           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 23, 2008

                                     No. 07-10987                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


PETER DAVID WINEGARNER

                                                  Plaintiff-Appellant
v.

CITY OF COPPELL; DALLAS COUNTY DISTRICT ATTORNEY; DALLAS
COUNTY CRIMINAL COURT NO. 11; MISTI MASTERS; CLINTON
GOODMAN; SCOTT K PETERS; ROY OSBORNE, Chief; TODD
BOURLAND; KENDALL CASTELLO; KIMBERLY MILLER; VIELICA
DOBBINS

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  3:05-CV-1157


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Peter Winegarner sued Defendants based on their varying roles in the
State’s prosecution of him for misdemeanor assault of his wife. He was convicted
of the charge by a jury. In the federal suit, he alleged a number of violations of



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                          No. 07-10987

his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the
Constitution through 42 U.S.C. § 1983, as well as state law defamation claims.
Through a series of opinions, the district court dismissed Defendants for a
number of different reasons.1 After dismissing all of his federal claims and some
state claims, the district court declined jurisdiction over the remaining state law
claims. During the course of the district court proceedings, an intermediate
state appellate court reversed Winegarner’s conviction and remanded for a new
trial based on an erroneous evidentiary ruling.2 Following the completion of the
district court proceedings, the Texas Court of Criminal Appeals reversed the
intermediate appellate court and affirmed the judgment of the trial court.3
Winegarner now appeals the dismissal of his federal suit. We affirm.
                                                 I
         Defendants make a substantial argument that Winegarner has abandoned
his appeal by failing to brief meaningfully any issues. His briefs recite for the
most part only the broad strokes of his complaints regarding Defendants. He
mentions in passing some of the reasons why the district court dismissed his
claims, and raises little in the way of an argument as to how the court’s analysis
erred.
         Federal Rule of Appellate Procedure 28(a)(9)(A) requires an appellant’s
brief to contain the “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”
It is our practice to construe liberally pro se litigants’ briefs and “apply less
stringent standards to parties proceeding pro se than to parties represented by


         1
         See Winegarner v. City of Coppell, No. 3:05-CV-1157-L, 2007 WL 1040877 (N.D. Tex.
Apr. 5, 2007); Winegarner v. City of Coppell, No. 3:05-CV-1157-L, 2006 WL 2485847 (N.D. Tex.
Aug. 28, 2006); Winegarner v. City of Coppell, No. 3:05-CV-1157-L (N.D. Tex. Apr. 28, 2006).
         2
             See Winegarner v. State, 188 S.W.3d 379 (Tex. App.–Dallas 2006).
         3
             See Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007).

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counsel.”4 Nevertheless, we still require pro se litigants to “brief the issues and
reasonably comply with the standards of Rule 28.”5 It is a close question, but we
cannot say that Winegarner has abandoned his appeal in its entirety.
                                                II
       In any event, Winegarner briefs make clear that the claims he is pursuing
on appeal turn on the State’s prosecution of him, which implicates the rule of
Heck v. Humphrey:6
       It is well settled that, under Heck v. Humphrey, a plaintiff who has
       been convicted of a crime cannot recover damages for an alleged
       violation of his constitutional rights if the alleged violation arose
       from the same facts attendant to the charge for which he was
       convicted, unless he proves “that his 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.” “Heck requires the district court to consider
       ‘whether a judgment in favor of the plaintiff would necessarily imply
       the invalidity of his conviction or sentence; if it would, the complaint
       must be dismissed unless the plaintiff can demonstrate that the
       conviction or sentence has already been invalidated.’”7

The district court declined to apply Heck because the intermediate state
appellate court had reversed Winegarner’s conviction.8 However, the Texas
Court of Criminal Appeals has now affirmed his conviction, and Winegarner does


       4
           Grant v. Cueller, 59 F.3d 523, 524 (5th Cir. 1995).
       5
           Id.
       6
           512 U.S. 477 (1994).
       7
        Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006) (quoting Heck, 512 U.S. at 486-
87, and Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995)) (citations omitted).
       8
        In its first opinion, the magistrate judge recommended dismissing a number of
Defendants based on Heck; however, in his objections to the magistrate’s recommendations,
Winegarner informed the district court that the intermediate state appellate court had
reversed his conviction.

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not contend that his conviction has since been reversed, expunged, or called into
question on collateral review. Judgment in Winegarner’s favor on his federal
claims would imply the invalidity of his conviction. He alleges, inter alia, the
State prosecuted him despite his innocence; maliciously prosecuted trial; his
conviction was obtained by perjured testimony; prosecutorial misconduct,
including lying, in obtaining the conviction; he was prosecuted after the statute
of limitations expired; and improper exclusion of critical impeachment evidence.9
       In addition to concluding that a “‘malicious prosecution’ standing alone is
no violation of the United States Constitution,”10 our en banc court has
explained, as pertinent here, that “[Heck] concludes that no such claim accrues
until the conviction has been set aside where, as here, the suit calls the validity
of the conviction into play.”11 Heck bars Winegarner’s § 1983 claims.
       Winegarner has not shown that the district court erred in dismissing the
state-law claims against some Defendants and declining jurisdiction over the
remaining state-law claims.
       AFFIRMED.




       9
         Winegarner writes in his opening brief, for example, that he “agree[s] with the first
two TX. Appeals Court Judges who had the good common sense to[] Overturn my wrongful
conviction, and the three dissenting Judges, who wisely agreed with that earlier decision, and
saw through the further Malicious Manipulations from the defendants’ continued Defamations
of plaintiff, in the recent October 2007 Reversal of [the] first TX. Appeals Court[‘s] wise
common sense Ruling.”
       10
          Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc) (“We decide that
‘malicious prosecution’ standing alone is no violation of the United States Constitution, and
that to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured
under federal and not state law.”).
       11
            Id. at 959.

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