                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        December 11, 2013
                                    TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 GERARDO THOMAS GARZA,

        Plaintiff - Appellant,

 v.                                                          No. 10-4121
                                                   (D.C. No. 1:06-CV-00134-DAK)
 TROY BURNETT,                                                (D. Utah)

        Defendant - Appellee.


                                 ORDER AND JUDGMENT*


Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.


       This case is before us again following the Utah Supreme Court’s answer to our

certification of a dispositive issue of state law. Gerardo Thomas Garza appealed the

district court’s grant of summary judgment in favor of defendant Troy Burnett on Garza’s

42 U.S.C. § 1983 claim. We REVERSE the grant of summary judgment and REMAND

for further proceedings.



       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
       At the time Garza filed his civil rights complaint against Burnett, our circuit

precedent interpreted Heck v. Humphrey, 512 U.S. 477 (1994), as barring a § 1983 suit if

judgment for the plaintiff would undermine either an extant or anticipated criminal

conviction. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir.

1999). The Supreme Court, however, overturned this precedent in Wallace v. Kato, 549

U.S. 384 (2007), holding that the “Heck bar” and accompanying rule of deferred accrual

do not apply to anticipated convictions. Id. at 390. Garza’s complaint was filed within

the limitations period if his claim accrued upon the reversal of his conviction, which was

the accrual date under our previous precedent, but not if it accrued at the time of the

constitutional violation, pursuant to Wallace. See Garza v. Burnett, 672 F.3d 1217, 1218-

20 (10th Cir. 2012). Thus, although Garza’s complaint “was timely on the day that it was

submitted, Wallace transformed Garza’s complaint into an untimely one.” Id. at 1221.

The district court granted summary judgment to Burnett, concluding that Garza was not

entitled to equitable tolling under Utah law. Garza v. Burnett, No. 1:06-CV-134, 2010

WL 1212084, at *5 (D. Utah Mar. 23, 2010) (unpublished). Garza appealed.

       We have jurisdiction over Garza’s appeal pursuant to 28 U.S.C. § 1291.1 We


       1
         On July 30, 2010, Burnett moved to dismiss the appeal for lack of jurisdiction
because Garza’s notice of appeal failed to attest that he pre-paid first-class postage. See
United States v. Ceballos-Martinez, 387 F.3d 1140, 1143-45 (10th Cir. 2004) (requiring a
declaration or notarized statement attesting that first-class postage was pre-paid, but
stating that “the rule does not require the prisoner to file this attestation at any particular
time”). Subsequently, Garza filed a motion to amend his Certificate of Service. We
GRANT Garza’s motion, which cures any jurisdictional concerns. See Showalter v.
                                                                                  Continued . . .
                                               -2-
review a district court’s decision on equitable tolling for an abuse of discretion. Burger

v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). The “sole issue on appeal is the

timeliness of Garza’s complaint,” Garza, 672 F.3d at 1219, and the question of timeliness

depends on a novel issue of equitable tolling controlled by state law, id. at 1220-21.

Thus, we certified the following question to the Utah Supreme Court:

       Under Tenth Circuit decisions at the time Gerardo Thomas Garza filed his
       complaint, approximately two years remained in limitations period. A
       Supreme Court decision soon after filing, however, overturned those
       decisions and rendered his complaint approximately ten months late.
       Under Utah law, does an intervening change in controlling circuit law merit
       equitable tolling under these circumstances?

Id. at 1222.

       On November 1, 2013, the Utah Supreme Court answered in the affirmative. It

held that:

       when a change in controlling law extinguishes an individual’s cause of
       action, equity will toll the statute of limitations to afford the plaintiff a
       reasonable period of time after the change in law to bring his claim.
       Indeed, this is precisely the type of circumstance that merits equitable
       tolling. Accordingly, a plaintiff that files timely before the change in law
       renders the claim untimely will uniformly satisfy this reasonable period of
       time. As such, Mr. Garza is entitled to equitable tolling because his claim
       was timely under Tenth Circuit precedent as it existed at the time of filing
       but was rendered untimely retroactively by the intervening change in law
       effectuated by the Supreme Court’s Wallace decision.

Garza v. Burnett, No. 20120180, 2013 WL 5864480, at *4 (Utah Nov. 1, 2013) (to be



McKune, 299 F. App’x 827, 829 (10th Cir. 2008) (unpublished); Ceballos-Martinez, 387
F.3d at 1144 n.4. We therefore DENY Burnett’s motion to dismiss, noting that he has
already waived the relevant arguments.

                                             -3-
published in P.3d). Pursuant to the Utah Supreme Court’s response to the certified

question, Garza is entitled to equitable tolling and the judgment of the United States

District Court for the District of Utah is hereby REVERSED. The case is REMANDED

for further proceedings consistent with this order and judgment and the newly stated Utah

law.



                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge




                                            -4-
