                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-7798


KEVIN JACKSON,

                 Plaintiff - Appellant,

          v.

BALTIMORE CITY POLICE DEPT.; LAMAIRE        BYFIELD,    Detective;
GARY GALING; NICOLE HUNTER, Detective,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:13-cv-02933-RDB)


Submitted:   March 28, 2014                  Decided:    April 1, 2014


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Kevin Jackson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Kevin     Jackson     appeals     the      district     court’s       order

denying relief on his 42 U.S.C. § 1983 (2006) complaint.                              He

argues       that     the   district       court   improperly         dismissed      his

complaint on the basis that his claims would necessarily imply

the invalidity of an anticipated future conviction, relying on

Heck v. Humphrey, 512 U.S. 477 (1994).                    We review de novo this

dismissal for failure to state a claim, assuming that all well-

pleaded nonconclusory factual allegations in the complaint are

true and drawing all reasonable factual inferences in Jackson’s

favor.       Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.

2011).        After    thoroughly     reviewing    the     record,     we   affirm    in

part,       vacate    in    part,    and      remand     the   case     for     further

proceedings.

              We agree with Jackson that the favorable termination

rule announced in Heck did not bar his action while criminal

proceedings in the state court remained pending.                            Wallace v.

Kato, 549 U.S. 384, 393 (2007) (noting that Heck does not bar a

§    1983    action    where   it    “would     impugn    an   anticipated      future

conviction” (emphasis omitted)).                Jackson, however, has now been

convicted of assault, one of the state court charges underlying

his claim.

              As the district court noted, Heck bars a § 1983 action

if    it    is   clear      that    success     would     necessarily       imply    the

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invalidity of the plaintiff’s conviction.                           This determination

requires a close factual examination of the record related to

the   underlying      conviction.          See     Heck,      512    U.S.    at    487   n.7

(noting that an unreasonable search claim may be permitted to

proceed,     even     if   the    evidence         was     introduced        at     trial);

Ballenger     v.    Owens,     352    F.3d       842,    846-47      (4th    Cir.    2003)

(conducting        thorough    factual       inquiry       into      evidence       against

plaintiff to conclude that success on unreasonable search claim

would      necessarily        imply        invalidity         of      his     underlying

conviction).         The   record     is   unclear       as   to    whether       Jackson’s

illegal search and seizure claim is barred by Heck’s favorable

termination rule. 1        Because this determination should be made in

the first instance by the district court, we vacate and remand

the district court’s dismissal of this claim. 2

            We     conclude,     however,        that    Jackson’s     suppression        of

evidence allegation is now subject to dismissal under Heck, and

we decline to remand it.              Moreover, it is clear from Jackson’s



      1
       Jackson has abandoned his claim that police violated his
rights under Miranda v. Arizona, 384 U.S. 436 (1966), by failing
to brief it in this Court.   4th Cir. R. 34(b) (limiting review
to issues raised in brief); see Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (holding that failure to
raise issue in opening brief constitutes abandonment of that
issue).
      2
       By this disposition, we indicate                        no     view   as     to   the
appropriate resolution of this inquiry.



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own allegations and exhibits that police had probable cause to

arrest him on the original charges.          We therefore affirm as

modified the district court’s dismissal of these claims.          See MM

ex rel. DM v. School Dist. of Greenville Cnty., 303 F.3d 523,

536 (4th Cir. 2002) (“[W]e are entitled to affirm the court’s

judgment on alternate grounds, if such grounds are apparent from

the record.”).

          We   therefore   affirm   in   part,   vacate   in   part,   and

remand for further proceedings consistent with this opinion.           We

deny Jackson’s motion to appoint counsel.        We dispense with oral

argument because the facts and legal contentions are adequately

presented in the material before this court and argument will

not aid the decisional process.



                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




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