                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  MAY 21, 2007
                                  No. 06-15375                  THOMAS K. KAHN
                              Non-Argument Calendar                 CLERK
                            ________________________

                        D. C. Docket No. 05-22854-CV-PCH

VICTOR G. BAXTER,


                                                          Plaintiff-Appellant,

                                        versus

WADIE CRAWFORD,
sued in his individual and official capacity,

                                                          Defendant-Appellee.


                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                   (May 21, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Victor Baxter, a federal prisoner proceeding pro se, appeals the district
court’s grant of summary judgment in favor of Wadie Crawford, a Special Agent

of the United States Drug Enforcement Administration (“DEA”), in Baxter’s

Bivens1 action. For the reasons that follow, we affirm.

                                     I. Background

       In November 2002, Baxter was charged in a seven-count indictment with

distributing at least five grams of crack cocaine on August 21, 2002 (Count 1);

distributing at least five grams of crack cocaine on August 29, 2002 (Count 2);

maintaining premises located at 2645 N.W. 21st Avenue, Oakland Park, Florida,

for the purpose of distributing crack cocaine from approximately August 21, 2002

to October 9, 2002 (Count 3); possessing with the intent to distribute at least five

grams of crack cocaine on October 9, 2002 (Count 4); possessing with the intent to

distribute cocaine on October 9, 2002 (Count 5); being a felon in possession of a

firearm (Count 6); and possessing a firearm in furtherance of a drug-trafficking

crime (Count 7).

       Before trial, Baxter twice moved to suppress the evidence seized during an

October 9, 2002 search of his residence, located at 2465 N.W. 21st Avenue in

Oakland Park, Florida. During the search, law enforcement agents seized, inter

alia, one-half kilograms of powder cocaine, a crack-cocaine cookie weighing 24.1


       1
        Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971).

                                             2
grams, and a loaded revolver. In both of his motions, Baxter focused primarily on

the following statements from Crawford’s warrant affidavit:

             On August 21, 2002, [BAXTER] sold approximately 15 grams
      of crack cocaine to an undercover DEA Special Agent (hereinafter
      “undercover agent”) in a public area immediately adjacent to 2645
      N.W. 21st Avenue, Oakland Park, Florida. . . .

             On August 29, 2002, [BAXTER] sold approximately 40 grams
      of crack cocaine to the undercover agent. [Baxter] supplied the crack
      cocaine purchased by the undercover agent to a confidential source
      inside the target location [2645 N.W. 21st Avenue]. . . .

             According to Broward County property records, 2645 N.W.
      21st Avenue, Oakland Park, Florida is owned by J.V. BAXTER and
      Lillian BAXTER. On September 18, 2002, the U.S. Postal Service
      indicated that [BAXTER] receives U.S. mail at the target
      residence. . . .

             On October 3, 2002, BAXTER was contacted at the target
      location and agreed to sell ½ kilogram of cocaine hydrochloride
      (powder) to the undercover agent. Arrangements were made to obtain
      the cocaine from BAXTER on Wednesday, October 9, 2002.
      BAXTER agreed that the sale would take place at a location other
      than the target residence because the undercover agent felt
      uncomfortable bringing a large amount of cash ($13,000) to the area
      around 2645 N.W. 21st Ave., Oakland Park, Florida. BAXTER was
      not told exactly where the sale would take place. Although the
      location has not been finalized, BAXTER indicated that he would be
      ready to complete the transaction on Wednesday, October 9, 2002.

In his first motion, Baxter alleged that the facts in the warrant affidavit were stale,

because the cocaine sales on August 21st and August 29th did not provide probable

cause to search his residence some six weeks later on October 9th. In Baxter’s



                                            3
second motion, he alleged that Crawford made materially false statements in the

affidavit, for example, falsely stating that Baxter had taken a call from an

undercover agent “at his apartment” on October 3rd. Following suppression

hearings, the magistrate judge denied both motions. After a five-day jury trial,

Baxter was convicted of Counts 1 and 5, but was acquitted of the remaining counts.

      Baxter appealed his convictions to this court, challenging, inter alia, the

denial of his motion to suppress on the grounds that the Government submitted

stale information and false statements in support of the probable cause affidavit. In

an unpublished opinion, this court affirmed Baxter’s conviction. United States v.

Baxter, 03-16578 (11th Cir. Jan. 4), vacated and remanded on other grounds by

544 U.S. 1013, 125 S.Ct. 1994, 161 L.Ed.2d 847 (2005) (“Baxter I”). In so

holding, we concluded that the alleged misstatements “were immaterial.” Id. We

also concluded that the information about Baxter’s August 2002 cocaine sales at

his residence established the ongoing nature of his criminal enterprise, so that those

sales, coupled with Baxter’s October 3rd agreement to sell cocaine to an

undercover agent, supported a finding of probable cause. Id. Accordingly, we

held that the facts underlying the probable cause determination were not stale. Id.

      In November 2005, Baxter, proceeding pro se, filed a Bivens action against

Crawford, alleging that Crawford had violated his Fourth and Fifth Amendment



                                           4
rights by intentionally misleading a federal magistrate into issuing a warrant on

October 8, 2002 to search his residence. Baxter conceded that he had sold cocaine

to a government informant on August 21st and August 29th at his 2645 N.W. 21st

Avenue residence. According to Baxter, however, these August cocaine sales were

too remote in time to provide probable cause to search for “contraband” at his

residence on October 9th, some six weeks later. He also alleged that he never had

a conversation with a government agent on October 3rd and that Crawford’s

misrepresentation on this point was material because without it, there would not

have been probable cause to issue the search warrant.

       After performing the required screening under the Prison Litigation Reform

Act, 28 U.S.C. § 1915(e)(2), the magistrate judge liberally construed Baxter’s

complaint as alleging Fourth and Fifth Amendment violations. The magistrate also

concluded that Baxter’s claims were not foreclosed under Heck v. Humphrey, 512

U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),2 because even if Baxter

succeeded on his claims, his “conviction might still be valid due to the doctrines of



       2
          Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a
state prisoner may not bring a damages claim under 42 U.S.C. § 1983 if a judgment in his favor
would implicitly question the validity of his conviction or the duration of his sentence, “unless
[he] first achieves a favorable termination of his available state, or federal habeas, opportunities
to challenge the underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751,
124 S.Ct. 1303, 1304, 158 L.Ed.2d 32 (2004) (citing Heck, 512 at 487, 114 S.Ct. at 2372). This
court has held that Heck applies with equal force in a Bivens action filed by a federal prisoner.
Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).

                                                  5
inevitable discovery, independent source, and harmless error.” The district court

accepted the magistrate judge’s preliminary determination and allowed the suit to

proceed.

      Crawford filed a motion to dismiss the complaint on the grounds that the

claims were vague and conclusory; he was entitled to qualified immunity; the

claims were Heck-barred; and the claims were barred by res judicata because they

had been litigated during Baxter’s criminal trial and on direct appeal of his

conviction. The magistrate judge converted the motion to dismiss to a motion for

summary judgment, and informed Baxter of his right to respond to Crawford’s

motion. Baxter filed a response to the motion, and Baxter filed a reply.

      The magistrate judge issued a report recommending that the district court

grant summary judgment in favor of Crawford on the grounds that Baxter’s claims

were Heck-barred. The district court adopted the magistrate’s recommendation

and granted summary judgment in favor of Crawford. Baxter then filed a motion

for reconsideration, which the district court denied. Baxter now appeals.

                                   II. Discussion

      On appeal, Baxter argues that the grant of summary judgment to Crawford

was improper because the district court erred in finding that his claims were

precluded under Heck. “We review a district court’s grant of summary judgment



                                          6
de novo, viewing the facts—as supported by the evidence in the record—and

reasonable inferences from those facts in the light most favorable to the

nonmoving party.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.

2004).

         Under Heck, a prisoner may not bring a damages action under Bivens if a

judgment in the prisoner’s favor would necessarily imply the invalidity of his

conviction or sentence. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995)

(holding that Heck applies both to 42 U.S.C. § 1983 actions filed by state prisoners

and Bivens actions filed by federal prisoners). Thus, unless the prisoner can

demonstrate that his conviction or sentence has already been invalidated, his

complaint must be dismissed. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. But when

“the [prisoner’s] action, even if successful, will not demonstrate the invalidity of

any outstanding criminal judgment against [him], the action should be allowed to

proceed, in the absence of some other bar to the suit.” Id. at 487, 114 S.Ct. at

2372-73 (emphasis in original, footnotes omitted). For example, “[b]ecause an

illegal search or arrest may be followed by a valid conviction, a successful

[Bivens] action for Fourth Amendment search and seizure violations does not

necessarily imply the invalidity of a conviction. As a result, Heck does not

generally bar such claims.” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)



                                           7
(internal citations and footnote omitted, emphasis added). Nevertheless, not all

Fourth Amendment claims fit this exception to Heck, rather, courts “must look

both to the claims raised . . . and to the specific offenses for which the . . . claimant

was convicted.” Id. at 1160 n.2 (emphasis added).

      Here, Baxter contends that his claims relate only to conduct for which he

was acquitted so that success on his claims would not necessarily call into question

the validity of his convictions. We disagree.

      First, Baxter’s assertion that his complaint relates only to conduct for which

he was acquitted is incorrect, as the cocaine seized during the search of 2645 N.W.

21st Avenue—the search conducted pursuant to the warrant Baxter challenges in

the instant action—served as the basis for his conviction on Count 5 (possessing

with the intent to distribute cocaine on October 9, 2002). Second, the factual basis

for Baxter’s claims in the instant action directly impugns his conviction on Count

5. As stated above, in affirming Baxter’s conviction on Count 5, this court

expressly rejected Baxter’s assertions that the information in the warrant affidavit

was stale and that Crawford had made material misrepresentations. Baxter I, 03-

16578. We concluded that the information contained in the affidavit regarding

Baxter’s cocaine sales at his residence in August 2002, coupled with his October

3rd agreement to sell cocaine to an undercover agent, supported a finding of



                                            8
probable cause to search his residence on October 9th. Hence, without the

information regarding Baxter’s August 2002 cocaine sales (which Baxter

challenges as stale) and Crawford’s assertions regarding Baxter’s conversation

with the undercover agent (which Baxter challenges as materially false), there

would have been no probable cause to search his residence on October 9th, and the

challenged search warrant would not have been issued. But for the execution of

the search warrant, however, the cocaine at issue in Count 5 would not have been

seized from Baxter’s residence, and therefore, Baxter’s conviction on Count 5

could not stand. As such, if Baxter were to succeed on his claims in the instant

action, he would necessarily call into question the validity of his conviction on

Count 5. Thus, although a Fourth Amendment claim of improper search and

seizure does not necessarily undermine a conviction, see Hughes, 350 F.3d at

1160, the factual basis for Baxter’s claims does necessarily undermine his

conviction. Accordingly, we conclude that the district court properly found that

Baxter’s claims are Heck-barred, and the grant of summary judgment to Crawford

was proper.

                                   III. Conclusion

      For the foregoing reasons, we AFFIRM.




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