DeLeon v. City of Corpus Christi

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 31, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-41301

CHRISTOPHER DELEON,
Plaintiff-Appellant,

versus

CITY OF CORPUS CHRISTI,
and
BILLY COLLINS, Individually and in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court
For the Southern District of Texas

Before JONES, Chief Judge, HIGGINBOTHAM, and CLEMENT, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher DeLeon appeals the district court’s dismissal of

his complaint as barred under Heck v. Humphrey.1 DeLeon’s

complaint sought damages under section 1983 from the City of Corpus

Christi2 and its police officer, Billy Collins, for false arrest,

1
512 U.S. 477 (1994).
2
DeLeon has failed to address on appeal the district court's dismissal
of his claims against the City, which are therefore abandoned. Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
false imprisonment, malicious prosecution, illegal search and

seizure, and use of excessive force. The complaint also alleged

state-law claims of false arrest and imprisonment, malicious

prosecution, intentional infliction of emotional distress, and

assault and battery. Concluding that DeLeon’s deferred

adjudication by a Texas court is subject to Heck’s favorable

termination rule, the district court dismissed with prejudice. We

affirm.

I

A

Because DeLeon’s complaint was dismissed under 12(b)(6) for

failure to state a claim, we consider only his side of the story,

which follows. DeLeon argued with his wife, and she called the

police. When the police arrived, things had calmed down, and the

couple told the officer that everything was fine. The responding

officer, Officer Collins, insisted that Mr. DeLeon leave his home

and, when DeLeon protested, Collins sprayed DeLeon's face with

chemicals numerous times. As DeLeon tried to fend off the mace,

Collins pulled out his baton and began swinging at DeLeon. In self

defense, DeLeon grabbed the baton, and the men began fighting over

it. Mrs. DeLeon grabbed the baton and threw it aside. The group

moved to the kitchen, along with the DeLeon's two-year child.

DeLeon eventually had Collins in a bear hug on his knees. DeLeon

let Collins go and backed up to the pantry door with his hands up.

2
His small child was by his right leg, and his wife was between him

and Collins. DeLeon saw Collins reach for his weapon, and as he

asked him if he was going to shoot him, Collins shot at DeLeon over

the shoulder of Mrs. DeLeon. Collins shot at DeLeon at least four

times, and DeLeon fell to the ground. Collins again fired at the

unarmed DeLeon. DeLeon was struck twice below his heart, in his

side, and in his left arm. DeLeon was charged with aggravated

assault of a police officer, pleaded guilty, and received a

deferred adjudication. DeLeon then filed this complaint for

damages against the city and Officer Collins.

B

Collins and the City each filed a motion to dismiss, or

alternatively, for summary judgment, arguing that DeLeon's sentence

of deferred adjudication is fatal to his claims of false arrest,

false imprisonment, and malicious prosecution because he cannot

show a lack of probable cause for those actions. Defendants

further argued that DeLeon's claims of excessive force, state

assault and battery, and the intentional infliction of emotional

distress are barred by Heck because he pleaded guilty to striking

Collins with the baton.

DeLeon responded that his deferred adjudication did not

constitute a conviction and did not bar his § 1983 action.

The district court granted the motions to dismiss, ruling that

DeLeon's deferred adjudication barred his section 1983 claims

3
pursuant to Heck because he had admitted his guilt to aggravated

assault in a judicial confession. The district court also

dismissed DeLeon’s pendant state-law claims, in part, pursuant to

Heck.3 The district court concluded that all claims against

Collins and the City of Corpus Christi were barred as a matter of

law and that DeLeon had failed to state a claim. DeLeon filed a

timely notice of appeal.

II

A

This appeal turns on whether a deferred adjudication in Texas

is a “sentence or conviction” for the purposes of Heck. We hold

that it is.

But first, we must first answer the contention that this court

has already answered the question. In applying Heck, the district

court noted that this circuit has “consistently held that deferred

adjudication is treated as the equivalent of a conviction.” These

holdings, cited as well by the defendants, treat deferred

adjudications as a conviction for the purposes of calculating

recidivist enhancements during sentencing.4 While these guideline

cases inform our review, we are not persuaded that these cases

3
On appeal, DeLeon does not distinguish between his federal and state
claims and has therefore waived any argument that the state-law claims should
be addressed apart from Heck.
4
See e.g., United States v. Cisneros, 112 F.3d 1272, 1282 (5th Cir.
1997); United States v. Joshua, 305 F.3d 352, 353 (5th Cir. 2002); see also
Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (holding that a deferred
adjudication is a conviction for immigration purposes).

4
resolve our decision today. These are rather pure exercises in

statutory interpretation, parsing the language of the sentencing

guidelines in concluding that the guidelines anticipate “deferred

prosecutions” and pleas of “nolo contendere” where “a conviction is

not formally entered.”5 Likewise, our related holding in the

context of the AEDPA relies heavily on federal statutory

definitions which are of no moment here.6 We have no controlling

statutory direction. For although Heck itself sits at the

intersection of our two granddaddy civil-rights statutes, it looks

in its reasoning to the common law of tort.

Our decisional path begins at Heck itself. The Heck court

held that a civil tort action, including an action under section

1983, is not an appropriate vehicle for challenging the validity of

outstanding criminal judgments.7 When a plaintiff alleges tort

claims against his arresting officers, “the district court must

first consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence.”8

If so, the claim is barred unless the plaintiff demonstrates that

the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

5
See Cisneros, 112 F.3d at 1280 (quoting U.S.S.G. § 4A1.2(f)).

6
Caldwell v. Dretke, 429 F.3d 521, 528 (5th Cir. 2005).
7
Heck, 512 U.S. at 486.
8
Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000) (emphasis added
and internal quotation omitted).

5
authorized to make such a determination, or called into question by

a federal court's issuance of a writ of habeas corpus under 28

U.S.C. § 2254.9

DeLeon argues that his suit is not barred by Heck because

following an order deferring an adjudication of guilt in Texas,

there is “no finding or verdict of guilt,” and “there has been no

conviction.”10 He explains that if he successfully completes his

deferred adjudication period, the charge against him will be

dismissed.11

Defendants respond that DeLeon misreads Heck, which directed

the district court to “consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction

or sentence.”12 And DeLeon was indeed sentenced, they argue, to a

$2500 fine and 10 years probation under community supervision.

Hence, the argument goes, because a civil judgment in favor of

DeLeon would challenge the validity of this sentence, it is Heck

barred.

This response is incomplete. The Texas courts have also

explained that when adjudication is deferred, “there can be no

imposition or suspension of sentence because no punishment is

9
Id.
10
Ex parte Shillings, 641 S.W.2d 538, 540 (Tex.Cr.App.1982).
11
Records of his arrest, however, are not automatically expunged. In re
Expunction of Ramirez, 143 S.W.3d 856, 858 (Tex.App.2004).
12
Heck, 512 U.S. at 486. (emphasis added).

6
assessed.”13 The Texas Court of Criminal Appeals has held that any

probation following an order of deferred adjudication is not a

sentence.14 In short, there is an order, but no judgment, a term

defined in Texas as “the written declaration of the court signed by

the trial judge and entered of record showing the conviction or

acquittal of the defendant.”15 The Texas Code of Criminal Procedure

provides:

when in the judge’s opinion the best interest of society
and the defendant will be served, the judge may, after
receiving a plea of guilty or a plea of nolo contendere,
hearing the evidence, and finding that it substantiates
the defendant’s guilt, defer further proceedings without
entering an adjudication of guilt, and place the
defendant on community supervision.16

That is, after a judicial review of the evidence, including a sworn

confession by DeLeon, there was a judicial finding that the

evidence substantiated the defendants guilt beyond a reasonable

doubt, but not a judicial finding of guilt. The proceedings halted

at this juncture and were then simply deferred.

13
Hammack v. State, 963 S.W.2d 199, 200 (Tex. App. Austin 1998); Ex
parte Shillings, 641 S.W.2d at 540; Jordan v. State, 36 S.W.3d 871, 876 (Tex.
Crim. App. 2001); Hurley v. State, 130 S.W.3d 501 (Tex. App. Dallas 2004).
14
Ex parte Shillings, 641 S.W.2d at 539.
15
Tex.Code Crim. Proc. art. 42.01, § 1. It is more appropriate here
to reference state understandings of the term “judgment” than to rely on the
federal statutory definition. This is because Heck relied, not upon federal
statutes, but upon the common law’s reluctance to undermine state court
judgments of conviction with parallel civil proceedings.
16
Tex.C.Crim.Proc. art. 42.12 § 5(a).

7
 The Missouri Supreme Court observed of this very statute that

“[t]his is unlike a conviction in name only.”17 Elevating substance

over form, the Missouri Court suspended indefinitely the license of

a lawyer who had been placed on deferred adjudication in Texas for

a crime of moral turpitude, concluding that “[a] judicial admission

that a lawyer possessed cocaine, a felony, is a matter of grave

consequence,”18 a decision not unlike that made by the drafters of

the sentencing guidelines, which also punish past admissions of

guilt. But the Court’s language in Heck and its progeny protects

only a conviction or sentence, “that is to say, an outstanding

criminal judgment.”19

Arguably, the Court has already extended Heck beyond judgments

of conviction, holding in Balisok that it protects administrative

rulings in prison disciplinary proceedings.20 Yet in such

situations, and unlike here, a sentence is being challenged. So

the rationale of Heck is plainly on display — a prisoner cannot

circumvent well-established procedures for challenging his sentence

of confinement, whether attacking the judgment imposing the

sentence or the administrative ruling declining to shorten it.21

17
In re Shunk, 847 S.W.2d 789, 790 (Mo. 1993).
18
Id. at 791.
19
Wallace v. Kato, 127 S.Ct. 1091, 1098 (2007).
20
Edwards v. Balisok, 520 U.S. 641, 648 (1997).
21
See, e.g., Miller v. Indiana Dept. of Corr., 75 F.3d 330, 331 (7th Cir.
1996).

8
With deferred adjudication, there is no judgment of conviction and

no sentence. We remain persuaded that if Heck’s favorable

termination rule attaches to the order issued in such proceedings,

it is not as a requirement of Balisok.

Two arguments remain in support of Heck’s application to

deferred adjudication. First, an order deferring adjudication,

though not formally a conviction or sentence, is its functional

equivalent in light of Heck’s rationale. Second, an order

deferring adjudication is, at least, one stage in an ongoing state

criminal proceeding, which Heck’s rationale might protect. Both

arguments look beyond the “sentence or conviction” language in

Heck, directing us to examine the meaning behind the words.

Heck’s favorable termination doctrine is supported by two

somewhat-independent rationales, which divide the Court22 and

circuits23 even today. One, articulated by Justice Scalia, views

Heck foremost as a section 1983 decision, narrowing the reach of

that civil-rights statute by reference to the common law of tort in

22
Compare Heck, 512 U.S. at 484 and Spencer v. Kemna, 523 U.S. 1 (1998)
with Heck, 512 U.S. at 492 (Souter, J. concurring) and Spencer, 523 U.S. at
20-21 (Souter, J., concurring) and id. at 21 (Ginsburg, J., concurring) and
id. at 25 n.8 (Stevens, J., dissenting).
23
Compare Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir.1999) (adopting
Justice Souter’s view that Heck should apply only when the plaintiff has
access to a habeas remedy) and Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 n.3
(6th Cir.1999) and Carr v. O'Leary, 167 F.3d 1124, 1127 (7th Cir. 1999) with
Cabrera v. City of Huntington Park, 159 F.3d 374, 380 n.6 (9th Cir. 1998)
(holding that Heck applies in all section 1983 suits regardless of the
plaintiff’s access to habeas) and Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st
Cir. 1998).

9
1871. Another, articulated by Justice Souter, views Heck foremost

as a habeas decision, a practical gloss on section 1983 to

accommodate the habeas statute’s exhaustion requirements. This

circuit remains in the first camp,24 where Heck stands first for

“the hoary principle that civil tort actions are not appropriate

vehicles for challenging the validity of outstanding criminal

judgments.”25 In short, the common law animated Heck, and so it

lights our way today.

For the meaning of section 1983, Heck looks to the tort of

malicious prosecution, an action unavailable at common law where

there was an outstanding judgment of conviction. Actions in

malicious prosecution were also dismissed, however, where there was

any pending criminal proceeding. Hence, in a turn-of-the century

case cited by the Heck Court, the California Supreme Court

dismissed a civil suit because an information was outstanding.26

The treatises cited by the Court also support the argument that

Heck might attach to any criminal matter pending. Dean Bigelow

explained in 1875 that “[t]he action for malicious prosecution

cannot be maintained until the prosecution has terminated; for

otherwise the plaintiff might obtain judgment in the one case and

yet be convicted in the other, which would of course disprove the

24
Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000).
25
Heck, 512 U.S. at 486.
26
Carpenter v. Nutter, 127 Cal. 61, 59 P. 301 (1899).

10
averment of a want of probable cause.”27 Another treatise explains

that the favorable termination requirement “avoids parallel

litigation over the issues of probable cause and guilt . . . and it

precludes the possibility of the claimant [sic] succeeding in the

tort action after having been convicted in the underlying criminal

prosecution, in contravention of a strong judicial policy against

the creation of two conflicting resolutions arising out of the same

or identical transaction.”28

Nonetheless the Court recently refused to extend Heck’s

application to pending criminal matters. In Wallace v. Kato the

Court held,

We are not disposed to embrace this bizarre extension of
Heck. If a plaintiff files a false arrest claim before
he has been convicted (or files any other claim related
to the rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of
the district court, and in accord with common practice,
to stay the civil action until the criminal case or the
likelihood of a criminal case is ended.29

After urging abstention in such cases, the Court concluded, “If the

plaintiff is ultimately convicted, and if the stayed civil suit

would impugn that conviction, Heck will require dismissal;

otherwise, the civil action will proceed, absent some other bar to

27
M.Bigelow, Leading Cases on Law of Torts 196 (1875).
28
8 S. Speiser, C. Krause,& A. Gans, American Law of Torts § 28:5, p.24
(1991).
29
Wallace v. Kato, 127 S.Ct. 1091, 1098 (2007) (citing Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 730 (1996).

11
suit.”30 So the first argument, that Heck applies to deferred

adjudication orders issued in ongoing state criminal proceedings,

lacks merit.

A second argument remains, resting on a different

characterization of an order deferring adjudication, viewing it as

a final judicial act, not as one stage in an ongoing criminal

proceeding. And while unknown at common law in 1871, it is fairly

viewed as akin to judgments of conviction. Deferred adjudication

was not intended as a radical departure, rather, the Texas

legislature enacted these procedures with “the purpose . . . to

remove from existing statutes the limitations . . . that have

acted as barriers to effective systems of community supervision in

the public interest.”31 And although the Texas courts have in all

circumstances held that these orders are not convictions, they have

been accorded finality, for instance in the appellate context,

where the defendant is released on bail pending the disposition of

his appeal of a deferred adjudication order, which does not become

final until the appellate court’s mandate issues.32 Likewise,

although there is no finding of guilt, there is at least a judicial

finding that the evidence substantiates the defendant’s guilt,

followed by conditions of probation that may include a fine and

30
Id.
31
Tex.Code Crim.Proc. art. 42.12, § 1.
32
See Knighton v. State, 2007 WL 474972, (Tex.App. Beaumont, Feb. 14,
2007).

12
incarceration.33 We conclude that a deferred adjudication order is

a conviction for the purposes of Heck’s favorable termination

rule.34 This case does not require that we decide whether a

successfully completed deferred adjudication, with its more limited

collateral consequences under Texas law, is also a conviction for

the purposes of Heck, and we do not decide that question.35

B

DeLeon next argues that, at minimum, his excessive force claim

should survive, as his conviction would not be invalidated by his

proving that excessive force was used well after the need for it

had ceased. The district court disagreed, ruling that DeLeon’s

excessive force claim was barred as a matter of law because he was

“convicted” of aggravated assault on a police officer. DeLeon

attacks this “as a matter of law” ruling, noting that in a similar

case we explained that “the plaintiff’s claim that officers used

force far greater than that required for his arrest is conceptually

distinct from his conviction for assault with a deadly weapon.”36

33
Tex. Code Crim. Proc. art. 42.12, sec.5(a) (“The judge may ... require
any reasonable conditions of community supervision ... that a judge could
impose on a defendant placed on community supervision for a conviction that
was probated and suspended, including confinement.”).
34
See Taylor v. Gregg, 36 F.3d 453 (5th Cir.1994) (arguing that as a
policy matter “[p]rosecutors would be less willing to agree to an adjournment
in contemplation of dismissal if the defendant could then turn around and sue
the prosecutor under Section 1983 for malicious prosecution.”).
35
But see McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007).
36
Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996); see also Sappington
v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999) (grounding its holding in the
fact that self-defense is a justification defense to the crime of battery of

13
 We need not judge this dispute. Contrary to DeLeon’s argument

on appeal, his complaint does not allege that his claims of

excessive force are separable from his aggravated assault on the

officer. Instead, the complaint maintains that he did nothing

wrong, that he simply defended himself, against mace, baton, and

then gun, as the violence escalated. The complaint alleges that

while DeLeon “explained that everything was fine,” Collins refused

to listen and “instead unleashed his chemical spray on Mr. DeLeon.”

As DeLeon “was trying to fend off the blinding mace, Defendant

Collins then pulled out his baton and began swinging at Mr.

DeLeon.” Finally, when DeLeon put his hand up in defense, “holding

on” to the baton, Collins “got even angrier.” Eventually, DeLeon

“released Collins and backed away from him with his hands up. . .

Mr. DeLeon barely had time to query ‘are you going to shoot me?'

before Collins did just that.”

There is no alternative pleading or theory of recovery that

would allow this claim for excessive force to proceed without

interfering with the Texas proceeding against DeLeon for aggravated

assault on an officer. Rather it is presented as a single violent

encounter throughout which Collins used excessive force. DeLeon’s

complaint alleges that “Mr. DeLeon was seized” and was “not a

suspect” and “committed no crime.” He charges that he “was forced

an officer); Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) ("as in
Sappington, the force used by the deputies to restrain Hainze, up to and
including deadly force, cannot be deemed excessive.") (emphasis added).

14
to undergo police escalation . . . of the situation” by Collins,

“who was present in his home without a warrant and/or sufficient

justification to remain.” His excessive force claim is that “he

was unlawfully assaulted, and physically beaten and shot by

Defendant Collins.”

DeLeon still thinks he’s innocent. His federal complaint

contradicts his confession in Texas court, belying any suggestion

on appeal that he has accepted his “conviction” for aggravated

assault, and challenges only the shooting. As we reasoned in a

recent unpublished opinion:

Arnold’s claims are not that the police used excessive
force after he stopped resisting arrest or even that the
officers used excessive and unreasonable force to stop
his resistance. Instead, Arnold claims that he did
nothing wrong, but was viciously attacked for no reason.
He provides no alterative pleading or theory of recovery.
. . . Arnold’s claims are distinguishable from excessive
force claims that survive Heck’s bar. . . . Arnold’s suit
squarely challenges the factual determination that
underlies his conviction for resisting an officer. If
Arnold prevails, he will have established that his
criminal conviction lacks any basis.37

We conclude that DeLeon’s excessive force claims are inseparable

from the rest.

III

Finally, DeLeon requests that we modify the district court’s

judgment, which dismisses his claims simply “with prejudice.” We

agree that the district court’s decretal language is technically

37
Arnold v. Slaughter, 100 Fed.Appx. 321, 324 (5th Cir. 2004)
(unpublished).

15
incomplete. A preferred order of dismissal in Heck cases decrees,

“Plaintiffs claims are dismissed with prejudice to their being

asserted again until the Heck conditions are met.”38 We will modify

the judgment accordingly.

IV

The district court correctly dismissed plaintiff’s claims as

Heck barred. The dismissal is AFFIRMED, but the judgment is

MODIFIED to state that DeLeon’s claims are DISMISSED WITH PREJUDICE

to their being asserted again until the Heck conditions are met.39

We do not decide whether DeLeon can meet the Heck conditions, or

otherwise may pursue federal habeas relief by successfully

completing his deferred adjudication.

38
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
39
Id.

16