CLD-158                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1230
                                      ___________

                                  DAVID M. WILLIAMS,
                                                  Appellant

                                           v.

  CARL DANBERG, Commissioner of Corrections; TERRY ZINK, Esquire, Appeals
                     Division; JTVCC RECORDS
               ____________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                            (D.C. Civil No. 1-10-cv-00765)
                     District Judge: Honorable Gregory M. Sleet
                     ____________________________________

        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
                                    April 7, 2011

                  Before: RENDELL, FUENTES and SMITH, Circuit Judges

                              (Opinion filed: May 3, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      David Williams appeals the dismissal of his complaint and the denial of his

motion for counsel. We have jurisdiction under 28 U.S.C. § 1291, and will affirm the

judgment of the District Court.
       Williams, a pro se plaintiff proceeding in forma pauperis, filed the instant 42

U.S.C. § 1983 complaint on September 4, 2010, alleging that the defendants were holding

him in extended confinement in violation of the Eighth Amendment to the United States

Constitution. He argued that the status sheet for his incarceration lists an incorrect case

number, reflecting charges that were later consolidated or dismissed, and that this clerical

error should result in the termination of the state sentence he is otherwise serving.

       Williams had previously pursued a similar claim in Delaware state court, and the

Delaware Supreme Court summarized his situation as follows:

       ―[O]n April 1998, a grand jury returned three separate indictments against
       Williams. Williams failed to appear for his arraignment and was arrested in
       July 1998 on new criminal charges. The grand jury returned a fourth
       indictment against Williams. In October 1998, the State obtained a
       superseding indictment, which incorporated three of the indictments into
       the fourth. Case ID 9803018202 was designated as the lead case. Four
       counts of the superseding indictment were later severed and redesignated as
       Case ID 9803018202B. Williams ultimately was convicted of those four
       charges in August 1999. He was sentenced as a habitual offender. . . . In
       July 2010, Williams filed a motion for correction of an illegal sentence
       under Superior Court Criminal Rule 35(a) on the ground that his status
       sheet maintained by the Department of Correction incorrectly lists him as
       being convicted under the indictment in Case ID 9803018210, which was
       dismissed by the State upon the issuance of the superseding indictment.‖

Williams v. State, 7 A.3d 486, 2010 Del. LEXIS 571, at *1–2 (Del. 2010) (table). The

court denied Williams’s motion, holding that the sentence he was serving was statutorily

authorized and legal, and was unaffected by the Department of Correction’s clerical error.

Id. at *2.


       The District Court recognized that Williams’s complaint was a mere recasting of

his earlier attempt to shorten his sentence; pursuant to its screening responsibilities under

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28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), it dismissed the complaint and denied

Williams’s request for counsel. See Williams v. Danberg, No. 10-765, 2011 U.S. Dist.

LEXIS 538, at *12–13 (D. Del. Jan. 3, 2011).

       Our review of the District Court’s exercise of its screening authority is plenary,

and we must accept as true the factual allegations in the complaint and all reasonable

inferences drawn therefrom. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000);

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Under Third Circuit LAR

27.4 and I.O.P. 10.6, we may summarily affirm if no substantial question is presented by

the appeal, and may do so on any ground supported by the record. United States v.

Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000); Tourscher, 184 F.3d at 240. Denial of a

motion for counsel is reviewed for abuse of discretion. Tabron v. Grace, 6 F.3d 147, 155

n.4 (3d Cir. 1993).

       It is clear that Williams’s suit is not viable in its present state. Under the rule

established by Heck v. Humphrey, a ―claim for damages bearing [a] relationship to a

conviction or sentence that has not been . . . invalidated is not cognizable under § 1983.‖

512 U.S. 477, 487 (1994); see also Gilles v. Davis, 427 F.3d 197, 208 (3d Cir. 2005). As

the sentence has not been invalidated—indeed, as observed above, his sentence has

recently been upheld—he cannot pursue monetary relief under § 1983. To the extent that

Williams seeks the equitable remedy of release from confinement,1 ―when a state


1
 In his complaint, Williams asked the District Court to ―issue injunctive relief,
compensatory, for mistake of facts, negligence, also change in plea.‖ Compl. 4, ECF No.
2. However, he earlier specified that he ―request[ed] this Honorable Court to have [the
prison] release Petitioner.‖ Compl. 3.
                                               3
prisoner is challenging the very fact or duration of his physical imprisonment, and the

relief he seeks is a determination that he is entitled to immediate release or a speedier

release from that imprisonment, his sole federal remedy is a writ of habeas corpus.‖

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (emphasis added). Hence, Williams is

required to pursue his claim under habeas corpus and not under § 1983.2

       We are also in full accord with the District Court that amendment of the complaint

would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 113 (3d Cir. 2002).

Williams would not be able to surmount the issues we identified above, let alone the

various other deficiencies identified by the District Court. It therefore follows that the

District Court did not abuse its discretion in declining to appoint counsel.

       Having identified no substantial issue in this appeal, we will affirm the judgment

of the District Court for the foregoing reasons.




2
  Williams claims that he ―filed a section 2254 habeas corpus . . . [but] can’t get the
proper document to send to [the] 3rd Circuit Court to file a successive habeas petition,‖
and he argues that he must be allowed to proceed under § 1983 when ―federal habeas is
not available.‖ Pl.’s Mem. ¶ 5, ECF No. 7 (citing Spencer v. Kemna, 523 U.S. 1 (1998)).
But Williams has, on multiple occasions, applied to this Court for leave to file a second
or successive habeas petition. See C.A. Nos. 10-3632, 08-2259. Given these prior
filings, we find it difficult to credit Williams’s protestations of inability.
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