                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-1996

Smith v. Holtz
Precedential or Non-Precedential:

Docket 95-7533,95-7534




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Smith v. Holtz" (1996). 1996 Decisions. Paper 164.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/164


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                        N0S. 95-7533, 95-7534


                              JAY C. SMITH

                                  v.

    JOHN J. HOLTZ, Bureau of Technical Services, Pennsylvania;
   RONALD F. COLYER, Bureau of Technical Services, Pennsylvania
  State Police; VICTOR DOVE; JOHN J. PURCELL, Special Agent In
       Charge, Central Regional Office, Bureau of Criminal
         Investigations, Office of the Attorney General;
      WILLIAM J. LANDER, Bureau of Criminal Investigations,
           Office of the Attorney General; PAUL YATRON,

                                             Appellants in No. 95-7533



                              JAY C. SMITH

                                  v.

                          JOSEPH P. WAMBAUGH,

                                             Appellant in No. 95-7534



         On Appeal From the United States District Court
             For the Middle District of Pennsylvania
       (D.C. Civil Action Nos. 93-cv-01428 and 94-cv-01470)


                          Argued May 3, 1996

       BEFORE:     STAPLETON, COWEN and SEITZ, Circuit Judges

                    (Opinion Filed June 26, 1996)



                                                        Gerald J. Williams
(Argued)
                                                        Williams & Cuker
                                                        1617 JFK Boulevard
                                                        One Penn Center at
Suburban Station
                                                        Suite 800
                                                        Philadelphia, PA   19103
                                             Attorney for Appellee
                                             in No. 95-7533

                                            Thomas W. Corbett, Jr.
                                            Attorney General
                                            Gregory R. Neuhauser
(Argued)
                                            Senior Deputy Attorney
General
                                            Calvin R. Koons
                                            Senior Deputy Attorney
General
                                            John G. Knorr, III
                                            Chief Deputy Attorney
General
                                            Office of Attorney
General of PA
                                            15th Floor, Strawberry
Square
                                            Harrisburg, PA 17120
                                              Attorneys for
Appellants
                                             in No. 95-7533

                                            George A. Bochetto
                                            Stephen E. Skovron
(Argued)
                                            Bochetto & Lentz
                                            1524 Locust Street
                                            Philadelphia, PA
                                              Attorneys for Appellee
                                              in No. 95-7534

                                            Mark R. Hornak (Argued)
                                            George H. Crompton
                                            Buchanan Ingersoll
Professional Corp.
                                            One Oxford Centre
                                            301 Grant Street, 20th
Floor
                                            Pittsburgh, PA 15219
                                              Attorneys for
Appellant
                                             in No. 95-7534




                     OPINION OF THE COURT
STAPLETON, Circuit Judge:


         In Heck v. Humphrey, 114 S. Ct. 2364 (1994), the
Supreme Court held that 42 U.S.C.   1983 does not provide a cause
of action to recover monetary compensation for an allegedly
unconstitutional conviction or imprisonment where recovery would
necessarily imply the invalidity of an outstanding criminal
conviction of a state court. In these consolidated civil rights
actions, Jay Smith seeks monetary compensation for his allegedly
unconstitutional conviction and imprisonment on murder charges.
On direct appeal from Smith's murder conviction, the Supreme
Court of Pennsylvania reversed that conviction due to a state-law
evidentiary error and remanded for a new trial. Before the
retrial, however, that court ordered the dismissal of all charges
against Smith based on newly discovered evidence of prosecutorial
misconduct. In these ensuing civil rights cases, the defendants
unsuccessfully sought dismissal of Smith's claims on statute of
limitations grounds, arguing that they accrued when his
conviction was reversed, even though he was still the subject of
an ongoing prosecution at that time. Since Smith's claims were
filed more than two years after that reversal but within two
years of the dismissal of all charges against him, we must decide
whether, under the teachings of Heck, a claim is cognizable under
  1983 where its success would necessarily imply the invalidity
of a future conviction that might be entered on a pending
criminal charge. We hold that such a claim is not cognizable
under   1983. It necessarily follows that claims like those of
Smith do not accrue so long as the potential for a judgment in
the pending criminal prosecution continues to exist. Since this
potential existed in Smith's case until the Pennsylvania Supreme
Court ordered the charges dismissed on September 18, 1992,
Smith's claims did not accrue before that date. Accordingly,
Smith's claims were timely filed and we will affirm.

                                I.
         In April 1986, a jury convicted Smith of the murders of
Susan Reinert and her children. Smith immediately appealed.
While the appeal was ongoing in July 1988, the government
disclosed that police investigators had withheld potentially
exculpatory evidence. On December 22, 1989, on direct appeal
the Supreme Court of Pennsylvania reversed Smith's convictions on
the unrelated ground that the Court of Common Pleas had
improperly admitted hearsay evidence. Commonwealth v. Smith, 568
A.2d 600 (Pa. 1989). The Pennsylvania Supreme Court remanded for
a new trial.
         Smith remained in prison pending a second trial. He
promptly moved to dismiss the ongoing prosecution on double
jeopardy grounds, arguing that the withholding of exculpatory
evidence at the first trial amounted to prosecutorial misconduct.
Smith had not previously raised this issue because he had not
learned of the misconduct until after his trial and because the
supporting evidence was not part of the record on direct appeal.
On September 18, 1992, the Pennsylvania Supreme Court ordered all
charges dismissed based on the double jeopardy clause of the
Pennsylvania Constitution. Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992). The court held that Pennsylvania's double jeopardy
clause prevented retrial because the withholding of evidence was
"intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial." Id. at 325. Smith was
immediately released.
         On September 15, 1993, Smith filed a   1983 claim
against John Holtz, Ronald Colyer, Victor Dove, John Purcell,
William Lander, and Paul Yatron (the "Holtz case"). Holtz,
Colyer, Dove, Purcell, and Lander were government officials
involved in the investigation. Yatron was an attorney with the
Pennsylvania Attorney General's office. Smith alleged that the
misconduct in connection with the concealing of the exculpatory
evidence violated his Fifth, Sixth, and Fourteenth Amendment
rights. On September 14, 1994, Smith filed a separate    1983
suit against Joseph Wambaugh (the "Wambaugh case"). He claimed
that Wambaugh, an author, had conspired with police investigators
to conceal exculpatory evidence and to fabricate evidence linking
Smith to the murders, in order to make money from a book and a
television mini-series. He alleged violations of his Fourth,
Sixth, and Fourteenth Amendment rights. In both cases he sought
to recover the damages resulting from his unlawful conviction and
confinement.
         The defendants in both cases argued that Smith's claims
were time-barred by the applicable two-year Pennsylvania statute
of limitations because they accrued when his conviction was
reversed in 1989. Based on Heck v. Humphrey, 114 S. Ct. 2364
(1994), the district court concluded that Smith's   1983 claims
were timely filed because they did not accrue until the
Pennsylvania Supreme Court ordered all charges dismissed in 1992.
We consolidated the interlocutory appeals filed by all defendants
under 28 U.S.C.   1292(b).

                               II.
         The outcome of this appeal turns on Heck v. Humphrey,
114 S. Ct. 2364 (1994). Heck was convicted of voluntary
manslaughter in a state court. While his direct appeal was
pending, he filed a   1983 suit against two prosecutors and a
government investigator. He sought monetary damages resulting
from his allegedly unlawful conviction. The district court
dismissed the case and the Seventh Circuit Court of Appeals
affirmed. Before the case reached the Supreme Court, the state
supreme court denied relief in Heck's direct appeal of his
criminal conviction, the district court denied Heck's habeas
petition, and the Seventh Circuit affirmed that denial. Id. at
2368.
         The Supreme Court granted certiorari to decide whether
under   1983 a state prisoner could pursue money damages premised
on an allegedly unlawful outstanding conviction. The Court began
its analysis by noting that since   1983 creates a species of
tort liability, the common law of torts "provide[s] the
appropriate starting point for the inquiry." Id. at 2370. The
Court observed that the common law tort of malicious prosecution
was analogous to Smith's claim because a malicious prosecution
claim allows a plaintiff to recover for unlawful imprisonment
pursuant to legal process. A necessary element of a malicious
prosecution claim is the termination of the criminal proceedings
in favor of the accused:
         This requirement "avoids parallel litigation over the
         issue of probable cause and guilt . . . and it
         precludes the possibility of the claimant [sic]
         succeeding in the tort action after having been
         convicted in the underlying criminal prosecution, in
         contravention of a strong judicial policy against the
         creation of two conflicting resolutions arising out of
         the same or identical transaction." Furthermore, "to
         permit a convicted criminal defendant to proceed with a
         malicious prosecution claim would permit a collateral
         attack on the conviction through the vehicle of a civil
         suit."
Id. at 2371 (alterations in original) (citations omitted).
         For these reasons the Court held that "the hoary
principle that civil tort actions are not appropriate vehicles
for challenging the validity of outstanding criminal judgments
applies to   1983 damage actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or
confinement." Id. at 2372. Accordingly, "in order to recover
damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
  1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus." Id. A claim seeking such
damages is not cognizable under   1983 even though such claim is
within the literal terms of   1983. Id.
         Accordingly, a "district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence." Id. If not, the
action should be allowed to proceed:
         For example, a suit for damages attributable to an
         allegedly unreasonable search may lie even if the
         challenged search produced evidence that was introduced
         in a state criminal trial resulting in the    1983
         plaintiff's still-outstanding conviction. Because of
         doctrines like independent source and inevitable
         discovery, and especially harmless error, such a    1983
         action, even if successful would not necessarily imply
         that the plaintiff's conviction was unlawful. In order
         to recover compensatory damages, however, the    1983
         plaintiff must prove not only that the search was
         unlawful, but that it caused him actual, compensable
         injury, which, we hold today, does not encompass the
         "injury" of being convicted and imprisoned (until his
         conviction has been overturned).
Id. at 2372-73 n.7 (citations omitted).
         Since Heck's claims challenged the legality of his
conviction and his conviction remained in effect, the Court
dismissed Heck's claims as not cognizable under   1983. Id. at
2374.
         Smith asserts in his complaints that the defendants
suppressed exculpatory evidence and contrived inculpatory
evidence. His claims seek damages resulting from his unlawful
conviction and confinement. If he had brought these claims
before September 18, 1992, when the Pennsylvania Supreme Court
ordered the charges against him dismissed, success on these
claims would have necessarily implied the invalidity of any
future conviction on the still pending criminal charges.
         Heck did not directly address claims that, if
successful, would necessarily imply the invalidity of a potential
conviction on a pending criminal charge. In certain portions of
the opinion, the Court spoke in terms of claims that, if
successful, imply the invalidity of "outstanding" convictions.
Other portions of the opinion, however, refer to claims that, if
successful, imply the invalidity of convictions without
specifying whether this includes claims that, if successful,
would imply the invalidity of potential convictions that may
result from pending charges.
         The Supreme Court did not address this issue because it
was not presented by the facts in Heck. The Court had before it
the   1983 claim of a plaintiff who was serving a sentence on an
outstanding conviction. The Court thus had no occasion to
determine the scope of permissible   1983 claims by a defendant
in an ongoing criminal prosecution. Accordingly, we must look to
the reasoning behind the Heck rule to determine whether a claim
that, if successful, would necessarily imply the invalidity of a
conviction on pending criminal charges is cognizable under
  1983.
         The Supreme Court observed that the problem presented
by Heck's case is that it lay "at the intersection" of the Civil
Rights Act of 1871 and the federal habeas corpus statute. Heck,
114 S. Ct. at 2369. Some accommodation was required because the
federal habeas statute has an express exhaustion requirement that
precludes the filing of a federal habeas petition holding the
potential for interference with determinations made in state
criminal proceedings, while   1983 requires no exhaustion of
state remedies. Id. The Court accommodated these two statutes
by holding that   1983 actions are subject to the "hoary
principle" that civil tort actions are not the appropriate
vehicle for challenging the validity of convictions and
sentences. The express objectives of this holding were to
preserve consistency and finality, and to prevent "a collateral
attack on [a] conviction through the vehicle of a civil suit."
Id. at 2371.
         We find that these concerns apply equally to claims
that, if successful, would necessarily imply the invalidity of a
future conviction on a pending criminal charge. A claim by a
defendant in an ongoing criminal prosecution which necessarily
challenges the legality of a future conviction on a pending
criminal charge lies at the intersection of the federal habeas
corpus statute and the Civil Rights Act of 1871. If such a claim
could proceed while criminal proceedings are ongoing, there would
be a potential for inconsistent determinations in the civil and
criminal cases and the criminal defendant would be able to
collaterally attack the prosecution in a civil suit. In terms of
the conflicts which Heck sought to avoid, there is no difference
between a conviction which is outstanding at the time the civil
rights action is instituted and a potential conviction on a
pending charge that may be entered at some point thereafter.
         Because of these concerns, we hold that a claim that,
if successful, would necessarily imply the invalidity of a
conviction on a pending criminal charge is not cognizable under
  1983. See Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996)
(interpreting Heck to prevent accrual of   1983 claims that would
necessarily imply the invalidity of convictions on pending
criminal charges). It necessarily follows that so long as
success on such a claim would necessarily imply the invalidity of
a conviction in the pending criminal prosecution, such a claim
does not accrue so long as the potential for a judgment in the
pending criminal prosecution continues to exist. This did not
occur in Smith's case until the Pennsylvania Supreme Court
ordered the charges dismissed on September 18, 1992. Smith's
claims thus did not accrue before that date and, since he filed
those claims within two years thereafter, they are not time
barred.

                               III.
         Wambaugh argues, in the alternative, that if Smith's
claims did not accrue before the 1992 dismissals, they have yet
to accrue. The contention is that a judicial finding of actual
innocence is a prerequisite for a common law malicious
prosecution claim and, accordingly, is a prerequisite here.
Since the double jeopardy ruling of the Pennsylvania Supreme
Court was not premised on a finding of Smith's actual innocence,
the argument goes, he has not satisfied that prerequisite. We
are unpersuaded.
         First, Wambaugh misstates the common law of malicious
prosecution. Actual innocence is not required for a common law
favorable termination, see Restatement of the Law of Torts
   659, 660 (1938), and a dismissal of charges on double jeopardy
grounds is a common law favorable termination. E.g., Haefner v.
Burkey, 626 A.2d 519, 521 (Pa. 1993).
         But, more importantly, Wambaugh misreads Heck. While
the Heck court looked to the common law for guidance, it did so
solely for the purpose of accommodating the congressional intent
reflected in the civil rights and habeas corpus statutes. As a
result, Heck should not be read to incorporate all of the common
law of malicious prosecution into the federal law governing civil
rights cases of this kind. Heck represents a limitation on the
availability of relief for constitutional torts that extends no
further than the congressional concerns which justify it. As we
have explained, those concerns dictate that a district court
decline to entertain a civil rights claim asking monetary
compensation for an allegedly unlawful conviction or imprisonment
where success on that claim would necessarily imply the
invalidity of an outstanding conviction or a potential conviction
in a pending criminal proceeding. When that outstanding
conviction or that pending criminal proceeding ceases to exist,
however, the justification for barring access to the federal
courts likewise ceases. This means, among other things, that the
rationale of Heck will not support a requirement that a civil
rights plaintiff like Smith must have judicially established his
innocence before invoking   1983.


                               IV.
         For the foregoing reasons, we will affirm.
