Kelly v. Serna

United States Court of Appeals,

Eleventh Circuit.

No. 95-8663.

Terence George KELLY, Plaintiff-Appellant,

v.

Hilda T. SERNA, Robert R. Michelotti, Mona Polen Jerkins, Raleigh
J. Lopez, Steven R. Wisebram, Craig A. Gillen, each individually,
United States of America, Defendant-Appellees.

July 11, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-cv-3155-JTC), Jack T. Camp, Judge.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior
Circuit Judge.

HILL, Senior Circuit Judge:

Terence G. Kelly, an attorney, represented two defendants

charged with drug offenses. During the course of that

representation, agents of the Drug Enforcement Agency (DEA)

received information that Kelly, himself, was involved in the

criminal drug activity. Kelly was indicted by a grand jury,

charged and convicted of one count of conspiracy to possess with

intent to distribute cocaine and one count of aiding, abetting, and

counseling the possession with intent to distribute cocaine. His

conviction was reversed on appeal to this court. United States v.

Kelly, 888 F.2d 732 (11th Cir.1989).

After we reversed his conviction, Kelly filed this action for

malicious prosecution and various constitutional violations (Bivens

claims) against several DEA agents, as well as the United States of

America. The district court dismissed Kelly's Bivens claims, and

entered summary judgment for defendants on his malicious
prosecution claim. For the following reasons, we affirm the

district court's orders.

I. BACKGROUND

Kelly represented two drug traffickers—Raul Restrepo and

Cirilo Figueroa. In 1985, Restrepo arrived in Atlanta with three

kilograms of cocaine and left it with Figueroa. One of the

kilograms was not of good quality and Figueroa buried it.

Thereafter, Restrepo sold the rest of the cocaine through Raul

Montes to a purported customer who turned out to be a DEA agent.

Restrepo was arrested and sought Figueroa's help in retaining a

lawyer. Figueroa referred Restrepo to Kelly because Figueroa had

had an attorney-client relationship with Kelly since 1979.

At Kelly's trial, Restrepo testified he told Kelly about

Figueroa's involvement and possession of the third kilo of cocaine

and requested Kelly to ask Figueroa to sell the cocaine and use the

proceeds to pay Kelly's fee. Restrepo testified that Kelly told

him Figueroa had already told Kelly about Figueroa's possession of

the cocaine. Restrepo also testified that Kelly brought back a

message from Figueroa that the cocaine was not salable and had been

buried, that Figueroa was under pressure from police surveillance

and that Figueroa could no longer financially help Restrepo.

Restrepo then decided to cooperate with the government and

pled guilty. After a debriefing by DEA agents at which Kelly was

present, Restrepo contacted a DEA agent and arranged a second

meeting without Kelly. Restrepo told the DEA agent about the kilo

of cocaine in Figueroa's possession, that Kelly knew Figueroa had

it, and that Kelly had told him not to mention Figueroa's
involvement.

Thereafter, Restrepo made recorded telephone calls to Kelly

and Figueroa, and arranged a meeting with Kelly and DEA agents who

posed as Restrepo's friend and brother-in-law, all concerning

Restrepo's desire to get in touch with Figueroa to get the money or

the cocaine.

During the course of the investigation, Kelly's actions and

statements formed the basis for the charges that he had more than

mere knowledge of the kilogram of cocaine and had willfully and

knowingly become a member of the conspiracy by giving advice and

counsel to Figueroa in order for Figueroa to continue to violate

the law. Kelly was arrested on June 24, 1987, and indicted the

next day along with Figueroa and six others. At his request, Kelly

was tried by the court separately from his co-defendants; the

court found him guilty on April 6, 1988. He appealed, and we

reversed his conviction on September 29, 1989, for insufficient

evidence, improper exclusion of testimony, and improper failure of

the district judge to recuse himself.

II. ANALYSIS

A. The Bivens Claims

In this action, Kelly asserts that, during the course of their

investigation of him, the DEA agents violated his constitutional

rights under the Fourth, Fifth, and Ninth Amendments, and that his

arrest and prosecution were illegal and his conviction invalid.

These allegations state a claim for damages under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
 The district court dismissed the Bivens claims as

untimely-filed. The court applied Georgia's two-year personal

injury statute of limitations, O.C.G.A. § 9-3-33, and held that the

claims were barred because they were filed more than two years

after they accrued—the day this court reversed Kelly's conviction.

Kelly argues that the district court erred in holding his claims

accrued on the date his conviction was reversed; he argues that

his claims did not accrue until expiration of the time permitted

for the United States to file a petition for a writ of certiorari

to the Supreme Court.

This issue presents two separate questions: first, what is

the applicable statute of limitations in a Bivens action; and

second, when does that statute begin to run. We consider each in

turn.

This circuit has not yet decided what statute of limitations

is applicable in a Bivens action. All of the circuits which have

considered this issue have decided that the same statute of

limitations applicable to actions under 42 U.S.C. § 1983 should

apply to Bivens actions. Sanchez v. United States, 49 F.3d 1329,

1330 (8th Cir.1995); Kurinsky v. United States, 33 F.3d 594, 599

(6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1793, 131

L.Ed.2d 721 (1995); Van Strum v. Lawn, 940 F.2d 406, 410 (9th

Cir.1991); Bieneman v. City of Chicago, 864 F.2d 463, 469-70 (7th

Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d

661 (1989); Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987).

We agree with this result. Bivens actions are quite similar

to those brought under § 1983. As we noted in Abella v. Rubino, 63
F.3d 1063, 1065 (11th Cir.1995), "The effect of Bivens was to

create a remedy against federal officers, acting under color of

federal law, that was analogous to the section 1983 action against

state officials. Thus, courts generally apply § 1983 law to
Bivens

cases." We reserved judgment on this issue in Abella, but we

decide now to join our sister circuits and hold that a Bivens

action is governed by the same statute of limitations as would a §

1983 action in that court.

In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d

254 (1985), the Supreme Court directed that the state limitation

period applicable to personal injury actions should be applied to

all actions brought pursuant to 42 U.S.C. § 1983. In accord with

Wilson, we held in Mullinax v. McElhenney, 817 F.2d 711 (11th

Cir.1987), that the Georgia two-year personal injury limitations

period applies to § 1983 actions in a Georgia district court. See

O.C.G.A. § 9-3-33. Accordingly, we hold that the district court's

application of the Georgia two-year personal injury limitations

period to the Bivens claims in this case was correct.

Deciding what statute of limitations applies to this action

gets us only half way to our destination. Secondly, we must decide

at what point the applicable statute begins to run.

A statute of limitations begins to run when the cause of

action accrues. Accrual of a cause of action under 42 U.S.C. §

1983 is a question of federal law. Mullinax, 817 F.2d at 716.

Recently the Supreme Court dealt with this issue in the context of

§ 1983 actions for damages attributable to an unconstitutional

conviction or sentence. Heck v. Humphrey, --- U.S. ----, ----, 114
S.Ct. 2364, 2373, 129 L.Ed.2d 383 (1994). Analogizing such actions

to those for malicious prosecution, the Court held:

Just as a cause of action for malicious prosecution does not
accrue until the criminal proceedings have terminated in the
plaintiff's favor, so also a § 1983 cause of action for
damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has
been invalidated.

Id. at ----, 114 S.Ct. at 2374 (internal citations omitted).

We have previously held that the Heck rule applies equally to

a Bivens claim. Abella, 63 F.2d at 1065. Accord Tavarez v. Reno,

54 F.3d 109 (2d Cir.1995) (per curiam); Stephenson v. Reno, 28

F.3d 26 (5th Cir.1994). Thus, in Bivens actions which challenge

the validity of a conviction, the cause of action accrues when the

underlying conviction is reversed.

Since Kelly alleges that the investigation of him violated

his constitutional rights under the Fourth, Fifth, and Ninth

Amendments, and that his arrest and prosecution were illegal and

his conviction invalid, his Bivens claims challenge the validity of

his conviction and fall under the rule of Heck. They accrued upon

"reversal" of his conviction.

Kelly's conviction was reversed on September 29, 1989. The

present action was filed on December 17, 1991. The claims,

therefore, appear to be time-barred.

Kelly argues, however, that his claims did not accrue until

the expiration of the time allowed for the filing of a petition for

certiorari, or sixty days.1 Furthermore, the government filed a

1
At the time of the conviction's reversal, Supreme Court
Rule 20 provided a sixty-day period for filing a writ of
certiorari.
petition for rehearing of the reversal. The filing of a petition

for rehearing tolls the certiorari period until the date the

petition is denied, or of the entry of a subsequent judgment on

rehearing. See Supreme Court Rule 20.4. The government's petition

for rehearing was denied on November 30, 1989. Although the

government did not file a petition for certiorari, Kelly argues

that his claims did not accrue until the expiration of the sixty

days during which they could have filed a petition. Adding these

sixty days to the date of denial of the petition for

rehearing—November 30, 1989—would mean that Kelly's claims did not

accrue until January 30, 1989, and were filed within the two-year

limitations period.

Kelly cites Prince v. Wallace, 568 F.2d 1176 (5th Cir.1978),

in support of his argument. In that case, after Prince's

conviction was reversed, a petition for certiorari was filed and

denied. A motion for reconsideration of the denial was then filed.

In considering the timeliness of Prince's subsequent § 1983

complaint, the Fifth Circuit wrote, that "under the facts of the

instant case", the limitations period did not begin to run until

the denial of the motion for reconsideration. Id. at 1178.

Prince, however, preceded and does not interpret Heck.

Furthermore, in that case, the statute of limitations was one year

and the plaintiff's complaint was not filed until nineteen months

after the denial of the motion for reconsideration of the denial of

the petition for certiorari. The complaint was untimely no matter

when the statute of limitations began to run—after the reversal,

after the petition for certiorari was denied, or after the motion
for reconsideration of that denial was denied. Consequently, the

statement in Prince that the statute of limitations began to run

after the denial of the motion for reconsideration was dicta.

Finally, the court clearly limited its language regarding the

limitations period to the facts of that case. For these reasons,

we do not believe that Prince requires us to hold that, under Heck,

"reversal" occurs only after the certiorari period has run.

Furthermore, we find no support for Kelly's theory. On the

contrary, most cases which have interpreted Heck assume that

"reversal" means the date upon which the appeals court issues its

opinion reversing a conviction. See e.g., Woods v. Candela, 47

F.3d 545 (2d Cir.1995); Pinaud v. County of Suffolk, 52 F.3d 1139

(2d Cir.1995); Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3 (1st

Cir.1994); Boyd v. Biggers, 31 F.3d 279 (5th Cir.1994); and

McMillian v. Johnson, 878 F.Supp. 1473 (M.D.Ala.1995); Heller v.

Plave, 743 F.Supp. 1553 (S.D.Fla.1990) (citing Prince as support

for this proposition).

We hold that "reversal" occurs prior to the expiration of the

time permitted for the filing of a petition for certiorari. Under

Heck and Abella, a Bivens claim accrues on the date a court of

appeals of competent jurisdiction reverses a conviction2 and no

2
We have considered whether "termination" of the criminal
proceedings does not occur upon the date we reverse, but upon the
issuance of the mandate, which would allow for the expiration of
the time period for filing a petition for rehearing or of the
denial of such a petition. Although Fed.R.App.P. 36 clearly
treats our opinion and its entry on the docket as the "judgment,"
it might be argued that no "reversal" has occurred until the
mandate issues.

We decline to decide this issue, however, because it
has not been raised by the parties and it does not affect
 3
retrial is permitted. As Kelly's conviction was reversed on

September 29, 1989, and his Bivens claims were not filed until

December 17, 1991, they are time-barred.

B. The Malicious Prosecution Claim

In reversing Kelly's conviction, this court wrote:

On the question of whether Kelly knowingly joined a criminal
conspiracy to possess and distribute cocaine, the evidence,
where it is not completely silent, supports little more than
speculation and conjecture.... We find the evidence on [the
aiding and abetting] count to be even weaker than that on the
conspiracy charge.

Kelly, 888 F.2d at 741-42.

Kelly alleges the criminal prosecution against him was

instituted without probable cause through a constitutionally and

factually defective investigation calculated to harass, intimidate,

and abuse and was conducted in a prejudicial manner. He claims

that the acts and omissions of the DEA officers proximately caused

the malicious prosecution. The district court entered summary

judgment against him, holding that upon the undisputed facts of the

the outcome of this case (Kelly's Bivens claims were filed
more than two years after the issuance of the mandate in his
criminal prosecution). This issue may be addressed at a
later date when it is properly before the court.
3
Traditionally, setting aside a conviction and remanding for
re-trial or dismissal was termed a "vacation" of the conviction;
"reversal" of a conviction meant no re-trial was permitted. In
this context, the Supreme Court's use of the term "reversal" is
appropriate to signify the termination of criminal proceedings.
As courts have come to use these terms without regard to this
distinction, however, we take this opportunity to make clear that
by "reversal" we mean without the possibility for retrial. Cf.
Smith v. Holtz, 879 F.Supp. 435 (M.D.Pa.1995) (§ 1983 claim
accrued when claimant discharged from state custody and retrial
barred rather than on date of prior order reversing conviction);
Brandley v. Keeshan, 64 F.3d 196 (5th Cir.1995) (conviction set
aside by grant of habeas corpus not a "termination" where state
could retry claimant). Where retrial is not an option, reversal
is a termination of the prosecution.
case, there was sufficient probable cause as a matter of law to

support Kelly's prosecution. We review grants of summary judgment

de novo. Fitzpatrick v. Atlanta, 2 F.3d 1112, 1117 (11th

Cir.1993).

Under the Federal Tort Claims Act (FTCA), state law

determines the liability of an individual defendant. 28 U.S.C. §

1346(b); Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct.

711, 714-15, 116 L.Ed.2d 731 (1992); Newmann v. United States, 938

F.2d 1258, 1261 n. 2 (11th Cir.1991). In Georgia, an action for

malicious prosecution is governed by O.C.G.A. § 51-7-40, which

provides:

A criminal prosecution which is carried on maliciously and
without any probable cause and which causes damage to the
person prosecuted shall give him a cause of action.

To prevail on his a claim, Kelly must show: (1) prosecution

for a criminal offense; (2) instigated without probable cause;

(3) with malice; (4) under a valid warrant, accusation or summons;

(5) which is terminated favorably to the plaintiff; and which (6)

has caused damage to the plaintiff. Wal-Mart Stores, Inc. v.

Blackford, 264 Ga. 612, 449 S.E.2d 293 (1994). Malicious

prosecution actions are disfavored under Georgia law. Day Realty

Assocs., Inc. v. McMillan, 247 Ga. 561, 277 S.E.2d 663 (1981).

"Generally, lack of probable cause shall be a question for the

jury, under the direction of the court, [but] what facts and

circumstances amount to probable cause is a pure question of law."

Barber v. H & H Muller Enterprises, Inc., 197 Ga.App. 126, 397

S.E.2d 563, 566 (1990) (internal quotation marks omitted). There

is a substantial difference between the quantum of proof necessary
to constitute sufficient evidence to support a conviction and that

necessary to establish probable cause. Although we characterized

the evidence against Kelly at trial as supporting little more than

"speculation and conjecture," this assessment does not mean that

there was not probable cause to bring the charges.

Where the uncontradicted evidence shows that "there were some

slight circumstances pointing to his guilt, though not enough to

exclude every other reasonable hypothesis," there is no claim for

malicious prosecution. El-Amin v. Trust Co. Bank, 171 Ga.App. 35,

318 S.E.2d 655, 658 (1984). See also Wilson v. Thurman, 213

Ga.App. 656, 445 S.E.2d 811 (1994). Kelly must show that "at the

time of the prosecution, ... [defendants] could have had no

reasonable grounds for believing [Kelly] to be guilty of the charge

brought." Monroe v. Sigler, 256 Ga. 759, 353 S.E.2d 23, 24 (1987).

A grand jury indictment constitutes prima facie evidence that

probable cause existed for the prosecution. Agbonghae v. Circuit

City Stores, Inc., 214 Ga.App. 561, 448 S.E.2d 484, 486 (1994). A

jury conviction is conclusive of probable cause unless there was

fraud. Monroe, 353 S.E.2d at 25. Since Kelly was indicted and

convicted, he must show specific facts tending to show that

probable cause did not exist for his arrest and that the

prosecution was motivated by malice. Agbonghae, 448 S.E.2d at 486.

Kelly asserts that false testimony was given to the grand jury

to obtain the indictment. If his indictment was procured on

knowingly false testimony, it would not support a finding of

probable cause. Perry v. Brooks, 175 Ga.App. 77, 332 S.E.2d 375

(1985).
 Plaintiff alleges three incidents of fraudulent testimony to

the grand jury: (1) false testimony by Special Agent Augustine;

(2) a mistranslation of a Spanish word; and (3) false information

on a DEA Report. The district court's analysis of these

allegations of fraud was careful and complete. We agree with its

conclusion that these allegations do not negate the probable cause

established by the indictment.

1. Augustine's Grand Jury Testimony.

Kelly alleges three incidents related by Special Agent

Augustine during his grand jury testimony were both false and

misleading. First, there was a discrepancy between Augustine's

grand jury testimony and that given in a deposition regarding

whether statements attributed to Kelly in the DEA Report were

"verbatim." Kelly fails, however, to identify any specific

statements incorrectly attributed to himself, and, thus, has not

met his burden of showing specific evidence of fraud.

Second, Kelly alleges fraud in Augustine's testimony regarding

whether he was familiar with Kelly's voice. Kelly offers no proof

that Augustine had never heard Kelly's voice, however, and so again

has not met his burden of proof on this issue.

Third, Kelly alleges Augustine mischaracterized a recorded

phone call in his grand jury testimony. Our review of the record

supports Augustine's characterization for the grand jury. The

mischaracterization, if any, certainly did not rise to the level of

fraud negating the indictment's finding of probable cause.

2. Mistranslation of a Spanish Word.

The second allegation of fraud concerns the alleged
mistranslation of the Spanish word "eh" in testimony to the grand

jury. Kelly alleges that by translating "eh" as "O.K." a

deliberately false meaning was conveyed to the grand jury that

Kelly was involved in the drug conspiracy. The district court

correctly notes, however, that, even if the word was translated

incorrectly, the substance of the conversation was not altered. We

agree.

3. DEA Report.

The DEA Report stated:

Kelly advised S/A Serna on the phone that they probably
couldn't do anything right now, referring to the package [of
cocaine] (emphasis added).

Kelly points out that his exact words, recorded secretly, were "I

don't think we can do anything, but I'll meet with you and

explain." He argues that the inclusion of the words "right now"

materially alters his meaning and was a deliberate and malicious

attempt to mislead the grand jury as to his involvement in the

conspiracy.

We are not sanguine about the inclusion of the words "right

now" in the report. Their inclusion lends some support to the

inference that Kelly was willing to engage in criminal behavior,

albeit if not "right now." We do not agree, however, that their

inclusion materially alters the meaning of his statement—action is

unlikely, but not impossible. Therefore, Kelly has not carried his

burden of showing fraud in the Report.

Kelly also alleges that an agent's testimony to the grand jury

that "in his opinion" Kelly was acting as a "barrier" for his

client and "using his attorney-client privilege as something to
hide behind," corrupted the proceeding because it was false and

highly prejudicial. An expression of opinion as opinion to the

grand jury, however, does not mislead or materially misstate

evidence. Cf. Hylton v. American Ass'n for Vocational

Instructional Materials, Inc., 214 Ga.App. 635, 448 S.E.2d 741

(1994).

Although we have reversed Kelly's conviction for insufficiency

of the evidence, we do not find that probable cause for his

prosecution was absent. The grand jury indictment's prima facie

evidence of probable cause has not been rebutted by a showing of

specific evidence that there was deliberate and malicious fraud

perpetrated on the grand jury to induce them to indict Kelly.

III. CONCLUSION

The Bivens claims in this action are barred by the statute of

limitations, and were correctly dismissed. The claim for malicious

prosecution is unsupported by specific evidence of fraud on the

grand jury sufficient to overcome the presumption of probable cause

which the indictment raises. Summary judgment was correctly

granted by the district court to the defendants on this claim.

Accordingly, the orders of the district court dismissing the Bivens

claims, and granting defendants summary judgment on the malicious

prosecution claim are

AFFIRMED.