Brian S. BURD, Plaintiff-Appellant, v. Gail SESSLER, et al., Defendants-Appellees.
No. 12-1337.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 17, 2012.
Argued Oct. 3, 2012.
The ineffectiveness of Martin‘s defense counsel resulted in a significant trial error. But it is difficult to conceive of a defense that would have overcome the State‘s remaining evidence. Martin has proposed none. Instead, he relies entirely on the potential effect of Busch‘s testimony. As explained above, the omitted defense theory cannot carry the burden Martin desires. If the State had withdrawn Ogryzek‘s testimony completely and stipulated to Busch‘s account of the crime scene, a jury would still have had to contend with the overwhelming remainder of the State‘s evidence. Under such circumstances, we cannot conclude that the state appellate court acted irrationally in finding “no reasonable probability that the omitted evidence would have changed the” outcome. Strickland, 466 U.S. at 700, 104 S.Ct. 2052; see also id. at 696, 104 S.Ct. 2052 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.“).
We observe that even defendants with weak cases deserve vigorous, effective assistance of counsel. The error in this case is troubling. It highlights the difficulty of evaluating inadequate performance when a defendant‘s case is tenuous. Cf. Strickland, 466 U.S. at 710-11, 104 S.Ct. 2052 (Marshall, J., dissenting) (“Seemingly impregnable cases can sometimes be dismantled by good defense counsel. . . . A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.“). Nevertheless, a writ of habeas corpus is not a remedy the federal courts have authority to provide in circumstances such as these. See Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (“The question ‘is not whether a federal court believes the state court‘s determination’ under Strickland ‘was incorrect but whether [it] was unreasonable—a substantially higher threshold.’ “) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)).
III. CONCLUSION
The determination that Martin Woolley was not prejudiced by his counsel‘s performance at trial was not an unreasonable application of Strickland. We therefore AFFIRM the district court‘s judgment.
Evan Siegel (argued), Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.
Before FLAUM, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
Brian Burd alleges in this action under
I
BACKGROUND
1.
On December 7, 2009, Mr. Burd pleaded guilty in Illinois state court to attempted burglary. Under Illinois practice, he had thirty days to file a motion to withdraw his guilty plea. For the first twenty-nine days of this period, he was held at prison facilities that lacked library resources of any kind. On the thirtieth day, Mr. Burd was transferred to Sheridan Correctional Center. He immediately asked to use its library, but Sheridan officials told him the library was closed.
Mr. Burd missed the deadline to file his motion, but he continued to seek access to Sheridan‘s law library. He filled out request slips, but each time he was denied access because the library was closed. When he explained to defendant Gail Sessler, the educational administrator at Sheridan, that he wanted to research a motion to withdraw his guilty plea or an appeal of his sentence, she told him that any such action would be untimely and denied him access to the library. Mr. Burd also requested that a fellow inmate, Todd Howell, be permitted to assist him with his motion. He never received a response to his request, and when he filed a grievance about the failure to respond, he was told that the matter was moot because Howell had been transferred from Sheridan.
Mr. Burd did not seek to set aside his conviction through federal or state habeas corpus before filing this
2.
In his complaint, Mr. Burd alleges that prison officials at Sheridan and other Illinois correctional officials denied him his right of access to the courts by depriving him of the library materials that he needed to file his motion and to research possible grounds for appealing his sentence. The district court, after dismissing Mr. Burd‘s claim for injunctive relief,1 invited the parties to address whether, under Heck, a favorable determination on the damages claim necessarily would imply the invalidity of Mr. Burd‘s conviction and therefore warrant the dismissal of the damages claim as well. The defendants subsequently moved to dismiss the claim for damages, arguing that Heck barred such a claim. The district court granted the motion.
II
DISCUSSION
As this case comes to us, it presents the question of whether Mr. Burd
Although damages are not an available habeas remedy, . . . a
§ 1983 suit for damages that would necessarily imply the invalidity of the fact of an inmate‘s conviction, or necessarily imply the invalidity of the length of an inmate‘s sentence, is not cognizable under§ 1983 unless and until the inmate obtains favorable termination of a state, or federal habeas, challenge to his conviction or sentence.
Id. at 646, 124 S.Ct. 2117 (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364) (internal quotation marks omitted); see Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The Court reasoned that, because habeas corpus is the exclusive remedy for a challenge to the fact or duration of one‘s confinement, see Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), an inmate must first seek to set aside his conviction through habeas corpus before initiating a
Mr. Burd submits that the favorable termination requirement does not bar his claim for monetary damages because, in this situation, such a judgment would not necessarily call into question the validity of his conviction or sentence. He further argues that the unavailability of collateral relief at this point in the litigation makes Heck‘s favorable termination requirement inapplicable. We shall examine each of these arguments in turn.
A.
We address first Mr. Burd‘s contention that the favorable termination requirement of Heck and its progeny is inapplicable because an award of damages for having been denied an opportunity to research his motion to withdraw his plea or his right to appeal his sentence would not necessarily imply that his conviction or sentence is invalid. Mr. Burd submits that his situation is analogous to those presented to the Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), and in Skinner v. Switzer, — U.S. —, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). In Dotson, the Court examined the application of Heck to a suit challenging procedures in a prison parole hearing; in Skinner, the Court examined the application of Heck to a suit seeking DNA testing. In both cases, the Court held that Heck did not bar the
In both of these cases, the plaintiff was seeking prospective relief to ensure that he was treated fairly in the underlying proceedings. In Dotson, the plaintiff sought a change in parole procedures under which his case would be heard. He asked for no alteration in his confinement status, only that any adjudication of that status be conducted in a manner that comported with federal constitutional standards. In Skinner, the plaintiff sought access to biological evidence for the purpose of forensic testing. 131 S.Ct. at 1296. He planned to use the tests to seek relief
Mr. Burd sees the principle articulated in Skinner and Dotson as controlling in his case. He points out that his access-to-courts claim does not challenge directly his underlying criminal conviction, despite the fact that he admits that he sought access to the courts to withdraw his guilty plea. Invoking Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), and Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), Mr. Burd further argues that “the loss of an opportunity to seek some particular order of relief” can form the basis of an access-to-courts claim. Harbury, 536 U.S. at 414, 122 S.Ct. 2179 (emphasis added). Consequently, Mr. Burd maintains that he need only demonstrate that his lost, underlying claim—here, a lost opportunity to withdraw a guilty plea or to appeal—would have been non-frivolous or “arguable,” not that it would have been successful. See id. at 415, 122 S.Ct. 2179; Lewis, 518 U.S. at 353 n. 3, 356, 116 S.Ct. 2174; In re Maxy, 674 F.3d 658, 660-61 (7th Cir.2012).
This argument gives too crabbed a reading to the scope of the bar established in Heck: “[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. at 487, 114 S.Ct. 2364 (emphasis added). This bar requires us to evaluate the substantive requirements for obtaining the particular remedy—damages—that Mr. Burd seeks on his access-to-courts claim. We addressed the problem of damages in a prisoner access-to-courts claim in Hoard v. Reddy, 175 F.3d 531 (7th Cir.1999). In Hoard, an inmate alleged that prison officials had prevented him from mounting a state-court collateral attack on his conviction. He therefore brought an action against them for damages. We concluded “that only prospective relief is available in a prisoner‘s suit complaining of denial of access to the courts unless he has succeeded in getting his conviction annulled, since otherwise an effort to obtain damages would be blocked by Heck.” Id. at 533. Hoard acknowledged that this ruling seemed paradoxical alongside Lewis‘s holding that a
To get damages you must prove you lost something of monetizable value; but this is not required for an injunction—indeed, the inadequacy of one‘s damages remedy is normally a prerequisite to injunctive relief. If a prisoner whose access to the courts is being blocked in violation of the Constitution cannot prove that, had it not been for the blockage, he would have won his case or at least settled it for more than $0 (the point emphasized in Lewis), he cannot get damages but he can get an injunction. In a case such as Heck, where the prisoner is complaining about being hindered in his efforts to get his conviction
set aside, the hindrance is of no consequence if the conviction was valid, and so he cannot get damages until the conviction is invalidated. But suppose that he is complaining instead about being hindered in his efforts to rectify illegal prison conditions. Since it is well known (and emphasized in both Lewis and Walters [v. Edgar, 163 F.3d 430 (7th Cir. 1998)]) that colorable claims have a settlement value, the prisoner may be able to show that had he not been hindered in prosecuting his claim he might have gotten some money for it, even if it wasn‘t a sure winner. He has to show that the claim was colorable and so had some value in the litigation market but he does not have to establish the validity (as distinct from colorableness) of the claim as a precondition to obtaining damages. In the setting of Heck, there is nothing corresponding to a colorable claim; either the conviction was invalid, in which case the defendant suffered a legally cognizable harm, or it is not and he did not.
Hoard, 175 F.3d at 533-34. What we said in Hoard is compatible with what we said in Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir.1998). Nance, an Illinois state prisoner, brought an action alleging denial of access to the courts after prison officials lost a box containing litigation-related documents during a transfer of Nance from one institution in the Illinois prison system to another. In affirming the district court‘s dismissal of the case, we emphasized the role that remedy plays in determining the applicability of Heck:
To establish a deprivation of access to the courts, a prisoner must show that unjustified acts or conditions “hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). If the hindrance is ongoing, prospective relief can compel the state to restore access so that the claim may be vindicated. This was the theory behind the order in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), to improve the prison‘s law library. But Nance does not protest an ongoing hindrance or contend that another deprivation of legal materials is likely. He has been released from the state‘s custody. Only damages are available. But damages for what injury? If the injury in question is losing the underlying case, then Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), comes into play. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal conviction (or the loss of good-time credits, see Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)) is impermissible while that conviction stands. Nance pleaded guilty; his motion to withdraw the plea was denied; and although the prison‘s unconstitutional hindrance of his efforts to withdraw the plea (if that is what occurred) would be a good ground for a new hearing on the motion to set aside the plea, it would not establish that Nance is entitled to damages for wrongful incarceration—not unless he went to trial and was acquitted, or the invalidity of his incarceration was established in some other fashion. The holding of Lewis that a claim based on deprivation of access to the courts requires proof of concrete injury, combined with the holding of Heck, means that a prisoner in Nance‘s position must have the judgment annulled before damages are available for wrongful imprisonment.
The approach of Nance and Hoard establish the path that we must follow today. Because the underlying claim for which Mr. Burd sought access to the prison law
B.
Alternatively, Mr. Burd urges that, even if success in his
Relying on this principle, Mr. Burd focuses on his recent release from prison and his imminent release from mandatory supervisory release. Release from prison does not, standing alone, eliminate the possibility of habeas corpus relief because mandatory supervised release often entails sufficient restraints on liberty to meet the “in custody” requirement of habeas corpus. See Cochran v. Buss, 381 F.3d 637, 640 (7th Cir.2004). At the time of argument, Mr. Burd was still serving supervised release, which was scheduled to end November 2012. Once Mr. Burd‘s supervised release expires, any subsequent habeas corpus petition may be foreclosed due to failure to meet the “in custody” requirement at the time of filing. Cf. Spencer v. Kemna, 523 U.S. 1, 8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).4 He claims, however, that habeas corpus relief is no longer available to him since he is no longer in custody. We cannot accept this argument. In agreement with those circuits that already have had to address the situa
The record reveals no impediment that prevented Mr. Burd from seeking collateral relief during his period of incarceration. Mr. Burd has not explained his failure to seek such relief while he was still in custody or why such failure is excusable. We therefore join the Sixth and Ninth Circuits in holding that Heck bars a
Conclusion
The district court correctly ruled that Heck bars Mr. Burd‘s action under
AFFIRMED