USCA1 Opinion
November 9, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1761
JEROME E. CASSELL,
Plaintiff, Appellant,
v.
BARRY OSBORNE, ETC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Stahl,
Circuit Judges. ______________
____________________
Jerome E. Cassell on Motion for Summary Disposition pro se. _________________
____________________
____________________
Per Curiam. We have before us appellant Cassell's __________
"Motion to Compel Enforcement and Compliance," which we
construe as requesting relief from briefing requirements, and
a summary disposition of the appeal.
Cassell was convicted in a New Hampshire state
court of felonious sexual assault. While his criminal
conviction was pending on direct appeal, he filed several
actions in federal district court under 42 U.S.C. 1983,
challenging the validity of the conviction and seeking
equitable relief and damages. Three of the suits were the
subject of an opinion issued by this court in April, 1994.
Cassell v. Osborn, No. 93-1557, etc., Slip op. (1st Cir. Apr. _______ ______
26, 1994). There we affirmed the district court's dismissal
of most of Cassell's claims, but vacated those dismissals
which were arguably susceptible of being raised as an
estoppel in the state proceedings. The latter claims were
remanded for reconsideration as to whether they should be
dismissed or stayed pending the conclusion of the state
appeal. Id. at 13. The district court decided to stay the ___
claims.
Pursuant to the Supreme Court's intervening
decision in Heck v. Humphrey, 114 S. Ct. 2364 (1994), the ____ ________
district court later granted a motion by defendants to
dismiss the claims. In Heck, the Court resolved a conflict ____
among the circuits by ruling that "a 1983 cause of action
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for damages attributable to an unconstitutional conviction
does not accrue until the conviction . . . has been ______
invalidated." Heck, 114 S. Ct. at 2373 (emphasis added); see ____ ___
also Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir. ____ _____________ ___________
1994).
Appellant is mistaken in his belief that a
dismissal under Heck violates this court's earlier mandate. ____
This dismissal will not prejudice the resolution of any issue
pending before the state's appellate court. It means only
that his 1983 suit is premature. As we explained in
response to another, similar appeal by Cassell, the dismissal
also "does not prevent him from later filing a proper and
timely complaint for damages should he first succeed in
having his conviction reversed on direct appeal, expunged, or
otherwise declared invalid by a tribunal authorized to make
such a determination." Cassell v. Ober, No. 94-1796, slip _______ ____
op. at 2 (1st Cir. Oct. 5, 1994) (citing Guzman-Rivera, 29 ______ _____________
F.3d at 5).
Accordingly, we grant appellant's motion insofar as _____
it seeks relief from the briefing schedule, deny his motion ____
for "enforcement," and summarily affirm the judgment below. ______
See Loc. R. 27.1. Cassell's appellate motions labelled ___
"Petition for Habeas Corpus Ad Testificandum," and "Motion to
Introduce Evidence," are dismissed without prejudice to _________
consideration of the same contentions and issues raised in
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his separately docketed appeal, Cassell v. New Hampshire, _______ _____________
(Appeal no. 95-2158).
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