
USCA1 Opinion

	




        November 9, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1761                                  JEROME E. CASSELL,                                Plaintiff, Appellant,                                          v.                             BARRY OSBORNE, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Jerome E. Cassell on Motion for Summary Disposition pro se.            _________________                                 ____________________                                 ____________________                      Per Curiam.  We  have before us appellant Cassell's                      __________            "Motion  to  Compel  Enforcement  and  Compliance," which  we            construe as requesting relief from briefing requirements, and            a summary disposition of the appeal.                        Cassell  was  convicted  in a  New  Hampshire state            court  of  felonious  sexual  assault.   While  his  criminal            conviction  was pending  on direct  appeal, he  filed several            actions  in federal district  court under  42 U.S.C.    1983,            challenging  the  validity  of  the  conviction  and  seeking            equitable  relief and damages.   Three of the  suits were the            subject  of an opinion issued  by this court  in April, 1994.            Cassell v. Osborn, No. 93-1557, etc., Slip op. (1st Cir. Apr.            _______    ______            26, 1994).  There we affirmed the district court's  dismissal            of  most of  Cassell's claims,  but vacated  those dismissals            which  were  arguably  susceptible  of  being  raised  as  an            estoppel in the  state proceedings.   The latter claims  were            remanded  for reconsideration  as to  whether they  should be            dismissed  or  stayed pending  the  conclusion  of the  state            appeal.   Id. at 13.  The  district court decided to stay the                      ___            claims.                      Pursuant   to   the  Supreme   Court's  intervening            decision in Heck  v. Humphrey,  114 S. Ct.  2364 (1994),  the                        ____     ________            district  court  later  granted  a motion  by  defendants  to            dismiss the claims.   In Heck, the Court resolved  a conflict                                     ____            among the circuits  by ruling that "a   1983  cause of action                                         -2-            for  damages attributable  to an  unconstitutional conviction            does  not  accrue  until  the  conviction  .  .  .  has  been                       ______            invalidated."  Heck, 114 S. Ct. at 2373 (emphasis added); see                           ____                                       ___            also  Guzman-Rivera v.  Rivera-Cruz, 29 F.3d  3, 5  (1st Cir.            ____  _____________     ___________            1994).                        Appellant  is   mistaken  in  his  belief   that  a            dismissal under  Heck violates this court's  earlier mandate.                             ____            This dismissal will not prejudice the resolution of any issue            pending before  the state's appellate  court.  It  means only            that  his    1983  suit is  premature.   As  we  explained in            response to another, similar appeal by Cassell, the dismissal            also "does not  prevent him  from later filing  a proper  and            timely  complaint  for damages  should  he  first succeed  in            having his conviction reversed on direct appeal, expunged, or            otherwise declared  invalid by a tribunal  authorized to make            such a determination."   Cassell v.  Ober, No. 94-1796,  slip                                     _______     ____            op. at 2 (1st  Cir. Oct. 5, 1994)  (citing  Guzman-Rivera, 29                                                ______  _____________            F.3d at 5).                         Accordingly, we grant appellant's motion insofar as                                      _____            it seeks relief  from the briefing schedule, deny  his motion                                                         ____            for "enforcement,"  and summarily affirm the  judgment below.                                              ______            See  Loc.  R. 27.1.    Cassell's  appellate motions  labelled            ___            "Petition for Habeas Corpus Ad Testificandum," and "Motion to            Introduce  Evidence,"  are  dismissed  without  prejudice  to                                        _________            consideration of  the same  contentions and issues  raised in                                         -3-            his  separately  docketed appeal,  Cassell v.  New Hampshire,                                               _______     _____________            (Appeal no. 95-2158).                                         -4-
