2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-2011

Gregory Thomas v. Darnell Jones, II

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1550

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Recommended Citation

"Gregory Thomas v. Darnell Jones, II" (2011). 2011 Decisions. Paper 1224.

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GLD-177 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1550

___________

GREGORY THOMAS,

Appellant

v.

HONORABLE DARNELL C. JONES, II; THE COURT OF COMMON PLEAS OF 

PHILADELPHIA COUNTY; HONORABLE D. WEBSTER KEOGH, Administrative 

Judge of the Court of Criminal Justice Center; MAYOR OF THE CITY OF

PHILADELPHIA; THE CITY OF PHILADELPHIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 10-cv-02246)

District Judge: Honorable Joseph H. Rodriguez

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 5, 2011

Before: AMBRO, CHAGARES AND GREENBERG, Circuit Judges

(Opinion filed: May 19, 2011)

_________

OPINION

_________

PER CURIAM

Pro se appellant Gregory Thomas appeals the District Court’s order dismissing his 
2

complaint. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard 

of review. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 

2009). Because this appeal presents no substantial question, we will summarily affirm 

the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

In 1989, Thomas was convicted in the Philadelphia Court of Common Pleas of 

first- and second-degree murder and sentenced to two concurrent terms of life 

imprisonment. The Pennsylvania Superior Court affirmed the judgment, and the 

Pennsylvania Supreme Court denied Thomas’s petition for allowance of appeal. The 

Pennsylvania courts likewise denied relief to Thomas on collateral review. Thomas then 

filed a petition under 28 U.S.C. § 2254, in which he alleged, among other things, that his 

trial counsel was ineffective. The United States District Court for the Eastern District of 

Pennsylvania denied Thomas’s petition, and we declined to issue a certificate of 

appealability.

In 2010, Thomas filed the instant complaint under 42 U.S.C. § 1983. He alleged 

that he had been denied effective assistance of counsel during his criminal trial in 

violation of his Fifth, Sixth, and Fourteenth Amendment rights. According to Thomas, 

the fee schedule for court-appointed counsel in Philadelphia — a schedule that he claims 

the defendants, collectively, created and administer — is grossly inadequate. Thomas 

contends that due to a lack of funds, his trial counsel was unable to hire a private 
3

investigator or otherwise perform an appropriate pretrial investigation.1

The District Court dismissed Thomas’s complaint. The Court concluded that 

because success on the merits of Thomas’s claims would imply the invalidity of his state 

conviction, they were barred by Heck v. Humphrey, 512 U.S. 477 (1994). The Court 

further determined that to the extent that Heck did not bar Thomas’s claims, the statute of 

limitations did, because while § 1983 is subject to a two-year limitations period, see

Smith v. Holtz, 87 F.3d 108, 111 n.2 (3d Cir. 1996), Thomas’s allegations concerned 

events that occurred over 20 years ago. Thomas then filed a timely notice of appeal.

We will affirm the District Court’s order. We agree with the Court that, insofar as 

Thomas seeks damages for his counsel’s alleged ineffectiveness, his claim is barred by 

Heck. Under Heck, “a prisoner does not have a cognizable § 1983 claim, even if he or 

she does not seek relief from the fact or duration of confinement, for alleged 

unconstitutional conduct that would invalidate his or her underlying sentence or 

conviction unless that conviction has already been called into question.” Grier v. Klem, 

591 F.3d 672, 677 (3d Cir. 2010). A meritorious ineffective-assistance-of-counsel claim 

requires the movant to show that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Strickland 

v. Washington, 466 U.S. 668, 694 (1984). Thus, as the District Court concluded, a 

 

1 We note that Samuel Stretton, an attorney, filed a similar complaint in the District 

Court in 2008. See Civ. A. No. 08-01711. Thomas filed a motion to intervene in that action, 

which Stretton opposed and the District Court denied. Thomas then filed a near carbon copy of 

Stretton’s complaint in his own name. On June 3, 2010, the District Court granted Stretton’s 

unopposed motion to withdraw his complaint.
4

judgment in Thomas’s favor on his ineffective-assistance-of-counsel claim would 

necessarily imply the invalidity of his conviction. See Trimble v. City of Santa Rosa, 49 

F.3d 583, 585 (9th Cir. 1995) (per curiam); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 

1994) (per curiam). And, because Thomas’s only previous challenges to his conviction 

have been unsuccessful, his claim is not cognizable under § 1983 at this time. See

Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam) (so holding in case 

challenging the alleged underfunding of the court-appointed-counsel system).

In addition to seeking damages for his past harm, Thomas seeks prospective relief

— a declaratory judgment that the current reimbursement system for court-appointed 

counsel is unconstitutional and an injunction requiring the defendants to raise the 

reimbursement rates. However, to have standing to bring these types of claims, Thomas 

must show that “he has sustained or is immediately in danger of sustaining some direct 

injury as the result of the challenged official conduct and the injury or threat of injury 

must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles 

v. Lyons, 461 U.S. 95, 101-02 (1983) (internal quotation marks omitted). “Past exposure 

to illegal conduct does not in itself show a present case or controversy regarding

injunctive relief[.]” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

2

Thus, Thomas has standing for these claims only if he can show that the 

 

2 While Thomas is still in prison, his “continuing incarceration cannot serve as a 

basis for standing in an action brought under § 1983” in these circumstances. Brown v. Fauver, 

819 F.2d 395, 400 n.5 (3d Cir. 1987).
5

challenged fee schedule “will produce imminent injury” to him. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 564 (1992). Critically, in considering the likelihood of future 

injury, the Supreme Court has “been unwilling to assume that the party seeking relief will 

repeat the type of misconduct that would once again place him or her at risk of that 

injury.” Honig v. Doe, 484 U.S. 305, 320 (1988). Thus, we will not assume that Thomas 

will again face criminal charges and require court-appointed defense counsel — a 

conclusion that is reinforced by the fact that he is serving a life sentence. Nor is it 

apparent that Thomas will have counsel appointed for state collateral proceedings. While 

Thomas was entitled to counsel for his first round of PCRA proceedings (which he has 

already litigated), Pennsylvania extends no such guarantee to any subsequent petition that 

Thomas may file. See Pa. R. Crim. P. 904. Thomas has thus failed to show that he faces 

a real and immediate threat of being injured by Pennsylvania’s attorney-compensation 

system. See Gardner v. Luckey, 500 F.2d 712, 714-15 (5th Cir. 1974) (“The prospect of 

future injury rests upon the likelihood that the plaintiffs named in the complaint will 

pursue further state court proceedings of a type that are within the statutory scope of duty 

of the Public Defender. We regard this as too speculative.” (internal citation omitted)). 

Accordingly, he lacks standing to prosecute his claims for prospective injunctive and 

declaratory relief. 

Finally, we discern no error in the District Court’s conclusion that it would be 

futile to permit Thomas to amend his complaint. See Phillips v. County of Allegheny, 
6

515 F.3d 224, 236 (3d Cir. 2008). Thomas’s claims fail as a matter of law, and he could 

not cure these deficiencies with further pleading.

We will thus summarily affirm the District Court’s order dismissing Thomas’s 

complaint. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We also deny Thomas’s request for the 

appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).