*Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-20657

 

BEN JOHNSON, JR.,

Plaintiff-Appellant

versus

JOE KEGANS, Judge; CHARLES BACARISSE; A. BROOKS; RITA WHATLEY; MARY

JANE PONTZLER,

Defendants-Appellees.

 

Appeal from the United States District Court

For the Southern District of Texas

No. H-96-CV-747

 

February 25, 1997

Before HIGGINBOTHAM, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

This appeal comesto us after the district court’s dismissal of Ben Johnson’s pro se, in forma

pauperis 42 U.S.C. § 1983 complaint. The district court stated that Johnson’s claims called into

question the validity of his conviction, and they were thus barred by Heck v. Humphrey, 114 S.Ct.

2364 (1994).

The sparse facts of this case are drawn from Johnson’s pro se, in forma pauperis complaint,

his motion for summary judgment filed ten days after the complaint, an affidavit attached to that

motion, and the district court’s Order of Dismissal. Johnson was convicted for possession of cocaine

in a Texas state court and sentenced to 25 years in prison. Johnson’s complaint, broadly construed,

asserts two bases for his § 1983 claim: following his conviction, Johnson was denied access to the
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court, to appellate counsel, and to court records by (1) a 120-day delay by the Texas courts in

appointing him appellate counsel, and (2) an 11-month delay by the Texas courts in preparing the

record for his appeal. The complaint contains allegations that the defendants conspired to delay

Johnson’s appeal and deny him equal access to the state appellate process. Johnson asserts that he

has suffered $250,000 in damagesfrom anxiety and concern while awaiting his chance to present his

claims of innocence to the Texas appellate courts.

The district court asserted, without explanation, thatJohnson’s claims of ineffective assistance

of counsel and denial of appellate record would, if true, call into question the validity of Johnson’s

underlying state court conviction. It is now beyond debate that § 1983 claims by prisoner-plaintiffs

that challenge the validity of a conviction cannot proceed unless the conviction has already been

reversed, expunged, invalidated or impugned by a writ of habeas corpus. Heck, 114 S.Ct. at 2372.

Complaints are frivolous under Heck if they directly or indirectly challenge the validity of the

conviction. The Supreme Court gave an example of the type claim that would indirectly challenge

the validity of a conviction:

A state defendant is convicted of and sentenced for the crime of resisting arrest,

defined as intentionally preventing a peace officer from effecting a lawful arrest. . . .

He then brings a § 1983 action against the arresting officer, seeking damages for

violation of his Fourth Amendment right to be free from unreasonable seizures. In

order to prevail in this § 1983 action, he would have to negate an element of the

offense of which he has been convicted. Regardless of the state law concerning res

judicata . . . the § 1983 action will not lie.

Id. at 2372 n.6 (emphasis supplied).

Johnson’s complaint, broadly construed, does not require him to negate any element of the

offense of possession of cocaine to support at least nominal damages. There is an independent right

to effective assistance of counsel on appeal, if that appeal is as of right. Evitts v. Lucey, 105 S.Ct.

830, 836-37 (1985). Similarly, if a transcript is by rule or custom a prerequisite to appellate review,

the prisoner has an independent right to the transcript even if he cannot afford to have it prepared.

Id. at 834. We have recognized that due pro cess is denied where the state excessively delays the

furnishing of a transcript necessary for the appellate record. Rheuark v. Shaw, 628 F.2d 297, 302-03
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(5th Cir. 1980), cert. denied, 450 U.S. 931 (1981). Johnson’s claims that he was denied a speedy

appeal and appellate counsel thus do not necessarily implicate any of the element of the crime for

which he was convicted.

We apply a four-factor test to determine whether the state has exceeded the limits of due

process with its delay in preparing the appellate record: (1) length of delay, (2) reason for delay, (3)

defendant’s assertion of his right, and (4) prejudice to the defendant. Rheuark, 628 F.2d at 302-03

& n.8. For the purposes of this appeal, we assume t hat an 11-month delay of appeal, without

preparing a transcript or appointing appellate counsel, exceeds due process. Id. (assuming without

deciding that a two-year delay exceeded due process). Because the defendants in this case have not

been served, we do not know what reasonstheymight assert for this delay. But Johnson’s complaint

includes allegations that he has asserted his rights to appeal and have appellate counsel all along,

including letters to the court throughout the periods before and after he was appointed appellate

counsel. Thus the real issue is whether Johnson was prejudiced by the delay.

Prejudice in thissituation is measured in light of the interests of those convicted and awaiting

appeal: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and

concern of those awaiting appeal; and (3) limitation of the possibility that the groundsfor appeal will

be impaired during the delay. Id. at n.8. Johnson’s complaint implicates the first two prongs of this

test; the complaint allegesthat the defendants conspired to delayJohnson’s appeal and denyhimequal

accessto the state appellate process, and thatJohnson hasthereby suffered anxiety and concern while

awaiting appeal. It is impossible to assess the third prong of the test on the record before us. But

given that the district court did not make any findings about whether Johnson was prejudiced (and

thus whether his rights were violated), dismissal was inappropriate and in error.

It is possible that, on remand, the district court may find dismissal of Johnson’s complaint

warranted under Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is appropriate where

a § 1983 prisoner-plaintiff claims damages for delayed appeal and appointment of counsel while the
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appeal is still pending, because those claims may still be addressed and remedied immediately by the

state appellate court. Wilcox v. Miller, 691 F.2d 739, 740-41 (5th Cir. 1982).

Resolution of the issues of prejudice and abstention is not possible fromthe record before us.

We thus leave them to the district court. The judgment of the district court is REVERSED and the

case REMANDED for further proceedings consistent with this opinion.