.”
411 U.S. at 494. Heck said “[t]hat statement may not be true, however, when
establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction.” 512 U.S. at 481–82. Instead, Heck held such
claims are “cognizable” under § 1983 when, and only when, plaintiff’s conviction has been favorably terminated. Id. at 486–87. Thus, Heck created a
distinct tort-based schematic for civil claims challenging tainted or defective
criminal proceedings2:
Civil Remedies for
Tainted Criminal
Proceedings
Element 1 of Element 2 of Element X:
Constitutional Constitutional Favorable
Claim Claim Termination
_____________________
2
Heck itself involved one civil remedy (money damages) and one possible outcome
of a criminal proceeding (a conviction). As noted in Part II.C, infra, the Court subsequently
extended Heck to apply not just to money-damages claims but also requests for declaratory
relief. And the Court extended Heck’s favorable-termination element to apply where the
criminal process was tainted and did not lead to a conviction.
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Among the many crucial takeaways from Heck is that this conception
of the favorable-termination requirement is fundamentally different from
Preiser’s. Compare supra, at 7 (Preiser schematic). Favorable termination is an
element of a civil claim, so § 1983 plaintiffs must prove it like any other element of the underlying claim. Not because § 1983 damages would otherwise
conflict with the core of the habeas corpus statute. Cf. Preiser, 411 U.S. at 487,
490. Nor because Roy Heck just so happened to be in custody when he filed
suit. Cf.
id. at 487. But rather because the common law has long precluded
tort suits that would undermine criminal proceedings and judgments, Heck,
512 U.S. at 483–86—a concern that applies regardless of whether the plaintiff
happens to file suit while in or out of custody.
Id. at 490 n.10.
Heck’s understanding of the favorable-termination element has deep
roots in tort law. Three historical points bear emphasis.
First, malicious prosecution provides the only tort remedy for civil
damages arising from errors in a criminal proceeding. See, e.g., James Wallace Bryan, The Development of the English Law of Conspiracy 27–28 (1909) (noting malicious prosecution “complete[ly]
displace[d]” other remedies); Davis v. Brady, 291 S.W. 412, 413 (Ky. 1927)
(describing malicious prosecution as a “disfavor[ed]” tort, which “has been
hedged about by limitations more stringent than those in the case of almost
any other act causing damage to another,” and the only civil remedy for unlawful initiation of criminal proceedings (quotation omitted)). True, there are
other common-law remedies that are sometimes confused with malicious
prosecution. See, e.g., Glidewell v. Murray-Lacy & Co.,
98 S.E. 665, 667 (Va.
1919) (noting the “considerable confusion” (quotation omitted)). Abuse of
process is the most frequent culprit. See
ibid. But abuse of process involves
errors outside the criminal process. An obvious illustration is when a person
commits a crime, is properly prosecuted for the crime, and lawfully convicted
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of the crime—but in the process is beaten or starved or otherwise victimized
in ways unconnected to the underlying criminal charge:
For example, if, after an arrest upon civil or criminal process,
the party arrested in [sic] subjected to unwarrantable insult and
indignities, is treated with cruelty, is deprived of proper food,
or is otherwise treated with oppression and undue hardship, he
has a remedy [for abuse of process] by an action against the officer, and against others who may unite with the officer in doing
the wrong.
Wood v. Bailey, 11 N.E. 567, 576 (Mass. 1887). Abuse of process is a distinct
tort, with distinct elements, because unlike malicious prosecution, it does not
claim the entire underlying criminal proceeding was tainted by legal error.
See Martin L. Newell, Treatise on the Law of Malicious
Prosecution, False Imprisonment, and the Abuse of Legal Process 359 (1892). So when it comes to tort damages for a tainted
criminal proceeding, it’s malicious prosecution or nothing.
Second, the tort of malicious prosecution dates to 17th century England. See, e.g., Savile v. Roberts, 91 Eng. Rep. 1147, 1149–50 (K.B. 1698). The
English courts recognized it because preexisting remedies like the writ of
conspiracy extended only to acquitted defendants. Bryan, supra, at 25–27.
Those preexisting remedies provided hollow solace when malicious prosecutors dropped baseless charges or when the conviction was favorably terminated after trial. Thus, the English courts recognized the tort of malicious
prosecution to compensate for all damages, starting from the initiation of the
baseless criminal case: “The damage a person may sustain by an indictment
may relate either to his person, his reputation, or his property.” Jones v.
Gwynn, 88 Eng. Rep. 699, 700 (K.B. 1713) (emphasis added). Hence, regardless of whether the civil plaintiff is, was, or ever could have been convicted
and placed in custody, tort law provides a remedy for “[a] judicial
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proceeding, instituted by one person against another from wrongful or improper motives, and without probable cause to support it.” Newell, supra,
at 7.
Third, since its inception, the tort of malicious prosecution has included a favorable-termination element: “The proceeding in which [an]
abuse occurred must have terminated[] . . . in favor of the party complaining.” Joel Prentiss Bishop, Commentaries on the NonContract Law 90 (1889). And since the tort’s inception, courts have tied
the favorable-termination element to the prohibition against using a civil remedy to collaterally attack a criminal proceeding: “[M]alicious prosecution action[s] . . . [would not] be permitted to make a collateral attack upon [a]
criminal judgment, which would be ‘blowed off by a side-wind.’” William
L. Prosser, Handbook on the Law of Torts 867 (1941).
C
The Supreme Court’s subsequent decisions underscore this broad,
tort-based conception of the favorable-termination element. Namely, that it
applies to all § 1983 suits challenging a tainted conviction or sentence, regardless of whether the plaintiff is in custody.
Start with Edwards v. Balisok, 520 U.S. 641 (1997), decided three years
post-Heck. Jerry Balisok was found guilty of violating state prison rules and,
as part of his punishment, lost 30 days’ good-time credits.
Id. at 643. Balisok
believed the procedures the prison used in the disciplinary proceeding violated his Fourteenth Amendment due process rights.
Ibid. So he sued for declaratory relief and money damages under § 1983. Id. at 643–44.
What of Heck’s favorable-termination requirement? Balisok argued
the requirement did not apply to his purely procedural claim. See id. at 644–
45 (summarizing the litigating position as, “claim[s] challenging only the procedures employed in a disciplinary hearing [are] always cognizable under §
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1983”). In Balisok’s view, Heck involved a fundamentally substantive claim—
that Heck’s charge and conviction were “undeserved.” Id. at 645 (cleaned
up); see also Restatement (Second) of Torts § 653 (1977) (defining
the elements of a malicious-prosecution claim, including that the proceedings
are instituted “without probable cause”). By contrast, Balisok “posited that
the procedures were wrong, but not necessarily that the result was.” 520 U.S.
at 645. (emphasis added). So, the argument went, Heck’s analogy to the malicious prosecution tort (and thus its favorable-termination element) was a
poor fit for Balisok’s purely procedural claim.3
The Court unanimously rejected that cramped, formalist reading of
Heck. Although Balisok’s due process claim did not resemble the malicious
prosecution tort in all ways, it resembled the tort in the only way that mattered: Success would “necessarily imply the invalidity of the punishment
imposed.” Id. at 645–48; accord
id. at 649–50 (Ginsburg, J., joined by Souter
and Breyer, JJ., concurring); cf. Heck, 512 U.S. 484–87 & nn. 5–6. In other
words, Edwards made clear all § 1983 suits challenging tainted convictions
and sentences must run Heck’s favorable-termination gauntlet—regardless
of whether the alleged taint is procedural or substantive. That is because all
_____________________
3
The dissenting opinion disputes our characterization of the question presented
by Balisok’s argument. Post, at 56 (Willett, J., dissenting). You need not take our word for
it; take Balisok’s. See Brief for Respondent at 8, Edwards v. Balisok, 520 U.S. 641 (1997)
(No. 95-1352),
1996 WL 492348 (“The common law of torts and specifically the malicious
prosecution analogy cited in Heck is inapplicable in a § 1983 challenge to procedural due
process only. The § 1983 Complaint filed by Mr. Balisok is solely about violations of due
process procedure.”); id. at 27–28 (“Petitioners’ argument that a prisoner should be
required to obtain reversal of the results of a hearing before challenging unconstitutional
procedures is not supported by analogy to tort law or § 1983 itself. Unlike a malicious
prosecution claim and the claim at issue in Heck, a claim that prison procedures violate the
Due Process Clause does not directly challenge the merits of the decision in the
proceeding.”). The Court easily rejected this argument, as the dissenting opinion appears
to recognize. See post, at 56 (Willett, J., dissenting).
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such claims, if successful, would undermine the validity and finality of the
criminal proceeding.4
The Supreme Court recently reaffirmed this interpretation of Heck’s
favorable-termination element. In McDonough v. Smith, Edward McDonough
alleged that prosecutor Youel Smith fabricated evidence and used it to pursue
criminal corruption charges against him. 588 U.S. at 112–13. The jury eventually acquitted McDonough. Id. at 113. McDonough then sued prosecutor
Smith under § 1983, claiming Smith’s use of fabricated evidence violated his
constitutional rights. Ibid.
The Court reaffirmed Edwards and held favorable termination was an
element in McDonough’s procedural claim. Id. at 116–17, 125. A claim cannot
accrue until the plaintiff has or should have the means to prove each element,
so it necessarily followed that McDonough’s fabricated-evidence claim could
not accrue until he was acquitted. Id. at 116–17. In so holding, McDonough
highlighted the extent to which the plaintiff’s claim would “challenge the integrity of criminal prosecutions undertaken ‘pursuant to legal process.’” Id.
at 117 (quoting Heck, 512 U.S. at 484); id. at 122 (“It directly challenges—
and thus necessarily threatens to impugn—the prosecution itself.”). Indeed,
McDonough treated this as the essential similarity to common-law malicious
prosecution, id. at 117–19, 122, echoing Heck’s and Edwards’s teaching that
plaintiffs must prove favorable termination whenever they challenge a tainted
conviction or sentence, regardless of the specific underlying constitutional
claim. See id. at 117 n.5 (“[T]wo constitutional claims may differ yet still both
resemble malicious prosecution more than any other common-law tort;
_____________________
4
This point bears repeating. While Heck emphasized the specific cause of malicious
prosecution, Edwards held that all § 1983 suits that necessarily imply the invalidity of a past
conviction or sentence must achieve favorable termination, whether such suits are wholly
analogous to malicious prosecution or not.
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comparing constitutional and common-law torts is not a one-to-one matching
exercise.”).
McDonough is also instructive in two other ways.
First, it amplified Heck’s tort-element schematic—not Preiser’s
habeas-collision schematic. Following Heck’s lead, the McDonough Court
emphasized that favorable termination was a necessary element of
McDonough’s § 1983 claim—so much so that his limitations period commenced from the date of favorable termination (here, his acquittal). Id. at 114,
119–20 (noting the limitations period begins when a cause of action is complete). And further mirroring Heck, not Preiser, McDonough emphasized the
common law of torts has long required favorable termination in analogous
contexts. Id. at 114–19.
True, the favorable-termination requirement obliquely protects the
habeas statute by prohibiting custodial plaintiffs from collaterally attacking
their convictions. Id. at 119. But it sweeps far wider. That’s because favorable
termination is an element of all § 1983 claims challenging tainted criminal
prosecutions, convictions, and sentences, not just those filed by litigants subject to the habeas statute. That is why the Court distinguished between
Heck’s tort principle and Preiser’s habeas principle, which are separate and
independent justifications for requiring favorable termination: “This [favorable-termination] conclusion follows both from the rule for the most natural
common-law analogy (the tort of malicious prosecution) and from the practical considerations that have previously led this Court to defer accrual of
claims that would otherwise constitute an untenable collateral attack on a
criminal judgment.” McDonough, 588 U.S. at 114 (emphasis added). In this
way, it vindicates the broader principles justifying the rule at common law:
protecting the finality of criminal judgments, preventing inconsistent civil
and criminal proceedings, and avoiding friction between state and federal
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courts. Id. at 117–18. And of course, finality, consistency, federalism, and
comity are threatened whenever one brings a civil challenge to a criminal conviction, sentence, or prosecution. Accord Savory v. Cannon, 947 F.3d 409, 431
(7th Cir. 2020) (en banc) (“McDonough confirms that habeas exclusivity is
just one part of the rationale for Heck’s holding. Concerns about comity, finality, conflicting judgments, and ‘the hoary principle that civil tort actions
are not appropriate vehicles for challenging the validity of outstanding criminal judgments’ all underpin Heck’s favorable termination rule.”); see also
Vega v. Tekoh,
597 U.S. 134, 151–52 (2022).
Second, and relatedly, McDonough undermined (if not completely
eliminated) any suggestion that the favorable-termination element is required
only when the § 1983 plaintiff is in custody. McDonough filed suit outside of
custody—three years after he had been acquitted of all charges. Id. at 113.
McDonough was not even in custody before or during his trial. Ibid. Yet the
Court nevertheless applied the favorable-termination rule. Relying on this aspect of McDonough, the en banc Seventh Circuit observed the following:
Because McDonough (who was not held in custody during his
trials) was acquitted rather than convicted, his section 1983
claim would not have infringed upon the exclusivity of the habeas corpus remedy. The Court nevertheless indicated that the
other concerns discussed in Heck still guided the outcome, and
no section 1983 claim could proceed until the criminal proceeding ended in the defendant’s favor or the resulting conviction
was invalidated within the meaning of Heck . . . . [Accordingly,]
Heck controls the outcome where a section 1983 claim implies
the invalidity of the conviction or the sentence, regardless of
the availability of habeas relief.
Savory, 947 F.3d at 418, 430; accord
id. at 421–22. McDonough thus followed
Heck’s footnote 10 and held the favorable-termination requirement does not
begin and end with the habeas statute, which is why it “is not rendered
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inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Heck, 512 U.S. at 490 n.10. So even if it was proper for an inferior court
to discount Heck’s footnote 10 as “infamous” and “the very quintessence of
dicta” when the Court decided it, post, at 37 (Willett, J., dissenting),
McDonough makes the Court’s instructions impossible to ignore.
Nor is McDonough aberrational in this regard. Three years later, in
Thompson v. Clark, 596 U.S. 36 (2022), the Court once again subjected a non-custodial plaintiff to the Heck bar. The prosecutor dismissed all charges
against Thompson, so he obviously was not in custody.
Id. at 39. But he still
had to show favorable termination.
Id. at 44. Today, it should be clear beyond
cavil that the favorable-termination element applies regardless of whether the
§ 1983 claimant was, is, or never could be in custody.
*
In sum, Heck’s favorable-termination requirement is rooted in tort law
principles that apply both inside and outside of prison—not habeas principles. That’s why favorable termination is an element of any and all § 1983
claims challenging tainted convictions, sentences, or prosecutions. It’s also
why Heck’s footnote 10 followed logically from the Court’s tort-based reasoning. See Savory, 947 F.3d at 421–22. Custodial status, in other words, matters not.
III
Applying these principles here, Wilson’s § 1983 claim is not
cognizable.
Wilson seeks money damages and declaratory relief for her “tainted”
felony conviction and resulting sentence. Wilson, 89 F.4th at 451 & n.8. Specifically, she alleges that one man (Petty) served as both a law clerk and a
prosecutor, which created “a structurally defective system that violated her
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constitutional right to a criminal proceeding free of actual or perceived bias.”
Id. at 451. And as Wilson herself recognizes, success on her § 1983 suit would
“necessarily imply” the invalidity of her criminal proceedings and punishment. See Heck,
512 U.S. at 487; McDonough, 588 U.S. at 119
(“[McDonough’s] claims challenge the validity of the criminal proceedings
against him in essentially the same manner as the plaintiff in Heck challenged
the validity of his conviction.”); Savory,
947 F.3d at 417 (“There is no logical
way to reconcile those claims with a valid conviction.”); Appellant’s EB Brief
at 16 (“[T]here is no dispute about Heck’s threshold inquiry: whether Wilson’s claim implies the unconstitutionality of her conviction and sentence. It
does.”). Thus, favorable termination is an element of her § 1983 due process
claim. See Edwards, 520 U.S. at 644–48. But Wilson has not yet won favorable
termination, so her claim has not accrued.
As an initial matter, it bears emphasis that a non-custodial prisoner
sentenced only to community supervision has numerous avenues for pursuing the favorable termination required by Heck:
• Direct review in the Texas Court of Criminal Appeals. See Tex.
Code Crim. Proc. art. 4.04, § 2.
• Certiorari in the United States Supreme Court. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821);
28 U.S.C. § 1257.
• Postconviction relief under Texas law. See Tex. Code Crim.
Proc. art. 11.072, § 2(b).
• Postconviction relief under federal law. See Sammons v. Rodgers,
785 F.2d 1343, 1345 (5th Cir. 1986) (per curiam); 17B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4262 (3d ed. Oct. 2023 update).
Wilson pursued none of these options.
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True, some of these avenues have time limits that elapsed before Wilson discovered the basis for her claim. But that is irrelevant for two reasons.
First, it is not clear that the deadlines are as strict as the dissenting
opinion believes them to be. Take for example the 30-day deadline that applies to noticing an appeal to the Texas Court of Criminal Appeals. See Tex.
R. App. P. 68.2(a). The Court of Criminal Appeals has held that one remedy available in state habeas is “to return Applicant to the point at which he
can give notice of appeal”—even if the deadline expired years ago. Mestas v.
State, 214 S.W.3d 1, 2 (Tex. Crim. App. 2007) (quotation omitted).
Second, in all events, Wilson still has open avenues under state law—
years after completing her sentence. The Governor could pardon Wilson
with a recommendation from the Board of Pardons and Paroles. See Tex.
Const. art. IV, § 11. And Wilson could obtain state habeas relief. See Tex.
Code Crim. Proc. art. 11.072, § 2(b) (“At the time the application is
filed, the applicant must be, or have been, on community supervision . . . .”
(emphasis added)); Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim.
App. 2008) (noting that Article 11.072 encompasses those “who ha[ve] completed a term of community supervision”). Given the low-level nature of her
underlying offense, the sympathetic nature of this case, and the attention resulting from her appeal, she might well find relief. See En Banc Brief of Texas
as Amicus Curiae in Support of Defendant-Appellee at 12 (“Texas has conceded that habeas relief is proper where Petty was, in fact, inappropriately
involved in criminal cases.”). Again, Wilson pursued none of these options.
Moreover, nothing in this suit prevents Wilson from pursuing favorable termination upon dismissal. As we have explained, “a Heck dismissal is a
dismissal without prejudice.” Cook v. City of Tyler, 974 F.3d 537, 539 (5th Cir.
2020) (per curiam). And the district court correctly entered a withoutprejudice dismissal here. Practically, that means Wilson is free to secure
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favorable termination and then re-raise her claims under § 1983. Until then,
her claim is not cognizable and must be dismissed.
IV
Wilson offers five responses that merit discussion. Most relitigate
questions that Heck already answered. Some create more issues than they
purport to solve. And others would have us exceed our inferior-court commissions. None avails.
A
First, Wilson contends that her § 1983 suit does not threaten a collision with the federal habeas statute. After all, Wilson is not “in custody,”
28 U.S.C. § 2254(a), and she seeks only money damages and declaratory relief—neither of which is available under the habeas statute. This matters, we
are told, because Preiser’s favorable-termination rule was imposed to prevent
collisions between § 1983 and § 2254. Under this line of thinking, success on
Wilson’s claims would imply her conviction’s invalidity, so such claims are
not cognizable while she is in prison. But after she is released, any risk of collision between habeas and § 1983 disappears. Thus, the argument goes,
Heck’s bar has no purchase on non-custodial plaintiffs.
With respect, the above reading of Heck is wrong. Heck did not extend
Preiser’s habeas-collision rationale to the rest of § 1983. See Part II, supra;
Heck, 512 U.S. at 481 (“This case is clearly not covered by the holding of
Preiser.”). Rather, Heck noted that Preiser contained inconsistent and shallow
dicta on Heck’s question presented. Heck,
512 U.S. at 482 (“[W]e think the
dicta of Preiser to be an unreliable, if not an unintelligible, guide.”). Instead
of parsing Preiser’s dicta, Heck performed a comprehensive and independent
analysis of § 1983—an analysis that relied on the common law of torts, wholly
on the common law of torts, and nothing but the common law of torts. Id. at
483–90. The upshot? Whenever a plaintiff seeks money damages under § 1983
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for a tainted conviction, sentence, or prosecution (as in Heck, Edwards,
McDonough, Thompson, and this case), one required element in that backwards-looking tort claim is favorable termination.5
The favorable-termination avenues named in Heck underscore the
depth of the rule’s tort roots. Heck highlighted four avenues. A § 1983 plaintiff can show her tainted conviction or sentence has been (1) “reversed on
direct appeal,” (2) “expunged by executive order,” (3) “declared invalid by
a state tribunal,” or (4) “called into question by a federal court’s issuance of
a writ of habeas corpus.” 512 U.S. at 487. Notably, the first three have nothing to do with custody. This case proves the point. Cf. Appellant’s EB Brief
at 34 (“§ 2254 never covered Wilson’s claim.”). Wilson was sentenced to
zero days’ imprisonment, yet she was nevertheless able to challenge the sentence on direct appeal (avenue 1). Even now, almost twenty years after her
community-supervision sentence ended, she can still pursue executive clemency (avenue 2) and state post-conviction relief (avenue 3). Or consider
Thompson v. Clark. There, the Court added a fifth favorable-termination avenue: that plaintiff’s prosecution ended without a conviction.
596 U.S. at 39.
That’s yet another favorable-termination avenue that has nothing to do with
custody or habeas.
Nor is it surprising that 80% of the favorable-termination avenues require no overlap with habeas or custody. Recall that the favorable-
_____________________
5
Conversely, a suit seeking prospective injunctive relief does not implicate Heck’s
favorable-termination requirement (or, for that matter, Preiser’s habeas-channeling
rationale). Such a suit challenges only the future enforcement of a law and does not result
in “immediate or speedier release into the community” or “necessarily imply the
invalidity” of a prior conviction or sentence. Heck, 512 U.S. at 481; cf. Wilkinson,
544 U.S.
at 82 (noting that the “prisoners’ claims for future [injunctive] relief . . . are yet more distant
from” the core of Heck (emphasis in original)). Insofar as our pre-Wilkinson cases said
otherwise, the Supreme Court has since clarified the law.
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termination requirement originated in the common law of torts. See Parts
II.B–C, supra. And since its inception, the rule has safeguarded a host of values that are implicated regardless of whether a § 1983 plaintiff attacks her
criminal process or punishment from in or out of custody. Because Heck is
rooted in tort, not habeas, it’s only natural that Heck’s favorable-termination
rule transcends custodial status.
Look to how Justice Souter criticized the majority opinion in Heck itself. Justice Souter (joined by three justices) would have analyzed the interplay between § 1983 and § 2254 to determine which statute should give way
to the other. See Heck, 512 U.S. at 493–502 (Souter, J., concurring in the judgment). But as Justice Souter noted, the majority opinion rejected that
approach:
[I]nstead of analyzing the statutes to determine which should
yield to the other at this intersection, the Court appears to take
the position that the statutes were never on a collision course in the
first place 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. at 492 (Souter, J., concurring in the judgment) (emphasis added). And
later in the same concurrence, Justice Souter lamented the majority’s reliance upon the common law of torts “alone.” See ibid. (“[Unlike the majority,] I do not think that the existence of the tort of malicious prosecution alone
provides the answer.”).
Put simply: Heck and Preiser announced distinct rules rooted in distinct genealogies. True, Preiser and Heck are superficially similar in the sense
that both charted the boundaries of § 1983. But the similarities end there.
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Heck relied on tort law, while Preiser relied on habeas. That’s why Heck applies outside of prison, while Preiser mostly does not.
B
Wilson next contends that we have overread Heck. She points to later
cases like Spencer v. Kemna, 523 U.S. 1 (1998), and Muhammad v. Close,
540
U.S. 749 (2004) (per curiam). See, e.g., Appellant’s EB Brief at 11–13. Our
now-vacated panel opinion echoed this criticism. See Wilson, 89 F.4th at 453–
55. In our view, neither Spencer nor Close undermines Heck’s tort-law
foundation.
In Spencer, the Court held that a prisoner could bring a petition for
writ of habeas corpus even though he was released from prison before his petition was adjudicated. See 523 U.S. at 3–7, 14–18. Because the case involved
a § 2254 habeas petition, the majority opinion obviously had no occasion to
consider the elements of a nonexistent § 1983 claim. Nevertheless, three nonprecedential opinions joined by five justices argued that § 1983’s favorable-termination requirement should not extend to non-custodial plaintiffs. See
Spencer, 523 U.S. at 19 (Souter, J., concurring, joined by O’Connor, J., Ginsburg, J., and Breyer, J.);
id. at 21 (Ginsburg, J., concurring);
id. at 25 n.8 (Stevens, J., dissenting).
Six years later in Close, the Supreme Court discussed but did not revisit the immaterial question of whether Heck applied to non-custodial plaintiffs. See 540 U.S. at 752 n.2 (“Members of the Court have expressed the
view that unavailability of habeas for other reasons may also dispense with
the Heck requirement . . . This case is no occasion to settle the issue.” (citing
Justice Souter’s concurrence in Heck and Justice Ginsburg’s concurrence in
Spencer)).
The non-custodial question posited but not answered in Spencer and
Close is irrelevant. That is because Heck is not a case about custody; it is a
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case about tort law. And tort law applies inside and outside of prison. See Heck,
512 U.S. at 490 n.10. That is why Heck framed its accrual rule as one focused
on the elements of a § 1983 action for damages arising from a tainted conviction—rather than a rule focused on custody, habeas, or anything else. See
Heck,
512 U.S. at 486-87 (describing the scope of its rule as any claim 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”). And even if there was some debate on any of
this—such that the issue was not settled in 2004, when Close was decided—
the debate is settled in 2019, when McDonough was decided. In the latter case,
the Court applied § 1983’s favorable-termination requirement to a non-custodial plaintiff. And that makes perfect sense because, again, the elements
of a tort claim have nothing at all to do with the custodial status of the
claimant.
True, Justice Souter thought custody should’ve mattered in Heck.
And in Spencer and Close, several justices reiterated their defense of Justice
Souter’s view of the world. But that does not change Heck’s tort-law holding.
Nor does it empower our inferior court to disregard Supreme Court precedent, including McDonough. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20
(1997) (“[I]t is this Court’s prerogative alone to overrule one of its
precedents.”).
C
Wilson next argues that subjecting non-custodial plaintiffs to a
favorable-termination requirement would read an atextual exhaustion requirement into § 1983. See Appellant’s EB Brief at 20–22. The Supreme
Court has long held that § 1983 does not require exhaustion of state remedies.
See Patsy, 457 U.S. at 501; Knick v. Township of Scott,
588 U.S. 180, 185
(2019). But Heck imposed no such thing. Rather, Heck and its progeny have
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been clear that favorable termination is an “element” of all § 1983 claims
challenging tainted criminal proceedings. See, e.g., Heck, 512 U.S. at 484.
Without it, a claim is not “cognizable”—which is logically, legally, and practically different than saying the claim is not “exhausted.”
Id. at 483; accord
Edwards,
520 U.S. at 649. Heck said it best: “We do not engraft an exhaustion
requirement upon § 1983, but rather deny the existence of a cause of action.”
512 U.S. at 489. So, absent favorable termination, Wilson doesn’t even have
a claim to exhaust.
D
Wilson’s next response also focuses on § 1983’s text. She says that
§ 1983’s language does not include a favorable-termination requirement, so
subjecting her to one would violate the statute’s “broad textual command.”
Wilson, 89 F.4th at 450, 459; Appellant’s EB Brief at 1, 6, 29.
There’s quite a bit wrong with this argument.
To begin, even Heck’s fiercest critics agree the favorable-termination
requirement applies to custodial plaintiffs—though it appears nowhere in the
text of § 1983. Even Justice Souter agreed with that limitation, which, for
him, followed not from the text of § 1983 but from the interaction between
§ 1983 and other federal statutes like § 2254. See Heck, 512 U.S. at 493–502
(Souter, J., concurring in the judgment). Nor does Preiser’s habeas carveout
appear anywhere in the text of § 1983 (or § 2254 for that matter). Some might
prefer to read § 1983’s text as if the habeas statutes do not exist, but no Supreme Court justice has ever endorsed such a position. See, e.g., Nance v.
Ward, 597 U.S. 159, 167 (2022) (“So we have not read § 1983 literally in the
prisoner context.”).
Regardless, at least after McDonough, we have no discretion in the
matter. “[The] favorable-termination requirement, the [Heck] Court explained, applies whenever ‘a judgment in favor of the plaintiff would
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necessarily imply’ that his prior conviction or sentence was invalid.”
McDonough, 588 U.S. at 119 (emphasis added) (quoting Heck,
512 U.S. at
487). Whenever means whenever. And nothing about the favorable-termination element is “rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Heck,
512 U.S. at 490 n.10; accord Savory,
947
F.3d at 420 (“[Heck] expressly rejected a rule tied to the end of custody.”).
Indeed, the only entities that can say otherwise are Congress and the Supreme Court.
But even if we could ignore all relevant Supreme Court precedents
and start over from the text and nothing but the text, it is unclear that Heck
conflicts with § 1983’s text. The Civil Rights Act of 1871 provides a cause of
action to vindicate certain constitutional torts. See, e.g., Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Heck in turn defined the contours of some of those torts, as they were understood when Congress passed
the statute. And it is not as if Heck plucked its understanding of the tort element from thin air. As explained above, favorable termination has been part
of the relevant tort since its inception in the 17th century. See Part II.B, supra.
Even if we could hold that Heck misunderstood the relevant text and
history, and even if we could follow § 1983’s “textual command” as Wilson
suggests, she might not like where that path ends. Scholars vigorously debate
the original meaning of § 1983, with some arguing that a proper understanding of its history would require us to look to state law on official immunities,
causation, damages, statutes of limitations, and causes of action. See Tyler B.
Lindley, Anachronistic Readings of Section 1983, 75 Ala. L. Rev. (forthcoming 2024). That might be right or wrong, but one thing is clear: Section 1983’s
meaning is not easily or quickly deciphered. Cf. Randall Bridwell &
Ralph U. Whitten, The Constitution and the Common
Law 97 (1977) (criticizing modern lawyers’ “constant insistence that the
language of the cases of the period and the writings about its jurisprudence
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actually means what one thinks it should mean by modern standards, rather
than what it seems to mean as practiced by people of the period”). Given the
scope of this debate, and the fraught nature of the historical inquiry, it is particularly perilous to ignore the Supreme Court’s precedent governing the
statutory text.
Putting aside all of the above, Wilson’s just-the-text approach spawns
more questions than it answers. Wilson suggests we should dispense with
Heck’s bar when habeas is “unavailable” or when the § 1983 suit would not
otherwise “conflict” with § 2254. Appellant’s EB Brief at 8, 14–15, 18–19.
But what’s the limiting principle? Could a prisoner serve a 40-year prison
sentence, get out of jail, then bring a § 1983 claim? Whether he had pursued
a direct appeal? What about federal habeas relief? State habeas? Clemency?
Or consider those still in custody. Could a prisoner wait out AEDPA’s
one-year statute of limitations, then file under § 1983? See 28 U.S.C.
§ 2244(d)(1). Would habeas be “unavailable” at that point? What about
AEDPA’s other requirements? Could the prisoner claim habeas is “unavailable” because he can’t satisfy AEDPA’s relitigation bar? See
id. § 2254(d).
What if the prisoner deliberately bypassed state procedural rules and procedurally defaulted the relevant claim? See id. § 2254(b); cf. Fay v. Noia,
372
U.S. 391, 438 (1963) (embracing deliberate-bypass standard for procedural
default), overruled by Wainwright v. Sykes,
433 U.S. 72 (1977), and abrogated
by Coleman v. Thompson,
501 U.S. 722 (1991). When would these claims accrue for statute of limitations purposes? And wouldn’t much of this litigation
be frivolous, duplicative of previous criminal appeals, and corrosive to the
precise finality, consistency, and comity concerns that drove the Heck Court?
Cf. 512 U.S. at 484–86.
Other circuits attempt to avoid any such gamesmanship through a
“diligence” requirement. E.g., Wilson v. Johnson, 535 F.3d 262 (4th Cir.
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2008); Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592 (6th Cir.
2007); Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019) (en banc); Cohen
v. Longshore,
621 F.3d 1311 (10th Cir. 2010); see Appellant’s EB Brief at 14–
15, 31–32. But “diligence” is mentioned nowhere in § 1983. So in the name
of vindicating statutory text, Wilson would have us invent an atextual requirement. We reject the invitation.
E
Finally, Wilson claims it would be unfair to force her back into the very
state system that injured her. And, if she’s unable to win favorable termination there, Wilson says it would be doubly unfair that her § 1983 claim might
never accrue. Appellant’s EB Brief at 21, 29. Our now-vacated panel opinion
made a version of this argument based on Justice Souter’s complaints in
Heck. Wilson, 89 F.4th at 453 (“The alternative—the blanket denial of any
federal forum to those whose federal rights have been violated ‘would be an
untoward result.’” (quoting Heck,
512 U.S. at 500 (Souter, J., concurring in
judgment))).
It is inaccurate to call the favorable-termination element “the blanket
denial of any federal forum.” Ibid. Under Heck, favorable termination is one
element of a § 1983 claim. Unless and until the plaintiff can prove that element, the plaintiff has no claim. That is not the denial of any forum; it’s a
specification of the federal claim.
True, Heck and its progeny offer five avenues for proving that element—and all but one must be done outside of federal court: (1) direct appeal
in state court, (2) postconviction relief in state court, (3) discretionary relief
by state executive, (4) conclusion of criminal proceedings with no conviction
in state court, and (5) § 2254 relief in federal court. See Heck, 512 U.S. at 486–
87; Thompson, 596 U.S. at 44. But that does not deny anyone a “federal
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forum.” It means there is no § 1983 claim to vindicate in any forum unless
and until the would-be plaintiff can show favorable termination.
In any event, it is not at all clear that Wilson ever suffered “the blanket
denial of any federal forum.” Wilson, 89 F.4th at 453. After exhausting her
state remedies at some point during her eight-year supervised-release sentence, it appears Wilson could have sought relief in federal court under
§ 2254. That is because we have held that a suspended sentence still operates
to restrict a defendant’s liberty and thus satisfies the custody requirement for
federal habeas. See Sammons,
785 F.2d at 1345; accord 17B Wright & Miller § 4262 (agreeing with that conclusion). So too with a defendant on
parole. See, e.g., Jones v. Cunningham,
371 U.S. 236 (1963). And so too with
an unexpired supervised-release sentence. See Ojo v. INS,
106 F.3d 680, 681
& n.2 (5th Cir. 1997) (relying on Jones). Wilson cannot choose to forgo these
arguments and then complain that she was denied a federal forum. 6
_____________________
6
The dissenting opinion goes a step further and contends that § 1983 guarantees
Wilson “a federal-court remedy for what she had endured.” Post, at 64 (Willett, J.,
dissenting) (emphasis added). This contention ignores myriad federal-courts doctrines.
True, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), Chief Justice Marshall
famously said “where there is a legal right, there is also a legal remedy by suit or action at
law, wherever that right is invaded.” But Marbury’s “legal right” was a statutory—not a
constitutional—one. So Marbury tells us nothing about constitutional remedies. And “[i]n
numerous situations, there is no remedy for an acknowledged violation of constitutional
rights.” Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer,
& David L. Shapiro, Hart & Wechsler’s The Federal Courts and the
Federal System 330 (7th ed. 2015) (emphasis added). Sovereign immunity, qualified
immunity, and the political question doctrine are just some of the ways that legal rights do
not always give rise to federal-court remedies. See
ibid. Limits on federal-court jurisdiction
and limits on equitable remedies are others, as Marbury itself illustrates. See Marbury,
5
U.S. (1 Cranch) at 180 (denying mandamus, despite Marbury’s legal right to a
commission); Hart & Wechsler, supra, at 330 (noting the Constitution mentions only
two remedies: habeas corpus and just compensation for takings). Retroactivity doctrines
are still another. See, e.g., Edwards v. Vannoy,
593 U.S. 255 (2021) (declining to retroactively
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As for Wilson’s concern that she might not be able to show favorable
termination now, and hence might not be able to prove her § 1983 claim, Heck
itself acknowledged this possibility. The Heck Court emphasized that § 1983
does not provide a remedy for all constitutional violations. 512 U.S. at 490
n.10; see also Spencer,
523 U.S. at 17 (“This is a great non sequitur, unless one
believes (as we do not) that a § 1983 action for damages must always and everywhere be available.”). If it did, the Court’s immunity doctrines would make
no sense. See, e.g., Pierson v. Ray,
386 U.S. 547 (1967) (holding § 1983 didn’t
abolish immunities). The same goes for the Court’s direction that state court
decisions can have preclusive effect on § 1983 claims. See, e.g., Allen v.
McCurry,
449 U.S. 90, 103–05 (1980); San Remo Hotel, L.P. v. City & Cnty.
of San Francisco,
545 U.S. 323, 341–44 (2005).
All of these doctrines point in the same direction, as the en banc Seventh Circuit held: Section 1983 does not give special priority to a federal forum. See Savory, 947 F.3d at 419–20. When invoked to challenge a tainted
criminal proceeding, § 1983 includes a favorable-termination requirement.
Plaintiffs can satisfy that element in federal court, in state court, or in no
court (e.g., through executive expungement).
True, favorable termination is sometimes difficult to satisfy. Undoubtedly, as Wilson worries, some plaintiffs will not be able to do so. Heck
explains, though, why that high bar must be cleared before seeking civil
money damages from a tainted criminal proceeding. The Court sought to
avoid parallel litigation on the issue of guilt, preclude the possibility of
_____________________
apply the Sixth Amendment right to a unanimous jury verdict). The unavailability of a
federal cause of action is yet another. See, e.g., Hernandez v. Mesa, 589 U.S. 93, 103–06
(2020) (declining to extend implied right of action against federal officers). Nor can it be
said that § 1983 even guarantees a federal forum—to say nothing of a federal-court remedy.
See, e.g., Parratt v. Taylor,
451 U.S. 527 (1981) (holding prisoner’s claim for deprivation of
property cannot proceed in federal court).
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conflicting resolutions arising out of the same proceeding, prevent collateral
attacks on criminal convictions through the vehicle of civil suits, and respect
concerns for comity, finality, and consistency. Heck, 512 U.S. at 485–86; see
also McDonough, 588 U.S. at 117–19. We cannot ignore these instructions.
…
As cases like this one illustrate, there are real dangers and real abuses
in our criminal justice system. That is why our law gives people like Erma
Wilson so many opportunities to favorably terminate their criminal proceedings. Some favorable-termination requirements afforded by state law (like the
availability of state postconviction review and a gubernatorial pardon) remain
available to people like Wilson long after their convictions become final. And
if Wilson successfully avails herself of those remedies against her criminal
conviction, she will have recourse to still more remedies afforded by civil
law—including § 1983—to seek compensation. Those civil remedies are vitally important because crooked, conflicted, and malicious prosecutors
should be forced to pay for the damages they inflict on innocent Americans.
But it is also important that civil plaintiffs do not put the cart before
the horse. Criminal proceedings and criminal judgments require criminal
remedies—not civil ones. If and when Ms. Wilson pushes aside her criminal
conviction, then but only then can she come back to civil court and ask for
money. Until then, her § 1983 suit must be dismissed.
AFFIRMED.
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22-50998
Haynes, Circuit Judge, joined by Stewart and Southwick, Circuit
Judges, concurring in part:
I concur in the judgment and with the majority opinion’s conclusion
that Wilson’s § 1983 claim is not cognizable because she has not pursued
other avenues currently available to challenge her conviction. Specifically,
Texas law allows people who are “or have been[] on community supervision”
to file an application for state habeas corpus. Tex. Code Crim. Proc. art.
11.072, § 2(b) (emphasis added). Wilson acknowledges that this state habeas
remedy is still available to her, but she has not filed an application.
Accordingly, I agree with the majority opinion’s decision to affirm the
dismissal without prejudice, which gives Wilson the opportunity to pursue
favorable termination through state habeas proceedings.
The dissenting opinion suggests that I am arguing that someone filing
a § 1983 claim must always pursue state remedies first. But that is not what
I am saying. I am saying that the requirement in Heck v. Humphrey, 512 U.S.
477 (1994) that a conviction be terminated in some way includes the ability to
go to the state. That is, one method to satisfy Heck is that the conviction is
“declared invalid by a state tribunal authorized to make such a
determination.”
Id. at 486-87. Because she has the ability to go to the state
of Texas, the notion that Wilson does not have the ability to terminate her
conviction is not accurate. Accordingly, I concur in the judgment.
33
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22-50998
Don R. Willett, Circuit Judge, joined by King, Elrod, Graves,
Higginson, and Douglas, Circuit Judges, dissenting.
“A fair trial in a fair tribunal is a basic requirement of due process.”1
The Constitution’s fair-trial requirement is Con Law 101—a bedrock
due-process guarantee. In fact, the Framers cared so much about the sanctity
of the criminal jury trial that our Constitution specifically mentions it
“twice—not only in the Sixth Amendment, but also in Article III.” 2 And to
underscore they really meant it—that criminal-justice fairness is
sacrosanct—the Founding generation doubled down, enshrining a host of
procedural non-negotiables in multiple provisions of the Bill of Rights.3
Indeed, more words are devoted to We the People’s fair-trial right than to
any other constitutional guarantee. Safe to say, the Framers were fixated on
the adjudication of criminal charges—both the power to bring them and the
process for resolving them—and spilled a lot of ink to ensure that the
Constitution’s inviolable fair-trial guarantee is no “empty promise.”4
During our Second Founding almost a century later, Congress,
besides passing the Fourteenth Amendment, also acted statutorily with a
sweeping textual command in the Civil Rights Act of 1871 that rights-
_____________________
1
In re Murchison, 349 U.S. 133, 136 (1955); see also U.S. Const. amend. XIV § 2;
U.S. Const. amend. V.
2
Ramos v. Louisiana, 590 U.S. 83, 89 (2020).
3
See U.S. Const. amend. IV, V, VI, and VIII.
4
Ramos, 590 U.S. at 98. Strange, then, that the jury-trial right is largely illusory
today. See Wilson v. Midland County,
89 F.4th 446, 451, reh’g en banc granted, opinion
vacated,
92 F.4th 1150 (5th Cir. 2023) (“In America’s criminal justice system, few cases
actually go to trial. The system does not just include plea bargaining; the system is plea
bargaining. In Texas, 94% of state convictions result from a guilty or no contest plea. In
federal courts, the rate is even higher: in fiscal year 2021, 98.3% of offenders pleaded guilty,
an all-time high.” (citations omitted)).
34
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No. 22-50998
violators “shall be liable to the party injured.” 5 These lofty words, however,
are just that—pretty parchment promises—if the judicial fine print of madeup caveats, exceptions, and qualifiers ensures that abuses (and abusers) get a
pass, even for the most egregious, conscience-shocking deprivations.
…
It took Erma Wilson 20 years to learn of the brazen prosecutorial
misconduct that laid waste to her fundamental fair-trial right—long after she
had been convicted, lost her direct appeal, and served her suspended
sentence.6 The stunning revelation came to light in 2021, when USA Today
broke the story of a Texas death-row inmate, Clinton Lee Young, whose
prosecutor, Weldon “Ralph” Petty Jr., had been moonlighting as a paid law
clerk to the judge overseeing Lee’s capital trial. Turns out, prosecutor Petty
had been clerking for multiple Midland County judges for almost two
decades, seeking favorable rulings in judges’ public courtrooms by day and
surreptitiously drafting those rulings in judges’ private chambers by night.7
This was a DEFCON 1 legal scandal—a prosecutor being on the
judge’s payroll—and Wilson learned of Petty’s dual-hat arrangement along
with the rest of the nation. But for her, it was personal—Petty had been
working both sides of the bench during her prosecution. Wilson responded
to the belated revelation by suing for damages under 42 U.S.C. § 1983,
alleging that Petty’s covert side hustle—acting as both accuser and de facto
_____________________
5
42 U.S.C. § 1983.
6
At the 12(b)(6) stage, we take Wilson’s well-pleaded allegations as true. Sewell v.
Monroe City Sch. Bd., 974 F.3d 577, 582 (5th Cir. 2020).
7
Jessica Priest, Moonlighting Prosecutor Sent Texas Man to Death Row; 17 Years
Later, He Could Get a New Trial, USA Today (Feb. 4, 2021, 9:12 AM),
https://www.usatoday.com/in-depth/news/investigations/2021/02/04/texas-death-row-inmate-could-get-new-trial/4255647001/.
35
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adjudicator—flattened her due process rights under the Fourteenth
Amendment.8
The district court dismissed Wilson’s claim based on Heck v.
Humphrey, a 1994 Supreme Court case in which the plaintiff–prisoner
brought a § 1983 damages suit analogous to a malicious-prosecution claim.9
In Heck, the Court “famously—and unanimously—established the
favorable-termination rule: A state inmate’s § 1983 suit is ‘not cognizable’
unless the inmate first shows a ‘favorable termination’ to his criminal
conviction or confinement.”10 However, “the Court splintered 5–4 over the
rule’s reach and rigidity.”11
Today’s en banc case poses one—and only one—question: Does Heck
v. Humphrey’s favorable-termination rule apply to noncustodial § 1983
plaintiffs? This question has been hotly debated in the lower courts since
Heck was decided three decades ago. Footnoted dicta and vehement
concurrences from various Supreme Court justices over the years have
played starring roles. The unsurprising upshot is a deep and enduring circuit
_____________________
8
Specifically, she alleged that that she “was a victim of Petty’s conflict of interest”
because County records show that Petty invoiced the judge “for work he performed on
[her] case while he was employed by the DA’s office,” Petty’s unique formatting and style
was used on the abstract of disposition and judgment in her case, Petty had ex parte
communications with the judge about her case, and on information and belief Petty worked
as a law clerk to the judge on her case throughout her criminal proceedings, advising the
judge while he was advising prosecutors in the DA’s office.
9
512 U.S. 477 (1994).
10
Wilson, 89 F.4th at 451 (quoting Heck,
512 U.S. at 487).
11
Id.
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split.12 Indeed, we are the second circuit to take the issue en banc in recent
years.13
My take: The majority opinion in Heck had no reason to address
whether the rule applied to plaintiffs who have already completed their
sentences because the plaintiff in Heck was still in prison. But in infamous
footnote 10—the very quintessence of dicta—the Court mused that the
favorable-termination requirement should also reach plaintiffs who are no
longer incarcerated.14 The Supreme Court’s later admonition in District of
Columbia v. Heller about latching onto unargued, unbriefed, unconsidered
pronouncements has never rung more true: “It is inconceivable that we
would rest our interpretation . . . upon such a footnoted dictum in a case
where the point was not at issue and was not argued.” 15
Justice Souter’s Heck concurrence, joined by three of his colleagues,
took dead aim at footnote 10. He remarked that noncustodial plaintiffs should
not have to prove favorable termination because they fall “outside the
intersection of § 1983 and the habeas statute,” and the majority’s view
“would be to deny any federal forum” to plaintiffs who could not possibly
obtain favorable termination through federal habeas because the federal
_____________________
12
See Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998); Huang v. Johnson,
251
F.3d 65, 73–75 (2d Cir. 2001); Gilles v. Davis,
427 F.3d 197, 209–10 (3d Cir. 2005); Wilson
v. Johnson,
535 F.3d 262, 265–68 (4th Cir. 2008); Powers v. Hamilton Cnty. Pub. Def.
Comm’n,
501 F.3d 592, 601–03 (6th Cir. 2007); Savory v. Cannon,
947 F.3d 409, 430–31
(7th Cir. 2020); Entzi v. Redmann,
485 F.3d 998, 1003 (8th Cir. 2007); Nonnette v. Small,
316 F.3d 872, 875–78 (9th Cir. 2002); Cohen v. Longshore,
621 F.3d 1311, 1315–17 (10th Cir.
2010).
13
See Savory, 947 F.3d at 411.
14
Heck, 512 U.S. at 490 n.10.
15
554 U.S. 570, 625 n.25 (2008).
37
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habeas statute requires an individual to be “in custody” to file a claim. 16 Four
years later, the justices continued their debate in concurrences and a dissent
in Spencer v. Kemna,17 where Justice Ginsburg, who had joined the majority
in Heck, wrote that she had thought better of it: “Individuals without
recourse to the habeas statute because they are not ‘in custody’ . . . fit within
§ 1983’s ‘broad reach.’”18
These opinions have teed up spirited lower-court debates over
whether Heck reaches noncustodial plaintiffs. And notably, the Supreme
Court, in its own words, has yet to “settle the issue.”19 As for our circuit, we
held in 2020 that noncustodial plaintiffs must show favorable termination in
a sparsely reasoned per curiam opinion that was barely over two pages long. 20
In taking this case en banc, we had an opportunity to correct that flawed
precedent. Regrettably, we have squandered that opportunity.
With boundless respect for my eminent colleagues, the plurality21 has
disfigured Heck to impose a favorable-termination requirement as an
“element” for “all § 1983 claims by all civil plaintiffs who seek civil remedies
against defective criminal process.”22 This holding is doubly violative:
_____________________
16
Id. at 500 (Souter, J., concurring in judgment).
17
523 U.S. 1 (1998).
18
Id. at 21–22 (Ginsburg, J., concurring) (quoting Heck,
512 U.S. at 503
(Souter, J., concurring in judgment)).
19
Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004).
20
Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (per curiam).
21
I use the word “plurality” because Judge Oldham’s opinion (supported by
nine of eighteen judges) is one vote shy of majority support, and Judge Haynes’s
concurrence (joined by two judges) concurs “in the judgment.”
22
Ante, at 4 (emphasis in original).
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Americans robbed of their constitutional rights are also robbed of any federal
forum to vindicate those rights.
I respectfully dissent and would hold that Heck’s favorable-termination rule applies only to custodial § 1983 plaintiffs.
I
To set the stage for explaining how the plurality goes awry, I’ll first
discuss the “two most fertile sources of federal-court prisoner litigation”23—
28 U.S.C. § 2254 and 42 U.S.C. § 1983—which lie at the core of this dispute.
Notably, both statutes “provide access to a federal forum for claims of
unconstitutional treatment at the hands of state officials, but they differ in
their scope and operation.”24 Next, I’ll walk through the pre-Heck cases that
explore the overlap of the two statutes. The pre-Heck landscape shows that
the Court was deeply concerned with litigation at the intersection § 2254 and
§ 1983. In fact, the Court had been engaged in a years-long project to delimit
their respective scopes. And contrary to the plurality’s assertion,25 the Court
maintained this concern in Heck itself.26 A full understanding of both the
statutes and the caselaw will inform how Heck should be rightly read.
A
Section 2254 is the federal habeas corpus statute. Habeas has deep
roots in our nation’s history27 and “traditionally has been accepted as the
_____________________
23
Heck, 512 U.S. at 480.
24
Id.
25
Ante, at 7–13.
26
Heck, 512 U.S. at 480–83.
27
U.S. Const. art. I, § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it.”); see also Preiser v. Rodriguez, 411 U.S. 475, 485 (1973) (“The original view of a
39
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No. 22-50998
specific instrument to obtain release from unlawful confinement, or to deliver
someone from unlawful custody.”28 While habeas corpus is a powerful device
“for safeguarding individual freedom against arbitrary and lawless state
action,”29 in its codified modern form, federal habeas involves a formidable
thicket of doctrines.30 And importantly, it requires prisoners to exhaust state
remedies before seeking federal habeas relief.31
Not so with § 1983. Written in sweeping terms against a backdrop of
horrific violence, terror, and subjugation, this statute of constitutional
accountability was meant to open courthouse doors, not bolt them shut.
Unlike § 2254, § 1983 is worded quite open-endedly, providing a broad cause
_____________________
habeas corpus attack upon detention under a judicial order was a limited one. The relevant
inquiry was confined to determining simply whether or not the committing court had been
possessed of jurisdiction. But, over the years, the writ of habeas corpus evolved as a remedy
available to effect discharge from any confinement contrary to the Constitution or
fundamental law, even though imposed pursuant to conviction by a court of competent
jurisdiction.” (internal citations omitted)); Brown v. Davenport, 596 U.S. 118, 128 (2022)
(“Over the centuries a number of writs of habeas corpus evolved at common law to serve a
number of different functions. But the most notable among these writs was that of habeas
corpus ad subjiciendum, often called the ‘Great Writ.’ When English monarchs jailed their
subjects summarily and indefinitely, common-law courts employed the writ as a way to
compel the crown to explain its actions—and, if necessary, ensure adequate process, such
as a trial, before allowing any further detention.” (internal citations omitted)).
28
39 Am. Jur. 2d Habeas Corpus § 1; see also habeas corpus, Black’s Law
Dictionary 850 (12th ed. 2024) (“A writ of habeas corpus is “employed to bring a
person before a court, most frequently to ensure that the person’s imprisonment or
detention is not illegal.”).
29
39 Am. Jur. 2d Habeas Corpus § 1.
30
See John H. Blume, AEDPA: The “Hype” and the “Bite”, 91 Cornell L.
Rev. 259, 270–71 (2006) (summarizing some of AEDPA’s key provisions); Marshall J.
Hartman & Jeanette Nyden, Habeas Corpus and the New Federalism After the Anti-Terrorism
and Effective Death Penalty Act of 1996,
30 J. Marshall L. Rev. 337, 352–386 (1997)
(explaining the changes made by AEDPA).
31
28 U.S.C. § 2254(b)(1)(A).
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of action to “[e]very person” who is subject to a “deprivation of [their] rights,
privileges, or immunities secured by the Constitution and laws.” Its
“language is unsubtle and categorical, seemingly erasing any need for
unwritten, gap-filling implications, importations, or incorporations.”32
Section 1983 was passed as part of the Civil Rights Act of 1871, which “was
the congressional response to widespread lawlessness in the southern states
and the inability and unwillingness of state and local officials to curb it.” 33
Importantly, it was “[b]ecause Congress lacked confidence in state
institutions, including state courts, [that] it explicitly gave federal courts
jurisdiction over the new civil action.” 34 The Reconstruction era was a sea
change in terms of federal-court access to redress constitutional violations:
“From the Judiciary Act of 1789 on, access to the lower federal courts had
been largely restricted to citizens exposed to the possible prejudices of
tribunals of foreign states. The prevailing assumption had been that the state
courts were the appropriate forum for the enforcement of federal law.”35 But
with the passage of the transformative new civil action, Congress gave § 1983
plaintiffs a direct path to federal court that did not require the exhaustion of
state remedies first. In doing so, Congress put federal courts between states
and their citizens—and it did so on purpose.
_____________________
32
Rogers v. Jarrett, 63 F.4th 971, 979–80 (5th Cir. 2023) (Willett, J.,
concurring), cert. denied,
144 S. Ct. 193 (2023).
33
1 Steven H. Steinglass, Section 1983 Litigation in State and
Federal Courts § 2:2 (2023); see also Virginia v. Black, 538 U.S. 343, 353 (2003)
(describing the passage of the Civil Rights Act of 1971, which was known as the Ku Klux
Klan Act).
34
Steinglass, supra note 33, § 2:2.
35
II. The Background of Section 1983, 90 Harv. L. Rev. 1137, 1150 (1977).
41
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B
Because § 1983 lacks an exhaustion requirement, prisoners have an
understandable “impulse to find a way out of habeas and into § 1983.”36
Partially driven by this reality, before Heck, the Court had already begun to
delineate the scopes of § 1983 and § 2254. Early in that project, the Court in
Cooper v. Pate blessed the use of § 1983 for state prisoners challenging the
conditions of their confinement.37
A few years later, Preiser v. Rodriguez presented a tougher question:
whether prisoners could use § 1983 instead of habeas to obtain an injunction
to restore their good-time credits, and thus obtain earlier (or immediate)
release from prison.38 If the prisoners succeeded, the judgment would require
that they be released sooner.39 This was problematic because habeas corpus
was the traditional way prisoners could obtain release from prison. 40 The
Court thought that even though the prisoners “came within the literal terms
of” § 1983, the “broad” text was “not conclusive” of whether the prisoners
could proceed via § 1983.41 Because the federal habeas corpus statute is
“specific,” and § 1983 is “general,” the Court held that “Congress has
determined that habeas is the appropriate remedy for state prisoners
attacking the validity of the fact or length of their confinement.” 42
_____________________
36
Nance v. Ward, 597 U.S. 159, 178 (2022) (Barrett, J., dissenting).
37
378 U.S. 546 (1964) (holding that a § 1983 action alleging that a prisoner was
denied privileges enjoyed by other prisoners stated a cause of action).
38
411 U.S. 475, 487 (1973).
39
Id.
40
Id. at 489.
41
Id. at 488–89.
42
Id. at 489–90.
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In the next case, Wolff v. McDonnell, prisoners challenged the validity
of the procedures used to deny their good-time credits and sought damages
through § 1983.43 Because the claim was “for using the wrong procedures,
not for reaching the wrong result,” and it “did not call into question the
lawfulness of” the prisoner’s “continuing confinement,” the Court
determined that the § 1983 damages claim could proceed.44
It may already be apparent from this brief recounting that in all these
cases, the Court was intensely focused on whether a prisoner’s § 1983 claim
“call[ed] into question the lawfulness of [his or her] conviction or
confinement” and would thus necessitate release from prison, either earlier
or immediately.45 If so (Preiser), a prisoner could not seek § 1983 damages,
but if not (Cooper and Wolff), a prisoner could seek damages. The reason for
this is clear: A challenge that would imply the invalidity of a prisoner’s
conviction or confinement “is just as close to the core of habeas corpus as an
attack on the prisoner’s conviction, for it goes directly to the constitutionality
of his physical confinement itself and seeks either immediate release from
that confinement or the shortening of its duration.”46
These cases also share another feature: They all involve challenges
from prisoners. The only reason the Court got into the business of defining
the respective scopes of § 2254 and § 1983 in the first place is because of their
overlap, as both statutes “provide access to a federal forum for claims of
unconstitutional treatment at the hands of state officials.”47
_____________________
43
418 U.S. 539, 554–55 (1974).
44
Heck, 512 U.S. at 482–83.
45
Id. at 483.
46
Preiser, 411 U.S. at 489.
47
Heck, 512 U.S. at 480.
43
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Respectfully, the plurality misses both of these points. It claims that it
is “wrong” to “think that this entire area of law is predicated on such a
collision” between these two statutes.48 But a careful reading of the pre-Heck
cases demonstrates that the Court was focused on specifying when a prisoner
could and couldn’t choose § 1983, and its reasoning always involved the
overlap between the statutes.
Habeas is the elephant in the room whenever the scope of § 1983 is at
issue because § 1983, absent carefully specified limits,49 could sideline the
federal habeas statute. But to say that some limits on § 1983 are necessary
(because the specific controls the general) is not to establish the validity of
the plurality’s proposed limitation.50 And the justification of the plurality’s
limitation is wanting. It is not based on conflict with another statute. It is
seemingly based on protecting a set of values (comity, finality, etc.) that, for
153 years now, § 1983 has always opposed—and intentionally so.
II
Of course, none of the cases discussed above answered the question
teed up in Heck: whether a prisoner who does not seek “immediate or
speedier release, but monetary damages” may bring a § 1983 damages claim
when a successful civil action would, in reality, attack the validity of the
prisoner’s conviction or confinement.51 The plurality today asserts that the
Heck Court held that “favorable termination is itself an element of any § 1983
_____________________
48
Ante, at 4.
49
And it is seemingly based on a particular element of a particular tort, even though
the use of tort analogs requires careful selection of the closest analog to the particular claim
at issue. More on this in a bit.
50
Ante, at 26.
51
Heck, 512 U.S. at 481, 490.
44
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claim that seeks money damages for a tainted conviction.” 52 But Heck’s
holding was far more limited. It applies only to prisoners whose claims are
closely analogous to malicious prosecution. This is evident because: (1) Heck
was limited to addressing whether prisoners could use § 1983 to challenge
their convictions or confinement; (2) the Heck opinion is framed in terms of
the overlap between § 1983 and § 2254, which indicates the Court remained
acutely concerned about the statutes’ respective scopes in Heck; and (3) tort
law merely served as a “starting point”53 in Heck to determine the elements
for the prisoner-plaintiff’s specific claims, and it would make little sense to
apply its holding more broadly.
A
A tell-tale point about Heck: The word “prisoner” pervades the
Court’s opinion. Roy Heck was in prison when he brought his § 1983 claim,
so the only question before the Court involved custodial plaintiffs. In fact, the
Court’s opinion opens with this unsubtle reference to Heck’s custodial
status: “This case presents the question whether a state prisoner may
challenge the constitutionality of his conviction in a suit for damages under
42 U.S.C. § 1983.”54 The Court went on to say that it was applying a
“principle” that concerns what actions are appropriate to challenge
“outstanding criminal judgments.” It explained,
We think the hoary principle that civil tort actions are not
appropriate vehicles for challenging the validity of outstanding
criminal judgments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness of his
_____________________
52
Ante, at 8.
53
Heck, 512 U.S. at 483.
54
Id. at 478 (emphasis added).
45
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conviction or confinement, just as it has always applied to
actions for malicious prosecution.55
A judgment is “[a] court or other tribunal’s final determination of the rights
and obligations of the parties in a case.” 56 And the word “outstanding”
means “unpaid, uncollected.”57 It is only while a prisoner is still serving his
sentence that it can be said to be “outstanding.” Once a prisoner has paid his
debt to society by completing his sentence, the judgment is no longer
“outstanding.” Thus, the use of the term “outstanding criminal judgments”
indicates that the Court’s holding only applies to prisoners—those who have
not yet fully served their sentences.
This straightforward understanding of the Court’s holding aligns with
the rest of the opinion. Immediately after stating its holding, the Court
explains the effect of its decision—again referring only to prisoners: “Thus,
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,” and if so, it must then determine
whether favorable termination has been met.58 Given that Heck presented a
question about prisoners, it is no surprise that the effect of the holding—as
the Court itself describes it—is limited to prisoners.
Footnote 10 changes nothing. Footnote 10’s statement that “the
principle barring collateral attacks . . . is not rendered inapplicable by the
fortuity that a convicted criminal is no longer incarcerated” 59 is the apex of
_____________________
55
Id. at 486.
56
Judgment, Black’s Law Dictionary 1005 (12th ed. 2024).
57
Outstanding, Black’s Law Dictionary 1327 (12th ed. 2024).
58
Heck, 512 U.S. at 487 (emphasis added).
59
Id. at 490 n.10.
46
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dicta—stray musings about something that “was not at issue and was not
argued.”60 Our precedent puts it this way: “A statement is dictum if it could
have been deleted without seriously impairing the analytical foundations of
the holding and being peripheral, may not have received the full and careful
consideration of the court that uttered it.”61 As Judge Easterbrook remarked
about footnote 10, “a clearer example of dicta is hard to imagine,” because
the “footnote concerns a subject that had not been briefed by the parties, that
did not matter to the disposition of Heck’s claim, and that the majority
thought would not matter to anyone, ever.”62
Indeed, it is worth emphasizing that in Heck itself, the Court rejected
an argument that it should rely on dicta from Preiser because that opinion
“had no cause to address, and did not carefully consider, the damages
question” presented in Heck.63 Precisely the same can be said of Heck’s
footnote 10.
This case demonstrates why we do not rely on dicta, “an unreliable, if
not an unintelligible, guide.”64 The Heck Court assumed (wrongly) that
custodial status would not matter to anyone. But to Wilson, who only learned
of Petty’s concealed conflict 20 years after her conviction, custodial status
matters greatly. Without presentation by the parties of the issue in a case
where custodial status made a difference, it’s no wonder the Heck Court did
_____________________
60
Heller, 554 U.S. at 625 n.25.
61
U.S. Bank Nat’l Ass’n v. Verizon Commc’ns., Inc., 761 F.3d 409, 427–28 (5th Cir.
2014) (emphasis added) (quotation marks omitted) (quoting Int’l Truck & Engine Corp. v.
Bray,
372 F.3d 717, 721 (5th Cir. 2004)); see also United States v. Texas,
97 F.4th 268, 321
(5th Cir. 2024) (Oldham, J., dissenting) (faulting reliance on Supreme Court dicta).
62
Savory, 947 F.3d at 432 (Easterbrook, J., dissenting).
63
Heck, 512 U.S. at 482.
64
Id.
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not have the full picture.65 Whether favorable termination should apply to
noncustodial plaintiffs was not the question presented—much less
answered—in Heck.
B
We should also notice that the Heck Court introduced its opinion by
explaining that “[t]his case lies at the intersection of the two most fertile
sources of federal-court prisoner litigation—the Civil Rights Act of 1871, Rev.
Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas statute,
28 U.S.C. § 2254.”66 This sentence shows that the Court viewed the case in
terms of the overlap between the two statutes, which of course, has to do with
prisoner litigation. After explaining that Preiser and Wolff did not answer the
question at issue, the Court also framed the question using the terminology
that it had used in its previous opinions that had addressed the overlap
between the statutes: “[T]he question posed by § 1983 claims that do call
into question the lawfulness of conviction or confinement remains open.”67 The
Court situated its analysis in Heck within its long-running project to
determine when a prisoner may use § 1983 and when he must use § 2254.
The plurality ignores the Court’s framing of the issue when it argues
that the Heck holding is based only in tort law.68 The plurality proceeds as if
Preiser’s discussion of the overlap between § 1983 and § 2254 has been
_____________________
65
See United States v. Sineneng-Smith, 590 US 371, 375 (2020) (“in both civil and
criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters the parties
present.” (quoting Greenlaw v. United States,
554 U.S. 237, 243 (2008)).
66
Heck, 512 U.S. at 480 (emphasis added).
67
Id. at 481–83 (emphasis added).
68
Ante, at 8.
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overruled.69 Not so. The Heck Court only declined to follow Preiser in a
narrow respect—it thought that Preiser’s comment in dicta that damages
should always be available under § 1983 when the prisoner is not seeking
release from prison was unreliable because it didn’t account for the situation
where a successful claim would imply the invalidity of a prisoner’s conviction
or confinement, and would thus show that the prisoner should be released
sooner.70 The broader points articulated in Preiser about the overlap between
§ 1983 and § 2254 in the prisoner context have not been abandoned by the
Court.71
The Heck Court was clear that Heck was the latest in a line of cases
that dealt with the overlap between § 1983 and § 2254. And the Court was
acutely focused on delineating when a prisoner could use § 1983 instead of
§ 2254.
C
In contrast to what I have explained thus far, the plurality misreads
Heck to be “based” only in “tort law.” While I agree that tort law had a role
in Heck’s analysis, the plurality elevates tort law to be the sine qua non of Heck.
Respectfully, the plurality misunderstands Heck and distorts the Court’s
precedents on the use of common-law analogs to interpret § 1983 by
extending the Heck bar without regard to the proper analogous tort.
Tort law came into play in Heck because of the nature of § 1983, which
has long been recognized to “create[] ‘a species of tort liability.’” 72 Because
_____________________
69
Ante, at 10–11.
70
Heck, 512 U.S. at 481–82.
71
Preiser, 411 U.S. at 483–89.
72
Manuel v. City of Joliet, 580 U.S. 357, 370 (2017) (quoting Imbler v. Pachtman,
424 U.S. 409, 417 (1976)).
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§ 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred,’” 73 the Court
determined in Carey v. Piphus that the common law of torts is “the
appropriate starting point for the inquiry under § 1983”74 because it
implements the “principle that a person should be compensated fairly for
injuries caused by the violation of his legal rights.”75 On a motion to dismiss
a § 1983 claim, the threshold inquiry “requires courts to ‘identify the specific
constitutional right’ at issue.”76 The next step is to “determine the elements
of, and rules associated with, an action seeking damages for its violation.” 77
It is at this second step that common-law analogs play a role—they help a
court determine what a plaintiff must plead in order to survive dismissal.
When courts look for a common-law analog, “[s]ometimes . . . review
of [the] common law will lead a court to adopt wholesale the rules that would
apply in a suit involving the most analogous tort. But not always.” 78 Instead,
the Court has instructed that “[c]ommon-law principles are meant to guide
rather than control the definition of § 1983 claims, serving ‘more as a source
of inspired examples than of prefabricated components.’” 79 In fact, even if
“the common law does not recognize an analogous cause of action,” courts
must still “adapt[] common-law rules of damages to provide fair
compensation for injuries caused by the deprivation of a constitutional right”
_____________________
73
Albright, 510 U.S. at 271 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)).
74
435 U.S. 247, 257 (1978).
75
Id.
76
Manuel, 580 U.S. at 370 (quoting Albright, 510 U.S. at 271).
77
Id.
78
Id. (internal citations omitted).
79
Id. (emphasis added) (quoting Hartman v. Moore, 547 U.S. 250, 258 (2006)).
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because otherwise “[t]he purpose of § 1983 would be defeated.”80
Accordingly, the Court has said, “to further the purpose of § 1983, the rules
governing compensation for injuries caused by the deprivation of
constitutional rights should be tailored to the interests protected by the
particular right in question.”81
In sum, the Supreme Court has not viewed the common law as a
straitjacket that restricts the reach of § 1983, but as a “starting point,”82
“guide,” or “source of inspired examples”83 that helps courts create rules
that further the purpose of § 1983—to compensate a person injured by the
violation of his legal rights. Respectfully, the plurality loses sight of this,
making a three-fold error: (1) misreading Heck as adopting the elements of a
specific common-law tort as a blanket rule for a huge swath of § 1983 claims;
(2) misusing common-law analogs as the be-all-end-all rather than a starting
point; and (3) misinterpreting Heck’s use of the common law to restrict
access to § 1983 to as many plaintiffs as possible. This approach is
incompatible with the logic of carefully selecting a precise analog for a
specific constitutional violation.84 And it is not what the Court did in Heck.
_____________________
80
Carey, 435 U.S. at 258–59.
81
Id. at 259.
82
Id. at 258.
83
Manuel, 580 U.S. at 370 (citation omitted).
84
See Carey, 435 U.S. at 257–58 (“In some cases, the interests protected by a
particular branch of the common law of torts may parallel closely the interest protected by
a particular constitutional right.” (emphasis added)); Heck, 512 U.S. at 483 (The rules
developed by the common law of torts “provide the appropriate starting point for the
inquiry under § 1983” (emphasis added) (citation omitted)); Manuel,
580 U.S. at 370
(referring to the need to “pinpoint[]” the “specific” constitutional right); McDonough v.
Smith,
588 U.S. 109, 116 (2019) (quoting Heck and Manuel for the proposition that
common-law tort principles are guiding rather than controlling).
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In Heck, the Court used the common-law tort of malicious prosecution
as its “starting point” for two reasons. First, malicious prosecution provided
the “closest analogy”85 to Heck’s claims that the defendants had unlawfully
and arbitrarily investigated and arrested him, knowingly destroyed
exculpatory evidence, and caused illegal and unlawful evidence to be used at
his trial.86 And second, “it permits damages for confinement imposed
pursuant to legal process.”87 Favorable termination came into play only
because it is an element of the common-law tort of malicious prosecution.
The elements of a malicious prosecution claim are: (1) “the suit or
proceeding was instituted without any probable cause”; (2) “the motive in
instituting the suit was malicious, which was often defined in this context as
without probable cause and for a purpose other than bringing the defendant
to justice”; and (3) “the prosecution terminated in the acquittal or discharge
of the accused.”88 The Court adopted these elements “wholesale”89 for Roy
Heck’s claim. The plurality today recognizes that these elements were
adopted wholesale, but then makes an unfounded leap to conclude that the
favorable-termination requirement must be met for “any § 1983 claim that
seeks money damages for a tainted conviction.”90
Malicious prosecution makes little sense as a common-law analog for
Wilson’s claims. Nothing about her allegations resemble the elements of
_____________________
85
Heck, 512 U.S. at 484.
86
Id. at 479, 484.
87
Id.
88
Thompson v. Clark, 596 U.S. 36, 44 (2022) (internal quotation marks and citation
omitted).
89
See Manuel, 580 U.S. at 370 (citing Heck as an example of a court adopting the
common-law rules for a specific analogous tort “wholesale”).
90
Ante, at 8 (emphasis added).
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malicious prosecution. Wilson is not challenging the probable cause for her
arrest, nor is she arguing that the motive in instituting her prosecution was
malicious. She is instead bringing a procedural due process claim, asserting
that a fundamental requirement of due process—a fair trial in a fair tribunal
with a judge who is independent of the prosecution—was violated. Malicious
prosecution with its favorable-termination requirement is no analog, much
less a close one.
D
To sum up, the question presented in Heck was whether prisoners
could bring a claim that would necessarily challenge their convictions under
§ 1983. The Court was deeply concerned about the answer to that question
because if the answer was yes, prisoners with outstanding criminal judgments
could choose § 1983 over § 2254 and bring claims that, if successful, would
require the prisoner’s release, which is “as close to the core of habeas corpus
as an attack on the prisoner’s conviction.”91
To answer the presented question, the Court had to determine the
reach of § 1983. Because § 1983 is not a source of substantive rights, it looked
to the common law as a “starting point” or “guide” and determined that
malicious prosecution was the right fit for Heck’s claims.
In what was clearly off-the-mark dicta, the Court mused that favorable
termination might apply more broadly, but dicta does not bind us. And, as the
next section will address, the Court still hasn’t resolved whether nonprisoners must prove favorable termination—a point the Court has explicitly
acknowledged. Regardless, malicious prosecution is a bad fit for Wilson’s
_____________________
91
Preiser, 411 U.S. at 489.
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claims, and we should not try to shoehorn the favorable-termination
requirement where it does not fit.
Amidst the careful parsing of caselaw, it is important not to lose sight
of what is at stake: the justification for stripping an explicitly conferred
statutory cause of action to right constitutional wrongs. Comparing the
justification for a custodial plaintiff to the one offered by the plurality is
instructive. To the custodial litigant who is told that habeas is the only path,
the message is reasonable: A canonical tool of statutory construction—that
the general gives way to the specific—requires that your presumptive § 1983
cause of action give way to the habeas statute. By contrast, to the
noncustodial litigant who is told that she is at the mercy of the state, the same
state that nuked her constitutional rights, the message is unintelligible: Her
statutorily conferred cause of action has been judicially negated to protect a
set of values—comity, finality, and consistency—that § 1983 is necessarily
and always in opposition to. That those values apparently only become
relevant when you have the dual misfortune of the government violating your
rights and then successfully hiding its dirty work only make the
rationalization more dismaying.
III
I’ll now address the three post-Heck cases that the plurality believes
“underscore [its] broad, tort-based conception of the favorable-termination
element. Namely, that it applies to all § 1983 suits challenging a tainted
conviction or sentence, regardless of whether the plaintiff is in custody.” 92
With greatest respect, the plurality is wrong on all three.
_____________________
92
Ante, at 13.
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A
The first is Edwards v. Balisok.93
Jerry Balisok was a prisoner who was punished for violating state
prison rules—part of that punishment was the “deprivation of 30 days’ good-time credit he had previously earned toward his release.” 94 He appealed
within the prison’s appeal system, but his appeal was rejected because he
failed to comply with the procedural requirements. 95 Balisok then filed a
§ 1983 damages action “alleging that the procedures used in his disciplinary
proceeding violated his Fourteenth Amendment due process rights.”96 His
allegations were “similar to those alleged by the plaintiff in Heck,” as he
claimed the hearing officer concealed exculpatory evidence and refused to
ask certain questions of witnesses, all of which prevented Balisok from
presenting exculpatory evidence.97
Balisok’s “claim posited that the procedures were wrong, but not
necessarily that the result was.”98 That said, Balisok’s challenge, if
successful, would necessarily imply that 30 days of his confinement would be
invalid, which would in turn imply the invalidity of his outstanding criminal
judgment and mean that he’d need to be released sooner.99 Note that Balisok
was a prisoner at the time he brought his § 1983 action, so just like in Heck,
Edwards was a case where a prisoner with an “outstanding criminal
_____________________
93
520 U.S. 641 (1997).
94
Edwards, 520 U.S. at 643.
95
Id.
96
Id.
97
Id. at 644.
98
Id. at 645.
99
Id. at 645–46.
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judgment[]”100 was trying to use § 1983 to get out of prison sooner. And the
Court already made clear in Preiser that earlier release from prison is the
domain of habeas.101
The plurality asserts that Balisok was arguing that “Heck’s analogy to
the malicious prosecution tort . . . was a poor fit for Balisok’s purely
procedural claim.”102 But the Court in Edwards never actually addressed
those arguments; instead, it just assumed, without analysis, that the
favorable-termination requirement applied.103 Indeed, the terms “malicious
prosecution,” “common-law,” and “analog” are never mentioned in
Edwards. The better interpretation of Edwards is that Balisok was a prisoner
trying to get released sooner who attempted to sidestep Preiser and Heck by
not seeking restoration of his good-time credits. But in the end, his claim
looked just like Roy Heck’s—if he succeeded, it would imply that his
“outstanding criminal judgment[]”104 was invalid and that he would need to
be released earlier from prison.
Wilson’s case is fundamentally different from Edwards—she is not in
prison, so her success would not require her to be released from prison,
earlier or at all.
_____________________
100
See Heck, 512 U.S. at 486.
101
Preiser, 411 U.S. at 489 (explaining that a damages action that “goes directly to
the constitutionality of his physical confinement itself and seeks either immediate release
from that confinement or the shortening of its duration” is “just as close to the core of
habeas corpus as an attack on the prisoner’s conviction”).
102
Ante, at 14.
103
Edwards, 520 U.S. at 643–45.
104
See Heck, 512 U.S. at 486.
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B
Next, the plurality claims that the Court “recently reaffirmed [its]
interpretation” of Heck in McDonough v. Smith.105
Edward McDonough was prosecuted twice based on what he alleged
was fabricated evidence. His first trial ended in a mistrial and his second
ended in his acquittal on all charges. 106 After his acquittal, McDonough
brought a § 1983 damages action, asserting two claims: fabrication of
evidence and malicious prosecution.107 The question presented in the case
was whether McDonough’s fabrication of evidence claim accrued at the time
of his acquittal “or at some point earlier.”108
The Court approached the case just as it does for all § 1983 claims. It
started by looking to the common law for an analogous tort to McDonough’s
fabrication-of-evidence claim. McDonough argued that the most analogous
tort was malicious prosecution, and the Court agreed.109 As we well know at
this point, the common-law tort of malicious prosecution contains favorable
termination as an element. Because “Heck explains why favorable
termination is both relevant and required for a claim analogous to malicious
prosecution that would impugn a conviction,” it is no surprise that the Court
_____________________
105
Ante, at 15 (citing McDonough v. Smith, 588 U.S. 109 (2019)).
106
McDonough, 588 U.S. at 113.
107
Id. The statute of limitations for the malicious prosecution claim was not at issue
before the Supreme Court.
Id. at 114.
108
Id. at 113.
109
Id. at 116. The Court explained, “Common-law malicious prosecution requires
showing, in part, that a defendant instigated a criminal proceeding with improper purpose
and without probable cause. The essentials of McDonough’s claim are similar: His claim
requires him to show that the criminal proceedings against him—and the consequent
deprivations of his liberty—were caused by Smith’s malfeasance in fabricating evidence.”
Id. at 116–17 (citations omitted).
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concluded “that rationale extends to an ongoing prosecution as well.” 110
What’s more, the Court was clearly focused on whether there could be
accrual “at some point earlier” than acquittal, not after acquittal.111
Consequently, McDonough merely “repeats Heck’s conclusion that an
acquittal causes the claim to accrue, without discussing the question whether
release from prison at the end of the sentence also does so.”112
Even so, the plurality asserts McDonough resolved the question
anyway because the Court stated that the “favorable-termination
requirement . . . applies whenever ‘a judgment in favor of the plaintiff would
necessarily imply’ that his prior conviction or sentence was invalid.” 113 It
takes the indefinite verb “whenever” to mean that favorable termination
applies regardless of custodial status. I would not understand the Court to
have resolved a question that it didn’t tell us it was answering, especially
where the common-law analog did have a favorable-termination requirement,
and the Court was focused on whether a claim could accrue at a much earlier
time than completion of a sentence. In fact, Justice Ginsburg, who had earlier
said that Heck doesn’t apply to noncustodial plaintiffs,114 joined the majority
opinion in McDonough and did not express that she had changed her view. 115
In sum, the plurality overreads McDonough. On whether McDonough settled
_____________________
110
Id. at 117–19, 123.
111
Id. at 113–14 (emphasis added).
112
Savory, 947 F.3d at 433 (Easterbrook, J., dissenting) (emphasis added).
113
McDonough, U.S. at 119 (quoting Heck, 512 U.S. at 487).
114
Spencer, 523 U.S. at 21 (Ginsburg, J., concurring) (“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.’”
(citation omitted)).
115
McDonough, 588 U.S. at 112.
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the reach of Heck and enshrined the dicta of footnote 10, I agree with Judge
Easterbrook: “Certainly, McDonough . . . did not do so.”116 And accordingly,
there are no “instructions impossible to ignore.”117
C
Finally, the plurality points to Thompson v. Clark.118
Larry Thompson was charged with state charges that were later
dismissed before trial.119 After his case was dismissed, Thompson brought a
§ 1983 damages claim for Fourth Amendment malicious prosecution. He
alleged that “the police officers who initiated the criminal proceedings had
‘maliciously prosecuted’ him without probable cause.” 120 Once again, the
Court looked to the elements of the most analogous tort, which here was
malicious prosecution. “[T]he gravamen of the Fourth Amendment claim
for malicious prosecution . . . is the wrongful initiation of charges without
probable cause,” which is “likewise the gravamen of the tort of malicious
prosecution.”121 Accordingly, the Court held that“[i]n accord with the
elements of the malicious prosecution tort, a Fourth Amendment claim
under § 1983 for malicious prosecution requires the plaintiff to show a
favorable termination of the underlying case against him.” 122 The rest of the
_____________________
116
Savory, 947 F.3d at 433 (Easterbrook, J., dissenting).
117
Ante, at 18.
118
596 U.S. 36 (2022).
119
Id. at 39.
120
Id.
121
Id. at 43.
122
Id. at 44.
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Court’s opinion focused on “flesh[ing] out what a favorable termination
entails.”123
The plurality infers that because Thompson was not in custody, “it
should be clear beyond cavil that the favorable-termination element applies
regardless of whether the § 1983 claimant was, is, or never could be in
custody.”124 But the plurality misses a critical point: The reason the Court
required favorable termination in Thompson’s case is because the analogous
common-law tort for Thompson’s malicious-prosecution claim was,
unsurprisingly, malicious prosecution, which contains favorable termination
as an element. The Court never addressed Thompson’s custodial status
because it had no reason to. So Thompson could not have held that a favorable-termination requirement applied to noncustodial plaintiffs writ large.
D
In sum, not one of the post-Heck cases supports the plurality’s
position. The plurality fails to track what questions were presented by the
cases and under what circumstances. The Supreme Court has never
addressed the application of favorable termination to plaintiffs like Wilson
who are not in custody and whose claims are not analogous to the common-law tort of malicious prosecution. In fact, the Court has acknowledged the
ongoing debate and pointedly declined to resolve it, expressly stating in
Muhammad v. Close that “this case is no occasion to settle the issue.”125
As none of these cases addressed the issue, I would take the justices at
their word and accept their pronouncement that the issue remains unsettled.
_____________________
123
Id. at 39, 44–49.
124
Ante, at 18.
125
540 U.S. 749, 752 n.2 (2004).
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IV
One last issue, the relevance of remedies beyond § 1983. The plurality
lists “numerous avenues for pursuing favorable termination” available to
Wilson during her eight-year term of community supervision.126 The
plurality’s list is only accurate if one omits the pesky fact that Wilson could
only have sought those remedies if she knew at the time that Petty had been
moonlighting both as prosecutor and as de facto judge. Such an omission
ignores the double horror of this case—that Wilson’s due process rights were
allegedly violated on a structural level and that the violation was successfully
hidden from Wilson and the public for 20 years.
The plurality and the concurrence also stress that Wilson still has
various non-§ 1983 avenues to challenge her tainted conviction.127 These
points elide the solitary issue before us: whether Heck even applies to
noncustodial plaintiffs like Wilson. Whether Wilson might (or might not) be
able to prove favorable termination outside of § 1983 only matters if Heck
requires her to prove favorable termination in the first place. “When Congress
supplies a constitutionally valid rule of decision, federal courts must follow
it.”128 If Wilson is allowed to sue under § 1983, then it matters not whether
she might also have state remedies available to her. That’s the whole point of
_____________________
126
Ante, at 19.
127
Ante, at 20–21.
128
Brown, 596 U.S. at 127. If there is any concern that allowed access to federal
habeas for non-custodial plaintiffs will open the floodgates with regard to litigation from
prisoners, many prisoners would be barred by the doctrine of collateral estoppel, as the
Court has concluded that the usual rules of preclusion apply in § 1983 actions. Allen v.
McCurry,
449 U.S. 90, 103–105 (1980). Some of our sister circuits have also imposed a
diligence requirement—meaning if a plaintiff could have realistically sought federal habeas
relief when it was available, then the plaintiff cannot access § 1983, having bypassed habeas.
See Wilson, 535 F.3d at 265–68; Powers,
501 F.3d at 601; Cohen, 621 F.3d at 1316–17.
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§ 1983: to give those victimized by state officials a federal forum. The sole
issue for us is whether Heck applies to noncustodial plaintiffs—nothing else.
The plurality and concurrence particularly focus on the availability of
Texas state habeas. Texas’s unique habeas statute specifies “[a]t the time
the application is filed, the applicant must be, or have been, on community
supervision.”129 Not all state habeas statutes reach this far. In this circuit, for
example, Mississippi’s statute only “extend[s] to all cases of illegal
confinement or detention.”130 Under the concurrence’s approach, the line
between § 1983 being available or not “would depend on the vagaries of state
law.”131 If Wilson happened to live in another state in this circuit, her case
might well turn out differently based on the reasoning in the concurrence.
Also, and this cannot be overstated, to consider the existence of state
remedies when determining the reach of § 1983 is, respectfully, contrary to
the historical record. It was precisely “[b]ecause Congress lacked confidence
in state institutions, including state courts, [that] it explicitly gave federal
courts jurisdiction over the new civil action.” 132 To then turn around, as the
concurrence does, and say that there is no federal cause of action because
Wilson could also pursue state remedies turns § 1983 on its head.133 The
concurrence asserts that if the plaintiff has the opportunity to obtain state
relief, then she still has the chance to terminate her conviction. The
concurrence’s argument, in effect, requires the plaintiff to avail herself of
_____________________
129
Tex. Code Crim. Proc. 11.072 (emphasis added); State v. Guerrero, 400
S.W.3d 576, 582 (Tex. Crim. App. 2013).
130
Miss. Code Ann. § 11-43-1.
131
Cf. Nance, 597 U.S. at 161.
132
Steinglass, supra note 33, § 2.2.
133
Ante, at 33.
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state court relief if the courthouse doors remain open. 134 But this misses the
point. The state court’s labors, or lack thereof, have no bearing on access to
§ 1983. One of the defining features of § 1983 is that plaintiffs don’t have to
go to state court first. The Court has had “no occasion to settle the issue” of
whether Heck reaches noncustodial plaintiffs,135 but it has declared it a
“settled rule . . . that exhaustion of state remedies is not a prerequisite to an
action under 42 U.S.C. § 1983.”136 Indeed, § 1983 provides “individuals
immediate access to the federal courts notwithstanding any provision of state
law to the contrary.”137 Inexplicably, the plurality and concurrence point
Wilson back to state court anyway.
It is especially bizarre to mandate state-law exhaustion within the very
criminal system and the “very state officials” who failed Wilson for decades
and “whose hostility to those rights precipitated [her] injuries.”138 Were she
to return to state court, she would not even necessarily be provided counsel
as a matter of course.139 Would any indigent defendant in Wilson’s
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134
Oddly enough, the concurrence’s concern for state court proceedings would
effectively reward plaintiffs who do not exhaust state court remedies when they have the
chance and would not be workable. For example, a plaintiff—who does not wish to undergo
the effort required to pursue state court remedies—may choose to let the limitations period
lapse to purposefully close state court doors before skipping ahead to pursue § 1983 relief.
135
Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004).
136
Knick v. Twp. Of Scott, Pa., 588 U.S. 180, 185 (2019) (internal quotation marks
and citation omitted).
137
Felder v. Casey, 487 U.S. 131, 147 (1988) (quoting Patsy v. Bd. of Regents of State
of Fla.,
457 U.S. 496, 504 (1982)).
138
Id.
139
Tex. Code Crim. Proc. Art. 1.051(d)(3) (“An eligible indigent
defendant is entitled to have the trial court appoint an attorney to represent him in . . . a
habeas corpus proceeding if the court concludes that the interests of justice require
representation.” (emphasis added)).
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circumstance—someone stripped of core constitutional rights by a rigged
judicial system—have realistic hope for vindication? Forcing Wilson to seek
relief from the same system that victimized her reduces § 1983 to a mere
paper promise.
V
Our circuit has been on the wrong side of this fateful split for almost a
quarter-century. Today, we squander the opportunity to take “[t]he better
view” of Heck by holding 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
requirement.”140
When Wilson learned that she had been victimized by Petty’s mindboggling conflict of interest, had she read § 1983’s sweeping textual
command, she would have been heartened to take Congress at its word that
she had a federal-court remedy for what she had endured. It may be true that
a federal-court remedy isn’t guaranteed for every constitutional violation.141
But the historical record shows that § 1983 was enacted to provide one for a
wide swath of violations that couldn’t be entrusted to protection by the state
courts.142 Today, the court “unjustifiably limit[s]” that “plain breadth of
§ 1983,” leaving plaintiffs like Wilson violated but not vindicated.143 There is
no justification for applying Heck’s favorable-termination requirement so
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140
Spencer, 523 U.S. at 21 (Souter, J., concurring).
141
See ante, at 30 n.6.
142
See ante, at 39–41, 62. In light of this historical record, the availability of state
habeas or other state relief does not move the needle on a noncustodial plaintiff’s access to
federal relief under § 1983.
143
Spencer, 523 U.S. at 21 (Souter, J., concurring).
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broadly. We are not bound by dicta in Heck’s footnote 10, it makes little sense
to apply a favorable-termination rule to noncustodial plaintiffs whose claims
are not analogous to the common-law tort of malicious prosecution, no post-Heck precedent binds us, and the en banc court’s justifications collide headon with § 1983.
When Justice Ginsburg disavowed Heck’s footnoted musings on the
ancillary question of noncustodial plaintiffs, she cited Justice Frankfurter’s
maxim that “[w]isdom too often never comes, and so one ought not to reject
it merely because it comes late.” 144 Unfortunately for our circuit—and
unfortunately for Wilson—wisdom remains a no-show. The only hope for
wronged noncustodial plaintiffs like Erma Wilson is that the Supreme Court
will at last confront the persistent circuit split, seize this “occasion to settle
the issue,”145 and vindicate a bedrock constitutional guarantee that, sadly, is
even more tenuous in today’s plea-bargain age than when the Founding
generation first enshrined it.
Respectfully yet emphatically, I dissent.
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144
Id. (Ginsburg, J., concurring) (quoting Henslee v. Union Planters Nat’l Bank
& Tr., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting)).
145
Muhammad, 540 U.S. at 752 n.2.
65
