Tommy RANDELL, Plaintiff-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; Melinda Bozarth, Director, Board of Pardons and Paroles; John Doe, I; John Doe, II, Defendants-Appellees.
No. 99-11092.
United States Court of Appeals, Fifth Circuit.
Sept. 26, 2000.
227 F.3d 300
Tommy Randell, Snyder, TX, pro se.
PER CURIAM:
The district court held that Tommy Randell‘s
I.
Randell was arrested and charged with driving while intoxicated. He alleges that he was incarcerated from September 27, 1996 until June 25, 1997 pursuant to a warrant from the Texas Board of Pardons and Paroles, but was not given credit for this time and therefore had to serve the time over again.
By June 18, 1999, the date on which he commenced this litigation, Randell was no longer in custody for the term of confinement in dispute and therefore was ineligible for federal habeas relief.2 He therefore pursued relief in forma pauperis under
II.
Randell points out, pro se, that he is no longer in custody and thus can not file a habeas petition. Randell therefore asserts that he does not need to prove that the underlying proceedings upon which his conviction was based have been terminated in his favor, since he can no longer seek habeas relief. However, in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Court unequivocally stated:
We hold that, in 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, [footnote omitted] 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 .
Therefore, the Court unequivocally held that unless an authorized tribunal or executive body has overturned or otherwise invalidated the plaintiff‘s conviction, his claim “is not cognizable under [section] 1983.”3 Because Randell is seeking damages pursuant to
Based on dicta from concurring and dissenting opinions in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), three circuits4 have concluded that the Supreme Court—if presented with the question—would relax Heck‘s universal favorable termination requirement for plaintiffs who have no procedural vehicle to challenge their conviction. Randell has not shown that such a procedural vehicle is lacking; he speaks only of inability to obtain habeas relief.
In the alternative, we decline to announce for the Supreme Court that it has overruled one of its decisions.
We agree with the First Circuit,5 which stated:
We are mindful that dicta from concurring and dissenting opinions in a recently decided case, Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), may cast doubt upon the universality of Heck‘s “favorable termination” requirement. See id. at 19-21, 118 S.Ct. at 989 (Souter, J., concurring); id. at 21-23, 118 S.Ct. at 990 (Ginsburg, J., concurring); id. at 25 n. 8, 118 S.Ct. at 992 n. 8 (Stevens, J., dissenting). The Court, however, has admonished the 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.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). We obey this admonition.
Figueroa v. Rivera, 147 F.3d 77, 81 n. 3 (1st Cir.1998).
III.
For the above reasons, the judgment is AFFIRMED.