[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 21, 2007
No. 06-15375 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-22854-CV-PCH
VICTOR G. BAXTER,
Plaintiff-Appellant,
versus
WADIE CRAWFORD,
sued in his individual and official capacity,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 21, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Victor Baxter, a federal prisoner proceeding pro se, appeals the district
court’s grant of summary judgment in favor of Wadie Crawford, a Special Agent
of the United States Drug Enforcement Administration (“DEA”), in Baxter’s
Bivens1 action. For the reasons that follow, we affirm.
I. Background
In November 2002, Baxter was charged in a seven-count indictment with
distributing at least five grams of crack cocaine on August 21, 2002 (Count 1);
distributing at least five grams of crack cocaine on August 29, 2002 (Count 2);
maintaining premises located at 2645 N.W. 21st Avenue, Oakland Park, Florida,
for the purpose of distributing crack cocaine from approximately August 21, 2002
to October 9, 2002 (Count 3); possessing with the intent to distribute at least five
grams of crack cocaine on October 9, 2002 (Count 4); possessing with the intent to
distribute cocaine on October 9, 2002 (Count 5); being a felon in possession of a
firearm (Count 6); and possessing a firearm in furtherance of a drug-trafficking
crime (Count 7).
Before trial, Baxter twice moved to suppress the evidence seized during an
October 9, 2002 search of his residence, located at 2465 N.W. 21st Avenue in
Oakland Park, Florida. During the search, law enforcement agents seized, inter
alia, one-half kilograms of powder cocaine, a crack-cocaine cookie weighing 24.1
1
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971).
2
grams, and a loaded revolver. In both of his motions, Baxter focused primarily on
the following statements from Crawford’s warrant affidavit:
On August 21, 2002, [BAXTER] sold approximately 15 grams
of crack cocaine to an undercover DEA Special Agent (hereinafter
“undercover agent”) in a public area immediately adjacent to 2645
N.W. 21st Avenue, Oakland Park, Florida. . . .
On August 29, 2002, [BAXTER] sold approximately 40 grams
of crack cocaine to the undercover agent. [Baxter] supplied the crack
cocaine purchased by the undercover agent to a confidential source
inside the target location [2645 N.W. 21st Avenue]. . . .
According to Broward County property records, 2645 N.W.
21st Avenue, Oakland Park, Florida is owned by J.V. BAXTER and
Lillian BAXTER. On September 18, 2002, the U.S. Postal Service
indicated that [BAXTER] receives U.S. mail at the target
residence. . . .
On October 3, 2002, BAXTER was contacted at the target
location and agreed to sell ½ kilogram of cocaine hydrochloride
(powder) to the undercover agent. Arrangements were made to obtain
the cocaine from BAXTER on Wednesday, October 9, 2002.
BAXTER agreed that the sale would take place at a location other
than the target residence because the undercover agent felt
uncomfortable bringing a large amount of cash ($13,000) to the area
around 2645 N.W. 21st Ave., Oakland Park, Florida. BAXTER was
not told exactly where the sale would take place. Although the
location has not been finalized, BAXTER indicated that he would be
ready to complete the transaction on Wednesday, October 9, 2002.
In his first motion, Baxter alleged that the facts in the warrant affidavit were stale,
because the cocaine sales on August 21st and August 29th did not provide probable
cause to search his residence some six weeks later on October 9th. In Baxter’s
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second motion, he alleged that Crawford made materially false statements in the
affidavit, for example, falsely stating that Baxter had taken a call from an
undercover agent “at his apartment” on October 3rd. Following suppression
hearings, the magistrate judge denied both motions. After a five-day jury trial,
Baxter was convicted of Counts 1 and 5, but was acquitted of the remaining counts.
Baxter appealed his convictions to this court, challenging, inter alia, the
denial of his motion to suppress on the grounds that the Government submitted
stale information and false statements in support of the probable cause affidavit. In
an unpublished opinion, this court affirmed Baxter’s conviction. United States v.
Baxter, 03-16578 (11th Cir. Jan. 4), vacated and remanded on other grounds by
544 U.S. 1013, 125 S.Ct. 1994, 161 L.Ed.2d 847 (2005) (“Baxter I”). In so
holding, we concluded that the alleged misstatements “were immaterial.” Id. We
also concluded that the information about Baxter’s August 2002 cocaine sales at
his residence established the ongoing nature of his criminal enterprise, so that those
sales, coupled with Baxter’s October 3rd agreement to sell cocaine to an
undercover agent, supported a finding of probable cause. Id. Accordingly, we
held that the facts underlying the probable cause determination were not stale. Id.
In November 2005, Baxter, proceeding pro se, filed a Bivens action against
Crawford, alleging that Crawford had violated his Fourth and Fifth Amendment
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rights by intentionally misleading a federal magistrate into issuing a warrant on
October 8, 2002 to search his residence. Baxter conceded that he had sold cocaine
to a government informant on August 21st and August 29th at his 2645 N.W. 21st
Avenue residence. According to Baxter, however, these August cocaine sales were
too remote in time to provide probable cause to search for “contraband” at his
residence on October 9th, some six weeks later. He also alleged that he never had
a conversation with a government agent on October 3rd and that Crawford’s
misrepresentation on this point was material because without it, there would not
have been probable cause to issue the search warrant.
After performing the required screening under the Prison Litigation Reform
Act, 28 U.S.C. § 1915(e)(2), the magistrate judge liberally construed Baxter’s
complaint as alleging Fourth and Fifth Amendment violations. The magistrate also
concluded that Baxter’s claims were not foreclosed under Heck v. Humphrey, 512
U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),2 because even if Baxter
succeeded on his claims, his “conviction might still be valid due to the doctrines of
2
Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a
state prisoner may not bring a damages claim under 42 U.S.C. § 1983 if a judgment in his favor
would implicitly question the validity of his conviction or the duration of his sentence, “unless
[he] first achieves a favorable termination of his available state, or federal habeas, opportunities
to challenge the underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751,
124 S.Ct. 1303, 1304, 158 L.Ed.2d 32 (2004) (citing Heck, 512 at 487, 114 S.Ct. at 2372). This
court has held that Heck applies with equal force in a Bivens action filed by a federal prisoner.
Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
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inevitable discovery, independent source, and harmless error.” The district court
accepted the magistrate judge’s preliminary determination and allowed the suit to
proceed.
Crawford filed a motion to dismiss the complaint on the grounds that the
claims were vague and conclusory; he was entitled to qualified immunity; the
claims were Heck-barred; and the claims were barred by res judicata because they
had been litigated during Baxter’s criminal trial and on direct appeal of his
conviction. The magistrate judge converted the motion to dismiss to a motion for
summary judgment, and informed Baxter of his right to respond to Crawford’s
motion. Baxter filed a response to the motion, and Baxter filed a reply.
The magistrate judge issued a report recommending that the district court
grant summary judgment in favor of Crawford on the grounds that Baxter’s claims
were Heck-barred. The district court adopted the magistrate’s recommendation
and granted summary judgment in favor of Crawford. Baxter then filed a motion
for reconsideration, which the district court denied. Baxter now appeals.
II. Discussion
On appeal, Baxter argues that the grant of summary judgment to Crawford
was improper because the district court erred in finding that his claims were
precluded under Heck. “We review a district court’s grant of summary judgment
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de novo, viewing the facts—as supported by the evidence in the record—and
reasonable inferences from those facts in the light most favorable to the
nonmoving party.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.
2004).
Under Heck, a prisoner may not bring a damages action under Bivens if a
judgment in the prisoner’s favor would necessarily imply the invalidity of his
conviction or sentence. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995)
(holding that Heck applies both to 42 U.S.C. § 1983 actions filed by state prisoners
and Bivens actions filed by federal prisoners). Thus, unless the prisoner can
demonstrate that his conviction or sentence has already been invalidated, his
complaint must be dismissed. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. But when
“the [prisoner’s] action, even if successful, will not demonstrate the invalidity of
any outstanding criminal judgment against [him], the action should be allowed to
proceed, in the absence of some other bar to the suit.” Id. at 487, 114 S.Ct. at
2372-73 (emphasis in original, footnotes omitted). For example, “[b]ecause an
illegal search or arrest may be followed by a valid conviction, a successful
[Bivens] action for Fourth Amendment search and seizure violations does not
necessarily imply the invalidity of a conviction. As a result, Heck does not
generally bar such claims.” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)
7
(internal citations and footnote omitted, emphasis added). Nevertheless, not all
Fourth Amendment claims fit this exception to Heck, rather, courts “must look
both to the claims raised . . . and to the specific offenses for which the . . . claimant
was convicted.” Id. at 1160 n.2 (emphasis added).
Here, Baxter contends that his claims relate only to conduct for which he
was acquitted so that success on his claims would not necessarily call into question
the validity of his convictions. We disagree.
First, Baxter’s assertion that his complaint relates only to conduct for which
he was acquitted is incorrect, as the cocaine seized during the search of 2645 N.W.
21st Avenue—the search conducted pursuant to the warrant Baxter challenges in
the instant action—served as the basis for his conviction on Count 5 (possessing
with the intent to distribute cocaine on October 9, 2002). Second, the factual basis
for Baxter’s claims in the instant action directly impugns his conviction on Count
5. As stated above, in affirming Baxter’s conviction on Count 5, this court
expressly rejected Baxter’s assertions that the information in the warrant affidavit
was stale and that Crawford had made material misrepresentations. Baxter I, 03-
16578. We concluded that the information contained in the affidavit regarding
Baxter’s cocaine sales at his residence in August 2002, coupled with his October
3rd agreement to sell cocaine to an undercover agent, supported a finding of
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probable cause to search his residence on October 9th. Hence, without the
information regarding Baxter’s August 2002 cocaine sales (which Baxter
challenges as stale) and Crawford’s assertions regarding Baxter’s conversation
with the undercover agent (which Baxter challenges as materially false), there
would have been no probable cause to search his residence on October 9th, and the
challenged search warrant would not have been issued. But for the execution of
the search warrant, however, the cocaine at issue in Count 5 would not have been
seized from Baxter’s residence, and therefore, Baxter’s conviction on Count 5
could not stand. As such, if Baxter were to succeed on his claims in the instant
action, he would necessarily call into question the validity of his conviction on
Count 5. Thus, although a Fourth Amendment claim of improper search and
seizure does not necessarily undermine a conviction, see Hughes, 350 F.3d at
1160, the factual basis for Baxter’s claims does necessarily undermine his
conviction. Accordingly, we conclude that the district court properly found that
Baxter’s claims are Heck-barred, and the grant of summary judgment to Crawford
was proper.
III. Conclusion
For the foregoing reasons, we AFFIRM.
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