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Ninth Circuit: “Three Strike” Conviction Does Not Allow Use of Old Offenses for Impeachment Purposes in § 1983 Suit; Heck Does Not Bar Admission of Evidence

Ninth Circuit: “Three Strike” Conviction Does Not Allow Use of Old Offenses for Impeachment Purposes in § 1983 Suit; Heck Does Not Bar Admission of Evidence

by John E. Dannenberg

In a case of first impression, the Ninth Circuit U.S. Court of Appeals held that when defending against a prisoner’s excessive force civil rights lawsuit, prison officials could not impeach the prisoner with evidence of his three prior convictions (which were more than 10 years old) by arguing that his current prison sentence, enhanced under California’s Three Strikes law, extinguished the 10-year exclusion provided by Federal Rules of Evidence § 609(b).

The Court of Appeals further held that the district court could not bar the prisoner’s use of evidence that was contrary to his underlying disciplinary conviction, because Heck v. Humphrey, 512 U.S. 477 (1994) did not create a rule of evidence exclusion.

Gary Simpson was serving a five-year term for robbery, enhanced by the Three Strikes law with an additional 13 years for having three prior felonies. Two years into his sentence, he had an altercation with prison guards after they ordered him to remove a covering from his cell window. As often occurs in such cases, Simpson’s version of the events differed substantially from that of the guards, and he filed a civil rights suit that alleged excessive force.

At trial (where he lost), the defendants impeached Simpson by introducing evidence of his three prior felonies. Over his objections, the district court permitted the impeachment as an exception to the 10-year exclusion of Rule 609(b) on the grounds that “those prior strikes were not and do not wash out under state law.” Additionally, the court barred Simpson from introducing evidence that he had acted in self defense after a guard punched him first, because under Heck that would necessarily imply the invalidity of his disciplinary conviction (and 150-day loss of good time credit). Simpson appealed.

The Ninth Circuit rejected the bootstrapping of the Three Strikes law so as to expose Simpson to the use of his 10-year¬-old prior convictions as impeachment evidence. The Court relied upon the express language of § 609’s 10-year safe harbor provision “for confinement ‘imposed for that conviction.’” This, the appellate court reasoned, could not be held to refer to a new crime whose punishment was merely increased by the history of the priors. The plain meaning of “that conviction” was the prior itself, and nothing that subsequently resulted due to that conviction could be imputed under § 609.

As to Simpson’s unsuccessful attempt to argue the facts of the case as evidence in support of his § 1983 claims, the Ninth Circuit concluded that Heck was never intended to create an evidence-exclusion rule. Rather, Heck merely held that a plaintiff could not make out a suit for damages if the necessary conclusion of an award of damages imputed the invalid-ity of a prior disciplinary conviction resulting in loss of good time.

Heck held that to raise such an argument, a plaintiff was constrained to first obtain a reversal of the underlying disciplinary conviction via a direct appeal or writ of habeas corpus. Failure to do so would allow a prisoner to circumvent restrictive appellate and habeas procedures to make an “end run” on such claims through § 1983.

Here, the Ninth Circuit concluded that under relevant U.S. Supreme Court case law, Heck addressed nothing more than whether a claim itself was viable, not whether evidence was admissible. Or, restating the principle another way, “evidence is not barred merely because a claim may be.”

Because the district court had improperly admitted impeachment evidence and improperly barred potentially exculpatory evidence, the Court of Appeals reversed and remanded for a new trial. See: Simpson v. Thomas, 528 F.3d 685 (9th Cir. 2008).

Following remand, on December 19, 2008 the district court taxed the costs of the appeal, in the amount of $1,386, against the defendants. The court also held that if the $455 appellate filing fee was deducted from Simpson’s prison trust account, “those costs are to be taxed against Defendant as well.” See: Simpson v. Thomas, 2008 U.S. Dist. LEXIS 105633.

On May 11 2009, the district court denied the defendant’s motion for summary judgment, which argued that Simpson’s claim should have been barred in its entirety under Heck. The court found that “[e]ven if Defendant acted unlawfully by using excessive force, Plaintiff could still have been guilty of [his disciplinary conviction for] battery if Plaintiff also used excessive force.” In other words, if Simpson prevailed on his excessive force claim, that finding would not necessarily invalidate his prior disciplinary conviction, thereby avoiding the limitations imposed by Heck. See: Simpson v. Thomas, 2009 U.S. Dist. LEXIS 39945.

The retrial in this case has not yet been held. Simpson is ably represented by attorney Carter White of the University of California, Davis School of Law Civil Rights Clinic.

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Related legal cases

Simpson v. Thomas

GARY SIMPSON, Plaintiff, v. SERGEANT THOMAS, et al., Defendants.

No. 2:03-cv-00591-MCE-GGH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2009 U.S. Dist. LEXIS 39945


May 11, 2009, Decided
May 12, 2009, Filed

MEMORANDUM AND ORDER

Prior to Plaintiff's original trial in this excessive force action, this Court granted Defendant's Motion in Limine, filed pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), to exclude evidence that Plaintiff may have acted in self defense. The Ninth Circuit reversed determining that the Heck doctrine acted not as a rule of evidence, but as a complete bar to § 1983 claims. Accordingly, Thomas has now moved for summary judgment arguing that Plaintiff's § 1983 claim is barred in its entirety. For the following reasons, Defendants' Motion is denied. 1

FOOTNOTES

1 Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 78-230(h).


BACKGROUND

[*2] 2

FOOTNOTES

2 The facts pertinent to the disposition of the instant Motion are undisputed.


1. Factual Background

While incarcerated, Plaintiff allegedly failed to comply with a repeated direct order to remove a window covering. An altercation ensued during which Plaintiff took Defendant down by the neck and managed to wrestle Defendant's pepper spray away from him. Plaintiff alleges that Defendant threw the first punch.

A Rule Violation Report was issued against Plaintiff relative to the event. Plaintiff defended, claiming he battered Defendant only in self-defense. Following an investigation and hearing, Plaintiff was found guilty of battery and was assessed 150 days of Behavioral Credit Forfeiture, in effect lengthening his sentence. Simpson has not invalidated the loss of credits resulting from his disciplinary hearing.

2. Procedural Background

Plaintiff eventually filed this § 1983 excessive force action against Defendant. Prior to trial by jury, Defendant filed a Motion in Limine seeking to exclude Plaintiff's proffered testimony that Defendant had punched Plaintiff upon entering the cell, and that Plaintiff's subsequent actions were in self-defense.

Pursuant to Heck, this Court granted Defendant's [*3] motion and excluded any evidence or testimony that Plaintiff acted in self-defense, explaining that such evidence would invalidate the finding of guilt in Plaintiff's prison disciplinary proceeding. Accordingly, the Court found that Plaintiff was barred from raising any legal theory at trial which would necessarily invalidate the finding of guilt at his disciplinary hearing and resultant loss of good-time credits. The sole issue Plaintiff was allowed to raise was whether Defendant used excessive force in response to Plaintiff's assault.

Trial resulted in a jury verdict in favor of Defendant, and this Court denied Plaintiff's subsequent Motion for New Trial. Plaintiff appealed, and the Ninth Circuit reversed and remanded for a new trial. Simpson v. Thomas, 528 F.3d 685, 696 (9th Cir. 2008). The appellate court specifically addressed whether Heck may be used as an evidentiary bar and determined that Heck does not create a rule of evidence exclusion.

Defendant now moves for summary judgment arguing that, for the same reasons the Court originally excluded Plaintiff's evidence of self-defense, his § 1983 claim is now barred in its entirety.

STANDARD

The Federal Rules of Civil Procedure provide [*4] for summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a), (b). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)). If the [*5] moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968).

In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e).

The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether [*6] there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 20 L. Ed. 867 (1871)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ?. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn.

Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

The Heck doctrine addresses [*7] the potential for conflict between § 1983 and 28 U.S.C. § 2254. See Simpson, 528 F.3d at 692. "[A] state prisoner cannot use a § 1983 action to challenge 'the fact or duration of his confinement,' because such an action lies at 'the core of habeas corpus.'" Id. at 693, quoting Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Additionally, prisoners cannot "seek restoration of good-time credits under § 1983 because restoration of good-time credits challenges 'the very fact or duration of their confinement.'" Id., quoting Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, (1974).

To resolve the potential for conflict, the Supreme Court determined in Heck that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-487.

Thus, "the district court must consider whether a judgment [*8] 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. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed." Id. at 487.

Accordingly, under Heck, the crux of the instant dispute turns on whether a finding that Plaintiff is entitled to § 1983 relief based on his excessive force claim will necessarily invalidate his disciplinary conviction and consequent loss of good-time credits. Pursuant to the Ninth Circuit's ruling in Simpson, 528 F.3d 685, reversing this Court's evidentiary ruling, it appears that, if the Court now finds that a successful excessive force claim will not necessarily invalidate Plaintiff's battery conviction, Plaintiff is entitled to put on evidence of self-defense. If, on the other hand, the Court determines a successful § 1983 verdict would necessarily invalidate the disciplinary action, then Plaintiff is foreclosed [*9] from raising the claim at all. For the following reasons, the Court determines that success on Plaintiff's instant claim will not necessarily invalidate his disciplinary proceeding.

First, the self-defense privilege that Plaintiff raised in the course of his administrative proceedings is not absolute. By way of example, Plaintiff could not seek protection under the defense if he had exceeded the scope of force needed to protect himself. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir. 1980) ("The jury could have found either that the self-defense instruction was irrelevant to the resisting arrest charge or that both [plaintiff] and the police officers used excessive force"). According to the record, the hearing officer assigned to Plaintiff's disciplinary action did not state whether Plaintiff's self-defense claim was rejected in its entirety, or whether, for example, that officer instead determined that Defendant struck first, but Plaintiff responded by using more force than was required to protect himself, thus resulting in a non-privileged attack. Indeed, as the Ninth Circuit pointed out in Simpson, "whether [Defendant] punched [Plaintiff] as soon as [Defendant] [*10] entered the cell was not 'an issue of ultimate fact' determined in a valid and final judgment in the prison administrative proceeding." 528 F.3d at 696. Thus it remains unclear from those proceedings under which theory, if either, the officer rejected Plaintiff's self-defense argument. Since Plaintiff could have been convicted of battery even if he had initially acted in self-defense, and since it is not clear from the record that such was not the case, Plaintiff's instant claim is not barred.

Nevertheless, Defendant argues that this circuit has refused to allow § 1983 excessive force claims to proceed under Heck.

However, the case law allegedly supporting his proposition arose in the context of underlying convictions for, inter alia, felony murder and resisting arrest. See Cunningham v. Gates, 312 F.3d 1148, 1154 (9th Cir. 2003); Smith v. City of Hemet, 394 F.3d 689, (9th Cir. 2005). To be found guilty of felony murder required a finding that the civil Plaintiff had committed an "intentional provocative act," which was defined, in part, as "not in self-defense." Cunningham, 312 F.3d at 1152. Likewise, conviction for resisting arrest required that the defendant officer have lawfully [*11] effectuated the arrest. Smith, 394 F.3d at 695. Thus, a finding that an officer used excessive force in either of those scenarios would have necessitated a finding that either the civil plaintiff was not acting in self-defense at the time of the pertinent altercation or that the officer acted unlawfully in arresting that individual. Both findings would negate the relevant underlying crimes. 3

FOOTNOTES

3 The only other factual scenario raised in a case on which Defendant relies involved a plaintiff, who pled nolo contendere to a battery charge, then filed an excessive force claim, and attempted to argue he had remained entirely passive during the events giving rise to his civil cause of action. Frost v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 37453 (N.D. Cal.). The Frost court noted that the plaintiff's "version of events, if believed sufficiently to find Defendants liable for excessive force, would call into question the very basis of [p]laintiff's battery conviction. Alternatively, if a jury were to find that Plaintiff did strike officers, but only in self-defense, that finding would also necessarily imply the invalidity of Plaintiff's battery conviction because by pleading nolo [*12] contendere Plaintiff waived any defenses." 2006 U.S. Dist. LEXIS 37453 at *9. The instant case is factually distinguishable because Plaintiff never claimed to have remained passive during the pertinent altercation, nor did he waive his defense at any point.


That is simply not true in the instant case. Even if Defendant acted unlawfully by using excessive force, Plaintiff could still have been guilty of battery if Plaintiff also used excessive force. See Hernandez, 624 F.2d at 937-938; see also Lockett v. Suardini, 526 F.3d 866, 873 (6th Cir. 2008) (Defendants "conceded at oral argument that [plaintiff's] Eighth Amendment excessive-force claim [was] not barred by Heck because [plaintiff's] disruptive and threatening behavior?would not justify the allegedly excessive force that [plaintiff] was subjected to, even if [plaintiff] was in fact guilty of assault."); Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000) (noting in dicta that "[i]n general, the federal courts hold that Eight Amendment claims do not run afoul of Heck because the question of the degree of force used by a police or corrections officer is analytically distinct from the question whether the Plaintiff violated the law."). Accordingly, a verdict [*13] in favor of Plaintiff on the excessive force claim does not necessarily invalidate his disciplinary conviction.

Finally, the Court observes that while it originally held that Heck operated to bar Plaintiff's proffered evidence of self-defense, the Court also implicitly determined that, on the instant facts, success on Plaintiff's excessive force claim itself would not necessarily have invalidated Plaintiff's underlying disciplinary conviction. Otherwise, the Court would have barred Plaintiff's claim in its entirety. See Order Denying Plaintiff's Motion for New Trial, 4:11-16 (June 8, 2007).

Moreover, in his original Motion in Limine, Defendant conceded as much when he stated, "[A] judgment in Simpson's favor as to Sergeant Thomas' use of force subsequent to Simpson assaulting him would not necessarily invalidate the findig [sic] of guilt at Simpson's disciplinary hearing and resultant loss of good-time credits for assaulting Sergeant Thomas." Defendant's Motion in Limine, 15:6-9 (Feb. 7, 2007). At that time, Defendant chose not to challenge Plaintiff's claim in its entirety, and instead relied on Heck only as a purported evidentiary bar. Nevertheless, Defendant now seeks to make the [*14] leap from his narrow assertion that limited evidence should have been excluded to the argument that Plaintiff's entire claim is barred. For each of above reasons, the Court simply cannot make that leap.

CONCLUSION

Accordingly, Defendant's Motion for Summary Judgment (Docket No. 259) is DENIED.

IT IS SO ORDERED.

Dated: May 11, 2009

/s/ Morrison C. England, Jr.


UNITED STATES DISTRICT JUDGE

Simpson v. Thomas

GARY SIMPSON, Plaintiff-Appellant, v. Sergeant JEFFREY THOMAS, Defendant-Appellee.

No. 07-16228

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

528 F.3d 685; 2008 U.S. App. LEXIS 12418; 76 Fed. R. Evid. Serv. (Callaghan) 928

April 16, 2008, Argued and Submitted, San Francisco, California
June 11, 2008, Filed

OPINION


[*686] TROTT, Circuit Judge:

Gary Simpson filed suit under 42 U.S.C. § 1983 alleging that Sergeant Jeffrey Thomas, a corrections officer at the California Medical Facility ("CMF") state prison in Vacaville, California, used excessive force after Simpson did not comply with [*687] Thomas's orders. For impeachment purposes, the district court admitted evidence of Simpson's three prior convictions more than ten years old pursuant to Federal Rule of Evidence 609(b), explaining that because his prior convictions were utilized pursuant to California's Three [**2] Strikes Law to enhance his current sentence, "those prior strikes were not and do not wash out under state law." Additionally, pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), the district court excluded any evidence or testimony that Simpson acted in self-defense after Thomas allegedly punched him, explaining that such evidence would invalidate the finding of guilt in Simpson's prison disciplinary proceeding.

After a jury trial resulted in a verdict in Thomas's favor, Simpson filed a motion for a new trial, which the district court denied. Simpson v. Thomas, No. 2:03-CV-00591, 2007 U.S. Dist. LEXIS 44070, 2007 WL 1687092 (E.D.C.A. June 8, 2007).

We have jurisdiction pursuant to 18 U.S.C. § 1291, and we reverse and remand for a new trial. We hold that the use of prior convictions older than ten years to enhance a sentence for a separate conviction pursuant to California's Three Strikes Law does not bring those prior convictions within the ten year time limit of Federal Rule of Evidence 609. Additionally, we hold that Heck does not create a rule of evidence exclusion and therefore may not be used to bar relevant evidence.

I

BACKGROUND

A. Factual Background

In May of 2000, Simpson pled nolo contendere to second degree [**3] armed robbery. He was sentenced to 216 months in state prison. The sentence included 60 months for the armed robbery plus a 156 month enhancement for his prior felonies.

This case arises out of an altercation on March 22, 2002, between Simpson and Thomas while Simpson was a prisoner at CMF. Both parties agree that Simpson refused to immediately comply with Thomas's order to remove a sheet from his cell window. After Simpson refused to remove the sheet, Officer Michael Webb unlocked the cell door, and Thomas entered the cell. The parties dispute what happened next.

1. Simpson's Testimony

Simpson testified that he got down off his bunk when Thomas asked him to, but refused to "turn around and cuff up." Simpson said that Thomas called him a profane name, took out his pepper spray, and threatened to use the spray. Simpson turned around and told Thomas he did not need to use the pepper spray. As Simpson turned around, "a struggle ensued" and Webb pepper sprayed both Simpson and Thomas. Eventually, Simpson "had [Thomas] by the neck . . . and took him down to [Simpson's cellmate's] bunk." During the struggle, Simpson grabbed Thomas's pepper spray and "somehow it got on the floor." After Simpson's [**4] cellmate told Simpson to let Thomas up, Simpson told Thomas, "I'm going to let you go, and I'm going to get up and put my hands behind my back."

When Simpson released Thomas, Thomas grabbed Simpson's hands and "roughed me out of the cell." Once out of the cell, Simpson was getting to the ground when Thomas slammed him down. After he was on the ground, Simpson said Thomas "punched me a few times on the right side of my face."

2. Thomas's Testimony

Thomas testified that he ordered Simpson to come out of the cell, and initially, Simpson complied. Thomas said that [*688] as Simpson moved toward the door, he ordered Simpson to turn around to be handcuffed, but Simpson resisted. Simpson pushed Thomas onto the lower bunk and held him down by the neck. Simpson grabbed Thomas's pepper spray out of his holster and somebody else took it from Simpson. Webb came into the cell and pulled Simpson off of Thomas. Thomas said that Simpson did not voluntarily let him up.

After Webb pulled Simpson off of him, Thomas ordered Simpson out of the cell and onto the ground, but Simpson did not comply. Thomas grabbed Simpson in a bear hug and forced him to the ground. After Simpson was on the ground, Thomas got on Simpson's [**5] back to hold him down and then ordered him to put his hands behind his back. Simpson complied. Thomas denied punching Simpson outside of the cell, but said that he probably hit Simpson when he was trying to get Simpson off of him. Webb testified that Thomas punched Simpson while they were in the cell.

B. The 115 Report

A CMF disciplinary officer reported the incident in a 115 Rules Violation Report ("115 Report"). The hearing officer found Simpson guilty of violating California Code of Regulations tit. 15, § 3005(c) "for the specific act of battery on a Peace Officer." He then assessed Simpson 150 days of behavioral credit forfeiture. The prison referred the case to the Solano County District Attorney for possible felony prosecution, but the D.A. declined to file any charges. Simpson sought habeas relief from the disciplinary hearing, but it was denied as untimely.

C. Motions in Limine

1. Motion One--Rule 609

Prior to the trial in Simpson's § 1983 suit, Simpson filed a motion in limine to exclude evidence of his prior felonies. The district court denied the motion and admitted evidence of three prior felony convictions for: 1) burglary in 1986; 2) possession of narcotics in 1989; and 3) [**6] possession of marijuana in 1993. Although the record does not contain evidence of the exact release dates on each of these convictions, a probation report in the record indicates that all three convictions fall outside the ten-year time limit of Federal Rule of Evidence 609(b). 1

FOOTNOTES

1 In January of 1987, Simpson was sentenced to forty months for the 1986 burglary. In January of 1990, he was sentenced to two years for the 1989 possession conviction. Finally, in March of 1994, he was sentenced to sixteen months for the 1993 marijuana conviction. The trial in the present case took place in March of 2007.


The district court admitted the prior convictions in spite of Rule 609(b)'s ten-year time limit because under California's Three Strikes Law, the prior convictions were "utilized by the sentencing court when they made the determination to give him [the sentence being served at the time of trial]" and thus "those prior strikes were not and do not wash out . . . regardless of the fact that they may be older than ten years." The district court said also that "one of the things that's utilized by the institution to determine the level of security, classification, location . . . is all based on [**7] the plaintiff's prior felony convictions." 2

FOOTNOTES

2 Thomas does not defend the district court's evidentiary ruling on the second ground.


2. Motion Two--Heck v. Humphrey

Simpson sought to testify that Thomas punched him as soon as he entered the cell, and that Simpson's subsequent actions [*689] were in self-defense. Citing Heck, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383, the district court granted Thomas's motion in limine and refused to allow Simpson to testify that Thomas had punched him first because such testimony would invalidate the result of CMF's disciplinary proceeding against Simpson related to the incident. Both the district court and Thomas agreed that "[t]his does not, however, foreclose Simpson from pursuing his allegations that excessive force was used following his assault on Sergeant Thomas."

II

STANDARD OF REVIEW

We review evidentiary rulings for abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). We review de novo a district court's interpretation of the Federal Rules of Evidence. United States v. Sioux, 362 F.3d 1241, 1245 n.5 (9th Cir. 2004). The decision to exclude evidence will be reversed only if it is "more likely than not that the error affected the verdict." United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir. 2000). [**8] We review de novo pure questions of law. United States v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000).

III

DISCUSSION

A. Federal Rule of Evidence 609

1. Three Strikes

We are presented with an issue of first impression: whether prior convictions more than ten years old may be used for impeachment purposes under Federal Rule of Evidence 609 ("Rule 609") if those prior convictions are used to enhance a sentence for a separate conviction that falls within the ten-year time limit of Rule 609(b). We hold that such convictions do not endure for the purposes of Rule 609(b) and therefore are not admissible against the witness, unless the court determines "that the probative value of the conviction supported by specific facts and evidence substantially outweighs its prejudicial effect." See FED. R. EVID. 609(b). Furthermore, we hold that in this case, it is more likely than not that the admission of the convictions affected the verdict, and therefore the case must be remanded for a new trial.

Rule 609(a)(1) provides "evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess [**9] of one year . . . ." Rule 609(a)(1) is subject to the time limit of 609(b). Under 609(b), the evidence of a conviction

is not admissible if a period of more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.



The district court erred in admitting the evidence of Simpson's three prior felony convictions. In United States v. Kaluna, we addressed a challenge to the Federal Three Strikes Provision, 18 U.S.C. § 3559(c)(1). 192 F.3d 1188, 1198-99 (9th Cir. 1999) (en banc). There, we declined to hold that such a provision violated the Double Jeopardy Clause, observing that "the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened [*690] penalty for the latest crime." Id. (internal quotation marks omitted). We believe that this same reasoning applies to California's Three Strikes [**10] Provision, Cal. Penal Code §§ 667, 1170.12. See Allen v. Stratton, 428 F. Supp. 2d 1064, 1078 (C.D. Cal. 2006) (citing Witte v. United States, 515 U.S. 389, 400, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995) and holding that "the use of prior convictions to enhance a later sentence under a recidivism statute, such as [California's] Three Strikes law, does not offend double jeopardy principles. . . .").

In the present case, Simpson's prior convictions enhanced the length of his current conviction under California's Three Strikes Provision. However, Witte, Kaluna, and Allen preclude any conclusion other than that Simpson had already completed his sentence for the prior convictions at the time his current sentence was enhanced. If we were to adopt the district court's position and permit the use of prior convictions older than ten years for impeachment purposes under Rule 609, then the prior convictions would no longer be "a stiffened penalty for the latest crime." Witte, 515 U.S. at 400.

Furthermore, the plain language of 609(b) excludes evidence of a conviction if it has been more than ten years "since the date of the conviction or the release of the witness from the confinement imposed for that conviction." FED. R. EVID. 609(b) [**11] (emphasis added). We see no reason to construe this language to mean anything other than exactly what it says. Although the sentence Simpson was serving at the time of this trial was admissible because that conviction fell within the parameters of Rule 609(b), the three prior convictions were not admissible because, at the time of trial, it had been more than ten years since Simpson was released on the three prior convictions. Thus, those prior convictions did not fall within the plain language of Rule 609(b).

2. Probative Value

Although we conclude that the three prior convictions are more than ten years old as defined in 609(b), they are still admissible if the court determines "that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Id. The committee notes to the 1974 Enactment to Rule 609(b) state:

It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances . . . . requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of conviction substantially [**12] outweighs the prejudicial effect.



The district court said that it did not find that the admission of the prior convictions "would be so prejudicial as to outweigh the probative value." This summary conclusion by the district court was erroneous for three reasons. First, the language used by the district court inverts the requirement of Rule 609(b) by requiring the prejudice to outweigh the probative value. Second, the district court did not offer specific facts and circumstances to support its conclusion, as required by Rule 609(b). Third, the language of the Rule requires that the probative value substantially outweighs the prejudice. 3 Here the district court made no such determination.

FOOTNOTES

3 We note also that our previous cases have set forth a list of factors a district court should consider in a criminal case when determining whether the probative value outweighs the prejudice. "These factors are: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of defendant's testimony; and (5) the centrality of defendant's credibility." United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000). [**13] Nothing in the record indicates that the district court considered any of these factors. Although we have never held that such factors should be considered in a civil case, and do not do so here, we think that, under the circumstances of this case, consideration of these factors by the district court on remand would be appropriate.


[*691] Based on the foregoing, we conclude that the admission of the convictions was an abuse of discretion.

3. Affect on the Outcome of the Trial

In order for us to conclude that the admission of the prior convictions warrants reversal, we must be persuaded that their admission affected the outcome of the trial. Edwards, 235 F.3d at 1178. We have previously held that it was not harmless error to admit evidence of prior convictions where

the result in the case turned almost entirely on the relative credibility of the party-witnesses. Juries often view citizens' claims of police abuse with skepticism. In this context, the improper introduction of evidence that [the plaintiff] had been a juvenile offender and had been convicted of a felony as an adult was clearly prejudicial to his chances of receiving fair consideration from the jury.

Powell v. Levit, 640 F.2d 239, 241 (9th Cir. 1981).

As [**14] in Powell, the result in this case turned almost entirely on the credibility of the witnesses--it came down to whether the jury believed the testimony of Thomas and the other guards or the testimony of Simpson and his fellow inmates. We conclude that it is more likely than not that admitting the conviction affected the verdict because, although the jurors would have known Simpson was in prison for at least one felony, the knowledge that he had at least three other felony convictions likely prejudiced the jury against Simpson and made them more likely to question his credibility.

Because the district court improperly admitted evidence of convictions outside the ten-year limit of Rule 609(b) and did not properly perform the balancing test required by Rule 609(b), and because it was more likely than not the admission of the convictions affected the verdict, we reverse and remand for a new trial.

B. Heck v. Humphrey

We turn next to yet another issue of first impression in this circuit: whether Heck v. Humphrey may be used to bar evidence in a § 1983 claim for excessive force. We conclude that Heck does not create a rule of evidence exclusion. Therefore, if, as in this case, a party is permitted [**15] to proceed on a § 1983 claim, relevant evidence may not be barred under the rule announced in Heck.

In order to reach our ultimate conclusion, we first examine the relationship between § 1983 and the habeas corpus statute, 28 U.S.C. § 2254, and United States Supreme Court cases addressing the use of § 1983 to challenge prison administrative decisions. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action [*692] at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall [**16] be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. Section 2254(b), in relevant part, provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State; or . . . there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254.

We have previously outlined the potential conflict between §§ 1983 and 2254 in Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003). There we summarized the conflict as follows:

While the Civil Rights Act of 1871 . . . and the federal habeas corpus statute . . . both provide access to the federal courts "for claims of unconstitutional treatment at the hands of state officials, . . . they differ in their scope and operation." Heck, 512 U.S. at 480 . . . . Section 1983 provides a remedy for injuries caused by violations of federal law by persons acting under the color of state law. "Congress's purpose in enacting § 1983 was to create a novel [**17] civil remedy for violation of established constitutional rights." Martinez v. City of Oxnard, 270 F.3d 852, 856 n.2 (9th Cir. 2001). Given this unique legislative intent to provide a federal forum for the vindication of federal rights, courts historically declined to require § 1983 plaintiffs to exhaust state remedies. Congress altered this tradition in 1996 with the enactment of the Prison Litigation Reform Act by requiring prisoners to exhaust all available administrative remedies before filing a § 1983 action. 42 U.S.C. § 1997e(a) . . . .

In contrast, the federal habeas corpus statute explicitly requires state prisoners to first seek relief in a state forum. 28 U.S.C. § 2254(b). This exhaustion requirement "is rooted in considerations of federal-state comity," and allows "the state court system that has convicted a defendant the first opportunity . . . to correct the errors made in the internal administration of their prisons." Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S. Ct. 1827, 36 L. Ed. 2d 439 . . . (1973). The burden of satisfying the exhaustion requirement of § 2254, and the absence of a similar restriction in § 1983, left the two statutes on a "collision course." Heck, 512 U.S. at 492 . . . (Souter, [**18] J., concurring in the judgment).

334 F.3d at 854-55 (internal citations and footnotes omitted). Thus, as we explained in Ramirez, there is potential for conflict between the two statutes.

We turn next to a summary of the United States Supreme Court cases addressing this conflict. The Court first addressed the potential conflict between § 1983 and § 2254 in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). In Preiser, following prison disciplinary proceedings leading to the deprivation of goodtime credits, prisoners brought suit under § 1983 challenging the constitutionality of the disciplinary proceedings. 411 U.S. at 476-77. The Court explained:

[*693] The broad language of § 1983, however, is not conclusive of the issue before us. The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies.

Id. at 489. The Court further explained that in contrast to § 1983, § 2254 requires the [**19] exhaustion of state remedies. Id. at 489-91. The Court continued: "The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." Id. at 492. Thus, the court concluded that a state prisoner cannot use a § 1983 action to challenge "the fact or duration of his confinement," id. at 489, because such an action lies at "the core of habeas corpus," id. at 487.

In Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Court took on the issue of whether prisoners could use § 1983 to obtain restoration of good-time credits and damages. 418 U.S. at 553-54. The Court reaffirmed its holding in Preiser and held that the prisoners could not seek restoration of good-time credits under § 1983 because restoration of good-time credits challenged "the very fact or duration of their confinement." Id. at 554. However, the Court permitted the prisoners to use § 1983 to obtain a declaratory judgment "as a predicate to a damages award," explaining that Preiser did not bar such a claim "and because [**20] under [Preiser ] only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations." Id. at 554-55.

Twenty years later, the Court revisited the relationship between § 1983 and § 2254 in Heck. In Heck, a prisoner initiated a § 1983 action seeking damages but not release from custody. 512 U.S. at 478-79. The prisoner alleged that the defendants--prosecutors and a police officer--destroyed evidence, used unlawful identification procedures, and employed improper investigative techniques, resulting in the prisoner's conviction and imprisonment. Id. at 479. The Court affirmed the dismissal of the suit, holding that

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, [**21] or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

Id. at 486-87 (internal footnote omitted). The Court explained that "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." Id. at 487. "But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment [*694] against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. (internal footnote omitted).

Since the inception of the rule in Heck, the Court has only addressed this issue a few times, and in none of those cases did the Court address the use of Heck to bar evidence. For example, in Edwards v. Balisok, 520 U.S. 641, 643, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), the Court applied Heck to a § 1983 claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits. There, it explained that "[t]he principal procedural defect complained of by [plaintiff] [**22] would, if established, necessarily imply the invalidity of the deprivation of his goodtime credits." 520 U.S. at 646. Consequently, the Court held the claim was not cognizable under § 1983. Id. at 648.

More recently, in Wilkinson v. Dotson, 544 U.S. 74, 76, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005) the Court addressed the issue of whether two prisoners could seek injunctive and declaratory relief pursuant to § 1983 when challenging Ohio's state parole procedures. The Court summarized its prior consideration of the interplay between §§ 1983 and 2254:

Throughout the legal journey from Preiser to Balisok, the Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement-either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody. Thus, Preiser found an implied exception to § 1983's coverage where the claim seeks-not where it simply "relates to"-"core" habeas corpus relief, i.e., where a state prisoner requests present or future release. Wolff makes clear that § 1983 remains available for procedural [**23] challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence. And Balisok, like Wolff, demonstrates that habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of (not previously invalidated) state confinement. These cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

544 U.S. at 81-82 (internal citation omitted). Thus, the Court concluded, the prisoners' claims in Wilkinson were cognizable under § 1983 because

Success for Dotson does not mean immediate release or a shorter stay in prison; it means at most new eligibility review, which at most may speed consideration [**24] of a new parole application. Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term. Because neither prisoner's claim would necessarily spell speedier release, neither lies at "the core of habeas corpus."

Id. at 82 (internal citations omitted).

[*695] None of these Supreme Court cases specifically address or even imply that Heck may serve as an evidentiary bar. Rather, we believe that this entire line of cases and repeated discussions of the interplay between § 1983 and § 2254 demonstrate that the Supreme Court's intent in announcing the rule in Heck was to prevent prisoners from subverting the requirements of § 2254 by filing suit under § 1983. Consequently, all of these cases discuss whether a claim itself is viable, not whether evidence is admissible.

Since Heck was decided, we too have frequently considered its implications on § 1983 cases. See, e.g., Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc); Ramirez, 334 F.3d 850; Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2003) (as amended); Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001); Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997); [**25] Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996). However, like the Supreme Court, we have never held or even implied that Heck could be used to bar evidence--rather, applying Supreme Court precedent, we have repeatedly considered whether Heck bars a claim under § 1983.

In addition to our analysis above, we find support for our decision in criminal cases permitting evidence relating to past acquittals to be used in a present criminal case. For example, in Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990), the Supreme Court held that it was not a violation of the Double Jeopardy Clause or the Due Process Clause to admit testimony regarding the circumstances of a prior crime of which the defendant had been acquitted. 493 U.S. at 343-44.

In that case, the suspect was on trial for bank robbery and armed robbery. Id. at 344. The government introduced testimony under Federal Rule of Evidence 404(b) by the victim in a robbery that the defendant was acquitted of in an earlier trial. Id. at 344-45. The victim identified the defendant as one of the alleged robbers in the prior robbery and described the mask he was wearing and the gun he was carrying during the robbery. Id. She identified also another [**26] suspect in the first robbery, and that suspect was suspected of acting as the getaway car driver in the second robbery. Id.

The government claimed that the twin purposes of the testimony were: 1) to strengthen its identification of the defendant as the bank robber in the second case because the victim in the first case described a suspect wearing a mask and carrying a gun similar to that used in the second case; and 2) to link the defendant to the alleged getaway car driver in the second case. Id. at 345.

The defendant argued that under the collateral-estoppel doctrine, his prior acquittal precluded the government from introducing the testimony. Id. at 348. The Court rejected this argument, defining "the collateral-estoppel doctrine as providing that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 347 (quotation marks omitted). It went on to explain that because "the prior acquittal did not determine an ultimate issue in the present case" and because the government was not required to prove beyond a reasonable doubt in the second robbery that the defendant [**27] was the suspect in the first robbery, "the collateral estoppel component of the Double Jeopardy Clause is inapposite." Id. at 349.

Although the collateral-estoppel component of the Double Jeopardy Clause does not bear directly on the issue in the case at [*696] bar, we believe that the Court's holding in Dowling supports our determination that evidence is not barred merely because a claim may be. As in Dowling, the burden of proof is different in Simpson's civil case than it was in the prison administrative proceeding finding him guilty of battery. Furthermore, whether Thomas punched Simpson as soon as Thomas entered the cell was not "an issue of ultimate fact" determined in a valid and final judgment in the prison administrative proceeding. See id. at 347. In short, the results of the administrative proceeding fall short of the stricter Heck requirement that the claims asserted would "necessarily imply" or "demonstrate" the invalidity of the conviction.

In light of our analysis of Supreme Court precedent relating to Heck, §§ 1983 and 2254, we hold that Heck is not an evidentiary doctrine. Therefore, we reverse and remand for a new trial. We conclude that even if the district court determines [**28] on remand that Simpson may not file a § 1983 lawsuit relating to any injuries stemming from Thomas's alleged punch upon entering the cell, Simpson is still entitled to tell the jury the entire story--in other words, he may present evidence and/or testimony that Thomas initiated the physical confrontation in the cell by punching Simpson.

IV

CONCLUSION

Because the district court improperly admitted evidence under Rule 609(b) and improperly barred evidence under Heck, we reverse and remand for a new trial. 4

FOOTNOTES

4 In light of our holdings, we need not address the remaining issues raised by Simpson.


REVERSED and REMANDED.

Simpson v. Thomas

GARY SIMPSON, Plaintiff, v. SERGEANT THOMAS, et al., Defendants.

No. 2:03-cv-00591-MCE-GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2008 U.S. Dist. LEXIS 105633


December 19, 2008, Decided

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff's Bill of Costs by which, pursuant to Federal Rule of Appellate Procedure ("FRAP") 39(e), he seeks various costs of his successful appeal.

Plaintiff appealed to the Ninth Circuit from an unfavorable jury verdict handed down after a trial in this Court. On June 11, 2008, the Court of Appeals issued a judgment vacating that verdict and remanding the case.

The appellate court did not allocate costs, and on June 25, 2008, Plaintiff filed a Bill of Costs in this Court seeking taxation of those costs incurred on appeal.

The Court denied Plaintiff's first submission without prejudice pending issuance of the Ninth Circuit's mandate. On September [*2] 3, 2008, the appellate court issued its mandate, and Plaintiff re-filed his cost bill on September 11, 2008. Because this Court finds Plaintiff's Bill of Costs to be timely, and because the Court rejects the remainder of Defendant's arguments against the taxation of costs, those costs, in the amount of $ 1,386, are so taxed. 1

FOOTNOTES

1 The total costs taxed currently includes only the costs of the transcripts necessary to pursue Plaintiff's appeal. However, Plaintiff has also shown that he was required, per order of the Court of Appeals, to pay $ 455.00 in filing and docketing fees. At the time of the filing of his Bill of Costs, those fees had not been deducted from Plaintiff's inmate trust account. Thus, those costs cannot now be taxed against Defendant. Nevertheless, should those fees be deducted from Plaintiff's account in the future, they too are to be taxed against Defendant.


ANALYSIS

I. THE TEN-DAY LIMIT PRESCRIBED BY LOCAL RULE 54-292 APPLIES TO COST BILLS FILED PURSUANT TO FRAP 39(3)

Federal Rule of Appellate Procedure 39(e) states:

Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs [*3] under this rule:

(1) the preparation and transmission of the record;

(2) the reporter's transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.



Defendant argues that because FRAP 39(e) does not itself mandate any filing deadlines, Eastern District Local Rule 54-292, which requires filing a cost bill within ten days of an entry of judgment, governs. Plaintiff, to the contrary, makes several arguments in support of his position that no time limit applies to a Rule 39(e) bill of costs filing.

First, according to Plaintiff, Local Rule 54-292 applies only to costs incurred and taxed in the District Court and, since no limit is prescribed in FRAP 39(e) regarding costs incurred on appeal, but taxable in the District Court, no time limit applies in the instant case. However, Plaintiff's interpretation runs contrary to the plain language of Local Rule 54-292(f)(10), which clearly states that it applies to "[c]osts on appeal taxable in the District Court pursuant to Rule 39(e) of the Federal Rules of Appellate Procedure."

Additionally, Plaintiff argues that, though FRAP 39 [*4] has been amended several times, no time limit has ever been introduced into section 39(e), and, thus, the Court should infer no time limit was intended. Nevertheless, an alternative interpretation, that the drafters intended local rules to govern, is equally plausible.

Finally, Plaintiff relies on Choice Hotels Int'l, Inc. v. Kaushik to support his position that no time limit should be imposed on 39(e) cost bills. 203 F. Supp. 2d 1281 (M.D. Ala. 2002).

In that case, local district rule 54.1 stated that "requests for taxation of costs (other than attorneys' fees) under Federal Rule of Civil Procedure 54(d) shall be filed with the Clerk within 30 days after entry of final judgment from which an appeal may be taken." Id. at 1284. "Federal Rule of Civil Procedure 54(d), in turn, provide[d] that 'costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs.'" Id. Accordingly, that district court concluded that its local rule simply did not apply to appellate cost bills. Rather, "as indicted by its clear language, the local rule [was] fundamentally and, indeed, exclusively concerned with those cost bills filed immediately after trial [*5] for the costs of trial." Id. The court reached its conclusion in part because the local rule specifically referred to judgments from "which an appeal may be taken" and also because the local rule referenced costs sought only under FRCP 54(d). Id.

The local rule in this Court is much different from the rule analyzed in Alabama. Eastern District of California Local Rule 54-292(f) expressly states that it applies to costs taxed under FRAP 39(e). Therefore, the logic applied in Choice Hotels is inapposite.

The Court finds Plaintiff's remaining case law to be equally inapplicable in light of the specificity of Local Rule 54-292, which, by its own terms, applies to costs taxed under FRAP 39(e). Therefore, this Court finds that the ten-day limit imposed by the Local Rules is applicable to the filing of a Bill of Costs filed pursuant to FRAP 39(e).

II. THE TIME IN WHICH A SUCCESSFUL APPELLANT MUST FILE A BILL OF COSTS RUNS FROM THE ISSUANCE OF COURT OF APPEALS' MANDATE

The parties also disagree regarding when the ten-day period begins to run. The crux of the parties' dispute turns on their contradictory interpretations of "entry of judgment" as it is used in Local Rule 54-292. Defendant argues [*6] that Plaintiff was required to submit his Bill of Costs within ten days of the Ninth Circuit's actual entry of its decision, which occurred on June 11, 2008. Plaintiff contends that he was not required to file until the Ninth Circuit issued its mandate.

According to Rule 41(c), the "mandate is effective when issued." Additionally, the advisory committee notes from the 1998 Amendment to Rule 41 state, "A court of appeals' judgment or order is not final until issuance of the mandate; at that time the parties' obligations become fixed."

Additionally, "[t]he legitimacy of an expectation of finality of an appellate order depends on the issuance or not of the mandate required to enforce the order. [The Ninth Circuit has] stated that until a mandate is issued, a case is not closed. The parties may petition the court for a rehearing. The jurisdiction of the court of appeals does not terminate until issuance of the mandate. A court of appeals may modify or revoke its judgment at any time prior to issuance of the mandate, sua sponte or by motion of the parties. Thus, finality of an appellate order hinges on the mandate, as does a defendant's expectation of finality." U.S. v. Foumai, 910 F.2d 617, 620 (9th Cir. 1990).

Moreover, [*7] "the entry of judgment [is] the starting point. The entry of judgment, as explained by Wright and Miller in their interpretation of Rule 41 of the Federal Rules of Civil Procedure, is the moment in which the District Court received the mandate." Sudouest Import Sales Corp. V. Union Carbide Corp., 102 F.R.D. 264 (D. P.R. 1984). Therefore, this Court finds that Plaintiff was not required to file his Bill of Costs until the Ninth Circuit's mandate had issued.

Finally, it is of no small consequence that this Court lacks jurisdiction over a case until the mandate is handed down. See Sgaraglino v. State Farm Fire and Cas. Co., 896 F.2d 420, 421 (9th Cir. 1990); U.S. v. Arnett, 2006 U.S. Dist. LEXIS 64999, 2006 WL 2796448 *10 (E.D. Cal. 2006). The Court simply did not have the power to entertain Plaintiff's Bill of Costs until September 3. Accordingly, on June 25, 2008, the Court denied Plaintiff's first cost bill without prejudice specifically because no mandate had been forthcoming. The Court has not since changed its mind.

Thus, because the Ninth Circuit issued its mandate on September 3, 2008, and because Plaintiff submitted his Bill of Costs within the ten subsequent days prescribed by the local rules, Plaintiff's [*8] filing was timely. Plaintiff is entitled to his costs under Rule 39(e). 2

FOOTNOTES

2 As a final matter, the Court disagrees with Defendant's assertion that Plaintiff must ultimately prevail in this action in order to recover fees pursuant to FRAP 39(e). FRAP 39(e) very clearly provides that "if a judgment is reversed, costs are taxed against the appellee." This rule is limited only by other applicable rule or court order. Defendant argues without support that the Prison Litigation Reform Act ("PLRA"), supersedes FRAP 39(e) and limits cost sought pursuant to the appellate rules. Nevertheless, Defendant cites to no authority for this proposition and, instead, relies only on case law limiting the award of attorneys' fees. That authority is inapposite, and this Court finds that FRAP 39(e) is not so limited.


CONCLUSION

Plaintiff is entitled to the costs of his appeal. Accordingly, the $ 1,386.00 incurred for the costs of the transcripts necessary to his appeal is hereby taxed against Defendant. Additionally, if the additional $ 455.00 in filing and docketing fees is eventually deducted from his inmate trust account, those costs are to be taxed against Defendant as well.

IT IS SO ORDERED.

Dated: December [*9] 19, 2008

/s/ Morrison C. England, Jr.

MORRISON C. ENGLAND, JR.

UNITED STATES DISTRICT JUDGE