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April 20, 2013
  Poventud v. City of New York - Second Circuit
Headline: Second Circuit Holds § 1983 Claim is Not Barred by Heck v. Humphrey Because Petitioner is no Longer Incarcerated and Has No Other Available Federal Remedy.

Areas of Law: Constitutional Law; Habeas; § 1983 Remedies

Issue(s) Presented: Whether Heck v. Humphrey barred petitioner's § 1983 claim alleging constitutional violations committed by officials who conducted his criminal investigation and prosecution, when petitioner was no longer in custody for the conviction or imprisonment being challenged and had subsequently plead guilty to a lesser charge.

Brief Summary: Plaintiff-appellant Marcos Poventud challenges here the United States District Court for the Southern District of New York's summary judgment dismissal of his 42 U.S.C. § 1983 claim that officials had violated Brady v. Maryland in the course of investigating and prosecuting Poventud for attempted murder, robbery, assault, and criminal possession of a weapon. Poventud had been convicted following a trial on those charges and sentenced to 10 to 20 years but, after Poventud had served 9 years, a state court had vacated the conviction upon Poventud's motion contending that he had just learned of allegedly exculpatory evidence that was withheld by prosecuting officials during the original trial. Pending the government's appeal and a possible new trial while remaining in custody, Poventud accepted a government's offer of immediate release in exchange for a guilty plea to a lesser offense. Poventud then filed this § 1983 action.

The United States District Court for the Southern District of New York dismissed the § 1983 claim relying upon the Supreme Court's decision in Heck v. Humphrey which it held barred § 1983 actions by individuals challenging their conviction or imprisonment unless the challenged conviction was expunged, vacated or reversed.

The Second Circuit vacates the dismissal and remands, holding that, because plaintiff was no longer incarcerated and thus did not have access to habeas relief, his action under § 1983 should proceed. The majority reasons that Second Circuit precedent in the years following Heck dictate that petitioner's asserting civil rights claims in connection with a conviction or incarceration must have access to a federal remedy, either under habeas corpus or § 1983, and, as Poventud could no longer avail himself of habeas relief due to his release, he must be allowed to pursue his claims under § 1983, despite pleading to a lesser charge. Chief Judge Jacobs vehemently dissents, finding the majority's reasoning improperly focused on non-binding dicta, instead of what he considers clear Supreme Court and Second Circuit precedent prohibiting this §1983 claim in light of Poventud's admission of guilt. He also criticizes the majority for the broad implications of their decision.

To read the full opinion, please go to:

Extended Summary: In 1998, plaintiff-appellant Marcos Poventud was convicted of attempted second degree murder, attempted first degree robbery, first degree assault, and criminal possession of a weapon in the second degree, in connection with the assault and robbery of a New York City taxi cab driver in the Bronx. He was sentenced to a maximum of twenty-years in prison. In 2003, Poventud discovered that, during the initial investigation of the crime, the police had found in the victim's taxicab, a wallet containing photo I.D. cards depicting Poventud's brother. The detectives had shown the I.D. photos to the victim, who then positively identified Poventud's brother, who looked nothing like Poventud, as his assailant. However, at the time of the assault, the brother was incarcerated and could not have committed any crime. The victim identified Poventud as the perpetrator only after being shown Poventud's photo for the fourth time. None of this information surrounding the I.D. photos and the victim's identifications was disclosed to Poventud during the original prosecution.

The New York Supreme Court for Bronx County vacated the original conviction on Poventud's motion that the prosecution's failed to disclose the allegedly exculpatory information. The prosecution appealed, but also offered Poventud his immediate release in exchange for a guilty plea. Poventud accepted the offer and then instituted the instant suit under 42 U.S.C. § 1983, alleging that the prosecution had violated his federal due process and fair trial rights under Brady v. Maryland.

The United States District Court for the Southern District of New York granted the defendants' motion for summary judgment, however, holding that Poventud's § 1983 claim was barred by the Supreme Court's decision in Heck v. Humphrey. Heck held that plaintiffs asserting § 1983 claims in connection with a conviction or incarceration must show "that the challenged conviction has been reversed, expunged, invalidated, or called into question" before the underlying claim will be allowed to proceed. The district court held, therefore, that the plaintiff's guilty plea to the lesser charge prevented the plaintiff from meeting this burden.

In today's opinion, a majority of the United States Court of Appeals for the Second Circuit disagrees, vacating and remanding the district court's order and holding that the bar on § 1983 claims under Heck does not apply to Poventud because he is no longer incarcerated. The majority explains that, while an imprisoned petitioner may challenge conviction or incarceration habeas corpus and thus does not need access to § 1983, Poventud, having been released, can no longer bring a habeas challenge and must therefore have access to the only remaining federal remedy under § 1983. The majority acknowledges that a footnote in Heck suggested that the case's prohibition of § 1983 claims applies regardless of whether the petitioner was incarcerated or not, but reads the footnote as mere dicta. The majority points to Justice Souter's concurring opinion in Heck, and a later case, in which fit contends five justices express a preference for the theory that Heck's prohibition on § 1983 suits is inapplicable to petitioners no longer incarcerated without access to habeas remedies. The majority also reviews Second Circuit case law following Heck, contending it supports the court's interpretation that Heck's bar on § 1983 actions only applies to petitioners still in custody. The majority posits that Poventud's subsequent guilty plea to a lesser charge may be used by the City as a defense to the § 1983 claim, but does not support summary judgment under Heck.

The majority opinion also criticizes Chief Judge Jacobs's dissenting opinion for its "apocalyptic tone" and "flaws" in reasoning. The court asserts that its reliance on prior Second Circuit case law is sound, finding that in the course of two years, four unanimous panels of the Second Circuit affirmed the position that Heck only applies to bar § 1983 relief when a petitioner could seek habeas relief. Second, the majority insists that the dissent's reading of Heck relies on dicta no longer supported by a majority of the Supreme Court justices as indicated in more recent decisions. The court also challenges the dissent's assumption that Poventud's § 1983 suit is improper because it calls into question his second conviction, which had not been invalidated, contending that the Brady violation posited by Poventud undercuts only the vacated conviction on the original charges. Finally, the court criticizes the dissent's argument that Poventud's inability bring a § 1983 action may be sufficient to support a post-release habeas petition, and thereby providing a remedy, as "Ptolemaic in the uselessness of its epicycles."

Chief Circuit Judge Jacobs's dissenting opinion sharply criticizes the majority's decision for disregarding what he believes to be the clear holding of Heck and Second Circuit precedent, and for relying excessively on dicta. Chief Judge Jacobs contends the majority's decision takes a narrow exception adopted by some of the Circuit courts and expands it beyond the contemplation of those previous decisions. The dissent also finds that the Brady violation alleged by the plaintiff "necessarily implies the invalidity of the unchallenged ... conviction that was entered on [Poventud's] plea of guilty to that crime." This is, to the dissent, precisely the situation where Heck serves to bar claims under § 1983. Chief Judge Jacobs also cites prior circuit precedent that barred § 1983 claims even in situations where the plaintiff was no longer in custody. He concludes that the court should follow Heck, the case that directly controls, leaving it to the Supreme Court to handle the dicta applied by the majority in its decision.

To read the full opinion, please go to:

Panel: Chief Circuit Judge Jacobs, and Circuit Judges Calabresi and Sack.

Argument: 12/20/2012

Date of Issued Opinion: 04/19/2013

Docket Number: 12-1011-cv

Decided: Vacated and Remanded to the United States District Court for the Southern District of New York for further proceedings.

Case Alert Author: Benjamin F. Krolikowski

Counsel: Joel B. Rudin, Esq., Law Offices of Joel B. Rudin, New York, NY, and Julia P. Kuan, Romano & Kuan, New York, NY, for Plaintiff-Appellant. Mordecai Newman, Larry A. Sonnenshein, and Rachel Seligman Weiss, of counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, for Defendants-Appellees.

Author of Opinion: Circuit Judge Calabresi (majority); Chief Circuit Judge Jacobs (dissent).

Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 04/20/2013 01:32 PM     2nd Circuit  

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