UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2006*
Decided April 13, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1358
JOHN B. ALLEN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 2:02-CV-320
THOMAS A. GIBBONS, et al.,
Defendants-Appellees. William C. Lee,
Judge.
ORDER
John B. Allen is before us a third time arguing that his constitutional rights
were violated during his criminal prosecution on drug and money-laundering
charges. Allen pleaded guilty to two of five counts pursuant to a written agreement,
and in November 1998 he was sentenced to a total of 156 months in prison. Later
he moved under 28 U.S.C. § 2255 to vacate or correct his sentence; he claimed that
the government had breached a promise to seek a reduced sentence under U.S.S.G.
§ 5K1.1 for substantial assistance, and that after the plea colloquy his lawyers and
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-1358 Page 2
the government had filed an unauthorized “joint amendment” to the plea agreement
that increased the agreed maximum prison sentence and gave the government
leeway to limit any downward departure to the 10-year statutory minimum that
otherwise would apply to the drug count. The government conceded that Allen
should have been questioned about the amendment in open court before it was
accepted. Allen, though, did not want his guilty pleas set aside, so the district court
resentenced him under the terms of the original plea agreement. This time the
government moved for a downward departure, and in August 2000 the court
imposed a total term of 119 months. Allen appealed, but we allowed counsel to
withdraw and dismissed the case. United States v. Allen, 39 F. App’x 354 (7th Cir.
2002) (unpublished). In particular we rejected Allen’s pro se argument that the
amendment to his plea agreement “tainted” the original agreement and rendered
his pleas “legally void”; like counsel, we concluded that Allen’s reaffirmation of the
original agreement during the § 2255 proceedings would render frivolous any
attempt to challenge that agreement or his guilty pleas. See id. at 356-57. Allen
then filed another § 2255 motion, but the district court concluded—as did we—that
relief was unavailable because he was attempting to challenge aspects of his plea
agreement and sentence that should have been raised in his first § 2255 motion.
See Allen v. United States, No. 05-1845 (7th Cir. Jun. 13, 2005) (unpublished order).
In his current lawsuit, rather than attacking his convictions and sentences
directly, Allen seeks damages under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Allen alleges that the three
defense attorneys who represented him in his criminal case conspired with the
prosecutor, a DEA agent, and the regional counsel of the Bureau of Prisons to deny
him his rights to counsel, due process, equal protection, and access to the courts.
The district court, in two comprehensive orders, granted the defendants’ motions to
dismiss the suit on a number of grounds, varying by defendant. We will not address
them all, because we find a sufficient basis for dismissal of the entire suit under the
Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994).
Heck holds that a plaintiff may not seek damages for violations of his civil
rights arising from a criminal prosecution if a judgment in his favor “‘would
necessarily imply the invalidity of his conviction or sentence.’” Vangilder v. Baker,
2006 WL 73401, at *1-2 (7th Cir. Jan. 13, 2006) (quoting Heck, 512 U.S. at 487);
see also Wiley v. City of Chicago, 361 F.3d 994, 996 (7th Cir. 2004); Johnson v.
Litscher, 260 F.3d 826, 830 (7th Cir. 2001). Allen argues that his conspiracy and
related claims are not barred by Heck because he can show that a federal court
issued a § 2255 decision in his favor. But his focus on this limited relief misses the
point of Heck. A suit that if successful would undermine a conviction or sentence
“must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” Heck, 512 U.S. at 487 (emphasis added).
And although Allen did achieve resentencing after filing his § 2255 motion, he also
No. 05-1358 Page 3
ended up with the same convictions and with lengthy terms of imprisonment and
supervised release. That is why Heck remains an obstacle.
What Allen seeks to undermine is the still-valid August 2000 judgment. He
contends that all three of his defense attorneys (the two who signed off on the
amendment and a third who represented him at sentencing) conspired against him
with the prosecutor, and if “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable.” United
States v. Cronic, 466 U.S. 648, 659 (1984); see also Van Patten v. Deppisch, 2006 WL
162992, at *2 (7th Cir. Jan. 24, 2006) (applying Cronic). Taking Allen’s allegations
as true, we cannot imagine how they could not undermine the validity of his
convictions and sentences. And, indeed, as we have noted, that was the very
argument Allen made to us when he unsuccessfully appealed the August 2000
judgment. The goal of Heck, of course, is to prevent “‘the creation of two conflicting
resolutions arising out of the same or identical transaction.’” Vangilder, 2006 WL
73401, at *1 (quoting Heck, 512 U.S. at 484). Like the district court, we conclude
that Allen’s aim is to do just that. Accordingly, his complaint is barred under Heck.
AFFIRMED.