IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20657
BEN JOHNSON, JR.,
Plaintiff-Appellant
versus
JOE KEGANS, Judge; CHARLES BACARISSE; A. BROOKS; RITA WHATLEY; MARY
JANE PONTZLER,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
No. H-96-CV-747
February 25, 1997
Before HIGGINBOTHAM, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
This appeal comes to us after the district court’s dismissal of Ben Johnson’s pro se, in forma
pauperis 42 U.S.C. § 1983 complaint. The district court stated that Johnson’s claims called into
question the validity of his conviction, and they were thus barred by Heck v. Humphrey, 114 S.Ct.
2364 (1994).
The sparse facts of this case are drawn from Johnson’s pro se, in forma pauperis complaint,
his motion for summary judgment filed ten days after the complaint, an affidavit attached to that
motion, and the district court’s Order of Dismissal. Johnson was convicted for possession of cocaine
in a Texas state court and sentenced to 25 years in prison. Johnson’s complaint, broadly construed,
asserts two bases for his § 1983 claim: following his conviction, Johnson was denied access to the
*
Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
court, to appellate counsel, and to court records by (1) a 120-day delay by the Texas courts in
appointing him appellate counsel, and (2) an 11-month delay by the Texas courts in preparing the
record for his appeal. The complaint contains allegations that the defendants conspired to delay
Johnson’s appeal and deny him equal access to the state appellate process. Johnson asserts that he
has suffered $250,000 in damages from anxiety and concern while awaiting his chance to present his
claims of innocence to the Texas appellate courts.
The district court asserted, without explanation, that Johnson’s claims of ineffective assistance
of counsel and denial of appellate record would, if true, call into question the validity of Johnson’s
underlying state court conviction. It is now beyond debate that § 1983 claims by prisoner-plaintiffs
that challenge the validity of a conviction cannot proceed unless the conviction has already been
reversed, expunged, invalidated or impugned by a writ of habeas corpus. Heck, 114 S.Ct. at 2372.
Complaints are frivolous under Heck if they directly or indirectly challenge the validity of the
conviction. The Supreme Court gave an example of the type claim that would indirectly challenge
the validity of a conviction:
A state defendant is convicted of and sentenced for the crime of resisting arrest,
defined as intentionally preventing a peace officer from effecting a lawful arrest. . . .
He then brings a § 1983 action against the arresting officer, seeking damages for
violation of his Fourth Amendment right to be free from unreasonable seizures. In
order to prevail in this § 1983 action, he would have to negate an element of the
offense of which he has been convicted. Regardless of the state law concerning res
judicata . . . the § 1983 action will not lie.
Id. at 2372 n.6 (emphasis supplied).
Johnson’s complaint, broadly construed, does not require him to negate any element of the
offense of possession of cocaine to support at least nominal damages. There is an independent right
to effective assistance of counsel on appeal, if that appeal is as of right. Evitts v. Lucey, 105 S.Ct.
830, 836-37 (1985). Similarly, if a transcript is by rule or custom a prerequisite to appellate review,
the prisoner has an independent right to the transcript even if he cannot afford to have it prepared.
Id. at 834. We have recognized that due pro cess is denied where the state excessively delays the
furnishing of a transcript necessary for the appellate record. Rheuark v. Shaw, 628 F.2d 297, 302-03
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(5th Cir. 1980), cert. denied, 450 U.S. 931 (1981). Johnson’s claims that he was denied a speedy
appeal and appellate counsel thus do not necessarily implicate any of the element of the crime for
which he was convicted.
We apply a four-factor test to determine whether t he state has exceeded the limits of due
process with its delay in preparing the appellate record: (1) length of delay, (2) reason for delay, (3)
defendant’s assertion of his right, and (4) prejudice to the defendant. Rheuark, 628 F.2d at 302-03
& n.8. For the purposes of this appeal, we assume t hat an 11-month delay of appeal, without
preparing a transcript or appointing appellate counsel, exceeds due process. Id. (assuming without
deciding that a two-year delay exceeded due process). Because the defendants in this case have not
been served, we do not know what reasons they might assert for this delay. But Johnson’s complaint
includes allegations that he has asserted his rights to appeal and have appellate counsel all along,
including letters to the court throughout the periods before and after he was appointed appellate
counsel. Thus the real issue is whether Johnson was prejudiced by the delay.
Prejudice in this situation is measured in light of the interests of those convicted and awaiting
appeal: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and
concern of those awaiting appeal; and (3) limitation of the possibility that the grounds for appeal will
be impaired during the delay. Id. at n.8. Johnson’s complaint implicates the first two prongs of this
test; the complaint alleges that the defendants conspired to delay Johnson’s appeal and deny him equal
access to the state appellate process, and that Johnson has thereby suffered anxiety and concern while
awaiting appeal. It is impossible to assess the third prong of the test on the record before us. But
given that the district court did not make any findings about whether Johnson was prejudiced (and
thus whether his rights were violated), dismissal was inappropriate and in error.
It is possible that, on remand, the district court may find dismissal of Johnson’s complaint
warranted under Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is appropriate where
a § 1983 prisoner-plaintiff claims damages for delayed appeal and appointment of counsel while the
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appeal is still pending, because those claims may still be addressed and remedied immediately by the
state appellate court. Wilcox v. Miller, 691 F.2d 739, 740-41 (5th Cir. 1982).
Resolution of the issues of prejudice and abstention is not possible from the record before us.
We thus leave them to the district court. The judgment of the district court is REVERSED and the
case REMANDED for further proceedings consistent with this opinion.
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