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United States Court of Appeals
for the Fifth Circuit

United States Court of Appeals
Fifth Circuit____________
No. 22-50998____________

FILED
September 13, 2024
Lyle W. Cayce
Clerk

Erma Wilson,
Plaintiff—Appellant,
versusMidland County, Texas; Weldon (Ralph) Petty, Jr., suedin 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, andRamirez, Circuit Judges.
Andrew S. Oldham, Circuit Judge, joined by Richman, Chief Judge,
and Jones, Smith, Ho, Duncan, Engelhardt, Wilson, andRamirez, Circuit Judges:
Erma Wilson was convicted of cocaine possession and given an eightyear term of supervised release. That felony conviction created an
insuperable obstacle to Wilson’s life-long dream of becoming a nurse. Then,Case: 22-50998

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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, andachieving 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, nopet.). 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 notseek postconviction relief under Texas law. And she did not seek relief infederal 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, atthe 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. Thatchoice was curious—both because the state courts made clear that theirdoors 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 favorabletermination 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 concernedwith all § 1983 claims by all civil plaintiffs who seek civil remedies against
defective criminal processes. We first (A) explain the pre-Heck rule and theso-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-Heckprecedent confirms our understanding of the favorable-termination element.
A
The canonical pre-Heck precedent involved a collision between habeasand § 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 (oravoiding it). But that is wrong.
Start with Preiser. In that case, New York state prisoners lost goodtime 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 confinementin 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 theConstitution 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 textof § 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, thefederal habeas statute is specific: It applies to a specific kind of plaintiff (aprisoner) seeking a specific and exceedingly powerful injunction (releasefrom 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. ofRegents 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 thecommon-law writ of habeas corpus, in that it authorized a single form of relief: theprisoner’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 thatit 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 denialof 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 theones 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 andhabeas 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 specificdetermination 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 toget 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 “factor 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 ofits language created confusion that the Court would later be forced to clarify.
For example, the Preiser Court suggested that any suit attacking the “validityof 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 releasefrom 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 unlessand until the conviction is favorably terminated. Id. at 481–82. Or put differently, favorable termination is itself an element of any § 1983 claim that seeksmoney damages for a tainted conviction. Id. at 484. Until that tainted conviction is favorably terminated—that is, reversed on direct appeal, expunged byexecutive 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 theplaintiff has a complete and present cause of action” (quotation omitted));Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995) (“Under federallaw, the limitations period begins to run the moment the plaintiff becomesaware 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 firstto the common law of torts.”). Reasoning by analogy, the Court looked to thecause of action for malicious prosecution, which has always required proof offavorable 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 insome of its previous decisions in other contexts. See id. at 484–85 (citing, interalia, 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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No. 22-50998[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 favorabletermination requirement:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harmcaused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that theconviction 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 relationshipto 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 thisuse 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, theCourt appended footnote 10:
Justice SOUTER also adopts the common-law principle that
one cannot use the device of a civil tort action to challenge thevalidity of an outstanding criminal conviction, but thinks it necessary to abandon that principle in those cases (of which noreal-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 theprinciple barring collateral attacks—a longstanding anddeeply 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 becausemoney 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, whenestablishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction.” 512 U.S. at 481–82. Instead, Heck held suchclaims 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 ofConstitutional
Claim

Element 2 ofConstitutional
Claim

Element X:
Favorable
Termination_____________________
2

Heck itself involved one civil remedy (money damages) and one possible outcomeof 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 thecriminal process was tainted and did not lead to a conviction.

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Among the many crucial takeaways from Heck is that this conceptionof the favorable-termination requirement is fundamentally different from
Preiser’s. Compare supra, at 7 (Preiser schematic). Favorable termination is anelement 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 deeproots 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 areother 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 ofprocess 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 andindignities, 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 notclaim 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 ofconspiracy 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 thebaseless 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 §13Case: 22-50998

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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 (cleanedup); 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 thatthe 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 apoor 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 Souterand Breyer, JJ., concurring); cf. Heck, 512 U.S. 484–87 & nn. 5–6. In otherwords, Edwards made clear all § 1983 suits challenging tainted convictions
and sentences must run Heck’s favorable-termination gauntlet—regardlessof 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 forit; 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 theDue Process Clause does not directly challenge the merits of the decision in theproceeding.”). 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 thecriminal proceeding.4
The Supreme Court recently reaffirmed this interpretation of Heck’s
favorable-termination element. In McDonough v. Smith, Edward McDonoughalleged 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 anelement 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, McDonoughhighlighted 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 thatplaintiffs 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 bothresemble 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 pastconviction 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 thecommon law of torts has long required favorable termination in analogous
contexts. Id. at 114–19.
True, the favorable-termination requirement obliquely protects thehabeas 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 andindependent justifications for requiring favorable termination: “This [favorable-termination] conclusion follows both from the rule for the most naturalcommon-law analogy (the tort of malicious prosecution) and from the practical considerations that have previously led this Court to defer accrual ofclaims that would otherwise constitute an untenable collateral attack on acriminal judgment.” McDonough, 588 U.S. at 114 (emphasis added). In thisway, 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, andcomity 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 isjust 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 ofcustody—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 histrials) 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 theother concerns discussed in Heck still guided the outcome, andno 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
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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 ofdicta” 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, inThompson v. Clark, 596 U.S. 36 (2022), the Court once again subjected a noncustodial 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 notcognizable.
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 aprosecutor, 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 logicalway 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 hecan 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 adismissal 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 secure20Case: 22-50998

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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, weare 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 ofPreiser.”). 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.”). Insteadof parsing Preiser’s dicta, Heck performed a comprehensive and independent
analysis of § 1983—an analysis that relied on the common law of torts, whollyon 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 § 198321

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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 thedepth 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 bya state tribunal,” or (4) “called into question by a federal court’s issuance ofa 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 tozero 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 withcustody 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-channelingrationale). Such a suit challenges only the future enforcement of a law and does not resultin “immediate or speedier release into the community” or “necessarily imply theinvalidity” 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 distantfrom” 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 isrooted 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 thatapproach:[I]nstead of analyzing the statutes to determine which should
yield to the other at this intersection, the Court appears to takethe position that the statutes were never on a collision course in thefirst 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 sensethat 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 involveda § 2254 habeas petition, the majority opinion obviously had no occasion toconsider the elements of a nonexistent § 1983 claim. Nevertheless, three nonprecedential opinions joined by five justices argued that § 1983’s favorabletermination 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 theview 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 andClose is irrelevant. That is because Heck is not a case about custody; it is a24

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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 focusedon 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, orfor other harm caused by actions whose unlawfulness would render a conviction or sentence invalid”). And even if there was some debate on any ofthis—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 noncustodial plaintiff. And that makes perfect sense because, again, the elementsof a tort claim have nothing at all to do with the custodial status of theclaimant.
True, Justice Souter thought custody should’ve mattered in Heck.
And in Spencer and Close, several justices reiterated their defense of JusticeSouter’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 afavorable-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 have25

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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 havea 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, forhim, 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 theprisoner context.”).
Regardless, at least after McDonough, we have no discretion in thematter. “[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 Heckconflicts with § 1983’s text. The Civil Rights Act of 1871 provides a cause ofaction 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 partof 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 andhistory, 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 thelanguage 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 thescope of this debate, and the fraught nature of the historical inquiry, it is particularly perilous to ignore the Supreme Court’s precedent governing thestatutory 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 nototherwise “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 abrogatedby 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 theprecise 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 nameof 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 injudgment))).
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 aspecification 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 unlessand 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 onparole. See, e.g., Jones v. Cunningham, 371 U.S. 236 (1963). And so too withan 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 thesearguments 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 atlaw, 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]nnumerous situations, there is no remedy for an acknowledged violation of constitutionalrights.” Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer,& David L. Shapiro, Hart & Wechsler’s The Federal Courts and theFederal 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 acommission); 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, Heckitself 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 makeno 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 nocourt (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. Heckexplains, though, why that high bar must be cleared before seeking civil
money damages from a tainted criminal proceeding. The Court sought toavoid parallel litigation on the issue of guilt, preclude the possibility of_____________________
apply the Sixth Amendment right to a unanimous jury verdict). The unavailability of afederal 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 besaid 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 ofproperty cannot proceed in federal court).

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conflicting resolutions arising out of the same proceeding, prevent collateralattacks on criminal convictions through the vehicle of civil suits, and respect
concerns for comity, finality, and consistency. Heck, 512 U.S. at 485–86; seealso McDonough, 588 U.S. at 117–19. We cannot ignore these instructions.
***

As cases like this one illustrate, there are real dangers and real abusesin 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 theavailability 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 formoney. Until then, her § 1983 suit must be dismissed.
AFFIRMED.

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Haynes, Circuit Judge, joined by Stewart and Southwick, Circuit
Judges, concurring in part:
I concur in the judgment and with the majority opinion’s conclusionthat 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 thedismissal 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 filinga § 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 stateof Texas, the notion that Wilson does not have the ability to terminate her
conviction is not accurate. Accordingly, I concur in the judgment.

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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 sanctityof the criminal jury trial that our Constitution specifically mentions it“twice—not only in the Sixth Amendment, but also in Article III.” 2 And tounderscore they really meant it—that criminal-justice fairness issacrosanct—the Founding generation doubled down, enshrining a host ofprocedural 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 toany other constitutional guarantee. Safe to say, the Framers were fixated on
the adjudication of criminal charges—both the power to bring them and theprocess for resolving them—and spilled a lot of ink to ensure that theConstitution’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 asweeping 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)).

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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 andsurreptitiously drafting those rulings in judges’ private chambers by night.7
This was a DEFCON 1 legal scandal—a prosecutor being on thejudge’s payroll—and Wilson learned of Petty’s dual-hat arrangement alongwith the rest of the nation. But for her, it was personal—Petty had beenworking 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-deathrow-inmate-could-get-new-trial/4255647001/.

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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–prisonerbrought a § 1983 damages suit analogous to a malicious-prosecution claim.9
In Heck, the Court “famously—and unanimously—established thefavorable-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 Heckv. 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 haveplayed 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 partecommunications 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 thejudge 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 theirsentences because the plaintiff in Heck was still in prison. But in infamousfootnote 10—the very quintessence of dicta—the Court mused that thefavorable-termination requirement should also reach plaintiffs who are nolonger incarcerated.14 The Supreme Court’s later admonition in District ofColumbia v. Heller about latching onto unargued, unbriefed, unconsidered
pronouncements has never rung more true: “It is inconceivable that wewould rest our interpretation . . . upon such a footnoted dictum in a casewhere 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 theintersection 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.

15554 U.S. 570, 625 n.25 (2008).

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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 overwhether 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 ina 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).

17523 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 bynine 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 favorabletermination 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 intheir 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 thestatutes and the caselaw will inform how Heck should be rightly read.
A
Section 2254 is the federal habeas corpus statute. Habeas has deeproots 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 a39

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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 beenpossessed 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 competentjurisdiction.” (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 theirsubjects summarily and indefinitely, common-law courts employed the writ as a way tocompel the crown to explain its actions—and, if necessary, ensure adequate process, suchas 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 aperson 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.

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).
30

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 “wasthe 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 seachange 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 oftribunals 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 ofstate 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 andFederal 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).

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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 todelineate 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 theconditions 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 requirethat 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 termsof” § 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).

37378 U.S. 546 (1964) (holding that a § 1983 action alleging that a prisoner wasdenied 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 validityof 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 thelawfulness 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 thesecases, the Court was intensely focused on whether a prisoner’s § 1983 claim“call[ed] into question the lawfulness of [his or her] conviction orconfinement” 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 forthis 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 constitutionalityof his physical confinement itself and seeks either immediate release fromthat 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 theiroverlap, 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.

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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 acollision” between these two statutes.48 But a careful reading of the pre-Heckcases demonstrates that the Court was focused on specifying when a prisoner
could and couldn’t choose § 1983, and its reasoning always involved theoverlap 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 thefederal habeas statute. But to say that some limits on § 1983 are necessary(because the specific controls the general) is not to establish the validity ofthe 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 isseemingly 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 theprisoner’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.

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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 areclosely 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, theCourt’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 notappropriate vehicles for challenging the validity of outstanding
criminal judgments applies to § 1983 damages actions thatnecessarily 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).

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conviction or confinement, just as it has always applied toactions 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 withthe 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 aquestion 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 “theprinciple barring collateral attacks . . . is not rendered inapplicable by thefortuity 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.

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dicta—stray musings about something that “was not at issue and was notargued.”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 carefulconsideration 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 learnedof Petty’s concealed conflict 20 years after her conviction, custodial status
matters greatly. Without presentation by the parties of the issue in a casewhere 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 tononcustodial plaintiffs was not the question presented—much lessanswered—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 interms of the overlap between the two statutes, which of course, has to do withprisoner litigation. After explaining that Preiser and Wolff did not answer thequestion at issue, the Court also framed the question using the terminologythat it had used in its previous opinions that had addressed the overlap
between the statutes: “[T]he question posed by § 1983 claims that do callinto question the lawfulness of conviction or confinement remains open.”67 The
Court situated its analysis in Heck within its long-running project todetermine 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 andcriminal cases, in the first instance and on appeal . . . , we rely on the parties to frame theissues 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 anarrow 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 casesthat dealt with the overlap between § 1983 and § 2254. And the Court wasacutely 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 rolein 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 byextending 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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No. 22-50998§ 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘amethod for vindicating federal rights elsewhere conferred,’” 73 the Court
determined in Carey v. Piphus that the common law of torts is “theappropriate 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 dismissa § 1983 claim, the threshold inquiry “requires courts to ‘identify the specificconstitutional right’ at issue.”76 The next step is to “determine the elementsof, 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 acourt determine what a plaintiff must plead in order to survive dismissal.
When courts look for a common-law analog, “[s]ometimes . . . reviewof [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 guiderather than control the definition of § 1983 claims, serving ‘more as a sourceof 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 faircompensation 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

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)).

(1979)).

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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 theparticular right in question.”81
In sum, the Supreme Court has not viewed the common law as astraitjacket that restricts the reach of § 1983, but as a “starting point,”82“guide,” or “source of inspired examples”83 that helps courts create rulesthat further the purpose of § 1983—to compensate a person injured by theviolation 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 isincompatible 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 aparticular branch of the common law of torts may parallel closely the interest protected bya 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 theinquiry 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 orproceeding was instituted without any probable cause”; (2) “the motive ininstituting the suit was malicious, which was often defined in this context aswithout probable cause and for a purpose other than bringing the defendantto justice”; and (3) “the prosecution terminated in the acquittal or dischargeof the accused.”88 The Court adopted these elements “wholesale”89 for Roy
Heck’s claim. The plurality today recognizes that these elements wereadopted wholesale, but then makes an unfounded leap to conclude that thefavorable-termination requirement must be met for “any § 1983 claim thatseeks 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 thecommon-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, assertingthat 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, muchless 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 thereach 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 thatmalicious 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 thenext 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 sightof what is at stake: the justification for stripping an explicitly conferredstatutory cause of action to right constitutional wrongs. Comparing thejustification 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 thenoncustodial litigant who is told that she is at the mercy of the state, the samestate 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 yourrights and then successfully hiding its dirty work only make therationalization 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.” 92With 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’ goodtime credit he had previously earned toward his release.” 94 He appealed
within the prison’s appeal system, but his appeal was rejected because hefailed 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 heclaimed the hearing officer concealed exculpatory evidence and refused to
ask certain questions of witnesses, all of which prevented Balisok frompresenting exculpatory evidence.97
Balisok’s “claim posited that the procedures were wrong, but notnecessarily that the result was.”98 That said, Balisok’s challenge, if
successful, would necessarily imply that 30 days of his confinement would beinvalid, 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 thedomain 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 thefavorable-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 tobe 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 tothe constitutionality of his physical confinement itself and seeks either immediate releasefrom that confinement or the shortening of its duration” is “just as close to the core ofhabeas 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, McDonoughbrought a § 1983 damages action, asserting two claims: fabrication ofevidence and malicious prosecution.107 The question presented in the casewas whether McDonough’s fabrication of evidence claim accrued at the timeof 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 consequentdeprivations 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 tohave resolved a question that it didn’t tell us it was answering, especiallywhere 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 orwhose 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, theCourt looked to the elements of the most analogous tort, which here wasmalicious 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 theelements of the malicious prosecution tort, a Fourth Amendment claim
under § 1983 for malicious prosecution requires the plaintiff to show afavorable 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 terminationentails.”123
The plurality infers that because Thompson was not in custody, “itshould be clear beyond cavil that the favorable-termination element applies
regardless of whether the § 1983 claimant was, is, or never could be incustody.”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 statusbecause it had no reason to. So Thompson could not have held that a favorabletermination requirement applied to noncustodial plaintiffs writ large.
DIn sum, not one of the post-Heck cases supports the plurality’s
position. The plurality fails to track what questions were presented by thecases and under what circumstances. The Supreme Court has neveraddressed the application of favorable termination to plaintiffs like Wilson
who are not in custody and whose claims are not analogous to the commonlaw tort of malicious prosecution. In fact, the Court has acknowledged theongoing 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 attheir 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 tononcustodial plaintiffs like Wilson. Whether Wilson might (or might not) beable to prove favorable termination outside of § 1983 only matters if Heckrequires her to prove favorable termination in the first place. “When Congress
supplies a constitutionally valid rule of decision, federal courts must followit.”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 fromprisoners, 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 adiligence 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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No. 22-50998§ 1983: to give those victimized by state officials a federal forum. The soleissue for us is whether Heck applies to noncustodial plaintiffs—nothing else.
The plurality and concurrence particularly focus on the availability ofTexas 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, forexample, 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 casemight 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 theconcurrence 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 thepoint. 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” ofwhether 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 sheto 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_____________________
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 thechance 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 Stateof 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 . . . ahabeas 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 riggedjudicial 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 aquarter-century. Today, we squander the opportunity to take “[t]he betterview” 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 textualcommand, 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 thata federal-court remedy isn’t guaranteed for every constitutional violation.141
But the historical record shows that § 1983 was enacted to provide one for awide 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 isno justification for applying Heck’s favorable-termination requirement so_____________________
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 statehabeas or other state relief does not move the needle on a noncustodial plaintiff’s access tofederal relief under § 1983.
143

Spencer, 523 U.S. at 21 (Souter, J., concurring).

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Case: 22-50998

Document: 273-1

Page: 65

Date Filed: 09/13/2024

No. 22-50998

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 postHeck 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 forwronged 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, iseven more tenuous in today’s plea-bargain age than when the Founding
generation first enshrined it.
Respectfully yet emphatically, I dissent.

_____________________
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.

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