                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Drayer v. State of DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4350




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4350
                                   ________________

                                 JOHN R. DRAYER, JR.,
                                              Appellant

                                             v.

                    STATE OF DELAWARE; DEPT CORRECTION;
                     CUSTODY & SUPERVISION; PROBATION;
                     VOLUMOUS DEFS; US DISTRICT CTS. DEL.
                         93264RRM; MS. TANYITA NESBIT
                      ____________________________________

                     On Appeal From the United States District Court
                               For the District of Delaware
                               (D.C. Civ. No. 03-cv-00306)
                        District Judge: Honorable Kent A. Jordan
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                 DECEMBER 7, 2005

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                   (Filed April 6, 2006)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Appellant, John Drayer, Jr., a former state prisoner proceeding pro se, appeals an

order of the United States District Court for the District of Delaware dismissing his action
filed pursuant to 42 U.S.C. § 1983 as barred by Heck v. Humphrey, 512 U.S. 477 (1994).

       On June 30, 1997, Drayer pleaded no contest to first degree reckless endangering

in the Delaware Superior Court. Although his five year term of imprisonment was

originally suspended for three years probation, appellant apparently ended up serving a

portion of his sentence in state custody. Drayer did not take a direct appeal. He did,

however, file a motion for state post-conviction relief in November 2000, which the

Delaware Superior Court denied as untimely. The Supreme Court of Delaware likewise

denied Drayer’s appeal on June 25, 2001, because it was filed more than 30 days after the

Superior Court’s decision. Drayer thereafter filed a petition pursuant to 28 U.S.C. § 2254

in the United States District Court for the District of Delaware on November 4, 2002. See

Drayer v. Kearney, et al., D. Del. Civ. No. 02-1603. The District Court denied the § 2254

petition as untimely, and we denied Drayer the issuance of a certificate of appealability

noting that his § 2254 petition was time-barred under the applicable statute of limitations

set forth in 28 U.S.C. § 2244(d)(1). See C.A. No. 03-4160.

       In the meantime and while his § 2254 petition was pending, Drayer filed the

underlying civil rights complaint pursuant to 42 U.S.C. § 1983. Drayer’s complaint was

filed two days after his release from incarceration on March 17, 2003. In that complaint,

Drayer alleged that his conviction and sentence, as well as his subsequent probation

violation, violated his constitutional rights. He demanded compensatory and punitive

damages. After this Court’s remand on a fee assessment issue, see C.A. No. 03-2477, the

District Court granted Drayer leave to proceed in forma pauperis and then denied his


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complaint as frivolous pursuant to 28 U.S.C. § 1915(e). The District Court determined

that Drayer’s § 1983 suit for damages was barred by Heck v. Humphrey, because he

failed to show that his sentence had been reversed or declared invalid, and thus his claims

lacked an arguable basis in law or fact. The court further concluded that Drayer failed to

sufficiently support his motion for recusal under either 28 U.S.C. § 144 or § 455, instead

basing his motion solely on adverse judicial rulings. The District Court judge noted that

Drayers’ affidavit contained only bare allegations, and nothing that would question his

impartiality or show that he had a personal bias or prejudice against Drayer. This appeal

followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s order dismissing Drayer’s complaint as frivolous is plenary, see Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999), and our review of its denial of his motion

for recusal is for an abuse of discretion. See Blanche Road Corp. v. Bensalem Township,

57 F.3d 253, 265 (3d Cir.1995). Because we agree with the District Court’s

determination that Drayer’s § 1983 suit is barred under Heck, we will affirm the order of

dismissal.1



   1
     We note that the District Court also denied various post-judgment motions in an
order entered on December 14, 2004. However, Drayer did not file an amended notice of
appeal seeking review of that decision. Moreover, even if appellant had properly
appealed that decision, we would nonetheless conclude that the District Court did not
abuse its discretion in denying those motions. See Brown v. Phila. Hous. Auth., 350 F.3d
338, 342 (3d Cir. 2003)(orders denying motions filed under Fed. R. Civ. P. 60(b) are
reviewed for an abuse of discretion); Max’s Seafood Café v. Quinteros, 176 F.3d 669,
673 (3d Cir. 1999)(same with respect to orders denying motions filed under Rule 59(e)).

                                             3
       As have some of our sister circuits, “[w]e recognize that concurring and dissenting

opinions in Spencer v. Kemna, 523 U.S. 1 (1998), question the applicability of Heck to an

individual ... who has no recourse under the habeas statute.” See Gilles v. Davis, 427

F.3d 197, 210 (3d Cir. 2005), citing Spencer, 523 U.S. at 19-20 (Souter, J., concurring); at

21 (Ginsburg, J., concurring); at 25 n. 8 (Stevens, J., dissenting). These opinions

nonetheless did not affect our recent conclusion in Gilles that Heck applies even to claims

brought by a litigant for whom habeas relief is not available, and whose successful

completion of an Accelerated Rehabilitative Disposition program did not constitute a

“favorable termination” under Heck. See Gilles, 427 F.3d at 211, citing Heck, 512 U.S.

at 485. In Gilles, we not only expressed our doubt that Heck has been undermined, but

there stated that:

       [T]o the extent [Heck’s] continued validity has been called into question,
       we join on this point, our sister courts of appeals for the First and Fifth
       Circuits in following the Supreme Court’s admonition “to lower federal
       courts to follow its directly applicable precedent, even if that precedent
       appears weakened by pronouncements in its subsequent decisions, and to
       leave to the Court ‘the prerogative of overruling its own decisions.’”

Id. at 210, quoting Figuero v. Rivera, 147 F.3d 77, 81 n. 3 (1st Cir.1998) (citing Agostini

v. Felton, 521 U.S. 203, 237 (1989)); Randell v. Johnson, 227 F.3d 300, 301-02 (5th

Cir.2000).

       The Supreme Court’s holding in Heck was unequivocal: “[I]n order to recover

damages for allegedly unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction or sentence invalid, a §

1983 plaintiff must prove that the conviction or sentence has been reversed on direct

                                             4
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, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486. Given the particular facts of

the instant case (i.e., that habeas corpus relief was unavailable to Talley because he failed

to seek such relief in a timely manner) and our recent decision in Gilles, we refuse to

except appellant’s § 1983 suit from the requirements of Heck. See, e.g., Guerrero v.

Gates, 357 F.3d 911, 918 (9th Cir. 2004) (though habeas relief may be “impossible as a

matter of law,” court declined to extend a relaxation of Heck’s requirements to the claims

of a plaintiff whose failure to timely achieve habeas relief was self-imposed).

       We dispose of appellant’s challenge to the District Court’s denial of his recusal

motion with very little discussion as a review of the allegations in the motion reveals

nothing more than a dissatisfaction with prior rulings. We have held that “bias, in order

to form the basis for recusal, must stem from a source outside of the official proceedings.”

Blanche Road Corp., 57 F.3d at 266 (citing United States v. Bertoli, 40 F.3d 1384 (3d Cir.

1994)). No such allegations have been asserted here.

       Accordingly, for the reasons stated, we will affirm the District Court’s judgment.

Appellant’s motion seeking to have the Clerk’s Order of November 21, 2005, vacated and

to have counsel appointed is denied.




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