United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-41404
Summary Calendar
PHILLIP JOE BARNES,
Plaintiff-Appellant,
versus
TIMOTHY BRAATEN, Chief of Police for City of Victoria;
VICTORIA POLICE DEPARTMENT; HUBERT TUCKER, JR.;
MIKE HERNANDEZ; JAMES MARTINEZ; ROY BOYD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-00-CV-95
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Phillip Joe Barnes, Texas prisoner # 887643, proceeding pro
se, requests permission to proceed in forma pauperis (IFP) in his
appeal from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous, pursuant to 28 U.S.C. § 1915(e).
Citing FED. R. APP. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3), the
district court certified that Barnes’s appeal was “not taken in
good faith.” Barnes argues that the district court erred in
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 03-41404
-2-
failing to certify his appeal as one in good faith because the
Heck v. Humphrey, 512 U.S. 477, 487 (1994), bar did not apply
because his claim of an unlawful search does not necessarily
imply the invalidity of his conviction, which was based on a
valid nolo contendere plea.
The district court provided no reason for certifying
Barnes’s appeal as one not taken in good faith. However, Barnes
makes no issue of the fact that the district court failed to give
its reason for decertification, and we view the district court’s
reason to be that Barnes’s suit is barred by Heck.
We grant Barnes’s motion to proceed IFP on appeal on the
underlying Heck issue. Barnes has submitted a brief in support
of his IFP application that adequately addresses the application
of Heck to the facts of his case. Accordingly, we will proceed
to the merits of his appeal.
In Heck, the Supreme Court directed 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 42
U.S.C. § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal or otherwise
invalidated by official action. Id. at 486-87 (footnote
omitted). The “district court must consider whether a judgment
in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be
No. 03-41404
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dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Id. at
487. However, “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, in the
absence of some other bar to the suit.” Id. (footnote omitted)
In footnote seven, the Supreme Court explained that a suit for
damages attributable to an allegedly unreasonable search may lie
even if the challenged search produced evidence that was
introduced in a state criminal trial resulting in the 42 U.S.C.
§ 1983 plaintiff’s still-outstanding conviction. Id. at 487 n.7.
The Court reasoned that such an action, even if successful, might
not necessarily imply that the plaintiff’s conviction was
unlawful in light of doctrines like independent source,
inevitable discovery, and harmless error. Id.
For the first time on appeal, Barnes argues for the
application of the “inevitable discovery” or “independent source”
rules. Nor did he present this argument in his motion to set
aside the verdict; wherein, he simply argued that Heck does not
apply because he pleaded nolo contendre to the charges and
stipulated to the admissibility of the crack cocaine. Lederette
v. Louisville Ladder Co., 183 F.3d 339 at 342 (5th Cir. 1999)
(“The court will not allow a party to raise an issue for the
first time on appeal merely because a party believes that he
No. 03-41404
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might prevail if given the opportunity to try a case again on a
different theory.”)
In his complaint, Barnes merely alleged that the defendants
conducted a warrantless search and that “evidence was illegally
obtained and utilized to initiate a criminal prosecution against
the Plaintiff.” In his response to the district court’s order
for a more definite statement, Barnes stated that “[c]rack
cocaine was found in the motel room. The substance found in the
motel room was used against the Plaintiff in a criminal
proceeding.” Based on these allegations, the district court
properly dismissed Barnes’ complaint, which on its face, alleges
that evidence obtained from an illegal search (crack cocaine) was
used to initiate a criminal prosecution (for illegal possession
of crack cocaine). These allegations necessarily implicate the
validity of the entire criminal proceeding brought against
Barnes. See Hudson v. Hughes, 98 F.3d 868, 871-72 (5th Cir.
1996).
Although there may be situations where an illegal search and
seizure does not implicate the underlying conviction, Barnes did
not allege in his complaint or more definite statement any facts
that would bring his case under the exceptions contemplated by
footnote 7 of Heck. Rather, the allegations in his complaint
directly link the improper police conduct with the initiation of
his criminal prosecution. Accordingly, the district court’s
dismissal is AFFIRMED.
No. 03-41404
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IFP GRANTED; the decision below AFFIRMED.