                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-1494


WENDELL GRIFFIN,

                Plaintiff - Appellant,

           v.

BALTIMORE POLICE DEPARTMENT; JERRY LANDSMAN; DONALD KINCAID;
EDWARD BROWN,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cv-03387-JFM)


Argued:   September 17, 2015                Decided:   October 27, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Harris joined. Judge
Harris wrote a separate concurring opinion.


ARGUED: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore,
Maryland, for Appellant.    Daniel C. Beck, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Sarah
F. Lacey, LEVIN & CURLETT LLC, Baltimore, Maryland, for
Appellant. George A. Nilson, City Solicitor of Baltimore City,
Suzanne Sangree, Chief, Glenn Marrow, Deputy Chief, Police Legal
Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore,
Maryland, for Appellees.
WILKINSON, Circuit Judge:

      Plaintiff      Wendell        Griffin       seeks    damages     for       police     and

prosecution withholding of evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), during his 1982 murder trial. The

district court dismissed his case, holding it barred by Heck v.

Humphrey, which prohibits § 1983 claims for damages that would

“necessarily       imply      the    invalidity”          of    a    plaintiff’s       prior

conviction.    512    U.S.      477,    487       (1994).      For   the    reasons        that

follow, we affirm.

                                          I.

      On   March    8,     1982,     Griffin       was     convicted       by    a   jury    in

Baltimore City Circuit Court for the April 22, 1981 murder of

James Williams Wise and also for a related weapons charge. He

was sentenced to life in prison. The Maryland Court of Special

Appeals affirmed Griffin’s convictions on April 4, 1983, and the

Maryland    Court        of    Appeals        denied       Griffin’s        petition        for

certiorari on April 11, 1984.

      Griffin filed a pro se petition for state post-conviction

relief, but it was withdrawn without prejudice on February 23,

1993. He then filed another petition, this one claiming that he

received ineffective assistance of counsel, on April 19, 1995.

The   Baltimore      City      Circuit    Court           denied     this       petition    on

December 13, 1996.




                                              2
      On    October     31,     1997,   over        fifteen       years     after     his

conviction, Griffin sought federal habeas relief in the United

States District Court for the District of Maryland. The petition

was denied on June 11, 1998, and this court declined to issue a

certificate of appealability. Griffin v. Sizer, 161 F.3d 2 (4th

Cir. 1998).

      Over a decade later, on June 10, 2010, Griffin filed a pro

se   petition      seeking     post-conviction        DNA       testing     of    certain

evidence pursuant to Md. Code, Crim. Proc. § 8-201. In response

to this petition, the court appointed Griffin counsel, who filed

a Maryland Public Information Act request seeking records from

the Baltimore City Police Department. These documents allegedly

revealed     that     Baltimore      City       Police        Department     detectives

withheld     from     the     defense   exculpatory             evidence,        including

exculpatory photo-arrays, exculpatory witness statements, proof

of a break in the chain of custody over keys found at the crime

scene, and evidence that tended to inculpate another person.

      On    August    4,     2011,   the        Baltimore       City   Circuit       Court

conducted     an      evidentiary       hearing          to     consider         Griffin’s

arguments. It found that Maryland had conducted a reasonable

search for evidence secured in connection with Griffin’s case,

and it indicated that it would address the question of whether

any withholding of evidence was intentional at a later hearing.




                                            3
     On February 2, 2012, Griffin again moved for state post-

conviction relief. Then, on May 23, 2012, the Baltimore City

Circuit Court granted Griffin’s unopposed motion to modify his

sentence to time served. Griffin was placed on three years of

unsupervised probation, but the probation was terminated early

on December 19, 2012.

     Griffin,       no     longer       in   custody,            sued       the    Baltimore     City

Police Department and three of its former detectives for damages

under 42 U.S.C. § 1983. The United States District Court for the

District of Maryland, noting that Griffin had “ample opportunity

to   seek      federal      review       .   .    .     prior          to    his     release     from

incarceration,” J.A. 108, dismissed his claims pursuant to the

bar set forth in Heck v. Humphrey. This appeal followed.

                                                 II.

     We     shall        briefly       review     at        the    outset         the     principles

underlying        Heck    before       proceeding           to     the      core     of    Griffin’s

claim.    In    Heck,      the     Supreme        Court       identified            two    potential

problems       lying      at     the    intersection              of    the       major    statutory

schemes     relevant        to     prisoner       litigation:               habeas      corpus    and

§ 1983.     The    first       problem       goes      to    consistency.            If    a   § 1983

plaintiff could win damages premised on the wrongfulness of a

still-valid        conviction,           there         would           be     “two      conflicting

resolutions” of a single controversy. Heck, 512 U.S. at 484. All




                                                  4
things considered, it would be best not to have law at odds with

itself.

       The    second     problem     goes       to   the    proper   observance       of

Congress’s      specified    means    of    federal        post-conviction      review.

Habeas corpus, and not § 1983, is the exclusive federal remedy

for   state     prisoners    seeking    actual       release    from      confinement.

Preiser v. Rodriguez 411 U.S. 475, 487-90 (1973). Congress has

limited this remedy, moreover, by requiring habeas petitioners

to    exhaust    their    claims   in   state        forums    and   by    limiting    a

federal court’s ability to review a state court’s adjudication

of the merits of a claim. See 28 U.S.C. § 2254. If, however, a

§ 1983 plaintiff could win damages premised on a still-valid

conviction,       then      that     plaintiff        could     circumvent       these

limitations and mount “a collateral attack on [a] conviction

through the vehicle of a civil suit.” Heck, 512 U.S. at 484.

       The Supreme Court attempted to forestall these two problems

by     prohibiting        § 1983      claims         implicating       issues      more

appropriately resolved via federal habeas corpus or state post-

conviction relief. Specifically, the Court held that

       to recover damages for . . . 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
       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.


                                            5
Id. at 485. Through what has become known as the “favorable

termination requirement,” Nelson v. Campbell, 541 U.S. 637, 646-

47 (2004), the Court ensured that § 1983 litigation would not

result    in    inconsistent        judgments        or     retrials       of   old    state

convictions      through       pathways    other       than       those    delineated        by

Congress.

     Heck itself makes clear, however, that § 1983 actions that

do not “necessarily” imply the invalidity of a prior conviction

“should be allowed to proceed, in the absence of some other bar

to the suit.” Heck, 512 at 487. The need to avoid inconsistent

judgments      and     prevent    litigants         from    evading       the   procedural

requirements      of    federal     habeas        corpus    is    not     present     when    a

§ 1983 claim would not actually undermine a valid conviction. In

Skinner v. Switzer, for example, the Court held that Skinner’s

suit for DNA testing was cognizable under § 1983, because the

testing would not “necessarily” undermine the validity of his

conviction.      562    U.S.     521,   534       (2011).    It    might     instead    only

incriminate him further. Id.

     While § 1983 suits seeking DNA testing may proceed around

the Heck bar, § 1983 actions based on Brady claims may not.

Skinner     itself      makes     this    distinction             clear.     “Unlike     DNA

testing,       which     may      yield    exculpatory,             incriminating,           or

inconclusive         results,       a     Brady        claim,         when      successful

postconviction,         necessarily       yields           evidence       undermining         a


                                              6
conviction: Brady evidence is, by definition, always favorable

to   the    defendant      and   material       to   his   guilt    or     punishment.”

Skinner, 562 U.S. at 536; see also Brady, 373 U.S. at 87 (“We

now hold that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material.”). The Court’s careful explanation of

this    distinction        prevents    us     from   allowing       its    decision      in

Skinner to “spill over to claims relying on Brady.” Skinner, 562

U.S. at 536.

       What we have here, then, are § 1983 claims predicated on

alleged     Brady    violations       which     would,     if    proven,    necessarily

imply      the    invalidity     of    Griffin’s         convictions.        And    those

convictions have not been “reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal . . .

or called into question by a federal court’s issuance of a writ

of habeas corpus.” Heck, 512 U.S. at 487. Under Heck, therefore,

they may not be collaterally attacked through § 1983 now.

       That Griffin is no longer in custody does not change this

result.     The     Heck   bar   is    “not     rendered        inapplicable       by   the

fortuity that a convicted criminal is no longer incarcerated.”

Id. at 490 n.10. This rule prevents would-be § 1983 plaintiffs

from bringing suit even after they are released from custody and

thus    unable      to   challenge     their     conviction        through    a    habeas

petition. Were the rule otherwise, plaintiffs might simply wait


                                            7
to file their § 1983 actions until after their sentences were

served, and thereby transform § 1983 into a new font of federal

post-conviction review.

       Successful      resolution         of     Griffin’s     § 1983       claims       would

necessarily        undermine         the       validity        of    Griffin’s           prior

convictions.       Griffin’s     claims        would     appear     therefore       to    fall

within the core of the Heck bar.

                                            III.

       Griffin argues, however, that he is not subject to Heck

even    though        his    claims        would     necessarily        undermine          his

convictions. He points to Wilson v. Johnson, which recognizes an

exception to the Heck bar in cases where a litigant “could not,

as a practical matter, [have sought] habeas relief” while in

custody. 535 F.3d 262, 268 (4th Cir. 2008). Griffin argues that

he     qualifies       for    this        exception       because      he     could        not

successfully       pursue      habeas       relief       while      “deprived       of     the

exculpatory evidence hidden by the police.” Appellant’s Op. Br.

at 37. There are several problems with his position.

       In Wilson, this Court considered a § 1983 claim for damages

alleging that the State of Virginia improperly extended Wilson’s

sentence by approximately three months. Wilson, 535 F.3d at 263.

Wilson’s    case       presented      a     potential      problem      identified          by

Justice    Souter      in    Heck:   because       federal     habeas    suits       may    be

filed    only    by    individuals         who     are   “in     custody,”     28    U.S.C.


                                               8
2254(a),    petitioners     with   short      sentences    might     find   their

claims moot before they could prosecute them. Without § 1983 as

a   backstop,   these     petitioners       might   lack   access    to   federal

courts altogether. See Heck, 512 U.S. at 500-02 (Souter, J.,

concurring); see also Spencer v. Kenma, 523 U.S. 1, 20-21, 21

n.* (1998) (Souter, J., concurring). After accepting Wilson’s

assertion that exhausting his claims prior to his release was

impossible, see Wilson, 535 F.3d at 268 n.8, we held that his

action was cognizable under § 1983, id. at 267-68. Had we held

otherwise, Wilson would have been entirely “left without access

to a federal court.” Id. at 268.

       We applied a similar rationale in Covey v. Assessor of Ohio

County. There, Covey was sentenced to not less than one and not

more than five years of home confinement. 777 F.3d 186, 191 (4th

Cir. 2015). He brought suit under § 1983 later the next year, by

which time his home confinement was complete. Id. at 198. We

held that Heck did not bar Covey’s claims “for purposes of the

defendants’ motions to dismiss,” and that the district court

should   decide   after    discovery        whether   Covey   was    “unable     to

pursue habeas relief because of insufficient time or some other

barrier.”   Id.   In    discussing      Wilson’s      holding,     moreover,     we

suggested that the Heck exception does not extend to just any

petitioner who, by virtue of no longer being in custody, cannot

seek   habeas   relief.    Rather,   the     exception     applies   only   if    a


                                        9
petitioner        could     not     have        “practicably         sought     habeas           relief

while in custody.” Id. at 197 (citing Wilson, 535 F.3d at 267-

68).

       Together, Covey and Wilson delineate the Heck bar’s narrow

exception. A would-be plaintiff who is no longer in custody may

bring      a    § 1983      claim    undermining              the    validity       of       a    prior

conviction only if he lacked access to federal habeas corpus

while in custody. 1

       Griffin        did   not     lack    access        to    habeas      relief       while       in

custody. While Wilson had only a few months to make a habeas

claim, and while Covey had at most a little over a year, Griffin

had    three      decades.     And    Griffin          actually       did   bring        a       federal

habeas         petition     during        his     time    in        custody.       Although         his

petition        was   denied,       the    fact        that    he    was    able    to       file     it

demonstrates that the concern animating Wilson and Covey –- that

a citizen unconstitutionally punished might lack an opportunity

for federal redress if kept in custody for only a short period

of time –- is absent in this case.

       Griffin argues that he never had the opportunity to achieve

meaningful habeas relief because evidence necessary to his case

       1
       Access to federal habeas corpus comes part and parcel with
the restrictions Congress has placed on invocations of the writ.
A statute of limitations’ expiration, for example, would not in
this sense deprive a petitioner of access to the federal courts.
By access we mean access to federal habeas corpus as provided
under the enactments of Congress that apply to a petitioner
during his time in custody.


                                                  10
remained       in   the     hands      of     the    Baltimore         Police    Department.

Appellant’s Op. Br. at 28, 39. But likelihood of success is not

the equivalent of opportunity to seek relief. And even if it

were, nothing in the record suggests that Griffin sought the

relevant    records         (much      less    encountered        resistance          to     their

production) until he filed his Maryland Public Information Act

request in 2010. That law, meanwhile, has been in effect since

1970. Maryland Public Information Act Manual, 1-1 (13th ed.,

Oct.   2014).       Lack    of    information        did    not    take      away     Griffin’s

opportunity for meaningful habeas relief.

       While    our    precedent          makes     clear       that    lawful       access      to

federal     habeas         corpus      is     the    touchstone         of     our     inquiry,

Griffin’s      case    is    further        undercut       by   the     fact    that       he   did

eventually receive actual notice of possible official misconduct

and still did not pursue additional federal habeas relief. In

declining      to    except       Brady     claims     from      the    rule     in    Heck      v.

Humphrey,       Skinner,         562   U.S.     at    536-37,          the   Supreme        Court

recognized that the adversary process does not as a rule require

a potential respondent to give notice to a potential petitioner

of every claim, meritorious or otherwise, that the petitioner

may possess. Griffin knew of possible police misconduct by, at

the latest, August 4, 2011, the date of his evidentiary hearing

in   the   Baltimore         City      Circuit       Court.      His     custody       did      not

terminate until over sixteen months later, on December 19, 2012.


                                               11
The habeas “in custody” requirement, moreover, applies only at

the     time    of        filing,    not     throughout          the      case.   Carafas    v.

LaVallee, 391 U.S. 234, 238-39 (1968); Wolfe v. Clarke, 718 F.3d

277, 286 n.10 (4th Cir. 2013). Griffin would have had only to

file his petition during those sixteen months. He did not do so.

      In     sum,     Griffin       has    identified          no   impediment      to   habeas

access warranting an expansion of the Heck exception. In fact,

to dissolve the Heck bar for a damages suit some thirty years

after    a     still-valid        conviction        for    a    plaintiff     who    not    only

could but did file a federal habeas petition would permit the

Heck exception to swallow the rule.

                                              IV.

      It is important not to disassociate Griffin’s case from the

broader context of which it is part. The usual federal remedy

for   Griffin,        as    for     all    those     who       challenge     unlawful      state

confinement,          is    habeas        corpus.     Congress         has    simultaneously

provided and circumscribed this remedy so as to preserve the

sensitive balance between state and federal courts. The most

recent       major    habeas        statute    --     the       1996      Antiterrorism      and

Effective       Death      Penalty     Act    (AEDPA)       --      was   written    with    the

“principles          of    comity,        finality,       and       federalism”     in     mind.

Williams v. Taylor, 529 U.S. 420, 436 (2000).

      These concerns are not novel. The Supreme Court has long

recognized the importance of “the relations existing, under our


                                               12
system   of    government,    between      the       judicial     tribunals   of   the

Union and of the States,” and that “the public good requires

that those relations be not disturbed by unnecessary conflict

between courts equally bound to guard and protect rights secured

by the constitution.” Ex parte Royall, 117 U.S. 241, 251 (1886).

Indeed, “the trial of a criminal case in state court” has always

been understood “as a decisive and portentous event,” Wainwright

v. Sykes, 433 U.S. 72, 90 (1977), and one which commands a

decent measure of federal respect. Griffin’s conviction, after

all, is a state conviction, and it is one in which Maryland, the

rendering jurisdiction, retains an interest.

     Limits on federal habeas corpus recognize, moreover, that

the states often already provide many avenues of post-conviction

relief. Maryland, for example, allows certain offenders who are

no longer in custody to challenge their convictions by means of

an “independent, civil action” known as a “petition for writ of

error coram nobis.” Smith v. State, 100 A.3d 1204, 1206 (Md.

App. 2014) (citing Skok v. State, 760 A.2d 647 (Md. 2000)).

Maryland also permits convicted persons to file petitions for

writs    of   actual   innocence     on    the       basis   of    newly   discovered

evidence.     Md.   Code,    Crim.   Proc.       §    8-301.      Additionally,    the

Maryland      Constitution     empowers        the      governor      to   issue    an




                                          13
executive pardon. Md. Const. art. II, § 20, cl. 1. 2 And the

Maryland     Board     of    Public      Works      may   grant   compensation     to

pardoned persons. Md. Code, State Fin. & Proc. § 10-501. Each of

these     forms   of   relief      is   in   addition     to   Maryland’s   standard

direct appeal and collateral review procedures. See Md. Code,

Crim. Proc. § 7-101-09. Griffin may or may not qualify for any

or all of these remedies; that is for Maryland to decide. But

nothing      prevents        Maryland        from    creating     new     means   of

invalidating his convictions or paying him damages if it wishes

to do so. Maryland is an “independent sovereign[] with plenary

authority to make and enforce [its] own laws as long as [it]

do[es]     not    infringe        on    federal     constitutional      guarantees.”

Danforth v. Minnesota, 552 U.S. 264, 280 (2008).

      As    the   Supreme     Court      recently     observed,     federal    habeas

corpus “intrudes” on state sovereignty “to a degree matched by

few [other] exercises of federal judicial authority.” Harrington

v. Richter, 562 U.S. 86, 103 (2011). This observation is not

inapplicable to Brady claims like Griffin’s, which can take a

federal court deep into a state’s criminal case, and which may

not   be   amenable     to    a    quick     look-see.    Whether    alleged    Brady


      2 Some courts have held that, while not strictly an
“expungement by executive order,” a pardon still suffices to
lift the Heck bar. See, e.g., Wilson v. Lawrence Cty., Mo., 154
F.3d 757, 760-61 (8th Cir. 1998); Snyder v. City of Alexandria,
870 F. Supp. 672, 681 (E.D. Va 1994). That question is not
before us, and we do not address it.


                                             14
evidence was exculpatory might lend itself to a quick read, but

whether it was material, another critical element of a Brady

claim, cannot invariably be decided in a vacuum, but only by

reviewing   the       total   context     of    the    state   prosecution.         Brady

claims   may   thus      involve    an     exhaustive       exhumation      of      state

proceedings,      a    process    which    in    turn    implicates      the     Supreme

Court’s concerns about premature intrusions upon the established

principles of dual sovereignty. This intrusion, if brought in

habeas corpus, is constitutionally and statutorily authorized.

But collateral attacks are not to be undertaken with abandon or

in a manner that disregards the conscientious efforts of state

judges and juries both to provide and protect the safety of

their citizens and to safeguard their precious rights. All of

this   counsels       against    accepting      Griffin’s      invitation      to    turn

§ 1983 into some routine vehicle for challenging long-settled

state convictions.

       We close by noting that our decision sounds in procedure,

not substance. We express no opinion on the actual merits of

Griffin’s Brady claims. Our holding is not meant to bar him from

seeking a remedy for possible police misconduct. The remedy of

habeas corpus was open to him in the past, and he may retain

state remedies he can pursue in the future. We hold only that

the vehicle he has presently chosen is not, at least not now, an

appropriate    one      under    Supreme       Court    and    circuit    precedent.


                                          15
Should his convictions at some point be invalidated, he might

again attempt a § 1983 suit free of any Heck bar. Until then,

however, we must affirm the judgment of the district court.



                                                         AFFIRMED




                               16
PAMELA HARRIS, Circuit Judge, concurring:

     I join the majority’s opinion, which cogently explains the

principles underlying Heck v. Humphrey, 512 U.S. 477 (1994), and

the federalism concerns that counsel federal respect for state

convictions.         And I agree that Griffin’s § 1983 suit cannot

proceed    consistent     with    Heck,    at    least     unless     and   until    his

state conviction is invalidated.

         As the majority explains, Griffin was on notice of the

alleged Brady violation in his case at some point before August

4, 2011, the date on which the Baltimore City Circuit Court

conducted a hearing on Griffin’s Brady claim, and yet did not

pursue    federal      habeas    relief    then     or   during       the   additional

sixteen months he spent in custody.                  Maj. Op. at 11-12. *           Our

court    has   not     precisely       delineated    the      scope    of   the     Heck

“exception” it recognized in Wilson v. Johnson, 535 F.3d 262,

265-68 (4th Cir. 2008), and Covey v. Assessor of Ohio County,

777 F.3d 186, 197-98 & n.11 (4th Cir. 2015).                   But in a case like

this, where the petitioner’s full term of custody was more than

long enough to allow for access to habeas relief, see Maj. Op.

at 10, then I agree that the exception can apply only if the

petitioner     could    not     have   “practicably      sought       habeas   relief”

during that period of custody, id. at 9-10 (quoting Covey, 777

     *  Citations       to    “Maj.     Op.”    refer    to    the    majority      slip
opinion.



                                          17
F.3d at 197).              And whether or not Griffin “practicably” could

have    sought     habeas      relief      before    he     actually       discovered       the

alleged Brady material, cf. Heck, 512 U.S. at 502 (Souter, J.,

concurring)        (suggesting       that    Heck     bar     does    not     apply    “to    a

person who discovers after his release from prison that . . .

state officials deliberately withheld exculpatory material”), he

has provided no explanation, in his pleadings or on appeal, as

to    why   he    could      not    have    pursued    habeas        relief    after       that

discovery and before the termination of his custody.                              See Maj.

Op. at 12.

       Finally,        I     echo    the    majority’s         clarification          of     an

important point:            Our holding expresses no view on the merits of

Griffin’s Brady claim and does not bar Griffin from seeking a

remedy for any Brady violation he has suffered.                             Id. at 15-16.

On Griffin’s account, his allegations were substantial enough

that the Baltimore City Circuit Court was prepared to order a

new    trial     unless      the    government       agreed    to     his   release        from

prison after more than thirty years served.                          If Griffin’s claim

is    indeed     meritorious,        then    under    Heck,     it    is    the   State      of

Maryland        that   has    the    authority       and    also     the    obligation       to

provide     a    remedy,      or    to   invalidate        Griffin’s       conviction       and

allow a federal court to do so under § 1983 and free of the Heck

bar.




                                             18
