.
      In a concurrence, Justice Souter, joined by three colleagues, expressed

reservations about denying relief to plaintiffs seeking damages under § 1983 for

unconstitutional convictions or imprisonment who, because they were no longer

imprisoned, could have no relief under habeas. Extending Heck’s favorable termination

requirement to plaintiffs not in custody, Justice Souter wrote, would “deny any federal

forum for claiming a deprivation of federal rights to those who cannot first obtain a

favorable state ruling.” 
Id. at 500 (Souter, 
J., concurring). A better way to read the

majority’s opinion is “as saying nothing more than that now, after enactment of the

habeas statute and because of it, prison inmates seeking § 1983 damages . . . must

satisfy a . . . favorable-termination requirement.” 
Id. (emphasis added).

      Four 
years after Heck, Justice Souter repeated these views in another

concurrence. 
Spencer, 523 U.S. at 18-21 
(Souter, J., concurring). This time he was

joined by four Justices. Three joined Justice Souter’s concurrence, which stated (again

in dicta, as the case ultimately turned on other grounds) “that a former prisoner, no

longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a

conviction or confinement without being bound to satisfy a favorable-termination




                                            7
requirement that it would be impossible as a matter of law for him to satisfy.” 
Id. at 21.1

And 
Justice Stevens, in dissent, went out of his way to adhere to Justice Souter’s

position. 
Id. at 25 n.8 
(Stevens, J., dissenting).



The Law of the Circuit

              Our Court has adopted Justice Souter’s dicta in Spencer. In Jenkins v. Haubert,

we reversed the dismissal of a former inmate’s § 1983 challenge to the validity of two

prison disciplinary hearings. 
179 F.3d 19 
(2d Cir. 1999). We held that “a § 1983 suit by a

prisoner . . . challenging the validity of a disciplinary or administrative sanction that

does not affect the overall length of a prisoner’s confinement is not barred by Heck.” 
Id.

at 27. To 
hold otherwise, we noted, “would contravene the pronouncement of five

justices that some federal remedy—either habeas corpus or § 1983—must be available.”

Id. (emphasis added). In 
Leather v. Eyck, decided the same day as Jenkins, we held

that Heck did not bar the § 1983 suit of an arrestee who was convicted (but fined rather

than imprisoned) for driving while impaired. 
180 F.3d 420 
(2d Cir. 1999). “Because

Leather is not and never was in the custody of the State,” we explained, “he, like Jenkins,

has no remedy in habeas corpus. Having escaped the jaws of Heck, Leather should

therefore be permitted to pursue his § 1983 claim in the district court.” 
Id. at 424.

              Since 
Jenkins and Leather, we have repeatedly affirmed that Heck’s favorable-

termination requirement applies only to plaintiffs who are in custody, and that all other

claimants—those who have no remedy in habeas—may pursue their claims under
                                                            
1   Between Heck and Spencer, Justice Ginsburg revised her view of the matter. See 
Spencer, 523 U.S. at 21
(Ginsburg, J., concurring) (“I have come to agree with Justice SOUTER’s reasoning: Individuals without
recourse to the habeas statute because they are not ‘in custody’ (people merely fined or whose sentences
have been fully served, for example) fit within § 1983’s broad reach.”) (internal quotation marks omitted).



                                                               8
§ 1983. See McKithen v. Brown, 
481 F.3d 89
, 101 (2d Cir. 2007) (“Over time, [Heck’s]

implicit exception [to § 1983’s otherwise broad coverage] has been carefully

circumscribed.”); Huang ex rel. Yu v. Johnson, 
251 F.3d 65
, 75 (2d Cir. 2001) (“In light

of our holding in Leather, and in light of . . . the fact that the Spencer concurrences and

dissent ‘revealed that five justices hold the view that, where federal habeas corpus is not

available to address constitutional wrongs, § 1983 must be,’ we conclude that Huang’s

Section 1983 claim must be allowed to proceed.”) (quoting 
Jenkins, 179 F.3d at 26
);

Green v. Montgomery, 
219 F.3d 52
, 60 n.3 (2d Cir. 2000) (“We have held . . . that Heck

acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to

him (i.e., when he is in state custody).                       Because it does not appear that Green is

presently in state custody, his § 1983 action is not barred by Heck.” (internal citations

omitted)).

              The facts in this case differ somewhat from the facts in the cases just cited, but

not in a way that is material to the issue before us. After Poventud’s original conviction

was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a

lesser, related offense.2 This fact, however, does not alter the underlying principle that a

                                                            
2   Although we think it unnecessary to reach the issue in light of our conclusion that Heck’s bar does not
apply to a § 1983 plaintiff who is not in custody, even if Heck did apply, we are doubtful that success on
Poventud’s § 1983 suit would “necessarily imply the invalidity,” 
Heck, 512 U.S. at 487
, of his subsequent
guilty plea. The alleged Brady violation resulted in a conviction that was later vacated. Because that
conviction was vacated—regardless of whether Poventud then pled guilty or was retried—victory in his
§ 1983 suit would no longer implicate the validity of an outstanding criminal judgment. See Smith v.
Gonzalez, 
222 F.3d 1220
, 1222 (10th Cir. 2000); Davis v. Zain, 
79 F.3d 18
, 19 (5th Cir. 1996) (per
curiam). Moreover, Poventud’s § 1983 suit cannot call into question the validity of his guilty plea,
inasmuch as it is undisputed that at the time he pled guilty Poventud was aware of the Brady violation on
which his present lawsuit is based. See 
Smith, 222 F.3d at 1222 
(where conviction was vacated and case
remanded due to Brady violation, success on plaintiff’s § 1983 suit had no relevance to a later criminal
trial, since the prosecution could not withhold the same exculpatory evidence at a subsequent trial).



                                                               9
claimant who cannot seek relief under habeas must be able to seek it under § 1983.

Poventud’s guilty plea may (or may not) supply defendants with a defense that no § 1983

violation occurred. But it does not entitle them to summary judgment under Heck.

              To repeat, the law of this Circuit makes clear that a plaintiff alleging civil rights

violations in connection with his conviction or imprisonment must have access to a

federal remedy either under habeas or under § 1983. Because Poventud is not in

custody, he has no remedy under habeas. He must be able, therefore, to pursue relief

under § 1983.



                                                               CODA

              We would end here, but for the apocalyptic tone of the dissent, which requires a

brief answer. Among its many flaws are the following.

              First. Contrary to the dissent’s assertion, the majority does not rely principally

on Leather. It relies at least as much on Jenkins. It does so because Jenkins, an opinion

written by Judge Walker and concurred in by Judge Miner and Judge Sack,3 most

clearly embraced, and most thoroughly recited the history behind, the proposition that

we reaffirm today: “that some federal remedy—either habeas corpus or § 1983—must be

available.” 179 F.3d at 27
. To be sure, the panel in Jenkins also had other grounds for its

decision. 
Id. (“We do not 
rest our holding solely on our tally of votes on the [Supreme]

Court for Justice Souter’s view of Heck.”). And it is true, as the dissent points out, that

Jenkins dealt with prison discipline rather than a conviction. But that, for purposes of

the case before us, is a distinction without a difference. The court in Jenkins did not

                                                            
3   We mention the names of individual judges only because the dissent goes out of its way to do so.



                                                                10
limit its endorsement of Justice Souter’s position to the facts before it. It stated that

endorsement as a general proposition and, having done so, made it one basis for its

holding.

       It is significant, moreover, that Jenkins and Leather (which dealt with an actual

criminal conviction, and not only with conditions of confinement) came down the same

day. As is well known, the normal practice, when two panels are dealing with closely

related issues at the same time, is for the panels to communicate with each other to

ensure, if at all possible, that the opinions are consistent. One can therefore assume

that, together, Jenkins and Leather reflected the law of the Circuit at the time, and that

the law was, as Jenkins stated it, “that some federal remedy—either habeas corpus or §

1983—must be 
available.” 179 F.3d at 27
. Significantly, within a year, this view was

affirmed again in Green v. Montgomery, which stated that “Heck acts only to bar §

1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he

is in state 
custody).” 219 F.3d at 60 
n.3 (Kearse, J.; Calabresi, J.; Katzmann, J.). Less

than a year after Green, this position was stated yet again in Huang v. 
Johnson. 251

F.3d at 75 
(“In light of our holding in Leather, and in light of both the

Spencer majority’s dictum and the fact that the Spencer concurrences and dissent

‘revealed that five justices hold the view that, where federal habeas corpus is not

available to address constitutional wrongs, § 1983 must be,’ 
Jenkins, 179 F.3d at 26
, we

conclude that Huang’s Section 1983 claim must be allowed to proceed.”) (Feinberg, J.;

Winter, J.; Cabranes, J.).




                                            11
              Within a period of two years, then, four unanimous panels of the Second Circuit,

including a majority of active judges sitting throughout that time,4 affirmed the position

of the Circuit that Heck’s bar on § 1983 relief applies only when federal relief can be

sought under habeas. These panels so ruled because, as the Jenkins Court noted, to do

otherwise “would contravene the pronouncement of five justices that some federal

remedy—either habeas corpus or § 1983—must be 
available.” 179 F.3d at 27
. And this is

the principle the majority follows today. Indeed, this position is so clearly the current

law of the Circuit that the majority considered this case a candidate for disposition by

summary order on this ground only, rather than on the alternate ground discussed

below.

              Second. The dissent suggests, nonetheless, that Jenkins, Leather, Green, and

Huang—and the judges who participated in those three decisions—flew in the face of a

Supreme Court holding that remained the law despite subsequent Supreme Court dicta

to the contrary. If that were true, these opinions would have been wrong,5 and one

would have expected that fact to have been raised at the time. The Supreme Court in

Heck decided a case in which habeas was available. In dicta, in a footnote, which was
                                                            
4   That is, seven active judges (Judges Kearse, Walker, Calabresi, Cabranes, Straub, Sack, and Katzmann)
out of thirteen. Judge Winter, who served as Chief Judge when Jenkins, Leather, and Green were
decided, had assumed senior status before writing the panel opinion in Huang.

5   This was not always necessarily so, see W. Va. State Bd. of Educ. v. Barnette, 
319 U.S. 624
, 642 (1943)
(affirming a district court decision that parted with clear Supreme Court precedent in the belief that the
Supreme Court would now decide the matter differently), but it is so now, see Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 
490 U.S. 477
, 484 (1989) (“If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the prerogative of overruling its own
decisions.”).




                                                               12
completely unnecessary to the decision in Heck, there is language suggesting that the

holding might well be extended to a future case where habeas was not available. 
Heck,

512 U.S. at 490 
n.10. It was to distance himself from this dicta that Justice Souter wrote

his concurrence. And, when one of the Justices who had joined the Heck footnote

changed her mind, see 
Spencer, 523 U.S. at 21 
(Ginsburg, J., concurring), it became

clear that the Heck dicta no longer commanded the support of a majority of Supreme

Court Justices.

              In such circumstances—i.e., where there is no Supreme Court holding in one

direction, and there are powerful statements by a majority of the Justices in an opposite

direction—it is perfectly appropriate (though not required) for a lower court to embrace

the position adopted (albeit in dicta) by that majority. This is precisely what the panels

in Jenkins, Leather, Green, and Huang did.

              Third. The dissent claims that in doing this, the Jenkins, Leather, Green, and

Huang Courts improperly altered the law of the Circuit without going in banc. There is

no need, however, to discuss today what the Circuit law was before the Supreme Court

decided Heck and Spencer. For, even assuming, very much, arguendo that the dissenter

is correct as to our Circuit’s pre-Heck law,6 it is readily accepted that a panel of this


                                                            
6   We note that the two Second Circuit decisions—Roesch v. Otarola, 
980 F.2d 850 
(2d Cir. 1992) and
Singleton v. City of New York, 
632 F.2d 185 
(2d Cir. 1980)—that the dissent adduces for the proposition
that our pre-Heck cases did not turn “on whether the plaintiff was incarcerated or at liberty when suit was
filed,” both involved § 1983 claims sounding in malicious prosecution. Of course these cases didn’t turn
on whether the plaintiff was in or out of custody. They turned on the fact that favorable termination is an
element of malicious prosecution. These decisions did not anticipate Heck; they simply applied an old
common law rule from which the Heck majority drew a controversial analogy. Whatever the vices of the
Jenkins-Leather-Green-Huang line of cases, we do not think that even so hardened a foe as the dissenter
can accuse them of straying from the notion that a claim must be dismissed if one of its elements—i.e.,
favorable termination in malicious prosecution suits—is missing. The dissent also cites two cases—


                                                               13
Court may depart from a prior decision when that earlier decision’s “rationale is

overruled, implicitly or expressly, by the Supreme Court.” In re Sokolowski, 
205 F.3d

532
, 535 (2d Cir. 2000) (per curiam) (internal quotation marks omitted). As far as we

can determine, our Court has not clearly decided whether such undermining must

happen in a holding by the Supreme Court, or whether clear dicta also suffices.7 In any

event, had anyone cared to disagree with Jenkins or Leather or Green or Huang on the

ground that they deviated from prior holdings, the time to say so was when those four

cases were decided.                              Accordingly, one would have expected a request for in banc

reconsideration at that time. There was no such request, which comes as no surprise

given the unanimity of support in those cases for the position we reaffirm today. The

dissenter obviously disagrees, as is his right, with the position our Court then took. But,

given those holdings, we would think it preferable for the dissent to state that

disagreement by concurring in today’s result and expressing distaste for the settled law

that requires such a concurrence.

              Fourth. Quite apart from whether the absence of habeas, by itself, means that a

§ 1983 action may lie, the dissent is incorrect in its statement that this § 1983 action

                                                                                                                                                                                               
                                                                                                                                                                                               
Amaker v. Weiner, 
179 F.3d 48 
(2d Cir. 1999), and Channer v. Mitchell, 
43 F.3d 786 
(2d Cir. 1994) (per
curiam)—that were not malicious prosecution cases, but were cases in which the petitioner was still
incarcerated and could bring habeas. The bar on § 1983 suits in those circumstances, of course, continues
to apply.

7   In one case, in which the Supreme Court had suggested a certain direction in dicta but then explicitly left
the question open, we concluded that “the Supreme Court’s dicta do not outweigh prior circuit authority.”
Meacham v. Knolls Atomic Power Lab., 
381 F.3d 56
, 70 (2d Cir. 2004), rev’d on other grounds by KAPL,
Inc. v. Meacham, 
544 U.S. 957 
(2005). As a general matter, however, “[w]e have also observed that we
may depart from a prior decision when it merely ‘has been called into question by an intervening United
States Supreme Court decision.’” Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 
423 F.3d 90
, 101 n.12
(2d Cir. 2005) (quoting 
Meacham, 381 F.3d at 69
).



                                                                                            14
calls into question Poventud’s second conviction. It does nothing of the sort. It asserts

that his constitutional rights were violated by the state through a Brady violation.

Under Heck, this could not have been brought up prior to the quashing of his first

conviction because a finding of a Brady violation would undercut that conviction. But

once that conviction was quashed, the Brady violation—if one were established, and if it

injured Poventud—would constitute an independent infringement of Poventud’s

constitutional rights, regardless of his subsequent conviction.

       To give a dramatic example: suppose a defendant is tortured viciously, confesses,

and is convicted on the basis of that confession. Under Heck, he cannot, while in jail on

that conviction, bring a § 1983 action for being tortured because that would undercut

the conviction. But once his conviction is quashed (through habeas or in other ways), he

is free to assert that he was tortured and seek a § 1983 remedy. Does the dissent really

believe that this becomes less true if that defendant later freely confesses, even to the

same crime? At that point, the claim for damages for torture in no way undercuts the

second, and only existing, conviction and hence is in no way barred by Heck.

       At core, this is what Poventud claims today. He seeks damages for the harm

caused by a Brady violation in connection with his first (invalidated) conviction; he

makes no claims at all with respect to his second (outstanding) conviction.          See

Appellant’s Br. 32 (“Seeking damages only for punishment he suffered in excess of the

one-year imprisonment he accepted as part of his plea, the lawsuit, if successful, would

not be inconsistent with that plea.”).     As noted earlier, whether there was such a

violation, and whether there were such damages, will be determined in a § 1983 trial.

But whatever the result of that trial, Poventud’s subsequent guilty plea is not

undermined by his § 1983 action.


                                            15
       Finally, the dissent makes the extraordinary argument that habeas might be

available to Poventud because his “inability to bring a § 1983 action alone may

constitute a collateral consequence sufficient to overcome a mootness challenge and

support a . . . post-release habeas petition.” This argument, which has not been made by

anyone in this case, is circular. It posits a result—the unavailability of § 1983 relief—and

on the basis of that result creates the premise for that result. It is, in short, absolutely

Ptolemaic in the uselessness of its epicycles.



                                     CONCLUSION

       For the foregoing reasons, we VACATE the district court’s judgment and

REMAND the case to the district court for further proceedings consistent with this

opinion.




                                             16
 1   DENNIS JACOBS, Chief Judge, dissenting:

 2       Marcos Poventud’s 1998 New York State conviction for

 3   holding up a livery-car driver was vacated by the courts of

 4   New York on a Brady violation, and he was released from

 5   custody in 2005 after pleading guilty--on lesser charges--to

 6   the same hold-up at the same place and time, on the same

 7   date.    He has sued prosecutors and police, under 42 U.S.C.

 8   § 1983, for achieving his conviction for a crime that he

 9   committed--as he has conceded under oath and in open court.

10   The United States District Court for the Southern District

11   of New York (Batts, J.) dismissed the complaint on the

12   ground that, under Heck v. Humphrey, 
512 U.S. 477 
(1994), he

13   cannot sue under § 1983 unless the conviction has been

14   overturned.    I would affirm.     The only errors in this case

15   have been introduced on appeal.

16       The majority holds that Heck is no bar to a civil suit

17   once the sentence has been served, regardless of whether the

18   conviction was overturned.       The majority relies on a

19   concurrence in Heck and dicta in other Supreme Court cases,

20   and on Second Circuit case law that has accrued along these

21   lines.

22       I respectfully dissent.       My objection goes deep, to the

23   root of the error in Second Circuit cases that prefer dicta
 1   in Heck to its holding--a holding that confirmed

 2   longstanding Second Circuit law.   As the majority opinion

 3   states, concurrences in Heck and Spencer v. Kemna, 
523 U.S.

 4 
  1 (1998) posited the idea that Heck might not bar a civil

 5   claim for damages notwithstanding that the claim necessarily

 6   called into question an undisturbed criminal conviction, if

 7   habeas is unavailable to challenge the conviction under the

 8   federal Constitution.   Spencer precipitated a Circuit split,

 9   with some Circuits recognizing a few narrow exceptions to

10   Heck, and others countenancing no exception at all.     The

11   majority opinion follows and extends a line of cases in this

12   Circuit that cannot be located on either side of that

13   Circuit split.   The majority opinion holds that Heck is a

14   bar to suit under § 1983 only until the convict is released

15   from custody (because habeas is no longer available to a

16   person at liberty); and this stretch is widened to discount

17   a post-vacatur plea of guilt to lesser charges on the same

18   crime.

19       The majority opinion thus places at risk of

20   constitutional litigation--for decades--prosecutors and

21   police who obtained convictions of persons who indisputably

22   or even admittedly committed the crimes charged.

23       I would affirm the district court’s judgment.     The

24   unconstitutional conduct for which Poventud seeks damages is

                                   2
 1   the failure to disclose the identification of another person

 2   as having committed the crime.      The premise of that claim--

 3   that Poventud was denied the opportunity to effectively

 4   challenge his identification as the perpetrator--necessarily

 5   implies the invalidity of the unchallenged, subsisting

 6   conviction that was entered on Poventud’s plea of guilty to

 7   that crime.     Heck therefore bars Poventud from asserting his

 8   § 1983 claim.

 9                                   I

10       In 1998, a jury convicted Poventud of attempted murder

11   in the second degree, attempted robbery in the first degree,

12   and criminal possession of a weapon in the first degree, in

13   connection with the armed robbery and shooting of Younis

14   Duopo as he was driving a livery cab.     The time and place

15   were: approximately 8:40 p.m. on March 6, 1997, between

16   Oliver Place and Marion Avenue in the Bronx.     The conviction

17   and the 10-to-20 year sentence were affirmed on appeal.      See

18   People v. Poventud, 
300 A.D.2d 223
, 224 (1st Dep’t 2002).

19       In 2005, the New York Supreme Court, Bronx County,

20   vacated the conviction and ordered a re-trial on the ground

21   that the prosecution had withheld potentially exculpatory

22   evidence.     This ruling was highly solicitous of Poventud’s

23   rights; in fact, the evidence withheld might as easily be

24   viewed as inculpatory.
                                     3
 1         After the hold-up, photo ID of Poventud’s brother

 2   Francisco was found in a wallet in Duopo’s vehicle.   When

 3   shown the photograph of Francisco, Duopo opined that it

 4   “looks like” the perpetrator, or “looks a lot like him.”      A

 5   98.   (The majority calls this a positive identification.1

 6   See Maj. Op. at 3.)   After it was ascertained that Francisco

 7   was and had been in prison, Duopo positively identified

 8   Marcos Poventud, as he later did in a line-up and for a

 9   third time in the courtroom.   A 98, 114.   The state court

10   ordered a re-trial on the ground that Brady was violated by

11   the State’s failure to disclose Duopo’s observation that

12   Francisco’s photo resembled the perpetrator.   See People v.

13   Poventud, 
802 N.Y.S.2d 605
, 608 (Brx. Cnty. 2005).

14         Poventud claims that he looks nothing like his own

15   brother (which would certainly make Duopo’s observation

16   uncanny), and that it is just one of those coincidences that

17   his jailed brother’s photo ID was left at the scene of the

18   crime.

19         Poventud had the opportunity to test those explanations

20   before a jury on retrial.   Instead, Poventud pled guilty to

21   attempted robbery in the third degree.   At his hearing, he

22   admitted to holding up Duopo as he was driving a livery cab


           1
           The Bronx District Attorney’s Office considered this
     statement a “tentative identification,” A 59, that tended to
     inculpate Poventud, A 75.
                                    4
 1   at: approximately 8:40 p.m. on March 6, 1997, between Oliver

 2   Place and Marion Avenue in the Bronx.       The plea colloquy

 3   thus resolved the issue: Duopo’s identification of Poventud

 4   was sound.   A 93.   Poventud was re-sentenced to one year in

 5   prison and, because he had already served nine years, was

 6   released.

 7       Upon release from prison, Poventud filed a motion

 8   challenging the voluntariness of his plea, but later

 9   withdrew the motion.   He then filed this damages action

10   under 42 U.S.C. § 1983 alleging that the prosecution’s Brady

11   violation deprived him of a fair trial.       See Brady v.

12   Maryland, 
373 U.S. 83 
(1963).        Judge Batts ruled that

13   Poventud’s claims were barred by Heck v. Humphrey, 
512 U.S.

14 
  477 (1994), and dismissed the case.       See Poventud v. City of

15   N.Y., No. 07 Civ. 3998 (DAB), 
2012 WL 727802
, at *3

16   (S.D.N.Y. Mar. 6, 2012).

17

18                                   II

19       Even before Heck, our Circuit (like many others) barred

20   § 1983 claims that necessarily implied the invalidity of

21   outstanding convictions--and did so regardless of whether

22   the plaintiff remained in jail.       The seminal case was

23   Cameron v. Fogarty, 
806 F.2d 380 
(2d Cir. 1986), which

24   explained why a plaintiff’s outstanding conviction (for


                                     5
 1   possession of stolen property) barred his damages action for

 2   false arrest under § 1983: “the common-law rule, equally

 3   applicable to actions asserting false arrest, false

 4   imprisonment, or malicious prosecution, was and is that the

 5   plaintiff can under no circumstances recover if he was

 6   convicted of the offense for which he was arrested.”      
Id. at

 7   388 
(emphasis added).    Cameron extended that principle to

 8   § 1983 actions, observing: “The right to bring suit under §

 9   1983 is designed both to allow an injured person to obtain

10   compensation for the loss of his civil rights and to deter

11   public officials from further violation of such rights.”

12   806 F.2d at 388
.    Yet, neither interest “is more than

13   minimally implicated where the [claimant] was convicted.”

14   Id.; see also Singleton v. City of N.Y., 
632 F.2d 185
, 195

15   (2d Cir. 1980) (dismissing malicious prosecution claim

16   brought under § 1983 on the same grounds).

17          The rule was given broad application.   In Roesch v.

18   Otarola, 
980 F.2d 850 
(2d Cir. 1992), we explained that a

19   § 1983 plaintiff who seeks to challenge his conviction “must

20   pursue the criminal case to an acquittal or an unqualified

21   dismissal, or else waive his Section 1983 claim.”      
Id. at

22   853. 
   We later held that this bar applied to Brady

23   violations, Amaker v. Weiner, 
179 F.3d 48
, 51 (2d Cir.

24   1999), as well as related claims under §§ 1981, 1985, and


                                     6
 1   1986, 
id. at 51-52.2   And, 
as discussed infra at 29-30,

 2   several courts in this Circuit have held (and we have

 3   affirmed) that the bar applies even if the subsequent guilty

 4   plea is to a lesser charge.   See McNeill v. People of City &

 5   State, No. 06-CV-4843(NGG), 
2006 WL 3050867
, at *3 (E.D.N.Y.

 6   Oct. 24, 2006), summarily aff’d, 242 F. App’x 777 (2d Cir.

 7   2007); Papeskov v. Brown, No. 97 Civ. 5351(SS), 
1998 WL

 8 
  299892, at *5 (S.D.N.Y. June 8, 1998) (Sotomayor, J.),

 9   summarily aff’d, 
173 F.3d 845 
(2d Cir. 1999); see also Stein

10   v. Cnty. of Westchester, N.Y., 
410 F. Supp. 2d 175
, 179

11   (S.D.N.Y. 2006).

12       None of these cases turned on whether the plaintiff was

13   incarcerated or at liberty when suit was filed, or suggested

14   that this consideration had any weight or bearing.   In most

15   of these cases, the plaintiff was not in custody.    See,

16   e.g., 
Roesch, 980 F.2d at 850
; 
Singleton, 632 F.2d at 195
;



         2
           Heck confirmed that this bar is not limited to false
     arrest, false imprisonment, and malicious prosecution
     claims: the plaintiff alleged, inter alia, that prosecutors
     “‘knowingly destroyed’ evidence ‘which was exculpatory in
     nature and could have proved [petitioner’s] 
innocence[.]’”
     512 U.S. at 479 
(citation omitted); see also Channer v.
     Mitchell, 
43 F.3d 786
, 787 (2d Cir. 1994) (per curiam);
     Rosato v. N.Y. Cnty. District Attorney’s Office, No. 09 Civ.
     3742, 
2009 WL 4790849
, at *3-4 (S.D.N.Y. Dec. 14, 2009);
     Davison v. Reyes, 11-CV-167 ENV LB, 
2012 WL 948591
, at *3
     (E.D.N.Y. Mar. 20, 2012). The majority opinion here
     mistakenly suggests that the bar is so limited, Maj. Op. at
     13 n.6, but prudently concludes that there is “no need” to
     consider this case law in any depth, 
id. at 13.
                                    7
 1   McNeill, 
2006 WL 3050867
, at *2-3; Papeskov, 
1998 WL 299892
,

 2   at *5; 
Stein, 410 F. Supp. 2d at 179
.

 3       These decisions consistently and methodically applied

 4   the rule that plaintiffs may not use § 1983 to call into

 5   question an outstanding criminal conviction, a rule that

 6   avoided “the prospect of harassment, waste and endless

 7   litigation, contrary to principles of federalism.”

 8   Singleton v. City of N.Y., 
632 F.2d 185
, 195 (2d Cir. 1980).

 9       The majority relies on Leather v. Ten Eyck, 
180 F.3d

10 
  420 (2d Cir. 1999) (Calabresi, J.) and cases that cited or

11   followed it;3 but these cases could not have undone the law

12   of this Court without review in banc.4   See United States v.



         3
           Among other cases, the majority cites Jenkins v.
     Haubert, 
179 F.3d 19 
(2d Cir. 1999) (Walker, J.), which was
     decided the same day as Leather. But, as discussed infra at
     14, Jenkins involved a challenge to a prison disciplinary
     sanction (not the plaintiff’s conviction itself), which
     plainly did not trigger the Heck bar. See 
id. at 27
     (“[Nothing 
in Supreme Court precedent requires that the Heck
     rule be applied to a challenge by a prisoner to a term of
     disciplinary segregation[.]”).
         4
           The majority opinion wonders aloud why such cases
     were not challenged in banc. See Maj. Op. at 13-14. First,
     there is little point in mobilizing the Court in banc to
     excise dicta. Second, this Court is notoriously reluctant
     to sit in banc. See Ricci v. DeStefano, 
530 F.3d 88
, 93 (2d
     Cir. 2008) (Jacobs, C.J., dissenting from denial of
     rehearing in banc) (arguing that “to rely on [Circuit]
     tradition to deny rehearing in banc starts to look very much
     like abuse of discretion”); see 
id. at 89 (Calabresi, 
J.,
     concurring in denial of rehearing in banc) (concluding that
     in banc review is unnecessary even when “[d]ifficult issues”
     are presented).
                                   8
 1   King, 
276 F.3d 109
, 112 (2d Cir. 2002).    In any event, our

 2   Circuit law, as it was settled before Leather, was validated

 3   and confirmed by the Supreme Court in Heck v. Humphrey, 512

 
4   U.S. 477 
(1994).    While Heck was serving a fifteen-year

 5   sentence for voluntary manslaughter and his direct appeal

 6   was still pending, he brought a § 1983 action alleging that

 7   prosecutors and police officers had destroyed exculpatory

 8   evidence.   
Id. at 478-79.   The 
Supreme Court affirmed the

 9   dismissal of the claim because “civil tort actions are not

10   appropriate vehicles for challenging the validity of

11   outstanding criminal judgments,” and because success on the

12   plaintiff’s § 1983 claim “would necessarily imply the

13   invalidity of his conviction or sentence[.]”    
Id. at 486-87.

14 
  To recover damages for allegedly unconstitutional conviction

15   or imprisonment, a § 1983 plaintiff “must prove that the

16   conviction or sentence has been reversed on direct appeal,

17   expunged by executive order, declared invalid by a state

18   tribunal authorized to make such determination, or called

19   into question by a federal court’s issuance of a writ of

20   habeas corpus[.]”   
Id.

21       This requirement 
is animated by the values of finality

22   and consistency, and “a strong judicial policy against the

23   creation of two conflicting resolutions arising out of the

24   same or identical transaction.”    
Id. at 484 (citation 
and


                                    9
 1   quotation marks omitted).     Heck, which strengthened and

 2   validated our existing precedent, remains the rule until--if

 3   ever--the Supreme Court alters its holding.

 4

 5                                  III

 6       A Circuit split has opened as to whether some

 7   exceptions to Heck may be permitted on the basis of self-

 8   described dicta signed by five Justices (three of whom are

 9   no longer on the Court).     The majority opinion patches

10   together the various concurrences and passages of dicta,

11   identifying the Justices (some active, some retired) who

12   wrote or signed the opinions.     See Maj. Op. at 7-8

13   (discussing Spencer v. Kemna, 
523 U.S. 1
, 18-21 (1998)

14   (Souter, J., concurring)).     In a nutshell, these Justices

15   posited that “a former prisoner, no longer ‘in custody,’ may

16   bring a § 1983 action establishing the unconstitutionality

17   of a conviction or confinement without being bound to

18   satisfy a favorable-termination requirement that it would be

19   impossible as a matter of law for him to satisfy.”      Spencer,

20   523 U.S. at 21 
(Souter, J., concurring) (emphasis added).

21   While some Circuits carve out a narrow exception to Heck’s

22   holding based on the Spencer concurrences, the majority in

23   our case adopts a view that would have no basis even in

24   Supreme Court dicta.


                                     10
 1       Several courts of appeals have concluded (as I do) that

 2   the Spencer concurrences cannot override Heck’s binding

 3   precedent.    See, e.g., Entzi v. Redmann, 
485 F.3d 998
, 1003

 4   (8th Cir. 2007); Gilles v. Davis, 
427 F.3d 197
, 209-10 (3d

 5   Cir. 2005); Randell v. Johnson, 
227 F.3d 300
, 301 (5th Cir.

 6   2000); Figueroa v. Rivera, 
147 F.3d 77
, 80 (1st Cir. 1998).

 7       These opinions heed the Supreme Court’s admonition

 8   that, even if binding precedent “appears to rest on reasons

 9   rejected in some other line of decisions, the Court of

10   Appeals should follow the case which directly controls,

11   leaving to this [Supreme] Court the prerogative of

12   overruling its own decisions.”      Agostini v. Felton, 
521 U.S.

13 
  203, 237 (1997) (citations and internal quotation marks

14   omitted).    We adhere to that rule: “It is not within our

15   purview to anticipate whether the Supreme Court may one day

16   overrule its existing precedent.”     United States v.

17   Santiago, 
268 F.3d 151
, 155 n.6 (2d Cir. 2001).

18       Other Circuits have nevertheless held that Spencer‘s

19   dicta does allow for unusual and compelling circumstances in

20   which Heck’s holding does not absolutely foreclose a claim.

21   See, e.g., Burd v. Sessler, 
702 F.3d 429
, 435-36 (7th Cir.

22   2012); Cohen v. Longshore, 
621 F.3d 1311
, 1317 (10th Cir.

23   2010); Wilson v. Johnson, 
535 F.3d 262
, 267–68 (4th Cir.

24   2008); Powers v. Hamilton Cnty. Public Defender Comm’n, 501


                                    11
 
1   F.3d 592
, 603 (6th Cir. 2007); Guerrero v. Gates, 
442 F.3d

 2 
  697, 704 (9th Cir. 2006); Harden v. Pataki, 
320 F.3d 1289
,

 3   1298 (11th Cir. 2003).

 4       But even the courts that recognize certain narrow

 5   exceptions to Heck emphatically reject the idea that the

 6   rule in Heck no longer applies once a convict exits the

 7   prison gates.     The Seventh Circuit, for instance, recently

 8   dismissed a claim by a released convict who argued that

 9   § 1983 must be made available if habeas relief is not.        See

10   
Burd, 702 F.3d at 435-36 
(holding that “Heck applies where a

11   § 1983 plaintiff could have sought collateral relief at an

12   earlier time but declined the opportunity and waited until

13   collateral relief became unavailable before suing”).

14   Likewise the Ninth Circuit: “The fact that [a criminal

15   defendant] is no longer in custody and thus cannot overturn

16   his prior convictions by means of habeas corpus does not

17   lift Heck’s bar.”     
Guerrero, 442 F.3d at 704.5 
  And the

18   Sixth Circuit: “It seems unlikely that Justice Souter

19   intended to carve out a broad Heck exception for all former

20   prisoners.”     
Powers, 501 F.3d at 603
.


         5
            The Ninth Circuit qualified its endorsement of the
     Spencer dicta further: the exception posited by Justice
     Souter “‘affects only former prisoners challenging loss of
     good-time credits, revocation of parole or similar matters,’
     not challenges to an underlying conviction such as those
     Guerrero brought.” 
Guerrero, 442 F.3d at 705 
(quoting
     Nonnette v. Small, 
316 F.3d 872
, 878 n.7 (9th Cir. 2002)).
                                     12
 1       Our Court has gone its own way, without adhering to

 2   either side of this broad Circuit split.    This Circuit first

 3   invoked the Spencer dicta in Leather v. Ten Eyck, 
180 F.3d

 4 
  420 (2d Cir. 1999) (Calabresi, J.), to allow an individual

 5   fined for drunk driving to seek damages in federal court

 6   even though he chose to forgo an appeal in state court.      A

 7   year later, the Spencer dicta was adopted as a holding, in a

 8   broadened and generalized form, in Green v. Montgomery, 219

 
9   F.3d 52 
(2d Cir. 2000) (Calabresi, J.): “Heck acts only to

10   bar § 1983 suits when the plaintiff has a habeas corpus

11   remedy available to him (i.e., when he is in state

12   custody).”   
Id. at 60 n.3. 
  The majority’s present opinion

13   builds on this error.

14       The final segment of the majority opinion cites several

15   Second Circuit opinions to argue for a spurious consensus.

16   Two of those cases allowed § 1983 claims to proceed when the

17   plaintiff challenged conditions of confinement rather than

18   the fact or duration of confinement.   See Jenkins v.

19   Haubert, 
179 F.3d 19
, 25 (2d Cir. 1999) (Walker, J.); Sims

20   v. Artuz, 
230 F.3d 14
, 24 (2d Cir. 2000) (Kearse, J.).

21   These uncontroversial decisions are straightforward

22   applications of Supreme Court precedent.    See Preiser v.

23   Rodriguez, 
411 U.S. 475
, 490 (1973).    Another case cited by

24   the majority, Huang ex rel. Yu v. Johnson, 
251 F.3d 65 
(2d


                                    13
 1   Cir. 2001) (Winter, J.), is likewise inapposite.    See 
id. at

 2   67 
(considering whether New York law required court to

 3   credit a juvenile for time spent in a different institution

 4   on an unrelated charge); see also Huang ex rel. Yu v.

 5   Johnson, 
274 F.3d 682
, 682-83 (2d Cir. 2001) (per curiam)

 6   (dismissing case after New York Court of Appeals held that

 7   government agency properly calculated juvenile’s sentence).

 8   The majority devotes considerable space to these dissimilar

 9   cases, see Maj Op. at 8-9, 10-14, and counts on fingers the

10   judges involved in their dispositions, see 
id. at 12 n.4.
11   It is true that these opinions cited the Spencer dicta with

12   approval, expressing support for a very narrow exception

13   that the majority opinion here expands immoderately and

14   adopts as a holding.   But I decline to argue over dicta

15   distilled from dicta--especially when the Supreme Court, ten

16   sister Circuits, and numerous cases in this Circuit counsel

17   otherwise.   See supra at 5-8, 11-12.

18

19                                 IV

20       The majority’s holding--that Heck is inapplicable

21   because Poventud was no longer in custody when he filed

22   suit--relies (as I have shown) on Justice Souter’s dicta in

23   Spencer v. Kemna, 
523 U.S. 1
, 3 (1998), which the majority

24   opinion presumes to elevate as the “better” rule.   See Maj.


                                   14
 1   Op. at 7.    (The Justices are free to choose the “better”

 2   rule--or a worse one, for that matter--but we are not.)      In

 3   Heck, the Court made its choice perfectly clear.

 4       Heck involved a challenge by a plaintiff in custody,

 5   but the opinion left no doubt that its holding applied

 6   regardless of whether the plaintiff was in custody or at

 7   liberty:

 8               We hold that, in order to recover damages for
 9               allegedly unconstitutional conviction or
10               imprisonment, or for other harm caused by actions
11               whose unlawfulness would render a conviction or
12               sentence invalid, a § 1983 plaintiff must prove
13               that the conviction or sentence has been reversed
14               on direct appeal, expunged by executive order,
15               declared invalid by a state tribunal authorized to
16               make such determination, or called into question by
17               a federal court’s issuance of a writ of habeas
18               corpus, 28 U.S.C. § 2254. A claim for damages
19               bearing that relationship to a conviction or
20               sentence that has not been so invalidated is not
21               cognizable under § 1983.

22   
Heck, 512 U.S. at 486-87
.    The majority here presumptuously

23   concludes that Heck’s holding is expressed with careless

24   overbreadth, and is not intended to apply to all § 1983

25   actions including those filed by released convicts.6


         6
           Of course, the Supreme Court is not obligated to
     adopt the narrowest holding possible. See Citizens United
     v. Fed. Election Comm’n, 
558 U.S. 310
, 
130 S. Ct. 876
, 919,
     
175 L. Ed. 2d 753 
(2010) (Roberts, C.J., concurring) (“It
     should go without saying . . . that we cannot embrace a
     narrow ground of decision simply because it is narrow; it
     must also be right.”); In re McDonald, 
205 F.3d 606
, 612 (3d
     Cir. 2000) (“[A] holding . . . extends beyond a statement of
     who won or lost a case. A court can choose among different
     holdings that offer broader or narrower ways of resolving a
                                     15
 1       Heck’s reasoning confirms that its holding means what

 2   it says.   Favorable termination is an absolute prerequisite

 3   to § 1983 actions that seek damages arising from unlawful

 4   incarceration: “We do not engraft an exhaustion requirement

 5   upon § 1983, but rather deny the existence of a cause of

 6   action.”   
Id. at 489.   Since 
no cause of action exists under

 7   § 1983 so long as the plaintiff stands convicted of the

 8   crime, it cannot matter whether a plaintiff whose conviction

 9   subsists is in custody or at liberty, or has (or could have)

10   pursued habeas relief.

11       The incompatibility between Heck’s holding and Justice

12   Souter’s dicta is acknowledged by Justice Souter’s

13   expression of his views in terms of disagreement.7


     dispute.”). Lower courts therefore may not escape the reach
     of a Supreme Court opinion by limiting it to its facts. See
     generally Michael C. Dorf, Dicta and Article III, 142 U. Pa.
     L. Rev. 1997, 2040 (1994) (explaining that courts should not
     cast aside as “mere dictum” an earlier ruling, regardless of
     “the relative merits of a broad or narrow decisional
     principle in the initial case”); Michael Abramowicz &
     Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 986
     (2005) (“[B]readth does not make statements dicta.”).
         7
           The Justice observed that although the case arose at
     the intersection of § 1983 and the federal habeas statute,
     the majority nonetheless “appear[ed] to take the position
     that the statutes were never on a collision course in the
     first place.” 
Id. at 492 (Souter, 
J., concurring). As
     Justice Souter explained, the Court reached this conclusion
     “because, like the common-law tort of malicious prosecution,
     § 1983 requires (and, presumably, has always required)
     plaintiffs seeking damages for unconstitutional conviction
     or confinement to show the favorable termination of the
     underlying proceeding.” 
Id. Justice Souter then 
said why,
                                    16
 1   Reciprocally, the majority opinion in Heck rejected Justice

 2   Souter’s bid to narrow its holding:

 3               Justice Souter also adopts the common-law principle
 4               that one cannot use the device of a civil tort
 5               action to challenge the validity of an outstanding
 6               criminal conviction, but thinks it necessary to
 7               abandon that principle in those cases (of which no
 8               real-life example comes to mind) involving former
 9               state prisoners who, because they are no longer in
10               custody, cannot bring postconviction challenges.
11               We think the principle barring collateral attacks--
12               a longstanding and deeply rooted feature of both
13               the common law and our own jurisprudence--is not
14               rendered inapplicable by the fortuity that a
15               convicted criminal is no longer incarcerated.

16   
Id. at 490 n.10 
(emphasis added) (internal citation

17   omitted).

18       The majority in our case deprecates this footnote as

19   dictum, Maj. Op. at 7 (though it is unclear to me why this

20   would make it less compelling to the majority, whose entire

21   argument here rests on nothing else).     I disagree: the

22   passage does not address some ancillary issue; it responds

23   directly to Justice Souter’s criticism, emphasizing that the

24   scope and rationale of the holding are broad enough to be

25   unaffected by whether the plaintiff is in jail or not.      “‘A

26   dictum . . . is an assertion in a court’s opinion of a

27   proposition of law [that] does not explain why the court’s

28   judgment goes in favor of the winner.’”    Barclays Capital

29


     in his view, this approach was flawed.    
Id.
                                     17
 1   Inc. 
v. Theflyonthewall.com, Inc., 
650 F.3d 876
, 899 (2d

 2   Cir. 2011) (quoting Pierre N. Leval, Judging Under the

 3   Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249,

 4   1256 (2006)).   As illustrated above, Heck made clear that

 5   the rule did not impose an exhaustion requirement and did

 6   not turn on the availability of habeas relief or whether the

 7   plaintiff is still in jail.    
Heck, 512 U.S. at 489
, 490

 8   n.10.   Just as a court may state (in binding terms) what the

 9   rule is, it may also state (in terms equally binding) what

10   the rule is not.

11       In any event, footnote ten only reinforces what Heck’s

12   holding makes plain: a claim for damages that necessarily

13   implies the invalidity of an outstanding conviction is not

14   cognizable under § 1983.   
Heck, 512 U.S. at 486-87
.

15                              *   *    *

16       The concurrences in Heck and Spencer could not narrow

17   or redefine or otherwise alter the Supreme Court’s holding.

18   Unlike plurality opinions, in which “the holding of the

19   Court may be viewed as that position taken by those Members

20   who concurred in the judgment on the narrowest grounds,”

21   Marks v. United States, 
430 U.S. 188
, 193 (1977), a majority

22   opinion dictates the precise contours of the Court’s

23   holding.   See Abramowicz & 
Stearns, supra 
n.6, at 1059.

24   “Critically, this is so even if a Justice concurring in the


                                    18
 1   judgment would have preferred instead to resolve the case on

 2   a narrower ground[.]”   
Id.   Likewise, the majority 
here

 3   concedes, as it must, that Supreme Court dicta does not

 4   outweigh Circuit precedent; only an intervening Supreme

 5   Court decision will have that effect.    See Maj. Op. at 14

 6   n.7 (citing Meacham v. Knolls Atomic Power Lab., 
381 F.3d

 7 
  56, 70 (2d Cir. 2004) and Consol. Edison Co. of N.Y., Inc.

 8   v. UDGI Utils., Inc., 
423 F.3d 90
, 101 n.12 (2d Cir. 2005)).

 9

10                                  V

11       The majority opinion runs counter to the several values

12   that animate Heck (and our pre-Heck jurisprudence).

13       The Supreme Court has “long expressed . . . concerns

14   for finality and consistency and has generally declined to

15   expand opportunities for collateral attack.”   Heck, 
512 U.S.

16 
  at 484-85.   The majority opinion posits a rule that makes

17   the opportunity for inconsistent collateral attack eternal.

18       A § 1983 action that necessarily impugns an outstanding

19   conviction subverts the “longstanding and deeply rooted”

20   principle barring collateral attacks, 
id. at 490 n.10,
21   whether or not the challenge is issued from prison.     An

22   exception for released inmates would violate “the hoary

23   principle that civil tort actions are not appropriate

24   vehicles for challenging the validity of outstanding


                                    19
 1   criminal judgments.”     
Id. at 486.   It 
is an irrelevant

 2   “fortuity that a convicted criminal is no longer

 3   incarcerated.”     

.
 4       The majority’s approach here also undermines

 5   federalism.     “Federal post-trial intervention, in a fashion

 6   designed to annul the results of a state trial, . . .

 7   deprives the States of a function which quite legitimately

 8   is left to them[.]”     Huffman v. Pursue, Ltd., 
420 U.S. 592
,

 9   609 (1975).     To allow collateral attacks on criminal

10   convictions in federal court upon the convict’s release from

11   state prison would “fly in the teeth of Heck,” Figueroa v.

12   Rivera, 
147 F.3d 77
, 81 (1st Cir. 1998), and would impair

13   the fundamental principles that compelled its holding.

14       The majority opinion has the single virtue of assuring

15   that there is absolutely no residual unavailability of

16   federal remedies to any state criminal defendant.        However,

17   there is no support in the Constitution or in § 1983 for the

18   principle that “every person asserting a federal right is

19   entitled to one unencumbered opportunity to litigate that

20   right in a federal district court.”     Allen v. McCurry, 449

21   U.S. 90
, 103 (1980).     A § 1983 action need not “always and

22   everywhere be available.”     
Spencer, 523 U.S. at 17
.

23       Section 1983 aside, a convicted criminal is not without

24   recourse.     Upon release from custody, a convict may seek


                                     20
 1   habeas relief if the State continues to impose significant

 2   restraints on his liberty, such as probation or parole.      See

 
3   Jones v
. Cunningham, 
371 U.S. 236
, 242 (1963).   Even absent

 4   such a showing, courts are now willing to presume that a

 5   criminal conviction has continuing collateral consequences

 6   that could support a post-release habeas petition.     See

 7   Spencer v. Kemna, 
523 U.S. 1
, 8 (1998); see also Nonnette v.

 8   Small, 
316 F.3d 872
, 878 n.7 (9th Cir. 2002) (“[T]he status

 9   of prisoners challenging their underlying convictions or

10   sentences does not change upon release, because they

11   continue to be able to petition for a writ of habeas

12   corpus.”).   The inability to bring a § 1983 action alone may

13   constitute a collateral consequence sufficient to overcome a

14   mootness challenge and support a convict’s post-release

15   habeas petition.8   See Leonard v. Nix, 
55 F.3d 370
, 373 (8th


         8
            The majority satirizes this statement as circular
     (because I posit the unavailability of § 1983 as a possible
     basis for seeking habeas relief, the existence of which, in
     the majority’s view, would render § 1983 unavailable). See
     Maj. Op. at 15-16. But this text paragraph of my opinion
     merely lists remedies (aside from § 1983) that remain
     available to convicted criminals; it does not form a basis
     for concluding that Poventud’s § 1983 claim must be
     dismissed. Here, § 1983 is unavailable because the claim
     would undermine an outstanding conviction--without regard to
     whether habeas relief is also available. See 
Heck, 512 U.S.
     at 503 
(Souter, J., concurring) (criticizing the majority
     for imposing a favorable-termination requirement rather than
     “constru[ing] § 1983 in light of the habeas statute and its
     explicit policy of exhaustion”); Channer v. Mitchell, 
43
     F.3d 786
, 787-88 (2d Cir. 1994) (per curiam).
          The majority’s error illuminates a more significant
                                   21
 1   Cir. 1995) (“Leonard’s section 1983 action gives this case

 2   life, for if Leonard wins this habeas action, the state

 3   becomes vulnerable to his section 1983 damages claim.

 4   Leonard’s petition is therefore not moot.”); see also

 5   O’Neill v. City of Phila., 
32 F.3d 785
, 788 n.7 (3d Cir.

 6   1994); Sule v. Warden, ADX Florence Colo., 
133 F.3d 933
, at

 7   *2 (10th Cir. Jan. 13, 1998) (unpublished).   And, of course,

 8   all criminal defendants may pursue a direct appeal--whether

 9   or not they remain in jail--through the state court system

10   and on to the Supreme Court of the United States.   Supreme

11   Court review is itself “sufficient to preserve the role of

12   the federal courts as the ultimate guardians of federally

13   guaranteed rights.”   Waste Mgmt. of Wis., Inc. v. Fokakis,

14   
614 F.2d 138
, 141 (7th Cir. 1980).   Under any circumstance,

15   then, the convicted criminal has post-release remedies

16   available in both federal and state court.9


     defect that pervades its entire analysis: a willingness to
     view this case through the eyes of a concurring opinion
     rather than the opinion of the Court.
         9
            Additionally, a convict may seek a writ of error
     coram nobis from the court that rendered judgment against
     him--here, the New York Supreme Court. See United States v.
     Morgan, 
346 U.S. 502
, 507 n.9 (1954); Finkelstein v.
     Spitzer, 
455 F.3d 131
, 133-34 (2d Cir. 2006). If
     successful, he may then pursue damages under § 1983.
          To the extent that the majority relies on an implicit
     notion that New York courts are inadequate protectors of
     Poventud’s federal rights, I disagree for several reasons.
     [1] It was the New York Supreme Court that overturned
     Poventud’s original conviction on Brady grounds, a ruling
                                   22
 1       The majority opinion falls victim to the judicial

 2   fallacy of viewing the ramifications of any legal principle

 3   through the single prism of the plaintiff’s interests.   But

 4   it should be obvious that important interests are dis-served

 5   when every prosecutor and every police officer remains

 6   subject to suit for acts alleged to have happened years and

 7   decades in the past, after memory fades, witnesses move on,

 8   and evidence is discarded.   The worse the crime for which

 9   the plaintiff was convicted, the longer the sentence, and

10   thus the worse the peril for public officials, who may years

11   later no longer be indemnified or defended.

12       The majority opinion likewise disadvantages the class

13   of persons who achieve vacatur of their convictions.

14   Allowing defendants to seek damages under § 1983 after

15   pleading guilty would create an incentive for prosecutors to

16   retry the case rather than offer a plea based on time

17   served.   Cf. Olsen v. Correiro, 18
9 F.3d 52
, 69 (1st Cir.


     that was quite solicitous given that the evidence withheld
     was arguably inculpatory (or, at best, a wash). [2] It
     would be unwise “to base a rule on the assumption that state
     judges will not be faithful to their constitutional
     responsibilities.” Huffman v. Pursue, Ltd., 
420 U.S. 592
,
     611 (1975). [3] Plaintiffs may be able to file a § 1983
     action seeking an injunction against any individuals who are
     impeding their efforts to appeal a conviction. See Hoard v.
     Reddy, 
175 F.3d 531
, 533 (7th Cir. 1999) (dismissing § 1983
     claim for damages under Heck because injunction was the
     appropriate remedy where plaintiff alleged that various
     state officials were “illegally blocking his access to state
     postconviction remedies”).
                                   23
 1   1999) (observing that if the court were to recognize a

 2   § 1983 action following a plea of nolo contendere, it would

 3   make prosecutors, faced with the prospect of continuing

 4   litigation and a possible damages award, much less likely to

 5   offer such a deal).   It would also “undermine the finality

 6   of plea bargains and jeopardize society’s interest in a

 7   system of compromise resolution of criminal cases.”   
Id.

 8   Finality is 
a vital principle, not a bureaucratic means of

 9   closing the judicial books.10   The majority opinion offers no

10   appreciable counterweight to these rooted values and vital

11   interests.

12

13                                   VI

14       Even if we were free to prefer Spencer’s dicta to the

15   holding of Heck (not to mention Second Circuit precedent),

16   the narrow exception articulated by Justice Souter would not

17   be applicable here.   As discussed above, the motivating

18   concern in the Spencer dicta was that circumstances beyond

19   the control of a criminal defendant might deprive him of the


         10
            See Custis v. United States, 
511 U.S. 485
, 497 (1994)
     (“‘[I]nroads on the concept of finality tend to undermine
     confidence in the integrity of our procedures’ and
     inevitably delay and impair the orderly administration of
     justice.”) (quoting United States v. Addonizio, 
442 U.S.
     178
, 184, n.11 (1979)). Moreover, “when a guilty plea is at
     issue, ‘the concern with finality served by the limitation
     on collateral attack has special force.’” 
Id. (quoting
     United States 
v. Timmreck, 
441 U.S. 780
, 784 (1979)).
                                     24
 1   opportunity to challenge a federal constitutional violation

 2   in federal court.    Poventud is not such a person.

 3       Poventud challenged his first conviction in state court

 4   and won--making it unnecessary for him to seek federal

 5   habeas relief.    At that point, Poventud had the option of

 6   fighting at a new untainted trial or pleading guilty to the

 7   same crime on reduced charges and accepting a reduced

 8   sentence.    He chose to plead.    Poventud then had the option

 9   of filing a motion to challenge the voluntariness of his

10   plea.    He withdrew it.11   It was therefore by no means

11   “impossible as a matter of law” for Poventud to challenge

12   his conviction and thereby satisfy Heck’s favorable

13   termination requirement, Spencer v. Kemna, 
523 U.S. 1
, 21

14   (1998) (Souter, J., concurring); he simply decided not to.

15       A guilty plea “represents a break in the chain of

16   events which has preceded it in the criminal process,”



         11
             Poventud’s allegations of “gruesome and repetitive
     physical and sexual abuse” in prison are cited by the
     majority, presumably to imply that the government’s plea
     offer, resulting in immediate release, was one that could
     not be refused. Maj. Op. at 4. But it is naive to think
     that any plea is free from powerful pressures and
     influences, and that it is only the exceptional defendant
     who has reason to fear prison. Moreover, this argument is a
     red herring; Poventud withdrew his § 440 motion challenging
     the voluntariness of his guilty plea. However tantalizing
     the government’s offer, Poventud swore in open court that he
     participated in the armed robbery charged in the
     indictment–-which is of course the same crime of which he
     was convicted originally.
                                       25
 1   Tollett v. Henderson, 
411 U.S. 258
, 267 (1973), and is

 2   accorded “a great measure of finality,” Blackledge v.

 3   Allison, 
431 U.S. 63
, 71 (1977).     “When a criminal defendant

 4   has solemnly admitted in open court that he is in fact

 5   guilty of the offense with which he is charged, he may not

 6   thereafter raise independent claims relating to the

 7   deprivation of constitutional rights that occurred prior to

 8   the entry of the guilty plea.”     
Tollett, 411 U.S. at 267
;12

 9   see also United States v. Gregg, 
463 F.3d 160
, 164 (2d Cir.

10   2006) (per curiam) (“[A] guilty plea . . . conclusively

11   resolves the question of factual guilt supporting the

12   conviction, thereby rendering any antecedent constitutional

13   violation bearing on factual guilt a non-issue[.]”).

14   Poventud’s ability to attack his conviction therefore ended

15   when he pled guilty to the hold-up.     Cf. Pouncey v. Ryan,



         12
            The Tollett bar, distinct from the rule in Heck, is
     grounded in collateral estoppel rather than the plaintiff’s
     inability to prove a key element of his claim. See 
Tollett,
     411 U.S. at 267
; United States v. Podell, 
572 F.2d 31
, 35
     (2d Cir. 1978) (“It is well-settled that a criminal
     conviction, whether by jury verdict or guilty plea,
     constitutes estoppel in favor of the United States in a
     subsequent civil proceeding as to those matters determined
     by the judgment in the criminal case.”). Certainly, some
     analytical overlap exists, and in this arena too the Supreme
     Court has rejected the notion that a federal remedy must be
     available to criminal defendants seeking to challenge state
     convictions. See Migra v. Warren City Sch. Dist. Bd. of
     Educ., 
465 U.S. 75
, 84 (1984) (Ҥ 1983 did not open the way
     to relitigation of an issue that had been determined in a
     state criminal proceeding[.]”).
                                  26
 1   
396 F. Supp. 126
, 128 (D. Conn. 1975) (Newman, J.) (relying

 2   on the “settled rule of law” that a civil suit may not be

 3   used to attack a criminal conviction and rejecting

 4   plaintiffs’ attempt “to undermine the finality that must be

 5   accorded the tactical decision the plaintiffs made in

 6   tendering their pleas of guilty”); Molina-Aviles v. Dist. of

 7   Columbia, 
797 F. Supp. 2d 1
, 6-7 (D. D.C. 2011)13 (dismissing

 8   § 1983 claims following guilty pleas because plaintiffs had

 9   opportunities to challenge their pleas but instead filed

10   damages claims, “thereby undermining Plaintiffs’ argument

11   that Spencer applies because there are no habeas-type

12   procedures available”).14

         13
            The Molina-Aviles court also held that “the fractured
     group of five concurring and dissenting Justices in Spencer
     cannot be found to have overruled the majority decision in
     Heck.” 
Molina-Aviles, 797 F. Supp. at 5-6
. Up to this
     point, Molina-Aviles is the only decision within the D.C.
     Circuit to reach this issue.
         14
            See also Domotor v. Wennet, 
630 F. Supp. 2d 1368
,
     1380 (S.D. Fla. 2009) aff’d, 356 F. App’x 316 (11th Cir.
     2009) (Heck applied where the plaintiff, although no longer
     in custody, “entered into a plea agreement with knowledge of
     all or substantially all of the allegations that now form
     the basis of a § 1983 action for damages”); Lewis v. City of
     Clarksburg, 1:11-CV-192, 
2013 WL 529954
, at *8 (N.D. W. Va.
     Feb. 11, 2013) (internal citation omitted) (defendants, who
     pleaded guilty and then filed § 1983 claim upon release from
     custody, “are not exempt from Heck’s favorable termination
     requirement because their inability to obtain habeas relief
     is self-imposed, and not the consequence of any unforeseen
     turn of the law”). To allow defendants, after pleading
     guilty, to file § 1983 actions that call into question their
     convictions would “enable them to ‘end-run Heck,’ and, at
     bottom, would confer on them the benefit of their plea
     bargain while shielding them from its consequences.” Lewis,
     
2013 WL 529954
, at *8 (internal citation omitted).
                                  27
 1       The majority hedges on this point: “Poventud’s guilty

 2   plea may (or may not) supply defendants with a defense[.]”

 3   Maj. Op. at 9.     But a valid outstanding conviction does

 4   supply defendants with a defense--one that is complete and

 5   categorical.     See 
Heck, 512 U.S. at 489
; Cameron v. Fogarty,

 6   
806 F.2d 380
, 389 (2d Cir. 1986).

 7       Additionally, it cannot matter that Poventud’s guilty

 8   plea was to a lesser charge.    The question remains whether

 9   success on Poventud’s § 1983 claim would necessarily imply

10   the invalidity of the outstanding conviction.      Heck, 
512

11   U.S. at 487
.     “[I]f a criminal conviction arising out of the

12   same facts . . . is fundamentally inconsistent with the

13   unlawful behavior for which section 1983 damages are sought,

14   the 1983 action must be dismissed.”      Smith v. City of Hemet,

15   
394 F.3d 689
, 695 (9th Cir. 2005) (in banc) (citation and

16   quotation marks omitted).

17       Several courts of this Circuit have dismissed § 1983

18   claims that sought damages for unlawful incarceration after

19   the plaintiffs (like Poventud) pled guilty to lesser charges

20   and were released from custody.      For example, in McNeill v.

21   People of City & State, No. 06-CV-4843 (NGG), 
2006 WL

22 
  3050867 (Oct. 24, 2006), summarily aff’d, 242 F. App’x 777

23   (2d Cir. 2007), the vacatur of plaintiff’s conviction for

24   (inter alia) murder in the second degree was followed by his

25   plea of guilty to assault (to avoid retrial) and his

                                     28
 1   immediate release.     
Id. at *1.    The 
district court, citing

 2   Heck, dismissed the plaintiff’s § 1983 claims alleging false

 3   arrest, false imprisonment, and malicious prosecution.       
Id.

 4   This Court 
affirmed, with no opinion needed to do so,

 5   because although “[a]ppellant’s state court conviction was

 6   vacated, his subsequent guilty plea stands as a bar, under

 7   Heck, to a § 1983 action.”     McNeill v. People of City &

 8   State of N.Y., 242 F. App’x 777, 778 (2d Cir. 2007).

 9       District Judge Sotomayor (as she was then) reached a

10   similar conclusion in Papeskov v. Brown, and this Court

11   agreed.     No. 97 Civ. 5351(SS), 
1998 WL 299892
, at *5

12   (S.D.N.Y. June 8, 1998), summarily aff’d, 
173 F.3d 845 
(2d

13   Cir. Apr. 23, 1999) (dismissing § 1983 action brought by

14   former inmate who was charged with assault and criminal

15   possession of a weapon and pled guilty to harassment); see

16   also Stein v. Cnty. of Westchester, N.Y., 
410 F. Supp. 2d

17 
  175, 179 (S.D.N.Y. 2006) (dismissing § 1983 action brought

18   by former inmate who successfully challenged conviction for,

19   inter alia, rape and sodomy, later pled guilty to

20   endangering the welfare of a child, and filed suit upon

21   release).

22       These cases, non-binding as they are, nevertheless

23   reflect the continued vitality of the Cameron line of

24   precedent.     McNeill is especially persuasive as a close

25

                                     29
 1   analog; and both of my colleagues in the majority on the

 2   present panel sat on the panel in McNeill.

 3       The majority relies on other courts’ opinions in cases

 4   that bear no resemblance whatsoever to the present.     See

 5   Maj. Op. at 9 n.2 (citing Smith v. Gonzales, 
222 F.3d 1220
 6   (10th Cir. 2000) (holding that Heck was inapplicable where

 7   court vacated defendant’s conviction and government filed

 8   nolle prosequi indicating that it would not prosecute

 9   defendant’s case further); Davis v. Zain, 
79 F.3d 18
, 19

10   (5th Cir. 1996) (holding that Heck was inapplicable where

11   court vacated defendant’s conviction, defendant filed § 1983

12   action while second trial was pending, and court found it

13   “highly unlikely that Davis’s § 1983 suit will implicate the

14   validity of his pending retrial”)).   The majority’s labored

15   search for support is telling.15

16       Some cases may present a difficult question as to

17   whether the § 1983 action is fundamentally inconsistent with

18   the defendant’s guilty plea.   Cf. DiBlasio v. City of N.Y.,

19   
102 F.3d 654
, 659 (2d Cir. 1996) (Jacobs, J., concurring)

20   (observing that a conviction on a lesser charge of drug

21   possession might not bar the plaintiff’s malicious

         15
            The majority observes that “at the time he pled
     guilty Poventud was aware of the Brady violation on which
     his present lawsuit is based.” Maj. Op. at 9 n.2. This
     statement is puzzling. Of course Poventud was aware of the
     alleged Brady violation; his conviction had just been
     overturned on that basis. Surely the point is that he chose
     to plead guilty to the crime rather than face retrial.
                                    30
 1   prosecution claim for drug trafficking).16   A fact-intensive

 2   inquiry may sometimes be needed, see Covington v. City of

 3   New York, 
171 F.3d 117
, 122 (2d Cir. 1999), but Poventud’s

 4   allocution is clear enough:

 5            [THE COURT:]        In this case it’s charged that
 6                           on or about March 6, 1997, at
 7                           approximately 8:40 in the evening, in
 8                           the area of Oliver Place and Marion
 9                           . . . Avenue here in the County of
10                           the Bronx, you did attempt to steal
11                           personal property from another person
12                           by using force, in that you used a
13                           weapon in your attempt to steal
14                           personal property.
15
16                                 Are those charges true?
17
18            THE DEFENDANT:       Yes.
19
20   A 93.

21       Poventud’s guilty plea placed him at the scene of the

22   crime of which he was originally convicted, at the same time



         16
            United States v. Gregg, 
463 F.3d 160
, 163-65 (2d Cir.
     2006) (per curiam) offers another helpful contrast. There,
     we considered whether a defendant’s guilty plea to a state
     charge of criminal impersonation barred him from raising a
     Fourth Amendment challenge to a federal firearms charge
     arising from the same events. 
Id. at 162. Because 
the
     firearm seizure “simply was not at issue” when the defendant
     pleaded guilty to criminal impersonation, his guilty plea
     did not bar a subsequent challenge to the search. 
Id. at
     166. However, 
“were Gregg challenging . . . the discovery
     of the evidence supporting the criminal impersonation charge
     to which he pled guilty, then . . . Gregg’s Fourth Amendment
     claims would be foreclosed.” 
Id. (emphasis added).
          If 
Poventud had pled guilty to an unrelated charge, or
     if his § 1983 claim had alleged unrelated police misconduct,
     then Poventud’s § 1983 action might not have undermined his
     plea, making the case arguably more akin to Gregg and
     DiBlasio.
                                    31
 1   of the same day, wielding a weapon, and holding up the

 2   victim.   Poventud’s § 1983 action calls that conviction and

 3   plea into question, challenging the victim’s identification

 4   of him as one of his attackers, and asserting that Poventud

 5   “spent the entire evening of March 6, 1997, through the

 6   morning of March 7, 1997, at the home of his friend . . .

 7   playing video games.    He was never anywhere near the

 8   vicinity of Oliver Place and Marion Avenue, where the

 9   shooting occurred.”    A 106.   Success on Poventud’s § 1983

10   action “would necessarily imply the invalidity” of his

11   outstanding conviction.     
Heck, 512 U.S. at 487
.     It is

12   therefore barred by Heck.

13                               *   *    *

14       The final section of the majority opinion introduces

15   the idea that Poventud’s suit calls into question only his

16   first conviction, not his second.        See Maj. Op. at 14-16.

17   As I have already shown, Poventud’s claim is premised on his

18   innocence of a crime to which he pled guilty.        See supra at

19   32-33.    Accordingly, it is foreclosed by Heck, which bars

20   both an action to recover damages for unconstitutional

21   conviction or confinement, as well as an action “that does

22   not seek damages directly attributable to conviction or

23   confinement but whose successful prosecution would

24   necessarily imply that the plaintiff’s criminal conviction

25   was wrongful.”   
Heck, 512 U.S. at 487 
n.6.       Poventud’s claim

                                     32
 1   does both: [i] he seeks damages directly attributable to his

 2   confinement, and [ii] success on his claim would necessarily

 3   imply that his conviction (by guilty plea) was wrongful.

 4   Poventud cannot evade this fact by “‘[s]eeking damages only

 5   for punishment he suffered in excess of the one-year

 6   imprisonment he accepted as part of his plea.’”   Maj. Op. at

 7   15 (quoting Appellant Br. 32).

 8       Turning elsewhere, the majority posits the hypothetical

 9   of a defendant who is tortured, then confesses, then

10   successfully challenges his conviction, then pleads guilty

11   prior to retrial (under no compulsion), and is then released

12   from prison.   I have three short responses:

13       •    Such a defendant would not need to rely on § 1983

14            because he could pursue intentional tort claims

15            against the offending officers--state or federal.

16            See N.Y. Ct. Cl. Act § 8 (McKinney) (waiving

17            sovereign immunity); Millbrook v. United States,

18            
133 S. Ct. 1441
, 1446 (2013) (holding that waiver

19            of sovereign immunity under Federal Tort Claims Act

20            for intentional acts committed by federal law

21            enforcement was not limited to investigative

22            activities).

23       •    I agree with the majority that “the claim for

24            damages for torture [would] in no way undercut[]

25            the second, and only existing, conviction and hence

                                   33
 1       [would] in no way [be] barred by Heck,” Maj. Op. at

 2       15.   That is because a claim for torture damages

 3       would not necessarily imply the invalidity of the

 4       defendant’s conviction.   Cf. Jackson v. Suffolk

 5       Cnty. Homicide Bureau, 
135 F.3d 254
, 257 (2d Cir.

 6       1998) (holding that Heck did not bar Fifth

 7       Amendment claim for excessive force because “a

 8       finding that excessive force had in fact been used

 9       would not necessarily require invalidation of the

10       conviction”).   However, what the defendant

11       categorically may not do is seek damages for

12       “unlawful” confinement for criminal conduct that he

13       freely admitted.

14   •   The majority opinion thus illustrates the hazard of

15       creating constitutional law under the influence of

16       a seminar hypothetical.




                              34