concurring:
I agree that, under the precedents of this court, the district court should not have dismissed the two claims here at issue. I write separately, however, to point out another aspect of the case.
For Hebbe to recover damages in his § 1983 suit, he would have to show that, had it not been for the two alleged constitutional violations to which he was subjected, he probably would have succeeded in overturning his conviction. In light of the events in this case, he seems unlikely to be able to make that showing.
Hebbe, represented by counsel, entered into a plea agreement with California prosecutors, under which he pleaded guilty to two counts of burglary and was sentenced to eighteen years imprisonment. The California Court of Appeal, to which he appealed his conviction, appointed pro bono counsel for him. His counsel filed a so-called “Wende” brief, stating that counsel could find no legitimate issue to argue on appeal. The Court of Appeal permitted Hebbe’s appellate counsel to withdraw and informed Hebbe that he could file pro se a supplemental appellate brief within thirty days. Hebbe did not do so within that deadline.
Hebbe asserts that the reason was because he was on “lockdown” in prison during that thirty-day period. He contends that because of the lockdown, he was unable to use the prison law library to research his proposed appeal, and therefore did not discover a California statute that would have permitted him to withdraw his guilty plea. He also argues that he was subjected to cruel and unusual punishment because, during non-lockdown periods, he was permitted to leave his cell for only eight hours a week, which he could use either in the library or for outdoor exercise. He contends that this required him to make an unconstitutional choice.
It is not enough for Hebbe to raise these challenges to entitle him to recover under his § 1983 complaint. I believe he also must establish that he had credible claims that his conviction on his plea was improper. Here, his appointed appellate counsel could find no basis for challenging his conviction, and the California Court of Appeal agreed with that conclusion. I think Hebbe would be required to show that his *1209conviction based upon his guilty plea itself could be reasonably challenged. It seems unlikely that he could make that showing.