Tag Archives: heck v. humphrey

A Pair of Promising Post- Conviction Cases – Update for October 27, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HECK V. HUMPHREY EXTENDS FTCS DEADLINE

The 1994 Supreme Court decision in Heck v. Humphrey held that a prisoner cannot sue civilly for an unconstitutional conviction or sentence until the conviction or sentence has been invalidated by a criminal court. It’s always been a bludgeon for inmate pro se litigators. However, a 4th Circuit case decided last week suggests that Heck applies expansively to prison discipline and that it can be a double-edged sword.

While doing federal time in 2017, Donte Parrish sued under the Federal Tort Claims Act, alleging that he was wrongfully charged with a Prohibited Act and placed in segregated confinement for the killing of another inmate. He sat in the SHU (Special Housing Unit, known as “The Hole”) for several years while the FBI investigated, before deciding not to pursue it. Afterward, the BOP found Donte committed a different offense he had never been charged with.

When an appeal finally sent the case back to the DHO, a new officer conducted a fresh hearing on the two charges in the original 2009 incident report. On January 25, 2017, the new DHO found that “no prohibited act was committed” and expunged the incident report.  By then, Donte had spent about eight years in the SHU.

An FTCA suit has to be brought within six months of denial of the inmate’s administrative claim. Donte’s claim was denied October 7, 2016, meaning that he had to sue by April 7, 2017.  He did not file until a month later than that, May 3, 2017.

The Circuit held that Donte’s tort claims were governed by Heck v. Humphrey. Thus, Donte’s did not accrue until January 25, 2017, at the earliest, when the record for the charges against him was expunged. Thus, the 4th ruled, Donte’s complaint filed in May 2017 was within the six-month statute of limitations set forth in 28 USC § 2401(b) and was therefore timely.

Heck v. Humphrey, 512 US 477 (1994)

Parrish v. United States, Case No 20-1766, 2026 U.S.App. LEXIS 31678 (4th Cir. October 19, 2026)

‘HE SAID, SHE SAID’ IN 2255 MOTIONS REQUIRE HEARINGS

Patrick Anderson pleaded guilty to a methamphetamine and fentanyl trafficking offense, and waived his right to appeal.  Later, he filed a pro se motion under 28 USC 2255, claiming that his lawyer was ineffective because he failed to file an appeal after Pat told him to do so.

The district court directed Pat’s trial attorney to file a declaration addressing Pat’s accusations. His lawyer denied everything.

The district court then denied Pat’s habeas corpus motion brought under 28 USC § 2255 without a hearing. The judge found that trial counsel’s affidavit “thoroughly contradicted” any claim that Pat directed his counsel to appeal. And because “both parties… already submitted… their respective versions of the events in question,” the district court ruled that “bringing them back into court to give testimony that will almost certainly parrot their briefing seem[ed] to be an unwarranted waste of judicial resources.” The district court thus held that it could “conclusively determine Anderson’s credibility: without holding an evidentiary hearing.

Last week, the 9th Circuit reversed.

The 9th held that, faced with conflicting sworn statements from Pat and his trial counsel on a dispositive issue, the district court should have held a hearing to assess each person’s credibility, and abused its discretion by failing to do so before denying Pat’s motion. Disagreeing with the government’s argument that this is a rare case in which credibility can be “conclusively decided” without a hearing, the panel wrote that Pat’s allegations are not “so far outside the bounds of reason” that they are “impossible to believe.”

The panel ruled, “At bottom, when faced with two conflicting statements—one from Anderson claiming he told his trial counsel to appeal, and one from trial counsel claiming otherwise—the district court could not conclusively credit trial counsel’s version without the benefit of an evidentiary hearing.”

This is the kind of thing that happens too often in § 2255 hearings. The Supreme Court ruled almost 65 years ago in Machibroda v. United States that 2255 movants’ plausible claims weren’t to be disbelieved without a hearing, but that holding is pretty much honored in the breach. It is heartening for an appeals court to remind trial courts that prisoners aren’t to be automatically disbelieved because they’re prisoners and lawyers aren’t to be automatically believed just because they’re lawyers.

United States v. Anderson, Case No 24-2385, 2026 U.S.App. LEXIS 31696 (9th Cir. October 19, 2026)

Machibroda v. United States, 368 US 487 (1962)

 

~ Thomas L. Root

Heckler Avoids Being ‘Hecked’ – Update for March 26, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHAT THE HECK?

Gabriel Olivier is a Mississippi street preacher whose brand of persuasion is to yell at people seeking abortions that they were “whores” and Jezebels. The City of Brandon convicted him of refusing to move his protest to a designated area (where his shaming would, apparently, have been less effective). He paid a fine as punishment for his recalcitrance.

Because he still wanted to preach near the amphitheater – where the saving of souls was more fruitful – Gabe filed suit against the City in federal court under 42 USC § 1983, a statute letting folks sue state or local governments and their employees for depriving private citizens of their civil rights.  Gabe alleged that the city ordinance violates the Free Speech Clause of the First Amendment by consigning him and other speakers to the amphitheater’s protest area. The complaint sought a declaration that the ordinance infringes the First Amendment and an injunction preventing city officials from enforcing the ordinance in the future.

Gabe immediately ran into a 1994 decision, Heck v. Humphrey, in which the Supreme Court held 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 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.”

Gabe had been convicted of violating the statute, the lower courts said, so he could not pursue a § 1983 action challenging its constitutionality.

Last week, the Supreme Court threw Gabe a lifeline.  Gabe’s suit, SCOTUS held, only asked for “forward-looking relief—nothing to do with [his] prior conviction.” Therefore, the Court held, Heck v. Humphrey does not bar bars Gabe’s suit. Heck prohibits any challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages. That decision has no bearing on Gabe’s action seeking a purely prospective remedy.

Olivier v. City of Brandon, Case No. 24-993, 2026 U.S. LEXIS 1272 (March 20, 2026)

~ Thomas L. Root

3rd Circuit Gives Amateur Inmate Litigant a Mulligan – Update for November 7, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DO-OVER

Thomas Petoff, a federal prisoner confined to a wheelchair, filed an administrative remedy after he was denied a wheelchair cushion. He said that in retaliation, he was thrown in the Special Housing Unit (SHU), had his wheelchair confiscated, suffered assaults and humiliating treatment, was denied food (including his “religious diet”), medical care, recreation, and law library access, and ultimately lost good-time credits and was fined. He sued.

He threw every claim the jailhouse lawyers in the prison library told him to throw at the defendant. It was a hodgepodge of high-falutin’ legalese used by someone who had no idea what he was doing.

The district court construed Tom’s pro se complaint as raising 1st, 5th, and 8th Amendment claims under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics. That wasn’t enough to keep the case from being dismissed with prejudice. For good measure, the Court said Tom’s complaint was barred by Heck v. Humphrey to the extent that his claims undermined disciplinary sanctions.

It was kind of a ‘get out and don’t come back’ dismissal.

Last week, the 3rd Circuit largely agreed on the Bivens and Heck analyses, but held that pro se litigants must be given an opportunity to amend to pursue non-futile statutory theories—here, the Rehabilitation Act and Religious Freedom Restoration Act.

As for the Bivens claim, the Circuit ruled that Tom’s allegations failed in light of the Supreme Court’s decision last summer in Goldey v. Fields, that foreclosed Bivens actions for 8th Amendment excessive force claims.

To the extent that Tom’s claims might call into question the validity of the disciplinary proceeding findings that he had violated prison rules, the 3rd said those claims are barred by the Heck v. Humphrey favorable-termination rule. That rule holds that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged, declared invalid by a state court, or called into question by a federal court on habeas corpus.

However, the Circuit said, Tom got a mulligan on some of his claims. The 3rd said that the district court failed to address Tom’s Americans with Disabilities Act (ADA) and Rehabilitation Act claim, as well as his later-clarified RFRA “religious diet” claim. Although Tom did not plead those claims very well, the 3rd said that an amendment cleaning up those claims would not necessarily have been futile. It remanded Tom’s suit to the district court to give him a fair chance to amend.

Petoff v. Delmonico, Case No. 24-2933, 2025 U.S.App. LEXIS 27737 (3d Cir. October 23, 2025)

~ Thomas L. Root

Justice Unserved in Texas – Update for September 17, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHAT THE HECK/

More than two decades ago, Erma Wilson, a certified nursing assistant in her mid-20s, was convicted of cocaine possession after police in Midland, Texas, said they had found a bag of crack on the ground belonged to her. For two decades, she has steadfastly denied that the crack was hers. She trusted a fair trial to vindicate her. She didn’t get one.

ermawilson240917

Her felony conviction resulted in an eight-year suspended sentence but denied her life-long dream of becoming a registered nurse. Erma continued to work as a certified nursing assistant and, after further training, as a medical assistant, her criminal record has made employers uncomfortable hiring her. She has struggled to support herself and her family.

Then, in February 2021, Erma learned from USA Today that in her trial – and hundreds of others in Midland County spanning decades — “bedrock judicial norms were dishonored.” As the 5th Circuit described it, “[u]nbeknownst to Wilson, a Midland County assistant district attorney, Ralph Petty, had been moonlighting, acting as both accuser and adjudicator. For nearly 20 years, the multitasking Petty had worn two hats: (1) by day, a prosecutor in the public courtrooms of Midland County judges; and (2) by night, a law clerk in the private chambers of Midland County judges. Disturbingly, Petty was working both sides of the bench, seeking favorable rulings while also writing them.”

She sued Midland County under 42 USC § 1983 for violating her constitutional rights under color of state law. Last week, the 5th Circuit ruled in an en banc opinion that unless she got her conviction set aside, she is barred from seeking damages for the two decades of ruin that Ralph Petty and her judge had visited upon her.

The 5th said that Texas law gave her a number of ways to set aside her conviction, but Erma “chose to forgo all of them” and instead brought the § 1983 money damages claim in federal court. The district court threw out her suit because § 1983 can’t be used to challenge a tainted conviction until that conviction has been set aside or expunged, the so-called favorable-termination rule of Heck v. Humphrey.

In Heck, 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.”

On appeal, Erma argued that the favorable termination rule applies only to people in custody. The 5th Circuit disagreed, citing a single footnote in Heck – footnote 10 – in which the Supreme Court majority mused that “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.”

The 5th held that Heck’s footnote 10 established that “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.”

In a stinging dissent joined by five other judges, Judge Willett wrote,

It took Erma Wilson 20 years to learn of the brazen prosecutorial misconduct that laid waste to her fundamental fair-trial right… This was a DEFCON 1 legal scandal—a prosecutor being on the judge’s payroll—and Wilson learned of [it] along with the rest of the nation… 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. The Supreme Court’s later admonition in District of Columbia v. Heller about latching onto unargued, unbriefed, unconsidered pronouncements has never rung truer: “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.”

goodpros170330

The en banc 5th was puzzled at Erma’s choice of forum, just as I am. The Circuit noted that Erma’s decision not to first pursue getting the felony vacated “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… But for whatever reason, Wilson chose to seek only money damages under 42 USC § 1983 and attorneys’ fees under 42 USC § 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.”

Wilson v Midland County, Case No. 22-50998, 2024 U.S.App. LEXIS 23339 (5th Cir. September 13, 2024)

Heck v. Humphrey, 512 US 477 (1994)

Reason, 5th Circuit Reluctantly Rules Against Victim of a Prosecutor Who Was Also a Law Clerk (December 18, 2023)

– Thomas L. Root

5th Circuit Parses Heck v. Humphrey – Update for November 23, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHAT THE HECK? CIRCUIT RULES ADVERSE PRISON DISCIPLINARY DECISION DOES NOT BLOCK SUIT

heck211123State prisoner Darvin Santos sued prison officers for using excessive force against him in violation of his constitutional rights. The alleged excessive force was used during an altercation between Darvin and officers that resulted in his being found to have violated a laundry list of prison rules.

The district court granted summary judgment for the correctional officers, holding that Darvin’s claims were barred by Heck v. Humphrey.

lobster211123Heck, a 1994 Supreme Court case, holds that a defendant can’t sue officials for damages for investigative or prosecutorial violations of rights incident to a prosecution, unless he or she could prove that the conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a habeas corpus decision. This means, for example, that if the cops smash down my door without a warrant and find evidence that I have been importing under-length lobsters, which evidence is used to convict me, I cannot do my time and then sue for money damages because of the illegal search. Heck thus prevents a lot of costly and frivolous litigation.

Darvin’s district court extended Heck to a disciplinary proceeding, holding that unless he could show the disciplinary proceeding resulting from the incident where the excessive force was used had been overturned, Heck barred his lawsuit.

As a general proposition, this holding is pernicious. The standard of evidence for a criminal conviction – reasonable doubt – provides some protection against a defendant having been railroaded into a conviction that prevents a later civil action judged under the more relaxed “preponderance of the evidence” standard. But the standard of evidence for a prison disciplinary hearing is the laughably slight “some evidence” standard. That is, as the Supreme Court puts it, there only has to be “some evidence” to support the charge:

Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence… might be characterized as meager, the record [only cannot be] so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.

sunwest211123I have “some evidence” that the sun’s going to rise in the west tomorrow. Holding that a prisoner’s right to vindicate a civil rights violation because of a kangaroo-court prison disciplinary hearing found him or her guilty on such a gossamer evidentiary standard is downright dangerous.

Last week, the 5th Circuit reversed Darvin’s dismissal, but not for the reasons I prefer. Rather, the 5th noted that Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.” Instead, a claim is barred only if granting it “requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.”

Here, the 5th said, it isn’t clear from the record whether any of Darvin’s claims were barred by Heck. Darvin was found guilty of nine rules violations, but only one – a charge of “aggravated disobedience” – might be inconsistent with his claims. As for that one, the Circuit said, the disciplinary report “does not currently permit that inference.”

Furthermore, the disciplinary sanctions imposed (except for loss of good-conduct time) only bear on the circumstances of confinement rather than on the duration. A decision that imposes such sanctions (like loss of telephone privileges, access to commissary, and the like, for a period of time) are not barred by Heck, the Circuit said.

Santos v. White, Case No. 20-30048, 2021 U.S. App. LEXIS 34120 (5th Cir., November 17, 2021)

– Thomas L. Root