                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-2021


JOHN WILLIAM BISHOP; DONNA J. BISHOP,

                Plaintiffs – Appellants,

          and

STATE OF NORTH CAROLINA, ex rel.,

                Plaintiff,

          v.

COUNTY OF MACON, North Carolina; MACON COUNTY SHERIFF’S
DEPARTMENT; ROBERT L. HOLLAND, Individually and in his
Official Capacity as Sheriff of Macon County; C. J. LAU,
Individually and in his Official Capacity as Deputy Sheriff
of Macon County; GARY GARNER; W. T. POTTS; OHIO CASUALTY
INSURANCE COMPANY,

                Defendants − Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.       Martin K.
Reidinger, District Judge. (2:10-cv-00009-MR-DLH)


Submitted:   March 30, 2012                 Decided:   June 22, 2012


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Paul Louis Bidwell, Asheville, North Carolina; Douglas A. Ruley,
Leicester, North Carolina, for Appellants.      Sean F. Perrin,
WOMBLE CARLYLE SANDRIDGE AND RICE, LLP, Charlotte, North
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              John William Bishop and his mother, Donna J. Bishop

(collectively,        “the      Bishops”),        filed     a    complaint       alleging

violations of 42 U.S.C. § 1983 (2006) and state law arising from

a   series    of    searches      of   Donna’s       home      and    the    seizure    and

disposal of various items of personal property.                              The district

court dismissed the Bishops’ § 1983 claims as barred by Heck v.

Humphrey,     512    U.S.      477   (1994),       and    the    Bishops      filed     this

appeal.      We affirm in part, vacate in part, and remand.

              This court reviews de novo a district court’s grant of

a motion to dismiss for failure to state a claim under Fed. R.

Civ. P. 12(b)(6).             Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d

176, 179-80 (4th Cir. 2009).                   When ruling on a Rule 12(b)(6)

motion, we accept “as true all well-pleaded allegations and view

the complaint in the light most favorable to the plaintiff.”

Id. at 180.        “[W]e may properly take judicial notice of matters

of public record. . . .              We may also consider documents attached

to the complaint, as well as those attached to the motion to

dismiss,     so    long   as    they   are       integral   to       the    complaint   and

authentic.”        Id. (internal citation omitted).

              In Heck, the Supreme Court held that “when a state

prisoner seeks damages in a § 1983 suit, the district court must

consider     whether      a   judgment    in      favor   of    the    plaintiff      would

necessarily imply the invalidity of his conviction or sentence.”

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Heck,    512    U.S.    at    487.       If     the      district       court    answers      the

question       in    the     affirmative,           then       “the    complaint       must    be

dismissed       unless       the     plaintiff           can     demonstrate       that       the

conviction      or     sentence      has      already       been       invalidated.”          Id.

“This    mandate       is    referred      to    as      the     ‘favorable      termination’

requirement.”        Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008)

               The Bishops first argue that, because neither Donna

nor John was ever in custody, a habeas action was not available

to them, and, pursuant to Heck is inapplicable as a bar to their

claims.        In Wilson, we considered whether a former prisoner’s

§ 1983    claim      was     cognizable         where      he    had    failed    to    satisfy

Heck’s     favorable         termination         requirement.             Id.    at     263-64.

Cognizant of a circuit split on the issue, we stated that:

      If a prisoner could not, as a practical matter, seek
      habeas relief, and after release, was prevented from
      filing a § 1983 claim, § 1983’s purpose of providing
      litigants with a uniquely federal remedy against
      incursions under the claimed authority of state law
      upon rights secured by the Constitution and laws of
      the Nations would be severely imperiled.

Id. at 268 (internal citations and quotation marks omitted).

Accordingly, we did “not believe that a habeas ineligible former

prisoner seeking redress for denial of his most precious right —

freedom — should be left without access to a federal court.”

Id.

               Appellees        contend             that        Wilson      is        factually

distinguishable         from       the   case       at     bar    because       John    was    on

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probation for three years and was therefore in custody for state

and federal purposes.

               Because      John     was    on      probation,     he     satisfied    the

custody requirement for habeas relief. See Jones v. Cunningham,

371 U.S. 237, 240-43 (1963).                 John argues, however, that whether

his    term    of     probation      satisfied       the    custody      requirement     is

irrelevant because he has completed probation and is no longer

eligible       to    pursue    habeas       relief.         We    disagree.         Wilson

indicated that Heck does not bar a § 1983 suit where “a prisoner

could not, as a practical matter, seek habeas relief.”                                 See

Wilson, 535 F.3d at 268.               Unlike the plaintiff in Wilson, who

had    a   window      of     only    four       months    to     meet    the    favorable

termination requirement (which he pursued until his release),

John   pleaded        guilty   and    was       sentenced    to    thirty-six      months’

probation.          He did not pursue habeas relief during that thirty-

six-month period.           He has made no claim that habeas relief was

unavailable during that time, practically or otherwise.                             Wilson

does not permit a plaintiff to end-run Heck by simply sitting on

his rights until all avenues for challenging a conviction have

closed.

               John asserts that, even if Heck applies, success on

his    claim    for    deprivation         of    property    would       not    necessarily

imply the invalidity of his convictions.                        He argues that he was

convicted of an attempted offense and, accordingly, he could be

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convicted of attempted breaking and entering without actually

stealing anything or possessing any stolen property.                           Although

John is correct that his attempt conviction does not require

that he actually possessed the property in issue, on the facts

of this case, the convictions cannot stand without evidence that

John was in possession of the stolen items.                 This is so because

his possession was the only evidence that John committed any

offense.      See    Ballenger      v.       Owens,   352   F.3d        842,     846-47

(4th Cir. 2003)      (where    evidence         of      offense        was     uniquely

available from search and seizure, § 1983 claim alleging the

search was illegal was barred by Heck).                 We therefore affirm the

district court’s holding that Heck barred John’s claims.

           Turning to Donna’s claims, Appellees offer no argument

as to Wilson’s applicability.            The record reflects that she was

never in custody and therefore was unable to obtain a favorable

termination   of    the   charges   through       a   habeas      petition. ∗       See

Wilson, 535 F.3d at 268.            Because Heck does not bar Donna’s

§ 1983 claim, we are constrained to vacate this portion of the

district   court’s   order    and   remand       this    case     to    the    district

court for further proceedings.



     ∗
       We have considered the supplemental authority filed by
Appellees pursuant to Fed. R. App. P. 28(j), and conclude that
it is not controlling.



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            We dispense with oral argument because the facts and

legal    contentions    are   adequately    presented    in    the   materials

before    the   court   and   argument     would   not   aid   the   decision

process.

                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




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