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# S mith v . H olt z

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 95-7533,95-7534

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" S mith v . H o ltz " (1996). 1996 D e cisio n s

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. e du/thir dc ir c uit_1996/164UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

N0S. 95-7533, 95-7534

JAY C. SMITH

v.

JOHN J. HOLTZ, Bureau of Technical Services, Pe nnsylvania; RONALD F. COLYER, Bureau of Technical Services, Pennsylvania State Police; VICTOR DOVE; JOHN J. PURCELL, Speci al Agent In Charge, Central Regional Office, Bureau of C riminal Investigations, Office of the Attorney Gen eral; WILLIAM J. LANDER, Bureau of Criminal Investi gations, Office of the Attorney General; PAUL YAT RON,

Appellants i n No. 95-7533

JAY C. SMITH

v.

JOSEPH P. WAMBAUGH,

Appellant in No. 95-7534

On Appeal From the United States District Court For the Middle District of Pennsylvani a (D.C. Civil Action Nos. 93-cv-01428 and 94-c v-01470)

Argued May 3, 1996

BEFORE: STAPLETON, COWEN and SEITZ, Circuit Judges

(Opinion Filed June 26, 1996)

G erald J. Williams (Argued)

W illiams & Cuker
1 617 JFK Boulevard

O ne Penn Center at Suburban Station

S uite 800

P hiladelphia, PA 19103Attorney for Appellee
in No. 95-7533

T homas W. Corbett, Jr.

A ttorney General

G regory R. Neuhauser (Argued)

S enior Deputy Attorney
General

C alvin R. Koons

S enior Deputy Attorney
General

J ohn G. Knorr, III

C hief Deputy Attorney
General

O ffice of Attorney
General of PA
1 5th Floor, Strawberry Square

H arrisburg, PA 17120 Attorneys for Appellants
in No. 95-7533

G eorge A. Bochetto

S tephen E. Skovron (Argued)

B ochetto & Lentz
1 524 Locust Street

P hiladelphia, PA Attorneys for Appellee
in No. 95-7534

M ark R. Hornak (Argued)

G eorge H. Crompton

B uchanan Ingersoll Professional Corp.

O ne Oxford Centre
3 01 Grant Street, 20th
Floor

P ittsburgh, PA 15219 Attorneys for Appellant
in No. 95-7534

OPINION OF THE COURTSTAPLETON, Circuit Judge:

In Heck v. Humphrey, 114 S. Ct. 2364 (1994 ), the Supreme Court held that 42 U.S.C.  1983 does not provide a cause of action to recover monetary compensation for an a llegedly unconstitutional conviction or imprisonment where r ecovery would necessarily imply the invalidity of an outstanding criminal
conviction of a state court. In these consolidated civil rights actions, Jay Smith seeks monetary compensation for his allegedly unconstitutional conviction and imprisonment on mur der charges. On direct appeal from Smith's murder conviction, th e Supreme Court of Pennsylvania reversed that conviction due to a state-law evidentiary error and remanded for a new trial. Be fore the retrial, however, that court ordered the dismissal of all charges against Smith based on newly discovered evidence of prosecutorial misconduct. In these ensuing civil rights cases, t he defendants unsuccessfully sought dismissal of Smith's claims o n statute of limitations grounds, arguing that they accrued when his conviction was reversed, even though he was still t he subject of an ongoing prosecution at that time. Since Smith's claims were filed more than two years after that reversal but w ithin two years of the dismissal of all charges against him, we must decide whether, under the teachings of Heck, a claim is co gnizable under
 1983 where its success would necessarily imply the invalidity of a future conviction that might be entered on a p ending criminal charge. We hold that such a claim is not cognizable
under  1983. It necessarily follows that claims like tho se of Smith do not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist . Since this potential existed in Smith's case until the Pennsyl vania Supreme Court ordered the charges dismissed on September 18 , 1992,
Smith's claims did not accrue before that date. Ac cordingly, Smith's claims were timely filed and we will affirm

.

I. In April 1986, a jury convicted Smith of t he murders of Susan Reinert and her children. Smith immediately appealed. While the appeal was ongoing in July 1988, the gove rnment disclosed that police investigators had withheld po tentially exculpatory evidence. On December 22, 1989, on dir ect appeal the Supreme Court of Pennsylvania reversed Smith's convictions on the unrelated ground that the Court of Common Pleas had improperly admitted hearsay evidence. Commonwealth v. Smith, 568 A.2d 600 (Pa. 1989). The Pennsylvania Supreme Cour t remanded for
a new trial. Smith remained in prison pending a second trial. He promptly moved to dismiss the ongoing prosecution o n double jeopardy grounds, arguing that the withholding of e xculpatory evidence at the first trial amounted to prosecutori al misconduct. Smith had not previously raised this issue because he had not
learned of the misconduct until after his trial and because the supporting evidence was not part of the record on d irect appeal. On September 18, 1992, the Pennsylvania Supreme Cou rt ordered allcharges dismissed based on the double jeopardy clau se of the

Pennsylvania Constitution. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). The court held that Pennsylvania's dou ble jeopardy clause prevented retrial because the withholding of evidence was "intentionally undertaken to prejudice the defendan t to the point
of the denial of a fair trial." Id. at 325. Smith was immediately released. On September 15, 1993, Smith filed a  1983 claim against John Holtz, Ronald Colyer, Victor Dove, Joh n Purcell, William Lander, and Paul Yatron (the "Holtz case"). Holtz, Colyer, Dove, Purcell, and Lander were government o fficials involved in the investigation. Yatron was an attor ney with the Pennsylvania Attorney General's office. Smith alle ged that the misconduct in connection with the concealing of the exculpatory evidence violated his Fifth, Sixth, and Fourteenth Amendment rights. On September 14, 1994, Smith filed a separ ate  1983 suit against Joseph Wambaugh (the "Wambaugh case"). He claimed that Wambaugh, an author, had conspired with police investigators to conceal exculpatory evidence and to fabricate ev idence linking Smith to the murders, in order to make money from a book and a television mini-series. He alleged violations of h is Fourth, Sixth, and Fourteenth Amendment rights. In both ca ses he sought to recover the damages resulting from his unlawful conviction and
confinement. The defendants in both cases argued that S mith's claims were time-barred by the applicable two-year Pennsyl vania statute of limitations because they accrued when his convic tion was reversed in 1989. Based on Heck v. Humphrey, 114 S . Ct. 2364 (1994), the district court concluded that Smith's  1983 claims were timely filed because they did not accrue until the Pennsylvania Supreme Court ordered all charges dism issed in 1992. We consolidated the interlocutory appeals filed by all defendants
under 28 U.S.C.  1292(b).

II. The outcome of this appeal turns on Heck v . Humphrey, 114 S. Ct. 2364 (1994). Heck was convicted of volu ntary manslaughter in a state court. While his direct ap peal was pending, he filed a  1983 suit against two prosecutors and a government investigator. He sought monetary damage s resulting from his allegedly unlawful conviction. The distri ct court dismissed the case and the Seventh Circuit Court of Appeals affirmed. Before the case reached the Supreme Cour t, the state supreme court denied relief in Heck's direct appeal of his criminal conviction, the district court denied Heck 's habeas petition, and the Seventh Circuit affirmed that den ial. Id. at
2368. The Supreme Court granted certiorari to de cide whether
under  1983 a state prisoner could pursue money damages p remised on an allegedly unlawful outstanding conviction. T he Court began its analysis by noting that since  1983 creates a species of tort liability, the common law of torts "provide[s] the appropriate starting point for the inquiry." Id. a t 2370. The
Court observed that the common law tort of maliciou s prosecutionwas analogous to Smith's claim because a malicious prosecution

claim allows a plaintiff to recover for unlawful im prisonment pursuant to legal process. A necessary element of a malicious prosecution claim is the termination of the crimina l proceedings
in favor of the accused: This requirement "avoids parallel litigati on over the issue of probable cause and guilt . . . an d it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prose cution, in contravention of a strong judicial policy against the creation of two conflicting resolutions ar ising out of
the same or identical transaction." Furth ermore, "to permit a convicted criminal defendant to p roceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehic le of a civil
suit." Id. at 2371 (alterations in original) (citations om itted).
For these reasons the Court held that "the hoary principle that civil tort actions are not appropria te vehicles for challenging the validity of outstanding crimina l judgments applies to  1983 damage actions that necessarily require the plaintiff to prove the unlawfulness of his convicti on or confinement." Id. at 2372. Accordingly, "in order to recover damages for allegedly unconstitutional conviction o r imprisonment, or for other harm caused by actions w hose
unlawfulness would render a conviction or sentence invalid, a
 1983 plaintiff must prove that the conviction or s entence has been reversed on direct appeal, expunged by executi ve 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." Id. A claim seeking such damages is not cognizable under  1983 even though such claim is
within the literal terms of  1983. Id. Accordingly, a "district court must consid er whether a judgment in favor of the plaintiff would necessaril y imply the invalidity of his conviction or sentence." Id. If not, the action should be allowed to proceed: For example, a suit for damages attributab le to an allegedly unreasonable search may lie even if the challenged search produced evidence that w as introduced in a state criminal trial resulting in the  1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inev itable discovery, and especially harmless error, such a  1983 action, even if successful would not neces sarily imply that the plaintiff's conviction was unlawf ul. In order to recover compensatory damages, however, the  1983 plaintiff must prove not only that the sea rch was unlawful, but that it caused him actual, c ompensable injury, which, we hold today, does not enc ompass the "injury" of being convicted and imprisoned (until his conviction has been overturned). Id. at 2372-73 n.7 (citations omitted).Since Heck's claims challenged the legalit y of his

conviction and his conviction remained in effect, t he Court dismissed Heck's claims as not cognizable under  1983. Id. at
2374. Smith asserts in his complaints that the d efendants suppressed exculpatory evidence and contrived incul patory evidence. His claims seek damages resulting from h is unlawful conviction and confinement. If he had brought thes e claims before September 18, 1992, when the Pennsylvania Su preme Court ordered the charges against him dismissed, success on these claims would have necessarily implied the invalidit y of any future conviction on the still pending criminal cha rges. Heck did not directly address claims that, if successful, would necessarily imply the invalidity of a potential conviction on a pending criminal charge. In certai n portions of the opinion, the Court spoke in terms of claims tha t, if successful, imply the invalidity of "outstanding" c onvictions. Other portions of the opinion, however, refer to cl aims that, if successful, imply the invalidity of convictions wit hout specifying whether this includes claims that, if su ccessful, would imply the invalidity of potential convictions that may result from pending charges. The Supreme Court did not address this iss ue because it was not presented by the facts in Heck. The Court had before it
the  1983 claim of a plaintiff who was serving a senten ce on an outstanding conviction. The Court thus had no occa sion to determine the scope of permissible  1983 claims by a defendant in an ongoing criminal prosecution. Accordingly, w e must look to the reasoning behind the Heck rule to determine whe ther a claim that, if successful, would necessarily imply the in validity of a conviction on pending criminal charges is cognizabl e under
 1983. The Supreme Court observed that the proble m presented by Heck's case is that it lay "at the intersection" of the Civil Rights Act of 1871 and the federal habeas corpus st atute. Heck, 114 S. Ct. at 2369. Some accommodation was require d because the federal habeas statute has an express exhaustion re quirement that precludes the filing of a federal habeas petition h olding the potential for interference with determinations made in state criminal proceedings, while  1983 requires no exhaustion of
state remedies. Id. The Court accommodated these two statutes by holding that  1983 actions are subject to the "hoary principle" that civil tort actions are not the appr opriate vehicle for challenging the validity of convictions and sentences. The express objectives of this holding were to preserve consistency and finality, and to prevent " a collateral attack on [a] conviction through the vehicle of a c ivil suit."
Id. at 2371. We find that these concerns apply equally to claims that, if successful, would necessarily imply the in validity of a future conviction on a pending criminal charge. A claim by a defendant in an ongoing criminal prosecution which necessarily challenges the legality of a future conviction on a pending criminal charge lies at the intersection of the fed eral habeascorpus statute and the Civil Rights Act of 1871. I f such a claim

could proceed while criminal proceedings are ongoin g, there would be a potential for inconsistent determinations in t he civil and
criminal cases and the criminal defendant would be able to collaterally attack the prosecution in a civil suit . In terms of the conflicts which Heck sought to avoid, there is no difference between a conviction which is outstanding at the ti me the civil rights action is instituted and a potential convict ion on a pending charge that may be entered at some point th ereafter. Because of these concerns, we hold that a claim that, if successful, would necessarily imply the invalidi ty of a conviction on a pending criminal charge is not cogn izable under
 1983. See Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996) (interpreting Heck to prevent accrual of  1983 claims that would necessarily imply the invalidity of convictions on pending criminal charges). It necessarily follows that so long as success on such a claim would necessarily imply the invalidity of a conviction in the pending criminal prosecution, s uch a claim does not accrue so long as the potential for a judg ment in the pending criminal prosecution continues to exist. T his did not occur in Smith's case until the Pennsylvania Suprem e Court ordered the charges dismissed on September 18, 1992 . Smith's claims thus did not accrue before that date and, si nce he filed those claims within two years thereafter, they are not time
barred.

III. Wambaugh argues, in the alternative, that if Smith's claims did not accrue before the 1992 dismissals, t hey have yet to accrue. The contention is that a judicial findi ng of actual innocence is a prerequisite for a common law malici ous prosecution claim and, accordingly, is a prerequisi te here. Since the double jeopardy ruling of the Pennsylvani a Supreme Court was not premised on a finding of Smith's actu al innocence, the argument goes, he has not satisfied that prereq uisite. We are unpersuaded. First, Wambaugh misstates the common law o f malicious prosecution. Actual innocence is not required for a common law favorable termination, see Restatement of the Law o f Torts
 659, 660 (1938), and a dismissal of charges on dou ble jeopardy grounds is a common law favorable termination. E.g ., Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993). But, more importantly, Wambaugh misreads H eck. While the Heck court looked to the common law for guidanc e, it did so solely for the purpose of accommodating the congres sional intent reflected in the civil rights and habeas corpus sta tutes. As a result, Heck should not be read to incorporate all of the common law of malicious prosecution into the federal law g overning civil rights cases of this kind. Heck represents a limit ation on the availability of relief for constitutional torts tha t extends no further than the congressional concerns which justi fy it. As we have explained, those concerns dictate that a distr ict court decline to entertain a civil rights claim asking mo netary compensation for an allegedly unlawful conviction o r imprisonmentwhere success on that claim would necessarily imply the

invalidity of an outstanding conviction or a potent ial conviction in a pending criminal proceeding. When that outsta nding conviction or that pending criminal proceeding ceas es to exist, however, the justification for barring access to th e federal courts likewise ceases. This means, among other thi ngs, that the rationale of Heck will not support a requirement th at a civil rights plaintiff like Smith must have judicially es tablished his innocence before invoking  1983.

IV. For the foregoing reasons, we will affirm.