11‐4973‐cv Teichmann v. State of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2011

(Argued: April 26, 2013 Decided: October 20, 2014)

Docket No. 11‐4973‐cv

BORIS TEICHMANN,

Plaintiff‐Appellant,

– v. –

STATE OF NEW YORK,

Defendant‐Appellee,

Before: CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges.

Plaintiff‐Appellant Boris Teichmann appeals the District Court’s dismissal of his pro se complaint, in which he alleged that the state of New York convicted him in violation of his constitutional rights. Teichmann claimed that New York, the trial court, and the prosecution violated his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process. He asked that his criminal conviction be overturned. The federal District Court, construing Teichmann’s pleading as a petition for habeas corpus, dismissed it for failure to state a claim to relief. We agree with the District Court’s dismissal, although we rule on an alternative ground. We, therefore, AFFIRM the judgment of the District Court.

1 TIMOTHY W. HOOVER (Joanna J. Chen and Spenser L. Durland, on the brief), Phillips Lytle LLP, Buffalo, N.Y., for Plaintiff‐Appellant.

BARBARA D. UNDERWOOD, Solicitor General for the State of New York (Roseann B. MacKechnie, David O. Leiwant, Assistant Attorneys General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendant‐Appellee.

PER CURIAM:

On June 26, 2006, a jury convicted Plaintiff‐Appellant Boris Teichmann of

attempting to commit a criminal sexual act against his former wife, Kristina

Bohmova, and of twenty‐two counts of criminal contempt for violating a

protective order that Bohmova had obtained against him. Teichmann was

sentenced to four years’ imprisonment followed by a period of post‐release

supervision. After his term of supervision expired, Teichmann filed a pro se

complaint in the United States District Court for the Southern District of New

York alleging that he had been convicted in violation of his constitutional rights

to a fair trial and due process, and asking for his conviction to be vacated. The

District Court construed Teichmann’s amended complaint as a habeas petition

2 under

and dismissed it for failing to allege that Teichmann was

still in custody, or that he had exhausted his state remedies.

Teichmann appealed. Construing his appeal as potentially asserting a

claim pursuant to

, we ordered the parties to file supplemental

briefs addressing the following issue: Whether this court should recognize an

exception to Heck v. Humphrey,

(1994), for a § 1983 plaintiff who is no

longer in custody at the time he files his complaint. Without reaching this

question, we affirm the District Court’s dismissal of Teichmann’s complaint for

failure to state a claim to relief. See Fed. R. Civ. P. 12(b)(6). Since we find that

amendment would be futile, we also affirm denial of leave to amend.

I. BACKGROUND

Boris Teichmann met his second wife, Kristina Bohmova, in the fall of

2003. Teichmann and Bohmova, both natives of the Czech Republic, were

introduced by Teichmann’s chess buddy and Bohmova’s brother—Czech émigré

Mark Delon. Teichmann had been living in the United States for 30 years when

Bohmova arrived on a tourist visa to visit Delon.

In February 2004, Teichmann and Bohmova married, and Teichmann

immediately applied for legal permanent residency on Bohmova’s behalf. The

3 couple frequently fought, and their marriage soon soured. Teichmann accused

Bohmova of marrying him in order to gain citizenship and of scheming with her

brother to oust Teichmann from his rent‐stabilized Manhattan apartment on the

Upper East Side.

On June 9, 2004, the couple had a particularly rancorous fight, in which

Teichmann broke Bohmova’s cell phone and tried physically to force her to

perform oral sex. In the following days, Bohmova filed a written complaint with

the New York City Police Department and obtained a temporary order of

protection against Teichmann. Although Bohmova moved in with Delon,

Teichmann continued to accuse the siblings of conspiring to force him out of his

apartment, a complaint he shared with an NYPD officer whom he met on the

street and with a 911 operator.

On June 12, Teichmann walked in to his local precinct to file a complaint

against Bohmova and Delon. Officers arrested Teichmann on charges of

“criminal mischief” based on their understanding of Bohmova’s complaint

(which she wrote in Czech) that Teichmann had pushed her, yelled at her, and

broken her cell phone during their last fight. Once detectives investigated

further, the district attorney charged Teichmann with first‐degree forcible rape;

4 attempted commission of a criminal sex act (for trying to force Bohmova to

perform oral sex); and criminal contempt (for violating the order of protection).

Teichmann was convicted by a Manhattan Supreme Court jury of

attempted commission of a criminal sex act, in violation of New York Penal

Law § 130.50(1), and of twenty‐two counts of criminal contempt, in violation of §

215.50(3). The jury acquitted Teichmann of the forcible rape charge.

Teichmann was sentenced to four years’ incarceration followed by a

period of post‐release supervision that expired March 19, 2011. While

Teichmann served his sentence, Bohmova divorced him and returned to the

Czech Republic. About two months after the expiration of his post‐release

supervision, Teichmann filed a pro se complaint in Manhattan federal district

court, alleging violations of his constitutional rights to a fair trial and to due

process by the state court judge and assistant district attorney. The only relief

that Teichmann requested was to have his criminal conviction declared invalid

and overturned.

The District Court (Preska, J.) construed Teichmann’s application as a

petition for habeas corpus under

, holding that the habeas statute

was “the proper jurisdictional basis” for Teichmann’s requested relief. J. A. 41.

5 The District Court then ordered Teichmann to amend his pleading to meet

certain requirements under § 2254, or to withdraw the petition altogether. In a

footnote, the District Court explained that it “decline[d] to construe

[Teichmann’s] pleading as a civil rights complaint” under

because Heck v. Humphrey would require its dismissal.

On August 25, 2011, Teichmann filed an amended civil complaint, alleging

the same constitutional violations as in his first, and requesting that the District

Court vacate his conviction and order a new trial. Responding directly to the

District Court’s order, Teichmann wrote:

[T]he petitioner is informing this Court that he does not want to pursue relief under § 2254 and never did, and the petitioner is bringing his action to this Court as a complaint [based on] Federal [question] jurisdiction.

J.A. 60 (emphasis original). Teichmann acknowledged that he was “not in . . .

custody” and that his post‐release supervision had expired; therefore, he wrote,

“habeas corpus does not apply.” Id. at 59 (emphasis original). Teichmann

invoked

as the basis for federal jurisdiction, since his claims

“arose under” the Sixth and Fourteenth Amendments to the Constitution.

6 Teichmann’s amended complaint attacked the state trial judge and

prosecutor for depriving him of a fair trial by denying Teichmann several

requested continuances; prohibiting Teichmann from submitting certain

photographs into evidence; discouraging Teichmann from representing himself

at trial;1 and for refusing to call the detective who arrested Teichmann, whom

Teichmann wished to cross‐examine.

The District Court dismissed Teichmann’s amended complaint.

Acknowledging that Teichmann “seeks to overturn his conviction” but that he

“does not want to file” a § 2254 petition, the Court nonetheless construed the

amended pleading as a habeas petition. J.A.268 (internal quotation marks

omitted). “As the Court explained in its prior order,” Judge Preska wrote, “the

proper jurisdictional basis for the relief Petitioner seeks is

.”

Since Teichmann neither alleged exhaustion of his state remedies, nor that he

was still “in custody”—both requirements under § 2254—the District Court

denied his petition. As an alternative basis for dismissal, the District Court

found that Heck v. Humphrey barred Teichmann from bringing his claims

pursuant to § 1983 because his constitutional claims, if true, would call into

1 After twice assessing Teichmann’s competency to proceed, the state court allowed Teichmann to represent himself at trial.

7 question his outstanding criminal conviction. Id. 269‐70 (citing Heck, 512 U.S. at

486‐87). The court denied Teichmann a certificate of appealability.

Still proceeding pro se, Teichmann moved the District Court for

reconsideration. He emphasized that he did not seek habeas relief: “Petitioner is

well aware of the prerequisites to habeas relief [under] § 2254,” he wrote, “and

since § 2254 is not applicable to him, he has filed his complaint under

.” J.A. 279. In response to the District Court’s alternative basis for

dismissal—under Heck v. Humphrey—Teichmann explained that he did not

intend to bring his claims pursuant to § 1983 any more than he intended to bring

them pursuant to § 2254: “Petitioner is aware of all requirement[s] of section . . .

1983 and therefore filed his complaint under

.” J.A. 292. The

District Court denied Teichmann’s motion for reconsideration.

With the help of pro bono counsel, Teichmann moved this court for a

certificate of appealability. Teichmann argued that because of the New York

Sexual Offender Registration Act (“SORA”) –which required Teichmman

periodically to verify and register his location—he remained “in custody”

despite having completed his term of supervised release. See N.Y. Correct. Law

§§ 168‐f, 168‐h . The State moved to dismiss because Teichmann had neither

8 been granted a certificate of appealability nor previously argued that SORA

imposed “custody” under § 2254.

We denied both motions and directed the parties to file supplemental

briefs answering the following question: “Whether this Court should recognize

an exception to the preclusionary rule of Heck v. Humphrey,

(1994),

where the plaintiff is no longer in custody when his § 1983 complaint is filed.”

We decline to reach this question and rule today on a narrower ground.

Teichmann’s amended complaint alleges constitutional violations by the

state, the state trial court, and the state prosecutor, each of whom is absolutely

immune from Teichmann’s claims. See Shmueli v. City of New York,

,

236‐37 (2d Cir. 2005) (calling absolute immunity for prosecutors acting within

official duties “well established”); Montero v. Travis,

(2d Cir.

1999) (per curiam) (recognizing “absolute immunity” for “officials acting in a

judicial capacity”); 13A Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3524 (3d ed. 2013) (describing state

sovereign immunity). Furthermore, to the extent that Teichmann’s pro se

complaint can be read as seeking a form of relief not barred by immunity, e.g., a

simple declaration of innocence (as our order for supplemental briefing may

9 have contemplated)—that is a form of relief that is not cognizable under § 1983.

Accordingly, we affirm Judge Preska’s decision dismissing the amended

complaint for failure to state a claim to relief. See Fed. R. Civ. P. 12(b)(6).

II. DISCUSSION

We review de novo the dismissal of a complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Chambers v. Time Warner, Inc.,

(2d Cir. 2002). We accept as true all of Teichmann’s factual

allegations, drawing reasonable inferences in his favor. See

Although we

liberally construe Teichmann’s pro se amended complaint, Triestman v. Fed.

Bureau of Prisons,

(2d Cir. 2006) (per curiam), we still require

that he plead facts sufficient “to ‘state a claim to relief that is plausible on its

face,’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)).

Teichmann asserts his right to equitable relief directly under the Sixth

Amendment’s fair trial guarantee and the Fourteenth Amendment’s Due Process

Clause. We assume, without deciding, that Teichmann has a cognizable cause of

action directly under the Sixth and Fourteenth Amendments. Because of

10 Teichmann’s pro se status, we also consider whether a § 1983 action would lie as

to his assertion of innocence.

Under any of these bases, Teichmann fails to state a claim to relief

because—as noted above—the only actors whom Teichmann asserts violated his

constitutional rights are entitled, in the alleged circumstances, to absolute

immunity.2 See, e.g., Imbler v. Pachtman,

(1976) (absolute

immunity from § 1983 suits for prosecutors exercising prosecutorial functions);

Montero,

. We see no reason why these fundamental principles,

which preclude certain claims brought under § 1983, would not also apply to a

cause of action brought directly under the Sixth and Fourteenth Amendments.

Moreover, § 1983—while broad in its equitable and legal remedies—does

not recognize a declaration of innocence, standing alone, as a cognizable form of

relief. In this respect, we note first that nothing in the language of § 1983

suggests that such a naked declaration is available. Significantly, moreover, we

have held that where a plaintiff seeks simply a declaration that there was a past

injury, but claims no damages or injunction against future behavior, there is no §

2 In both his original and amended complaint, Teichmann lists as a “defendant” only “The People of the State of New York.” J.A. 13, 53. Because Teichmann filed his complaints pro se, we consider his claims against the trial court and the prosecutor as if he had included them as captioned defendants too.

11 1983 claim because there is no true case or controversy. See, e.g., Minsky v. Kelley,

(2d Cir. 2007) (affirming dismissal of plaintiff’s § 1983 claim

where there was no “actual controversy that must exist for a declaratory

judgment to be entered”); Cf. Pearson v. Ass’n of the Bar of the City of N.Y.,

(2d Cir. 1977) (recognizing justiciability of § 1983 claim for

declaratory relief by lawyer facing sanctions because “the threat of disciplinary

action is real”).

Finally, our holding that Teichmann’s claim is not cognizable under § 1983

finds additional support in the principle that animates the Rooker‐Feldman

doctrine: namely, that federal district courts do not have authority to review the

judgments of state courts. See, e.g., Johnson v. De Grandy,

, 1005‐06

(1994) (noting that Rooker‐Feldman bars “a party losing in state court . . . from

seeking what in substance would be appellate review of the state judgment in a

United States district court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights”). That principle does not

preclude a § 1983 action, or a hypothetical direct constitutional tort action,

against a state official who violates a plaintiff’s constitutional rights, but a

declaration of actual innocence does not provide any relief against such

12 individuals. To the extent that Teichmann only seeks a declaration that his state

conviction is invalid, he seeks nothing more than review of a state court

judgment.3

Since Teichmann’s allegations fail to state a claim upon which we may

properly grant him relief, we dismiss without considering the Heck v. Humphrey

issues discussed by the District Court on which we requested additional

briefing.4

3 Nor would the amendments that in our solicitude we think Teichmann might make, give rise to a cause of action under § 1983. As for Teichmann’s potential claims against Detective Ruocco, these allegations have only conclusory support. And that is equally so of any possible Monell allegations. While Teichmann states several times in his amended complaint that he was denied effective assistance of counsel at his trial (in which Teichmann ended up representing himself), this claim is not cognizable under § 1983. See Polk County v. Dodson,

(1981). Were Teichmann’s counsel permitted to rework the amended complaint entirely, he might be able to state a § 1983 claim against Ruocco on the basis of some alleged misdeeds. But while we are solicitous toward a pro se party, and read his complaint liberally, we need not allow counsel to overhaul the complaint—allowing a new claim, on a different legal theory, against a new defendant, and requesting new relief. That would take our solicitude a step too far. 4 We also decline to reach the argument, raised for the first time on appeal, that

SORA requirements constitute custody for habeas purposes. Teichmann insisted below that he was not in custody and that he was not seeking habeas relief. See Wedra v. Thomas,

(2d Cir. 1982) (“It is by now hornbook law that federal habeas corpus relief will not be granted a State prisoner on the basis of a claim that was not first presented in the State courts, and that this court will not consider errors that were not asserted in the District Court.”) (citations omitted).

13 III. CONCLUSION

We AFFIRM the District Court’s order dismissing Teichmann’s complaint

for failure to state a claim to relief under Federal Rule of Civil Procedure 12(b)(6).

14 DEBRA ANN LIVINGSTON, Circuit Judge, concurring in part and concurring in the judgment in part:

Assuming arguendo that Teichmann has a cause of action directly under the

Sixth and Fourteenth Amendments to the U.S. Constitution, I concur in the

majority’s disposition of those claims on immunity grounds. I write separately

because I believe that dismissal of any § 1983 claim that the complaint is perceived

to assert is required by Heck v. Humphrey,

(1994).

Although § 1983 authorizes constitutional tort claims against state officials,

it is not an appropriate vehicle for collaterally attacking a state conviction. Heck, 512

U.S. at 485‐86, 490 n.10. Thus, a claim that, if successful, would “necessarily imply

the invalidity” of the plaintiff’s prior state conviction is “not cognizable under

§ 1983” unless that conviction has already been invalidated. Id. at 487. In 2004,

Teichmann was convicted in New York state court on one count of attempted

commission of a criminal sex act and twenty‐two counts of criminal contempt. In

this lawsuit, as we and the district court have construed his complaint, Teichmann

asserts a § 1983 claim explicitly asking us to review and overturn his conviction.

Under Heck, this claim is “not cognizable.”

1 To be sure, some Circuits, including our own, have recognized exceptions to

Heck’s bar in certain circumstances based on two concurrences by Justice Souter that

at one point won the support of five Justices. See Spencer v. Kemna,

(1998) (Souter, J., concurring); Heck,

(Souter, J., concurring in the

judgment). Referring to this line of cases, Judge Calabresi describes the “law in this

Circuit” as holding that “when a plaintiff does not have access to habeas—at least

where the plaintiff has not intentionally caused habeas to be unavailable—favorable

termination of the underlying sentence or conviction is not required.” Concurring

Op. at 5. While our en banc decision in Poventud v. City of New York may not have

disturbed certain precedents in this area, see

, 125 n.1 (2d Cir. 2014) (en

banc), the Poventud panel decision has been vacated, see

, and I respectfully

disagree with my colleague’s characterization of our still‐binding case law.

We have never said that a plaintiff’s access to § 1983 turns on whether he has

intentionally caused habeas to be unavailable. We have recognized an exception to

Heck’s favorable termination requirement when habeas was never reasonably

available to the plaintiff through no lack of diligence on his part—that is, where an

action under § 1983 was a diligent plaintiff’s only opportunity to challenge his

conviction in a federal forum. See Leather v. Ten Eyck,

(2d Cir. 1999)

2 (plaintiff “is not and never was in the custody of the State”).1 Though there is much

to recommend the view that Heck permits no exceptions, those courts recognizing

a narrow exception in situations where habeas was never an option have sought to

afford access to a federal forum for the adjudication of constitutional claims while,

at the same time, preventing those duly convicted of crimes in state proceedings

(and whatever their intentions) from mounting attacks on their extant state

convictions in disregard of the habeas statute’s requirements. This is the balance

that we, and every other Circuit to recognize an analogous Heck exception, have

struck. See, e.g., Cohen v. Longshore,

(10th Cir. 2010); Wilson v.

Johnson,

, 268 & n.8 (4th Cir. 2008); Powers v. Hamilton Cnty. Public

Defender Comm’n,

(6th Cir. 2007); Guerrero v. Gates,

(9th Cir. 2006).

Perhaps it can be said that a state prisoner who has failed to pursue habeas

diligently has “intentionally” rendered it unavailable. If so, then Judge Calabresi

1 The other cases cited by Judge Calabresi did not squarely present this issue. See Huang v. Johnson,

(2d Cir. 2001) (relying on “our holding in Leather” where plaintiff challenged length of custody, not validity of conviction); Green v. Montgomery,

, 60 n.3 (2d Cir. 2000) (noting in a footnote that the plaintiff was not in custody for his juvenile reckless endangerment conviction); Jenkins v. Haubert,

, 27‐28 (2d Cir. 1999) (holding that Heck did not bar challenge to administrative or disciplinary sanctions that had no effect on duration of confinement).

3 and I agree on the narrow scope of the Heck exception that our precedents have

recognized. But I do not believe it is an open question whether claims like

Teichmann’s are cognizable under § 1983. Teichmann’s state‐court remedies were

exhausted in May 2010. He then waited more than a year, until he was no longer in

custody within the meaning of

, and filed a federal lawsuit seeking

a declaration that his prior conviction was unconstitutional. No court has

recognized an exception to Heck’s bar under such circumstances, and there is no

reason to dispose of Teichmann’s § 1983 claim on the merits solely to avoid deciding

whether we should be the first to do so.

4 GUIDO CALABRESI, Circuit Judge, Concurring:

I fully join in today’s opinion but write separately because, although we

decided this case easily without reference to the Supreme Court’s decision in

Heck v. Humphrey,

(1994), both the District Court and the parties

addressed it, and it is an issue that continues to cause some consternation in

this Circuit.

In fact, there are many § 1983 actions, like the one here, that can be

disposed of on a motion to dismiss without ever needing to reach any Heck

questions or indeed without needing to discuss Heck at all. Because many

Heck issues are contentious, I believe that a decision on these other grounds is

generally preferable.

For example, where a suit is brought asking for relief that § 1983 does

not give, the case can be dismissed on that ground without considering §

1983’s intersection with the availability of habeas, a crucial and complex issue

under Heck. The same is true where there is an obvious and overwhelming

defense to the § 1983 action—the statute of limitations has run, for instance, or

the defendants have absolute or qualified immunity. If an element of the

underlying claim has not been met (as in a claim for malicious prosecution

1 where there has been no favorable termination), again, there is no need to

reach difficult Heck issues. So too, the case can be dismissed without

reference to Heck when the cause of action is one in which plaintiffs must

prove causation and cannot as a matter of law.

All this is simply to repeat that many cases that have the potential to

raise Heck questions can be disposed of based on well‐settled principles upon

which there is broad agreement, and when that is so, it is generally desirable

for us and for district courts to decide them on these non‐Heck grounds.

Inevitably, however, cases will arise that require us to settle the outstanding

issues in this area; when they do, caution will be the best defense against

regret. Let me explain.

In Heck, the Supreme Court held that where the success of a § 1983

claim would “necessarily require the plaintiff to prove the unlawfulness of his

conviction or confinement,” the complaint must be dismissed unless the

plaintiff can “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

2 federal courtʹs issuance of a writ of habeas corpus.” 512 U.S. at 486–87. In

other words, the Court continued,

when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

Id. at 487.

In the years since Heck was decided, we have emphasized the

importance of the word “necessarily,” and have held that the proper standard

when applying Heck is “whether a prisoner’s victory in a § 1983 suit would

necessarily demonstrate the invalidity of his conviction or sentence.” McKithen

v. Brown,

(2d Cir. 2007) (emphasis original). Under McKithen,

therefore, the mere fact that success in a § 1983 suit would make it more likely

that a conviction or sentence is invalid would seem to be irrelevant to the Heck

inquiry. Id. Yet what “necessarily demonstrates” the invalidity of a sentence

or conviction is often anything but easy to decide, and hence the applicability

vel non of Heck can be, to put it mildly, troublesome.

Similarly, if we accept that a § 1983 suit does “necessarily” attack a

conviction or sentence, what happens if the plaintiff is no longer in custody

3 and therefore cannot challenge the lawfulness of his confinement through

habeas? On this issue, there is a deep circuit split.1 The law in this Circuit,

however, holds—whether correctly or not—that Heck does not bar § 1983

claims when habeas is unavailable, at least so long as the unavailability was

not intentionally caused by the plaintiff. See Huang ex rel. Yu v. Johnson,

(2d Cir. 2001); Green v. Montgomery,

, 60 n.3 (2d Cir.

2000); Jenkins v. Hobart,

(2d Cir. 1999); Leather v. Eyck,

(2d Cir. 1999). Indeed, it is only because of these seemingly binding

Circuit cases that in Poventud v. City of New York the panel majority (as

opposed to the en banc majority) reached the Heck‐habeas issue that led to en

banc consideration in the first place.

, 61‐62 (2d Cir. 2013), aff’d on

other grounds on rehʹg en banc,

(2d Cir. 2014).

1 The Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all either explicitly recognized, or suggested they would recognize, some exception to Heck when habeas is unavailable, at least where the plaintiff has not intentionally caused the unavailability. See Cohen v. Longshore,

(10th Cir. 2010); Wilson v. Johnson,

, 267‐68 (4th Cir. 2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n,

(6th Cir. 2007); Harden v. Pataki,

, 1298‐99 (11th Cir. 2003); Carr v. O’Leary,

(7th Cir. 1999); Nonnette v. Small,

(9th Cir. 2002). The First, Third, Fifth, and Eighth Circuits do not. See Entzi v. Redmann,

(8th Cir. 2007); Gilles v. Davis,

, 209 n.8, 211 (3d Cir. 2005); Randell v. Johnson,

(5th Cir. 2000); Figueroa v. Rivera,

, 80‐81 n.3 (1st Cir. 1998).

4 The animating rationale of this result was stated to be that “some

federal remedy—either habeas corpus or § 1983—must be available” to

redress constitutional violations. Jenkins,

. Yet there are clearly

many members of our Court who disagree deeply with that rationale and our

Circuit’s apparent position. See Poventud v. City of New York,

,

150‐165 (Jacobs, J., dissenting).

I believe that the law of our Circuit remains as it was despite our recent

en banc decision in Poventud, in which—though the issue was squarely

presented—the majority failed to reach the question of Heck’s applicability

when habeas is unavailable, and ruled instead that because Poventud’s § 1983

claim did not undercut his guilty plea, Heck was no obstacle. 750 F.3d at 134‐

35. That holding explicitly did nothing to disturb the cases cited above. Id. at

125 n.1.

Thus, until the Supreme Court rules that our position is wrong, or we

resolve the issue en banc, I think that the law in this Circuit remains what it

was: when a plaintiff does not have access to habeas—at least where the

plaintiff has not intentionally caused habeas to be unavailable—favorable

termination of the underlying sentence or conviction is not required. That

5 said, who can doubt that this position, which has split the circuits and has

been forcefully attacked by a significant number of judges on our Court, is

controversial and hence to be avoided where other, easier grounds for

deciding cases are available?

Moreover, what does remain an open question, even in this Circuit, is

perhaps even more difficult: whether Heck bars § 1983 suits when the plaintiff

has intentionally defaulted his habeas claims. I know of no circuit cases that

allow § 1983 claims to proceed in such circumstances, and some have

suggested they cannot. See Cohen v. Longshore,

(10th Cir.

2010) (“[A] petitioner who has no available remedy in habeas, through no lack

of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.”)

(emphasis added); Guerrero v. Gates,

(9th Cir. 2006)

(“[Plaintiff] cannot . . . use his failure timely to pursue habeas remedies as a

shield against the implications of Heck.”). And despite suggestions to the

contrary, Poventud,

(Jacobs, J., dissenting), the Poventud panel

majority did not address, let alone attempt to decide, the issue.2

2 Indeed, it could not have resolved this question because, far from intentionally allowing his habeas claim to lapse, Poventud went to state court and succeeded in having his initial conviction vacated. People v. Poventud,

,

, 608 (Sup. Ct. Bronx Cnty. 2005).

6 Nevertheless, there are serious arguments to be made on both sides of

the question. To discuss those arguments, however, is beyond the scope of

this concurrence. For today, it is enough to suggest that here, too, we would

be wise to move cautiously when deciding future cases, ruling narrowly

where possible, and confining ourselves to the facts before us.

And this brings us back to the beginning of this concurrence. When

there are non‐controversial, non‐Heck grounds for ruling, we and district

courts would be well advised to decide on those grounds rather than

needlessly on Heck ones.

7