## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4142

___________ Johnny Lee Wilson, * * Appellant, * * v. * * Lawrence County, Missouri, * Appeal from the United States David Tatum, Individually and in * District Court for the his official capacity, Doug Seneker, * Western District of Missouri. Individually and in his official * capacity, Bill Wegrzyn, Individually * and in his official capacity, * Steve Kahre, Arthur Owens, * John Does 1-20, Individually and in * their official capacities, * * Appellees. *

________________ * * The National Advisory Group for * Justice, * * Amicus on Behalf of * the Appellant. *

___________ Submitted: May 15, 1998 Filed: August 17, 1998

___________ Before BEAM, LOKEN, and MURPHY, Circuit Judges.With an Alford plea, the defendant ple ads guilty and consents to the imposition 1 of a sentencewhile still proclaiming his innocence of the charged offense. See North Caroli na v. Alford , 400 U.S. 25, 37 (1970). The court is obliged to find "stron g evidence of actual guilt" before accepting such a plea. Id. -2- ___________ BEAM, Circuit Judge. Johnny Lee Wilson appeals the district court's adverse grant of summar y judgmen t in this action under 42 U.S.C. § 1983, which seeks damages from th e de fendants for wrongfully arresting and incarcerating Wilson in violation of hi s constitutional rights. We reverse and remand for trial.

I. BACKGROUND

In 198 6, county officials arrested Wilson, who is mentally retarded, i n connectio n

with the murder of an elderly woman. Wilson was charged with capita l murder under Missouri law. In order to avoid the possibility of the death penalty, he submitted an Alford

plea to first-degree murder. Wilson was convicted and sentenced 1 to life imprisonment without the possibility of probation or parole.

In Septembe r of 1995, after Wilson had spent more than nine years in prison , Missouri Governor Mel Carnahan granted him the following pardon:
I, MEL CARNAHAN, GOVERNOR OF THE STATE OF MISSOURI, ha ve had presented to me a request for the pardoning of Johnny Le e Wils on, who was on the 30th day of April, 1987, by a judgment of th e Circuit Court of Jasper County, sentenced for the crime of First Degree Murde r. After examination of the application and the facts relevan t ther eto, and upon the recommendation of the Board of Probation an d Parole, I hereby grant to Johnny Lee W ilson a full pardon from the above-3-

convicti on. This pardon obliterates said conviction so that I hereb y relieve Johnny Lee Wilson from the obligation to satisfy any part of the sentence for said conviction which may rem ain unsatisfied, restore to him all rights of citizenship forfeited by sa id conviction, and remove any legal disqualification , impediment or other legal disadvantage which may be a consequence of said conviction.
App. at 80. Governor Carnahan also issued an acco mpanying statement explaining the reasons for his decision to pardon Wilson:

As a resu lt of an intense investigation conducted by my office, I have decided to issue a pardon to Johnny Lee Wilson because it is clear he did not commit the crime for which he has been incarcerated.

. . . . It is common for convicted crim inals to make claims of innocence. In almost all of these

cases, the claims of innocence are false. However, in this case, it is clear that Johnny Lee Wilson's claim is true. To meet my resp onsibilities under the Constitution, this office has conducted an exhaustive investigation into the facts of thi s case. We have spent literally hundreds of hours re-examining the evidence in this case. We have reviewed all the transcripts and re-interviewed th e key witnesses inc luding the prosecutor and law enforcement officials involved in thi s case.

. . . . From this investigation, it is clear that Johnny Lee Wilson' s confession is false and inaccurate. Furthermore, there is no evidence to co rroborate or substantiate it. Quite to the contrary, there is significan t evidence to indicate that it is false.
It is evident that the only facts this mentally retarded man kne w about this hideous crime were the facts giv en to him by investigators who-4-

felt pressure to solve the case quickly. And virtually all the information Wilson himself tried to offer about the crime—in response to th e investigator's questions—was inaccurate a nd inconsistent with the known facts.
In fa ct, the original motivation for Wilson's arrest has bee n removed. The person who originally accused Wilson of committing the crime has recanted his accusation and now admits that the statement he made to police was untrue.

. . . .

. . . [I]n the case of Johnny Lee Wilson, we have locked up a n innocent, retarded man who is not guilty of the crime of which he wa s accused. App. at 82-83.

Follo wing his release from prison, Wilson filed this action against Lawrenc e County and various named and unnamed law enforcement officials. The complain t raised cla ims under state tort law as well as 42 U.S.C. § 1983, alleging that th e defendants had "conducted a biased investigation by intimidating and coercin g witnesses" and "provided information, knowing it was false and/or misleading or i n reckless disregard for the truth or falsity of the information, to the prosecution and the
co urt in an effort to obtain Wilson's conviction at any apparent cost," resulting i n Wilson's conviction and incarceration in vi olation of his rights. The defendants moved to dismiss Wilson's federal claim under Rule 12(b)(6) or, in the alternative, fo r
summa ry judgment. The district court granted summary judgment in favor of th e defenda nts on the section 1983 claims, and declined to exercise supplementa l jurisdiction over Wilson's remaining state law claims. Wilson appeals.

II. DISCUSSIONWe do no t address the issue of which claims imply the invalidity of Wilson' s 2 conviction and which do not. Nor do we consider whether any of the claims may be time-barr ed. Those potential issues were not before the district court and are no t advanced on appeal. -5- W e review the district court's grant of summary judgment de novo. See Smith
v. Jenkins , 919 F.2d 90, 92 (8th Cir. 1990). Summary judgment is appropriate if the moving pa rty demonstrates that there is no genuine issue of material fact and th e moving party is entitle d to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 3 17, 322 (1986). All facts and inferences are viewed in the light mos t favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radi o Corp. , 475 U.S. 574, 587 (1986). The question before us is whet her the defendants are entitled to judgment as a matter of law.

A cla im is not cognizable under section 1983 where a judgment in favor of the plaintiff would necessarily imply invalidity of the plaintiff's state convic tion or sentence, unless the conviction or sentence has already been invalidated. See Heck v. Humphrey , 512 U.S. 477, 487 (1994). The plaintiff "must prove that the conviction or sentenc e has been r eversed on direct appeal, expunged by executive order, declared invalid by
a state tr ibunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87.

The parties agree that a favorable resolution of at least some of Wilson's 1983 claims would imply that his conviction was invalid. Therefore, under Heck , he cannot 2 maintain this 1983 action absent a showing that his conviction has been invalidated by some means independent of the instant proceeding. Wilson asserts that his conviction was "expunged by executive order" by virtue of his full pardon from the governor. The defenda nts disagree. The district court, relying on Missouri law, concluded that a person who i s pardoned by the governor remains guilty in the eyes of the Missour i court and therefore cannot bring a 1983 cla im for wrongful incarceration. In our view,Even if it were necessary to resort to state law to inform our decision on thi s 3 federal question, we would find that a governor's pardon does invalidate a conviction in the State of Missouri. The Missouri Supreme Court determined the legal effect of a gubern atorial pardon in Guastello v. Department of Liquor Control , 536 S.W.2d 21 (Mo. 1976). In Guastello , the court adopted the view that, in Missouri, a full pardon "obliterate[ s]" "the fact of conviction," "but the guilt remains." Id. at 23-24. Th e "guilt" to which the court referred was not the "legal guilt," but the "moral guilt," or the "moral character," of the pardonee. Id. at 23 & n.1. The Department of Liquor Control was not free to deny Guastello a l iquor license based on his prior conviction, the court he ld, because that conviction was obliterated when the governor granted him a ful l pardon. Id. at 25. If, u nder the law of Missouri, a gubernatorial pardon has the effect of "obliterat[ing]" a state conviction, it can properly be said to "expunge" an d "invalidate" that conviction as well.

-6- however, the issue in this case is one of federal law. Cf. Smith v. Holtz , 879 F. Supp. 3 435, 44 3 (M.D. Pa. 1995) (holding that the common law of malicious prosecutio n should no t be read into 1983 beyond the boundaries of Heck because "we are her e formulating a body of federal substantive law—determining the elem ents of a federallyenacted cause of action"). The relevant question is whether Wilson's pardo n invalidated his conviction within the meaning of Heck . We find that it did.
Though H eck

does not list an executive pardon among the ways a stat e conviction can be invalidated for purposes of 1983, it "certainly seem[s] to be within the re ach of the Court's language." Snyder v. City of Alexandria , 870 F. Supp. 672 , 686 (E.D. Va. 1994) (finding that a 1983 plaintiff's pardon for innocence falls within He ck 's description of the ways a conviction can be invalidated). Heck expressl y approves the method of "expunge[ment] b y executive order." The term "expunge" has two di fferent connotations. It can mean "[t]he act of physically destroyin g information—including criminal records—in files, computers, or other depositories." Black's Law Dictionary 582 (6th ed. 1990). Its more common meaning, however, is figurative: "[t]o destroy; blot out; obliterate; erase; efface designedly; strike out-7-

wholly." Id. ; see also The Random House Dictionary o f the English Language 683 (2d ed. 1987) ("to strike or blot out; erase; obliterate").

None of the other authorized methods of challenging the validity of a stat e conviction—direct appeal, state collateral proce edings, and federal habeas review—all of w hich the Court mentioned in the same breath as "expunge[ment] by executiv e order," entails the literal destruction, or "expungement" of the record of conviction. It is highly unlike ly that the Court intended arbitrarily to impose that requirement in this
one category of cases. Thus, we think the Court intended the figurative meaning o f "expunge."
In this sense, Wilson's pardon did "expunge" his conviction "by execu tive order." Gover nor Carnahan, acting within his authority under the Missouri Constitution, se e Mo. Const. Art. IV, Sec. 7, issued Wilson a full pardon, stating, "it is clear [Wilson] didnot commit the crime for which he has been incarcerated." The pardon states on its face that it "obliterates said convictio n." Wilson's pardon is therefore an "executive order" that "expunged," "obliterated," and "invalidated" his conviction. Heck requires nothing more.

The district court determined that the requirements of Heck were designed, i n part, to avoid the possibility of inconsistent outcomes based on the same transaction. Bec ause Wilson was adjudicated guilty, the court reasoned that Heck prevents th e in consistency of allowing him to recover damages for his wrongful conviction. Thi s is to turn Heck

on its head. Any successful collateral attack on a c onviction necessarily results in inconsistent outcomes based on the same transaction. Heck

does not prevent this. In fact, Heck

condones collateral proceedings as a mechanism for satisfying its mandates. A federal writ of habeas corpus do es not reverse or void the state judgment of c onviction. See Rimmer v. Fayetteville Police Dep't , 567 F.2d 273, 277 (4th Cir

. 1977) (observing th at "the state court judgment is neither reversed nor vacated" when a federal court issues a writ of habeas corpus); Smith v. Spina , 477 F.2d 1140, 1147-8-

(3d Cir. 1973) (stating that a federal writ of habeas corpus "doe s not have the force and effect of voiding a conviction"). It does, however, by Heck 's own terms, "invalidate" the conviction for purposes of bringing a section 1983 claim challenging tha t conviction. Indeed, the only way a state conviction could be "invalidated" without the consequenc e of inconsistent outcomes based on the same transaction is reversal o n dir ectappeal. The invalidation requirement of Heck is not limited, however, to th e direct appeal process.
The gist of Heck

is t hat section 1983 is not an appropriate vehicle for attacking the vali dity of a state conviction. Wilson does not seek to put it to this improper use. He used the executive clemency process, which the Supreme Court has expressl y ap proved, as the forum in which to challenge his criminal conviction. See Herrera v. Colli ns , 506 U.S. 390, 411-17 (1993). In Herrera , the Court described pardons a s "provid[ing] the 'fail safe' in our crim inal justice system," noting that "history is replete with exampl es of wrongfully convicted persons who have been pardoned in the wake of a fter-discovered evidence establishing their innocence." Id. at 415 (citation s omitted). The present case is a pri me example of the usefulness of the pardon process to v indicate the innocent, and it demonstrates that the Court's faith in the viability o f executive clemency was n ot misplaced. Section 1983 rightly provides a remedy to an innocent man whose constitutional rights have been violated by an erroneou s conviction and wrongful nine-and-one-half-year incarceration.

We find that, by virtue of the pardon he received from Missouri's governor , Wilson 's conviction was invalidated and "expunged by executive order" within th e meaning o f Heck . Accordingly, we reverse the district court's grant of summar y judgment.
Because Wilson's federal claim is cognizable, the dis trict court had no discretion to dismiss his state law claims, as they are so intertwined with his section 1983 claim that they form part of the same case or controversy. See 28 U.S.C. § 1367.-9-

III. CONCLUSION

For th e foregoing reasons, the district court's grant of summary judgment i s reversed, Wilson's state law claims are reinstated, and the case is remanded for trial.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.