Filed: May 19, 2011
Latest Update: Feb. 21, 2020
Summary: GLD-177 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-1550 _ GREGORY THOMAS, Appellant v. HONORABLE DARNELL C. JONES, II; THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY; HONORABLE D. WEBSTER KEOGH, Administrative Judge of the Court of Criminal Justice Center; MAYOR OF THE CITY OF PHILADELPHIA; THE CITY OF PHILADELPHIA _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 10-cv-02246) District Judge: Honorable
Summary: GLD-177 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-1550 _ GREGORY THOMAS, Appellant v. HONORABLE DARNELL C. JONES, II; THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY; HONORABLE D. WEBSTER KEOGH, Administrative Judge of the Court of Criminal Justice Center; MAYOR OF THE CITY OF PHILADELPHIA; THE CITY OF PHILADELPHIA _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 10-cv-02246) District Judge: Honorable ..
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GLD-177 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1550
___________
GREGORY THOMAS,
Appellant
v.
HONORABLE DARNELL C. JONES, II; THE COURT OF COMMON PLEAS OF
PHILADELPHIA COUNTY; HONORABLE D. WEBSTER KEOGH, Administrative
Judge of the Court of Criminal Justice Center; MAYOR OF THE CITY OF
PHILADELPHIA; THE CITY OF PHILADELPHIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 10-cv-02246)
District Judge: Honorable Joseph H. Rodriguez
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 5, 2011
Before: AMBRO, CHAGARES AND GREENBERG, Circuit Judges
(Opinion filed: May 19, 2011)
_________
OPINION
_________
PER CURIAM
Pro se appellant Gregory Thomas appeals the District Court’s order dismissing his
complaint. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard
of review. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.
2009). Because this appeal presents no substantial question, we will summarily affirm
the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
In 1989, Thomas was convicted in the Philadelphia Court of Common Pleas of
first- and second-degree murder and sentenced to two concurrent terms of life
imprisonment. The Pennsylvania Superior Court affirmed the judgment, and the
Pennsylvania Supreme Court denied Thomas’s petition for allowance of appeal. The
Pennsylvania courts likewise denied relief to Thomas on collateral review. Thomas then
filed a petition under 28 U.S.C. § 2254, in which he alleged, among other things, that his
trial counsel was ineffective. The United States District Court for the Eastern District of
Pennsylvania denied Thomas’s petition, and we declined to issue a certificate of
appealability.
In 2010, Thomas filed the instant complaint under 42 U.S.C. § 1983. He alleged
that he had been denied effective assistance of counsel during his criminal trial in
violation of his Fifth, Sixth, and Fourteenth Amendment rights. According to Thomas,
the fee schedule for court-appointed counsel in Philadelphia — a schedule that he claims
the defendants, collectively, created and administer — is grossly inadequate. Thomas
contends that due to a lack of funds, his trial counsel was unable to hire a private
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investigator or otherwise perform an appropriate pretrial investigation.1
The District Court dismissed Thomas’s complaint. The Court concluded that
because success on the merits of Thomas’s claims would imply the invalidity of his state
conviction, they were barred by Heck v. Humphrey, 512 U.S. 477 (1994). The Court
further determined that to the extent that Heck did not bar Thomas’s claims, the statute of
limitations did, because while § 1983 is subject to a two-year limitations period, see
Smith v. Holtz,
87 F.3d 108, 111 n.2 (3d Cir. 1996), Thomas’s allegations concerned
events that occurred over 20 years ago. Thomas then filed a timely notice of appeal.
We will affirm the District Court’s order. We agree with the Court that, insofar as
Thomas seeks damages for his counsel’s alleged ineffectiveness, his claim is barred by
Heck. Under Heck, “a prisoner does not have a cognizable § 1983 claim, even if he or
she does not seek relief from the fact or duration of confinement, for alleged
unconstitutional conduct that would invalidate his or her underlying sentence or
conviction unless that conviction has already been called into question.” Grier v. Klem,
591 F.3d 672, 677 (3d Cir. 2010). A meritorious ineffective-assistance-of-counsel claim
requires the movant to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland
v. Washington,
466 U.S. 668, 694 (1984). Thus, as the District Court concluded, a
1
We note that Samuel Stretton, an attorney, filed a similar complaint in the District
Court in 2008. See Civ. A. No. 08-01711. Thomas filed a motion to intervene in that action,
which Stretton opposed and the District Court denied. Thomas then filed a near carbon copy of
Stretton’s complaint in his own name. On June 3, 2010, the District Court granted Stretton’s
unopposed motion to withdraw his complaint.
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judgment in Thomas’s favor on his ineffective-assistance-of-counsel claim would
necessarily imply the invalidity of his conviction. See Trimble v. City of Santa Rosa, 49
F.3d 583, 585 (9th Cir. 1995) (per curiam); Boyd v. Biggers,
31 F.3d 279, 283 (5th Cir.
1994) (per curiam). And, because Thomas’s only previous challenges to his conviction
have been unsuccessful, his claim is not cognizable under § 1983 at this time. See
Hadley v. Werner,
753 F.2d 514, 516 (6th Cir. 1985) (per curiam) (so holding in case
challenging the alleged underfunding of the court-appointed-counsel system).
In addition to seeking damages for his past harm, Thomas seeks prospective relief
— a declaratory judgment that the current reimbursement system for court-appointed
counsel is unconstitutional and an injunction requiring the defendants to raise the
reimbursement rates. However, to have standing to bring these types of claims, Thomas
must show that “he has sustained or is immediately in danger of sustaining some direct
injury as the result of the challenged official conduct and the injury or threat of injury
must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles
v. Lyons, 461 U.S. 95, 101-02 (1983) (internal quotation marks omitted). “Past exposure
to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief[.]” O’Shea v. Littleton,
414 U.S. 488, 495-96 (1974).2
Thus, Thomas has standing for these claims only if he can show that the
2
While Thomas is still in prison, his “continuing incarceration cannot serve as a
basis for standing in an action brought under § 1983” in these circumstances. Brown v. Fauver,
819 F.2d 395, 400 n.5 (3d Cir. 1987).
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challenged fee schedule “will produce imminent injury” to him. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 564 (1992). Critically, in considering the likelihood of future
injury, the Supreme Court has “been unwilling to assume that the party seeking relief will
repeat the type of misconduct that would once again place him or her at risk of that
injury.” Honig v. Doe,
484 U.S. 305, 320 (1988). Thus, we will not assume that Thomas
will again face criminal charges and require court-appointed defense counsel — a
conclusion that is reinforced by the fact that he is serving a life sentence. Nor is it
apparent that Thomas will have counsel appointed for state collateral proceedings. While
Thomas was entitled to counsel for his first round of PCRA proceedings (which he has
already litigated), Pennsylvania extends no such guarantee to any subsequent petition that
Thomas may file. See Pa. R. Crim. P. 904. Thomas has thus failed to show that he faces
a real and immediate threat of being injured by Pennsylvania’s attorney-compensation
system. See Gardner v. Luckey,
500 F.2d 712, 714-15 (5th Cir. 1974) (“The prospect of
future injury rests upon the likelihood that the plaintiffs named in the complaint will
pursue further state court proceedings of a type that are within the statutory scope of duty
of the Public Defender. We regard this as too speculative.” (internal citation omitted)).
Accordingly, he lacks standing to prosecute his claims for prospective injunctive and
declaratory relief.
Finally, we discern no error in the District Court’s conclusion that it would be
futile to permit Thomas to amend his complaint. See Phillips v. County of Allegheny,
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515 F.3d 224, 236 (3d Cir. 2008). Thomas’s claims fail as a matter of law, and he could
not cure these deficiencies with further pleading.
We will thus summarily affirm the District Court’s order dismissing Thomas’s
complaint. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We also deny Thomas’s request for the
appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).
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