William H. Rehnquist: We'll hear argument next in 93-6188, Roy Heck v. James Humphrey. Mr. Rothfeld.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: The principal question in this case is whether a State prisoner who wants to bring a section 1983 damages action in Federal court challenging assorted constitutional violations that took place during the course of a criminal investigation must first exhaust State postconviction remedies.
William H. Rehnquist: Let me ask you, if I may, Mr. Rothfeld, about the theory under which your case was brought under 1983. Did it involve... did it claim that things which happened at the respondent's... or the petitioner's trial violated the Constitution?
Charles A. Rothfeld: It is focused on acts that took place during the course of the investigation leading up to the trial, so it does not focus on any particular trial event. It doesn't focus on the introduction of evidence, for example.
William H. Rehnquist: And is it logical to say that if your client were to win his case, that still would not, under some sort of collateral estoppel doctrine, vitiate the judgment of conviction?
Charles A. Rothfeld: Well, I think, Your Honor, it quite clearly would not vitiate the judgment of conviction for a number of reasons. First of all, part of the problem in this case, and one of the fundamental questions in this case, involves the court of appeals test, which is does a damages claim involve an attack on the validity of the conviction. And we think that that question is simply not meaningful in a case like this. Petitioner, and prisoners in his situation, are not attacking the validity of their convictions. They're attacking particular constitutional violations that they assert occurred at the hands of particular individual defendants. And there is nothing, necessarily, about such a challenge that calls into question the validity of the conviction in any sense, because--
William H. Rehnquist: Is this-- --What would be an example of one of their claims, and the constitutional basis for it?
Charles A. Rothfeld: --One claim that's made in this case is that exculpatory evidence or potentially exculpatory evidence was destroyed by law enforcement investigators. It's possible that that occurred... that could have been a constitutional violation. It could be remediable on any number of theories, and yet it could have been harmless error at the trial. It may have had no affect on his conviction.
William H. Rehnquist: But that really does have a bearing on the trial, doesn't it? I mean, you wouldn't be claiming the destruction of evidence if you weren't interested in that evidence being used at the trial.
Charles A. Rothfeld: Well, there are a variety of ways in which a damages claim can proceed, apart from the use of the evidence of trial. Prisoner could simply be asking for nominal damages for the violation of the constitutional right. He could be asking for punitive damages because of reckless disregard of constitutional rights by particular law enforcement officers. There could be a whole host of--
David H. Souter: Could it be asking for consequential damages for false imprisonment?
Charles A. Rothfeld: --Well--
David H. Souter: Wrongful imprisonment?
Charles A. Rothfeld: --There are, I suppose, two types of other damages that could be involved, Justice Souter. One is the one that you're suggesting. Another, just to mention it, is the sort of ancillary damages that you and Justice Ginsburg discussed in your separate opinions recently in Albright v. Oliver, the kind of reputational injury or other kinds of sort of direct injuries that are unrelated to the condition.
David H. Souter: Well, let's just stick to the first category. Could they claim them?
Charles A. Rothfeld: I think they could claim that, Your Honor.
David H. Souter: Well, if they did claim them, then it really would go to the heart of the lawfulness of the imprisonment and conviction.
Charles A. Rothfeld: Well, there are several observations, I think, to make in response to that. It is true that that particular aspect of the prisoner's claim, and only that aspect of the prisoner's claim, in a sense turns on sort of a but-for question: Would the conviction have occurred but for the constitutional violation? But even answering that question in the affirmative and saying that the prisoner would not have been convicted had the constitutional violation not occurred does not, in any sense, sort void the conviction or say that it is voidable now.
David H. Souter: No, but in... if that's the... if the answer turns out to be that there would have been no conviction and there is being a claim... and a claim is being made for consequential damages, then the State, in that case, is faced with the possibility of sitting back and doing nothing and letting the damages pile up or letting the person go.
Charles A. Rothfeld: Well--
David H. Souter: And I suppose if the damages amount to anything in substance, the State is going to say we'd better get this guy out of here before he costs us any more money.
Charles A. Rothfeld: --Well, that would be a practical decision that the State would have to make, Your Honor, but in terms of whether or not exhaustion is required, which is the question here, I think that the Court has to look at the principles that are served, the policies that are served by the habeas exhaustion requirement.
Antonin Scalia: Mr. Rothfeld, what about just looking to normal tort principles. This is an old Federal tort statute. I assume it incorporates normal tort principles such as causality. It seems to me that one of the standard requirements, if you're bringing a cause of action which depends upon the unlawfulness of a conviction, is that the conviction have been set aside. You cannot bring a tort action for malicious prosecution, for example, unless you've been acquitted. Why should you be able to bring this tort action for those constitutional violations that hinge upon innocence without first getting the conviction set aside or having been declared innocent? I mean, other violations, for example unreasonable searches and seizures, I suppose you can sue on, no matter what, but your damages from being unlawfully detained, you're entitled to them only if you're unlawfully convicted. And why shouldn't we apply normal tort principles saying you're not... you're considered to be lawfully convicted unless and until that's set aside.
Charles A. Rothfeld: Well--
Antonin Scalia: That's just normal tort law.
Charles A. Rothfeld: --I think, Your Honor... and, first of all, that argument has not been suggested at any point during the course of this litigation, but I think, in any event, that suggestion goes to the merits of the claim. All that we're concerned with here is whether or not a 1983 action can be brought, whether this district court has jurisdiction to entertain the action. It may be--
Anthony M. Kennedy: Well, it goes... but it goes also to just standard questions of respect for the validity of outstanding judgments. You have a judgment here that is deemed correct and it has not been set aside.
Charles A. Rothfeld: --Well, I think--
Anthony M. Kennedy: And yet you're contending that you can ask for damages for the enforcement of that judgment. And I think the underlying concern is whether this suit should just be dismissed on its merits at the outset.
Charles A. Rothfeld: --Well, let me give you two responses to that, Justice Kennedy. First of all, I think that is a question relating to the merits. And it may be that, on remand, that aspect and only that aspect of the petitioner's claim could be dismissed on such a theory which, as I say, has not been propounded at any point during the course of the litigation now. I don't think the Court needs to concern itself with that. It needs to concern itself only with whether the action can proceed to a disposition on the merits.
Anthony M. Kennedy: Well, I suppose... excuse me. Go ahead. I suppose we do, when one of the issues is whether or not we should stay this suit or allow it to be dismissed. If most of these cases, most of your damages are going to be foreclosed by the existence of the criminal judgment, then it seems to me that you have a very, very weak case for saying that the suit and this action should remain in the docket of the district court.
Charles A. Rothfeld: No, I understand that suggestion, Justice Kennedy, but I think, first of all, there are other claims which are presented in this case, claims for... as we read the complaint, and it is a pro se complaint which is not written artfully, but as we understand it, it asks for nominal damages and punitive damages, as well as this aspect of compensatory damages. In addition, as a matter of the law of issue preclusion or claim preclusion, which is what I think your question goes to, it is not the case that a petitioner... even a petitioner asking for these kinds of consequential damages is attacking the validity of his conviction or calling the validity of the judgment into question. Petitioner... it may be that if a claim has been adjudicated in the course of the return of the conviction, that that question has been adjudicated and it may be that there would be issue preclusion in that case.
William H. Rehnquist: What if it wasn't adjudicated but could have been adjudicated?
Charles A. Rothfeld: If it was not adjudicated, Your Honor, the question would be one of collateral estoppel rather than res judicata or the new more fashionable terminology of issue preclusion rather than claim preclusion, because there are actually different parties involved in the litigation. The State, of course, was involved in the criminal conviction. This action is brought against individual named defendants acting in their individual capacities. And, in addition, there are different claims involved. Obviously, the State's claim involved its criminal prosecution--
William H. Rehnquist: Yes, but surely if you claim that there was a destruction of evidence by the State and which violated the Constitution, that could have been raised at trial.
Charles A. Rothfeld: --That could have been raised at trial, Your Honor, that's true, but if the question is one of issue preclusion, the rule to be followed is... in a case like this, because it's a State judgment which is at issue, one would look to the preclusion law of the State. And Indiana's preclusion law provides that an issue that could have been raised but was not raised is not precluded in subsequent litigation, and therefore it would be open to review.
William H. Rehnquist: And why do you say the parties are different here?
Charles A. Rothfeld: The State of Indiana was, of course, the party adverse to petitioner in the criminal case. Petitioner has not sued the State of Indiana, and couldn't sue the State of Indiana, which is not a person under section 1983. He has sued individual State officers acting in their individual capacities.
William H. Rehnquist: Well, are you so sure that that wouldn't... that that wouldn't be treated as the same parties, for issue preclusion?
Charles A. Rothfeld: I think this is an issue which is debated in the briefs, Your Honor. We think it is reasonably clear that they would not be treated as the same parties for purposes of issue preclusion. As a matter of black letter law--
Ruth Bader Ginsburg: Suppose the State is paying the counsel fees, providing counsel. Suppose the State is providing counsel to the defendants?
Charles A. Rothfeld: --Let me give you several answers to that question, Justice O'Connor. First of all, I think that--
Ruth Bader Ginsburg: Ginsburg.
Charles A. Rothfeld: --Oh, excuse me, Justice Ginsburg. I'm sort used to looking at the other end of the Court, Justice O'Connor. I think that as a black letter rule, individual parties sued in their individual capacities and parties sued in their official capacities are treated as distinct. As to the question you raise specifically, the Court has set out... has considered this question in the case of Montana v. United States and has listed a number of factors that could come into play in determining whether or not a party that in some sense sponsors the litigation or pays for the litigation is deemed to be, to use the old terminology, in privity with the party who is actually facing judgment in the case.
Ruth Bader Ginsburg: In control of the litigation.
Charles A. Rothfeld: In control of the litigation is one of the factors that the Court has indicated is relevant. I think as to whether or not a court is likely to find collateral estoppel in such a case, or to cite the Court to Sherlock Holmes and the dog that didn't bark, there has never been such a case that either the State of Indiana or that we have found, in which an individual who is sued in his individual capacity and receives an adverse judgment, that judgment is then used to bind the State. I think that--
Antonin Scalia: Of course, you could say the same thing in all the malicious prosecution cases. The State is not going to be bound if the individual officer loses for malicious prosecution. Nonetheless, we don't allow the action to proceed. The basis for not allowing it has never been res judicata or claim preclusion or issue preclusion; it's just been you don't bring this tort action until you've established that, indeed, your incarceration is unlawful.
Charles A. Rothfeld: --Well, certainly, to prevail on the merits the petitioner would have to show that his incarceration is unlawful in the sense that he would not have been convicted but for the happening of the constitutional violation--
Antonin Scalia: No, no, in malicious prosecution you don't get into the courthouse. You are not allowed to show that it's unlawful. You go over to the criminal side and get it set aside, or you win your prosecution... you win in the criminal case. You can't come in when you're in jail and sue somebody for malicious prosecution, you simply can't, whether there's issue preclusion, claim preclusion, or not, you can't do it.
Charles A. Rothfeld: --Well, I think, Your Honor, that is, again, a question that would go to the merits that would govern this type of litigation.
William H. Rehnquist: Well, I don't think, Mr. Rothfeld, you can separate... you can have this very narrow jurisdictional analysis that you're trying to limit it to, as opposed to the merits. I mean, we've got to be concerned with how this affects traditional notions of res judicata and tort actions and that sort of thing.
Charles A. Rothfeld: Well, I think there are several points, Justice... Chief Justice Rehnquist. Well, the Court certainly can take into account traditional notions of res judicata. The Court has already addressed, essentially, an identical question in Preiser v. Rodriguez and Wolff v. McDonnell, in which prisoners were bringing actions attempting to shorten their sentences. And the Court held quite clearly in Wolff v. McDonnell and indicated quite expressly in Preiser v. Rodriguez that if a prisoner is suing for money damages, he can proceed immediately in Federal courts while--
William H. Rehnquist: Neither of those cases involved attacks or what could be attacks on judgments of conviction.
Charles A. Rothfeld: --That's true, Your Honor, but for purposes of the habeas policies, the Court held quite expressly in Preiser--
William H. Rehnquist: It didn't... it couldn't have held with respect to judgments of convictions since those were not involved in either of them.
Charles A. Rothfeld: --No, that is true, Your Honor, but the Court did hold in Preiser that... in response to the argument that actually had been made by the prisoners in that case, that habeas policies were concerned only with judgments of conviction rather than with the length of a sentence, that both concerns were equally close to what the Court called the core of habeas corpus and that that was the basis for the Court's conclusion that exhaustion was necessary, in Preiser. Applying that same conclusion here and determining whether or not exhaustion is necessary here, the Court's conclusion there that a damages action could proceed simultaneously with a State action asking for earlier release, I think is dispositive here.
Sandra Day O'Connor: Well, hasn't every court of appeals that's considered this decided that the State prisoner cannot bring a section 1983 damages action to challenge the constitutionality of the conviction, in effect?
Charles A. Rothfeld: I don't think that's quite true, Justice O'Connor. There--
Sandra Day O'Connor: They seem to be pretty uniform, and I thought in Tower against Glover, which I don't believe you cited, we reserved the question.
Charles A. Rothfeld: --Well, the Court reserved the question in Tower, Your Honor, and said it had... didn't have to express an opinion on the subject, which was quite clearly true in Tower. The Court in Tower did not cite Wolff v. McDonnell, which is a case which we think is actually dispositive here, and I think clearly cannot be read as a sub silentio overruling of Wolff v. McDonnell. As to the question of what the courts of appeals have done, I think at least one court of appeals we cite in our brief and in the petition... it's a case called Mack v. Varelas, a relatively recent Second Circuit decision which has, we think, indicated that petitioners need not exhaust their damages action in a case such as this. There actually was a Second Circuit case called Ray v. Fritz which the Court cited to in Preiser as a illustration of the type of damages action that it thought could proceed, which also involved a claim by prisoners who were seeking earlier release and I think indicates clearly what the Court had in mind in saying that when a prisoner means to pursue a damages action, that does not call into question... that is not going to lead to his earlier release. He cannot do that. I think--
David H. Souter: Mr. Rothfeld, may I leave theory for a moment and ask you a question about practical effect. Is it fair to say that at least in most States, the effect of the exhaustion rule, which is... which you are protesting, would really simply require you to complete the direct appeal? Because I'm assuming that most States would require a Fourth Amendment issue to be raised at trial or before trial, and if it were not, would not allow it... would find it barred or waived on State habeas, so that as a practical... if that is true as a practical matter, would the rule that you object to in effect require you to do anything more, in practice, than simply complete the direct appeal?
Charles A. Rothfeld: --As you indicate, Justice Souter, it would turn on the content of the State postconviction rules.
David H. Souter: Yeah.
Charles A. Rothfeld: Clearly, in this case the Seventh Circuit thought that there was a postconviction proceeding that could provide relief of some sort to the petitioner in this case. In many cases it will certainly be true that a prisoner is not going to have any additional avenue available beyond that that's presented on direct appeal.
David H. Souter: It'll be... won't that be true in most cases? I mean, isn't that generally the State rule?
Charles A. Rothfeld: That probably is the general rule. Now, most State rules have exceptions for what they call cases involving fundamental unfairness, and I think that what this suggests is that our rule is... as a matter of judicial administration, is a much simpler matter, because the State... the Federal court presented with a damages action is not going to have to determine whether or not there is a State proceeding available. It can simply adjudicate the 1983 claim on the merits.
Ruth Bader Ginsburg: What was the... what was the proceeding in this case that was thought to be available by the Seventh Circuit?
Charles A. Rothfeld: Well, the Seventh Circuit didn't identify what it had in mind. We presume that it had in mind Indiana's postconviction remedy statute, which, as Justice Souter suggests is true in most cases, would have, as a general matter, require a prisoner to raise... would bar a prisoner from raising in postconviction proceedings, a claim that either he had raised in his direct appeal or a claim that he could have raised but did not raise. But there is an exception in that Indiana statute for claims going to the fundamental fairness of the proceeding, and it may be that the Seventh Circuit had that in mind.
Ruth Bader Ginsburg: Is there anything that could come up in habeas. I was trying to think if there was anything that you couldn't convert into a 1983 damage claim that you could bring for specific relief, let me out. Is it not so that every habeas claim could be stated alternately as a 1983 damage claim?
Charles A. Rothfeld: That certainly would be true in most cases, because whenever there has been a constitutional violation, there will be at least nominal damages available as a remedy. But the fact is, there is always going to have to be a set of proceedings, because the State proceedings do not provide for damages, State postconviction remedies, and Federal... and the section 1983 proceeding, of course, concededly does not provide for release. So there was always going to have to be a set of postconviction--
Ruth Bader Ginsburg: But if you're right, then wouldn't this make a massive change. You could always... if you would rather go into Federal court and in damage format, you could always do that, bypass any State postconviction remedy, and skip Federal habeas as the first step.
Charles A. Rothfeld: --It would permit a prisoner to go immediately into Federal court. I suggest that's not a change so far as this Court's jurisprudence is concerned because, as I said, in Wolff v. McDonnell and in Preiser v. Rodriguez, this Court indicated quite clearly that a prisoner damages action can proceed immediately, simultaneously with the prisoner's postconviction relief proceedings in the State court. I mean, the Court, it said... and this is the Court's language from Preiser, that if a prisoner is seeking damages, he is not asking for immediate or early release, and he is not attacking the length of his sentence or the validity of his sentence. And in such a case, damages are not an appropriate or available remedy in habeas. That was the rationale for the Court's conclusion in Preiser, which was applied in Wolff, that exhaustion is not necessary in damages claims. And there is a logical--
William H. Rehnquist: Well, Mr. Rothfeld, in Tower, which Justice O'Connor referred to, there is an express statement that we have not decided this point yet, and it also refers to Preiser. I mean it's not as if it were written in ignorance of Preiser, the Tower statement.
Charles A. Rothfeld: --That's true, Mr. Chief Justice. But, again, Tower simply indicated that the Court was not going to express an opinion on that, and Tower did not cite to Wolff, which we think is a clear holding of this Court that damages actions can proceed... damages actions that involve the validity of procedures used to establish the length of a sentence, those actions can proceed simultaneously with an action in State court.
William H. Rehnquist: So that insofar as holdings are concerned, we really haven't decided this question, that is whether a 1983 damages action which would amount to a collateral challenge to judgment of conviction could proceed?
Charles A. Rothfeld: Well, I think that in terms... the question should be separated into two parts, Mr. Chief Justice. The Court has decided, as I've said, that actions that can proceed in habeas... clearly the actions in Preiser and in Wolff could proceed in habeas so far as the length of the sentence was concerned, could proceed immediately and simultaneously in a Federal damages action. It is true that the Court has not applied that directly in a case involving challenge... what Indiana terms or what respondents term a challenge to the conviction. But that, as I think I've... we discussed earlier, goes to the merits of the case.
William H. Rehnquist: Well, you don't agree, then, with the statement in Tower that we have never decided whether 1983 could proceed without exhaustion?
Charles A. Rothfeld: I think that... I will have to say that I think that that does not take into account the decision in Wolff, which was not cited--
William H. Rehnquist: Well, why didn't you cite Tower in your brief?
Charles A. Rothfeld: --I think that all that Tower does, Your Honor, is indicate that the Court is not going to express an opinion on the subject, which was clearly what the Court meant to do in Tower. The issue was not presented in Tower, not briefed in Tower. And we think that... indeed, the respondents don't rely on Tower. They cite to Tower for some collateral question or issue, but don't say that Tower is dispositive of the question here or that Tower indicates a clear opinion of the Court on the question here. I think it does not. The Court simply says it's not going to express an opinion on the subject, and obviously the Court will have to determine what it meant in Wolff. But we think it is clear from the face of the Wolff opinion that the Court concluded that exhaustion is not necessary in these circumstances, whether or not a petitioner can prevail on the merits of his challenge which somehow implicates the conviction. And, as I've suggested, I don't really think the challenge here does implicate the conviction.
Sandra Day O'Connor: Mr. Roth, under your theory, if you can proceed first in section 1983 suit for damages, I assume the petitioner would not then have any issue preclusion against him if he subsequently sought habeas?
Charles A. Rothfeld: That is correct. If he... well, if he prevails, obviously, in his 1983 action.
Sandra Day O'Connor: Well, even if he lost that 1983--
Charles A. Rothfeld: If he loses--
Sandra Day O'Connor: --He can go right into Federal habeas and make claims all over again, based on the same facts, I assume.
Charles A. Rothfeld: --Well, he would have to... before he could go into Federal habeas, he would have to exhaust his State remedies, if any are available, and at that point he would go into Federal court and litigate the question. If he has already lost on these very issues, then he will be estopped and disposing of the habeas petition on the merits will be a simple matter.
Sandra Day O'Connor: Why? You think he's estopped? I wouldn't have thought so.
Charles A. Rothfeld: I would think, Your Honor, if the issue is--
Sandra Day O'Connor: I thought there were cases holding that there isn't any issue preclusion there.
Charles A. Rothfeld: --In a subsequent habeas.
Sandra Day O'Connor: Uh-hum.
Charles A. Rothfeld: In a subsequent Federal habeas action he would, yes, but in a subsequent State post-conviction proceeding... maybe I... I misunderstood your question. He could well be estopped in a subsequent State proceeding. In fact--
Antonin Scalia: I've lost the exchange here. You were talking about his being estopped after he exhausts and then he comes back with a 1983 action.
Charles A. Rothfeld: --If he exhausts the State remedies--
Antonin Scalia: Yes, and loses.
Charles A. Rothfeld: --And loses, I think he would be estopped... and he litigates the question, he would be estopped in a subsequent 1983 action. In fact, in Preiser that is the very reason that the Court indicated that a 1983 action should proceed immediately. The prisoners in Preiser had argued that if they were obligated to exhaust their claims first in State proceedings, that if they lost they would be estopped in a subsequent 1983 action. And the Court's response was that may well be true, but your solution is to bring your 1983 action now.
Ruth Bader Ginsburg: Why shouldn't it work the other way, that if you litigate and lose in 1983 on the same issue, you should lose it... I mean why isn't that Federal adjudication just as good as the State adjudication would have been, if you--
Charles A. Rothfeld: It is, Your Honor. And if you... if--
Ruth Bader Ginsburg: --So then you're changing the answer you just gave to Justice O'Connor saying you would be subject to issue preclusion.
Charles A. Rothfeld: --You would be subject to issue... my answer to Justice O'Connor... maybe I've confused the point, but my answer to Justice O'Connor is that in the State proceeding you are subject to issue preclusion. If you lose... if you bring your 1983 action first and lose, the prisoner is then subject to preclusion in the State subsequent postconviction relief proceeding. Now, if the prisoner then goes back to Federal habeas, the preclusion rules are different in Federal habeas because, as a general matter, preclusion is not a dcctrine that's applied there. But the prisoner clearly would be estopped in the 1983... in the State post-conviction proceeding if he loses the 1983 action.
William H. Rehnquist: Well, you say issue of preclusion isn't applied in Federal habeas. Are you speaking of the rule going back to Salinger against Lazlo where they said that your one... one habeas petitioner dismissal doesn't bar the bringing of another?
Charles A. Rothfeld: I'm referring, Your Honor, to the nonpreclusive effect of a State court judgment. Whether or not a 1983 judgment, in Federal court in which the prisoner loses, could be used to estop him in a subsequent habeas action is a separate question, and it may well be that estoppel's available there. If there are no further questions now, Mr. Chief Justice, I'll reserve the balance of my time.
William H. Rehnquist: Thank you, Mr. Rothfeld. Mr. Gutwein.
Matthew R. Gutwein: Thank you, Mr. Chief Justice, and may it please the Court: At issue in this case is the proper order in which our judicial system should consider State prisoners' attacks on the validity of a conviction. Petitioner's rule in this case is a very simple one, it's very easy to apply, very easy to understand, but it creates a new order and one that is very different than the order that Congress considered was appropriate in enacting the exhaustion requirement in section 2254(b), and the order that this Court has generally deemed appropriate in its comity jurisprudence such as Younger, which--
David H. Souter: Well, that may be true as a general rule, but why should it be true in a Fourth Amendment case when there is a practical matter? Under Stone there isn't any Federal habeas so that there's no... there's no Federal policy of exhaustion that needs to be served. Why don't we have a separate rule for Fourth Amendment issues?
Matthew R. Gutwein: --We believe that Fourth Amendment issues, assuming that they actually attack the legality of the conviction, should require exhaustion. And that is because the rule of comity is that State courts should have the initial opportunity to decide the issues, both factual and legal, of whether a State prisoner's conviction is lawful.
David H. Souter: So in Fourth Amendment cases you're resting it not on the habeas exhaustion requirement, but on an independent rule of comity.
Matthew R. Gutwein: Exactly. In the Fourth Amendment context, this Court has held, under Stone v. Powell, that the comity interests there are supreme. That this Court, so long as there's been a full and fair opportunity to review the matter, will defer completely to the State court's judgment. And I believe it is backwards to suggest that in the habeas context where the comity is at its greatest, that that should be a justification in the 1983 context to short circuit, at that point, the State's opportunity to initially decide that question.
David H. Souter: But the rule of comity, in effect, would enact an exhaustion requirement for 1983 which is not required by habeas policy?
Matthew R. Gutwein: That is correct. But let me mind you that some States may not follow Stone v. Powell. Indeed, Indiana does not follow Stone v. Powell.
David H. Souter: Well, I'm not concerned about what the States may do, but, I mean, it seems to me that your strongest argument is, as a general rule leaving aside the particular claim involved, that if you don't, in effect, have the rule that you want, you in effect are allowing an end run to be made in the habeas exhaustion rules. And you concede that that argument doesn't apply when the claim is a Fourth Amendment claim because under Stone v. Powell there isn't going to be a Federal relitigation anyway.
Matthew R. Gutwein: That is correct, Your Honor.
David H. Souter: Okay. And as a practical matter, then, it seems to me that your argument for comity is really an argument for an exhaustion requirement under 1983 which is independent of Federal habeas policy.
Matthew R. Gutwein: That is correct. But we win under your first theory, and we'd be perfectly happy with that, but we have a second theory that is, as you suggest--
David H. Souter: What was my first theory? [Laughter]
Matthew R. Gutwein: --That if a State prisoner can do an end run around section 2254, that that ought not be allowed, and therefore to the extent that 2254--
David H. Souter: Yeah, but that doesn't apply here because of Stone.
Matthew R. Gutwein: --We believe it does apply here, because... and this is a matter in the record. This petitioner is not making a Fourth Amendment claim, and we believe that that's quite clear in the record.
David H. Souter: I thought he was.
Matthew R. Gutwein: He is not, and let me refer to you to his complaint. And I'm now looking at page 4 of the Joint Appendix, at the very bottom of page 4 it says between May and July of 1987, and that is the conduct about which he complains after that, conduct that occurred between May and July of 1987. Now, he refers to a search on page 5 of the Joint Appendix that occurred in 1986, and that's the only search he refers to. He is not complaining about that 1986 search, and there... indeed, there is good reason for him not to complain about that, and that is because he filed... the search in this case, as we indicated in our statement of facts, occurred in October of 1986. He filed this action in December of 1988, and therefore that search would have been barred by the statute of limitations, and therefore there was an awfully good reason for him to not complain about that search.
William H. Rehnquist: Well, that doesn't mean he wouldn't complain about it. Maybe he didn't know it was barred by the statute of limitations.
Matthew R. Gutwein: That's possible too, but we believe the plain language of this complaint, where he says between July... May and July of 1987, and then he goes on to complain about conduct. So he's not complaining about a search here. And I would also point out that in the Seventh Circuit he also did not complain about a search there also.
John Paul Stevens: I'm curious about your statement about being barred by limitations with regard to the second issue in the case. Is it your position that this claim would be barred by limitations? And, if so, how does that cut with respect to the question of whether one should stay the proceeding or dismiss it?
Matthew R. Gutwein: Justice Stevens, in this case Indiana's tolling rule is really quite clear, that where the initiation of an action cannot proceed until another action is completed, that first action is tolled.
John Paul Stevens: Well, then... then you've given us an incorrect answer with respect to these allegations because these are not barred by the limitations.
Matthew R. Gutwein: No, I don't believe that's correct. His--
John Paul Stevens: You can't have it both ways.
Matthew R. Gutwein: --No, we... his section 1983 action would not be tolled. Okay, excuse me, would not be barred by the statute of limitations.
John Paul Stevens: Because it would be tolled.
Matthew R. Gutwein: This action would be tolled--
John Paul Stevens: Because--
Matthew R. Gutwein: --This action, the 1983 action would be tolled. But once, now, this action can be brought, then there would be a question of whether the allegations contained within that action were actually timely. So I think that those are two quite separate issues of whether... when he initially brought the 1983 action, whether it would be tolled. And it would not, the properly pled allegations.
John Paul Stevens: --So he has... I'm a little puzzled. It would be barred because at the time he filed the complaint 2 years had run between the time of the search and the time of the filing of the complaint.
Matthew R. Gutwein: That is correct. Now, the allegations that were--
John Paul Stevens: But if he had not filed any complaint at all, but waited until he set aside his conviction and then filed a complaint, it would have been tolled.
Matthew R. Gutwein: --No. Because if later he had filed no complaint and he still complained, then, about conduct between 1987... excuse me, then complained about conduct in 1986, that would still be barred.
Antonin Scalia: Well, wouldn't it depend if the search was alleged to have infected his conviction? Suppose it was a search unrelated to his conviction? Suppose the product of that search was not introduced at trial? Then there would certainly be no time bar, right?
Matthew R. Gutwein: I think there would be in that case, because then the injury... if the search was never introduced... excuse me, if the evidence was never introduced.
Antonin Scalia: Yeah.
Matthew R. Gutwein: Then, presumably, the injury--
Antonin Scalia: Was the search.
Matthew R. Gutwein: --Would occur in 1986.
Antonin Scalia: Then it would be... it would be... there's no basis for saying that he had to bring a habeas action first, and therefore it would be time barred.
Matthew R. Gutwein: That's correct.
Antonin Scalia: Okay. But, now, what if it... what if the evidence was introduced? Is your position it is automatically subject to a prior habeas action you have to exhaust?
Matthew R. Gutwein: No. If the evidence was introduced, then the injury would have begun to occur when he was convicted.
Antonin Scalia: Yeah, but you... but you still... don't you argue that the exhaustion requirement applies and that he has to go to habeas first, no?
Matthew R. Gutwein: Yes, we do, that's correct.
Antonin Scalia: Why is that? What if he says in his 1983 argument in his petition; this evidence was introduced but I acknowledge that its effect in the conviction was harmless error? What if he says that in his 1983 action?
Matthew R. Gutwein: If he says that in his 1983 action, then he need not exhaust.
Antonin Scalia: Then he doesn't have to exhaust, okay, right.
Matthew R. Gutwein: Because he then is not, by definition, attacking the legality of his conviction.
Antonin Scalia: Well, what if he doesn't say it, but it's really a close question?
Matthew R. Gutwein: If it's really a close--
Antonin Scalia: Do we assume that it did infect the conviction, or do we look into the facts?
Matthew R. Gutwein: --I believe... our position is that if you cannot tell, the burden here should rest on the State prisoner, because of the really quite serious effects that allowing this kind of short circuiting around State judicial remedies would have. And so unless that prisoner can be really quite convincing that this is not an attack on the validity of a conviction, then he ought to exhaust.
Antonin Scalia: What harmful effects? What harm accrues to the State where he's not asking for damages for his continuing incarceration... there I can see the State would say, well, gee, you know, he's been held... we're civilly liable for day... or somebody is, for his day-by-day incarceration; we'd better let him out. All that's involved is a past unlawful search and seizure; it's uncertain whether that infected his conviction or not. Why not let the 1983 proceed, so long as he's only claiming damages from the search and seizure? What harmful effect would there be to let it proceed?
Matthew R. Gutwein: I believe the harm is this, and that is that if the 1983 court would decide an issue that must be decided in a later proceeding seeking his release, then at that point the State court has been denied the initial opportunity to decide an issue of whether his conviction is proper or not, and it's confined--
Antonin Scalia: Well, you say... you say that there's issue preclusion. The State court would be bound by the 1983 determination.
Matthew R. Gutwein: --It is possible that the State court would be denied, would be bound.
Antonin Scalia: Well, let's decide now whether it does or doesn't, I mean.
Matthew R. Gutwein: You cannot decide right now. Based upon this Court's decision in United States v. Montana, it depends upon, as Justice Ginsburg averted to, the degree of control of the government of the nonparty in that action. And as we're standing here today because this 1983 action has not ever yet been pursued or tried; we don't know what kind of control the State would have exercised in that action. So I believe that it is... by its nature, the Montana test is a fact-specific test, and therefore it is impossible to generalize at this point. But even if they're not bound, Justice Scalia, even if there's a matter of pure res judicata principles, the practical effects would be enormous here.
Antonin Scalia: I don't... why should we make this prisoner exhaust simply because the State voluntarily chooses to cause itself to be bound by the... I mean if it's an automatic issue preclusion thing, it seems to me you have a strong case. But if, as you're telling me, it's not automatic and that there will be issue preclusion only if the State is confident enough or stupid enough, one or the other, to come in and manage the defense, I don't see that that has any claim to our equitable consideration. The answer for the State is stay out of the case.
Matthew R. Gutwein: We don't believe that's an acceptable answer here for a couple of reasons. First of all, the State may well have very real and serious interests to protect in this type of litigation. For example, the State may be, as Indiana here is, statutorily obligated to indemnify these officers, assuming they acted within the scope of their duties. In addition, in these types of litigation there may be legal questions at issue that may affect State policies that the State wants to preserve and protect against an adverse legal judgment. Those are very real consequences. And to put the State in this horrible box of saying you can either protect your interests or you can stay out is really, we believe, an unacceptable position here, particularly for what petitioner is asking for. In addition, we believe that that creates a tremendous hardship on the individual officers themselves, who often must rely upon the State for this type of representation. Otherwise, they have to go out and hire outside counsel. And these are, you know, police officers making 15,000 dollars a year. They don't have that kind of... and they find themselves in these kinds of lawsuits all the time, every day.
Ruth Bader Ginsburg: Mr. Gutwein, there's one point that you made a little bit earlier, and I wanted to make sure I understood it properly. That is on the second part, whether this case should have been dismissed or held in abeyance. You said Indiana law is crystal clear there would be tolling. If that's true, then would you object to a dismissal without prejudice conditioned on your agreement not to raise any limitation bar should this litigant come back, after exhausting, into the Federal forum on a 1983 claim?
Matthew R. Gutwein: Let me offer one caveat that exists in every tolling provision, and even in the State provision, and that is that tolling does not apply where the prisoner, in this case, does not act diligently. And therefore it's a little difficult to stand here today and waive our statute of limitations defense when we don't know whether he'll act diligently or not. That is always an issue, but that's an issue whether it's a stay or it's a dismissal. But presuming that he acts diligently, the State of Indiana will not press a statute of limitations defense. There's just no legal basis for it.
Ruth Bader Ginsburg: You know, I bring this up because it's done routinely when States dismiss a case for forum nonconvenience. There's no mechanism for transfer from one State to another, so the State judge will usually say, well, I'll dismiss this case but I don't want the plaintiff to be left when he goes into State number two and faces statute of limitation defense. Or defendants will say, sure, we'll waive the statute of limitations, dismiss, and the plaintiff can rebring it in the convenient forum. So I'm suggesting that why wouldn't that mechanism apply here? Maybe you could have a caveat about he's got to be diligent about reinstating the litigation. But you would have no objection to making the dismissal without prejudice, conditioned on your not raising the statute of limitations.
Matthew R. Gutwein: No objection whatsoever, Your Honor. Let me, again, emphasize the practical consequences of the rule that they propose here. They propose that based upon the prayer for relief alone, the fact that he has limited his request for damages, ought to get you immediately into Federal court. That result would surely provide an incentive for State prisoners to bring these section 1983 actions immediately. Let's take... and the fact that he has limited his request to damages and not expressly asked for release does not, in any way, militate the serious comity considerations that are at issue in these kinds of cases.
John Paul Stevens: May I ask a question on that relief. In this case his damages all seem to flow from his confinement, as you read the complaint, but he has this allegation about destroying his wife's clothing and so forth. Supposing instead of destroying his wife's clothing, he said he destroyed my house, they burned it down, or did some... caused some serious physical property damage as well as keeping him, could he maintain that action? Could he claim damages for the loss of property during an illegal search without exhausting?
Matthew R. Gutwein: Yes, he could.
John Paul Stevens: He could.
Matthew R. Gutwein: Because that loss of property would not, in any way, be an attack on the legality of his conviction.
John Paul Stevens: Even though the proof... say that the allegations he would prove would, incidentally, also demonstrate that the conviction is improper. A set of facts... you can see what I mean.
Matthew R. Gutwein: Sure, yeah. No. In that case, if a determination by the 1983 court would also be a determination that in subsequent proceeding the State court, or possibly even the Federal habeas court, would have to make, we believe that comity requires that that prisoner exhaust.
John Paul Stevens: Even though he has one count in his complaint for damages that are totally unrelated to his conviction.
Matthew R. Gutwein: That is correct, Your Honor. But, let me emphasize that this is merely a timing question. As I began the argument, this involves the orderly disposition of these claims, and if there is no statute of limitations bar, presuming that he exhausts the State claims diligently, then he can later come back and bring that damages action. And I think it's important to emphasize here that his immediate need for damages for that claim surely is not as great as a State prisoner's immediate need for release in this Court.
John Paul Stevens: Well, he could have dependents who could use the money. I mean, there could be cases in which the money would have a present value that wouldn't be very useful to him if he had to wait till his kids graduated from school, from college.
Matthew R. Gutwein: That is true. But both Congress and this Court have consistently recognized that when a prisoner is seeking the restoration of their liberty, something that surely has a far greater value than mere damages, that delay is appropriate so that we may allow the State the opportunity, initially, to decide those questions.
John Paul Stevens: Yes. But as Justice Souter pointed out, you may be talking about... this is a kind of confused complaint, but you could have a complaint that is totally Fourth Amendment based, so there's no Federal habeas relief later on, and in which one of the claims is for property damage that doesn't affect his conviction, even though it might also establish the conviction is bad. And you say he should nevertheless wait until... why should he wait in that case?
Matthew R. Gutwein: The reason why is because of the potential for short circuiting the State processes in that case; that the value, the comity values that both Congress and this Court have repeatedly emphasized, that it is critical in our judicial system that State courts have the initial opportunity to decide these issues. And in that case, under your hypothesis, a necessary element of a later State claim would have been decided by the Federal court, and therefore the State court would have been denied the opportunity to decide that issue. Now, I admit that that's a... that's a difficult question, and luckily... I'm glad that that question is not at issue in this case. This is a square attack on the legality of the conviction. This is a petitioner who says all of my damages flow from the fact that I am wrongfully confined. But as a general matter... putting aside the more difficult cases, as a general matter, in these types of cases when a State prisoner says I should have never been in jail, those types of claims, if decided by a 1983 court, will inevitably lead to a State prisoner hopping across the street, going over to the State courthouse, and seeking his relief. And as a practical matter--
John Paul Stevens: What about a case in which he alleges that he was brutalized in obtaining a confession from him, and he wants just damages covering the pain and suffering of going through the beating, and that's all he asks for, but, again, it might show that the confession... you know, the conviction should be--
Matthew R. Gutwein: --Exactly. In some ways--
John Paul Stevens: --He'd still have to wait there too, wouldn't he?
Matthew R. Gutwein: --I believe that's an easier case, that's right. Because if he establishes that and it's no harmless error, and it's relatively difficult to establish harmless error when a confession has been beat out of an individual and coerced.
John Paul Stevens: What if he said, nevertheless the confession was true, so I really am guilty, but I still want damages for the beating I took, what about that case?
Matthew R. Gutwein: It would go right to Federal court. Please proceed, get your money. Because in that case if he says I'm innocent... I'm guilty, I'm the convict here, I ought to be in jail.
Antonin Scalia: Who does he make... who does he give that assurance to? I mean the judge that he's bringing the suit before, or does he file an affidavit, acknowledgement of guilt which will later be binding upon him in the State habeas proceeding. I don't know how he goes about doing this.
Matthew R. Gutwein: In a variety of manners. First of all, I presume that he would state this in his complaint, because if his complaint just says a confession was beat out of me, it was coerced.
Antonin Scalia: But it was true. If he says that in his complaint, then his complaint does not question the State proceeding, okay. So he has to say it in his complaint. Well, I don't know that even that is correct under some of our precedents which say that the reason for suppressing... it is not a defense for the State in trying to get a confession admitted to show that, in fact, it's true, if it was, in fact, coerced. So that an acknowledgement that a statement he made was true but nonetheless coerced would still require its exclusion at trial, I think.
Matthew R. Gutwein: In that case, then I believe that he ought to exhaust.
Ruth Bader Ginsburg: Isn't it true generally that a judicial admission in one case doesn't carry over to the next? Say an admission... you make a request... in response to a request for admission under Rule 36, if you do that in one case are you stuck by it in the next case and the next case?
Matthew R. Gutwein: I'm not sure that's the rule. It is possible, but I'm not sure that that completely makes a difference here, whether it's a mere judicial admission. I believe what is critical here is that if this... viewing the substance of the complaint rather than it's form, viewing the substance of this complaint, if this can be viewed as an attack on the convictions so that a determination, should it be favorable, would be the same determination that a later State court would make... that petitioner, in order to not short circuit the State judicial proceedings, ought to exhaust. But let's take really the most difficult case here. I think the most difficult case is if the prisoner doesn't want to be released. And I think there's good reason in these cases to not really believe these petitioners. Any petitioner that says please pay me because I'm wrongfully confined, but yet I don't want to be released, I think there's good reason to be suspicious of that. But let's take really the hardest case, that we actually believe this petitioner that he no interest whatsoever in release, that there is still good reason to require to go ahead and exhaust. Because there are two consequences that would follow from a successful judgment in his favor. Number one, he would, in fact, get damages. And as was averted to in the other... earlier questioning, any rational State, when a petitioner receives a 20-year sentence and in year one gets damages to pay him for those next 20 years, would feel coerced to release that prisoner, even if he doesn't want to be released. States are not in the business of paying prisoners to be in jail. But second, not only the... and this Court recognized that in Fair Assessment v. McNary... the inherently coercive effects of a damages judgment. So as a purely practical matter, putting aside res judicata, formal issue preclusion, as a purely practical matter, that damages judgment should prevent... would cause a State to release him.
Anthony M. Kennedy: Well, how does that practical consideration transfer into the theory that you want us to adopt in this case? Are you saying that just as a matter of comity, that these cases should all be dismissed if they implicate some of the actions of prosecuting officials that were performed in connection with obtaining the conviction, just have a broad rule of comity--
Matthew R. Gutwein: There are two separate--
Anthony M. Kennedy: --That is that sweeping?
Matthew R. Gutwein: --We don't believe that that's... there are two separate grounds for our theory. One is Congress' desire in section 2254(b) that State prisoners ought to first exhaust before they attack the legality of their conviction. But, second, on top of that, we believe that there are general comity principles that are fully implicated here, and that those comity principles--
Anthony M. Kennedy: Well, I'm wondering if those might not go even beyond attacking the legality of a conviction. As we've indicated by some of the hypotheticals here, some of these determinations, some of these inquiries will not necessarily bear on the validity of the conviction. But I had thought you were indicating that even those suits should be held in abeyance until the lawfulness of the custody and the conviction had been determined.
Matthew R. Gutwein: --That is correct, Justice Kennedy. This Court... this case presents a relatively narrow issue, and that is a direct attack on the legality of the conviction, and therefore this Court could rule in that narrow manner, based upon sort of pure 2254(b) principles. But we believe that the most rational system here is one that takes into account those other cases outside of pure 2254(b) principles. This Court need not decide that issue, but we believe that that is really the most rational, orderly system for handling attacks on convictions. Let me address for a moment issue two. Their argument is this case has to be dismissed merely because there is jurisdiction, and in addition because of the statute of limitations bar. Let me address the jurisdictional point for a moment. The fact that there is jurisdiction alone does not require a stay, as this Court's habeas cases demonstrate. There may be... a 12(b)(1) lack of jurisdiction dismissal may not be appropriate, but a 12(b)(6) dismissal is appropriate. We believe that exhaustion is a requirement for these types of claims, and therefore even though there is jurisdiction, he has not satisfied a prerequisite and dismissal is appropriate under 12(b)(6) and that ought to be enough. Furthermore, the cost of these cases being on the docket is really very real. The fact is that the vast majority of these cases will not be meritorious, and there's a real cost to getting rid of those cases. A Federal court has to look for these nonmeritorious cases, has to review the file, has to send an order, has to receive that order back. All of that takes time, and that is not cost free. In addition, there's a cost to our office. We also have to respond to these cases. In addition, there is a cost to the defendants themselves who, in this case, are defendants in a 3 million dollar lawsuit. That affects their credit rating and that could prevent them from buying a house. There's a very real tangible cost. So there are real costs, but there is--
Ruth Bader Ginsburg: You'd have none of those problems if you agreed to stipulate that you won't raise this statute of limitations if the plaintiff ever sues you again on this claim, with reasonable diligence.
Matthew R. Gutwein: --We establish the mortgage... that gets rid of the mortgage problem, but that does not get rid of the fact that Federal courts have to work hard to get rid of these nonmeritorious cases off of its docket. It may--
Ruth Bader Ginsburg: I thought you agreed that that would be all right, that you would stipulate to a dismissal without prejudice, conditioned on your not raising the statute of limitations should the plaintiff come back to court after exhaustion.
Matthew R. Gutwein: --That's correct. We would be happy with that result.
Antonin Scalia: You'd be happy... you're not stipulating that we have authority to impose it.
Matthew R. Gutwein: No, that's correct.
Antonin Scalia: I mean, it's done in forum nonconvenience cases because that is an equitable doctrine, after all.
Matthew R. Gutwein: That's true.
Antonin Scalia: But you're claiming that you have a right to dismissal without that stipulation, aren't you?
Matthew R. Gutwein: A 12(b)(6) dismissal, that is correct, we have a right to that dismissal. The mere fact that this Court has a quote, virtually unflagging obligation to exercise jurisdiction does not in any way resolve the stay versus dismissal issue, and that is really the vast majority of petitioner's argument. If the Court has no more questions, we would urge that the Court affirm the judgment of the Seventh Circuit.
William H. Rehnquist: Thank you, Mr. Gutwein. Mr. Rothfeld, you have 4 minutes remaining.
Charles A. Rothfeld: A couple of points, Mr. Chief Justice. First of all, I think that the central question in this case is one that has been identified by Justices Scalia and Stevens in some of their questions. The fact is that petitioner in this case, and petitioners in cases like this, are not necessarily attacking the validity of their conviction. Respondents have focused entirely on the element of petitioner's claim which asks for damages for the period of his confinement. He also asks for what we understand to be nominal damages and for punitive damages which could be awarded notwithstanding any determination regarding whether or not that conviction was properly returned at the time that it was returned. And respondents don't really offer this Court any test at all for resolving these cases. In fact, whenever a petitioner... whenever a prisoner advances a claim that there was a Fourth Amendment violation, or any sort of violation as to which harmless error might apply, there is no way of determining, on the face of that complaint, whether or not that calls into question the validity of the conviction. I mean Judge Coffin wrote, I think, a very thoughtful opinion for the First Circuit on precisely this point in a case called Guerro v. Mulhearn, which is discussed in the briefs, in which he noted that it's impossible to determine, without going through the entire line of analysis, if the search was unconstitutional. Did it produce investigative leads, did those leads lead to the discovery--
William H. Rehnquist: Well, why not apply kind of an analogy of Rose against Lundy and say that if there's doubt about the thing, dismiss.
Charles A. Rothfeld: --Well, I think there's no justification for that, Chief Justice Rehnquist. As a general matter, of course, the Court has held repeatedly that Congress intended that 1983 claims not be exhausted. Now, there's a specific reason for the exception recognized for that in Preiser. The specific exemption is that the Court found that it was the intent of Congress that section 2254(b), the Federal habeas exhaustion requirement, applied when the petitioner actually filed what was a habeas petition, an action seeking an injunction that would lead to his release. The Court said that is a habeas petition and you must exhaust under section 2254. But the Court went on to say... and I think it's clear from the face of the habeas statute, that a petitioner who is asking for something other than release is not filing a habeas claim, and as respondents... I think as my colleague from Indiana conceded, they are not saying that the section 2254(b) exception applies. They are applying or asking the Court to create a much more far-reaching comity exception to the general 1983 rule that does not provide for exhaustion. The Court has never done that in a situation such as this. The Court has never said that although you can bring a section 1983 action at some point, you'll have to hold off doing it now because there are some general State interests... which I think, really, have not been clearly articulated for the Court as to precisely what they are. The reason that the Court and Congress have required exhaustion in the habeas setting is that for a Federal court to issue a writ of habeas corpus is an extraordinarily intrusive thing. It sets aside a State judgment, it requires a State official to take action in an area of considerable concern to the State, and it short circuits the use of State judicial proceedings, post-conviction proceedings. None of that is true of a damages action. It has no effect on--
Antonin Scalia: It's also an equitable proceeding so that we have... I mean it's a prerogative writ, so we have much more discretion, traditionally, in refusing to grant the petition.
Charles A. Rothfeld: --That is also true, Justice Scalia, which is a reason why habeas should be differentiated from section 1983. The damages action has none of those consequences. Not only does it not call into question the validity of the conviction; it does not require the State to do anything other than to pay the damages judgment. It does not short circuit the use, as respondent suggest, of State postconviction procedures, because the prisoner is still going to have to go into State court if he wants release. Those are the concerns that have motivated the Court in all the line of habeas cases emphasizing the importance of exhaustion; none of them are present here. And that is particularly important when, as I emphasized, it is the case that for many of these claims it's not going to be apparent, on the face of the complaint, whether or not the validity of the conviction is in any manner called into question. And I think given the force of the 1983 no exhaustion rule repeatedly applied by the Court, that should be dispositive here.
Ruth Bader Ginsburg: Is the essence of your argument this is just like the old days when you had a claim at law or a claim for specific relief in equity, you could pick which one you want?
Charles A. Rothfeld: Well, I think that's right, Justice Ginsburg... and I'll get the name right this time. I think that the Court has repeatedly recognized that a plaintiff, as a general matter, is the master of his claim. The Court recognized that principle in this very context in Wolff v. McDonnell and Preiser v. Rodriguez, and there is no reason to retreat from it now. The prisoner who prevails in his 1983 damages action is still going to have to go into State court. He is most definitely and emphatically not short circuiting the State postconviction process.
William H. Rehnquist: But, what if you were to be asked to stipulate that you can proceed if you would agree not to urge any issue preclusion or res judicata in any subsequent habeas?
Charles A. Rothfeld: Since we think that there would not be any such preclusion, I think that that would be fine with the prisoner. Thank you very much.
William H. Rehnquist: Thank you, Mr. Rothfeld. The case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at 10 o'clock.