Pedro Rosales-Martinez v. Colby Palmer, et al

Filing

FILED OPINION (CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and ALVIN K. HELLERSTEIN) Thus, we grant Washoe County s motion to supplement the record, and we take judicial notice of the court documents presented by the motion. REVERSED AND REMANDED. Judge: AKH Authoring. FILED AND ENTERED JUDGMENT. [9117225]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO ROSALES-MARTINEZ,
Plaintiff-Appellant,

No. 12-15077
D.C. No.
3:10-cv-748ECR-VPC

v.
COLBY PALMER, individually and as
a police officer for Reno Police
Department; HEIDI POE, individually
and as an officer for Washoe County
Parole and Probation Department; K.
M. LORENZO, individually and as an
officer for Washoe County Parole
and Probation Department; JENNIFER
REICHELT, individually and as
officer for Parole and Probation
Headquarters General Service Unit
Records; WASHOE COUNTY,
NEVADA; CITY OF RENO;
GAUDALUPE CORTEZ; and STATE OF
NEVADA,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Junior, Senior District Judge, Presiding
Argued and Submitted
February 13, 2014—San Francisco, California
Filed June 3, 2014

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ROSALES-MARTINEZ V. PALMER
Before: Consuelo M. Callahan and Milan D. Smith, Jr.,
Circuit Judges, and Alvin K. Hellerstein, Senior District
Judge.*
Opinion by Judge Hellerstein

SUMMARY**

Civil Rights
The panel reversed the district court’s dismissal of an
action brought under 42 U.S.C. § 1983 in which plaintiff
alleged that he was unlawfully convicted and imprisoned
because defendants, acting under color of state law,
unlawfully suppressed the criminal history of a confidential
informant who was the main witness against plaintiff.
The panel held that pursuant to Heck v. Humphrey, 512
U.S. 477, 487 (1994), the district court erred by dismissing
the § 1983 action as time-barred under Nevada’s statute of
limitations because even though plaintiff learned of
defendants’ unlawful actions while in prison, plaintiff’s
§ 1983 claim did not accrue until his convictions were later
invalidated.

*
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel held that plaintiff’s complaint sufficiently
alleged willful conduct on the part of a police officer for
failing to disclose the confidential informant’s criminal
history. The panel further held that on remand plaintiff
should be given an opportunity to file an amended complaint
as to his municipal liability claims.
The panel granted Washoe County’s motion to
supplement the record and took judicial notice of the court
documents relating to the ending of plaintiff’s jail term. The
panel directed that on remand, the district court should
consider if and to what extent plaintiff’s plea to the crime of
Unlawful Giving Away of Controlled Substances affected his
§ 1983 action.

COUNSEL
Maxwell V. Pritt (argued), Perry Maxwell Grossman, and
Will P. Riffelmacher, Boies, Schiller & Flenxer, LLP,
Oakland, California, for Plaintiff-Appellant.
Mark W. Dunagan (argued) and Donald L. Christensen,
Deputy City Attorneys, John J. Kadlic, Reno City Attorney,
Reno City Attorney’s Office, Reno, Nevada, for DefendantsAppellees Colby Palmer and City of Reno.
Herbert B. Kaplan (argued), Deputy District Attorney, and
Richard A. Gammick, District Attorney, Washoe County
District Attorney’s Office, Reno, Nevada, for DefendantAppellee Washoe County.

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ROSALES-MARTINEZ V. PALMER
OPINION

HELLERSTEIN, Senior District Judge:
This is an action for damages under 42 U.S.C. § 1983.
The plaintiff, Pedro Rosales-Martinez, complains that he was
unlawfully convicted and imprisoned as a result of violations
of his constitutional rights. He alleges that the defendants,
acting under color of State law, unlawfully suppressed the
criminal history of a confidential informant who was the main
witness against him, failed to produce the documents
reflecting that criminal history, and thus caused him to be
found guilty of several counts of drug trafficking and to be
sentenced to a term of ten to twenty-five years. RosalesMartinez alleges that the Nevada state courts recognized the
constitutional error, granted his petition for a writ of habeas
corpus, and ordered him freed, on December 2, 2008. He
alleges that he served four and a half years in prison because
of defendants’ constitutional errors, and seeks substantial
damages.
On motion of defendants, the district court dismissed the
action as time-barred because it was not filed within two
years of the time Rosales-Martinez learned that the
confidential informant had an extensive criminal history
which had not been produced to him. We reverse and
remand. Pursuant to Heck v. Humphrey, 512 U.S. 477, 487
(1994), Rosales-Martinez’s cause of action did not accrue
until his conviction was held invalid. We write to clarify our
law on when a released prisoner’s cause of action for
constitutional violations accrues, and when the statute of
limitations begins to run.

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Shortly before argument of the appeal, Defendant Washoe
County asked us by motion to take judicial notice of court
records describing the circumstances leading to RosalesMartinez’s release from imprisonment and, particularly, a
stipulated agreement between Rosales-Martinez and the
prosecutor and the minutes of his re-sentencing. We hold that
judicial notice is appropriate, but that the district court,
following remand, should address the relevance and
significance of the court records in relation to the viability of
Rosales-Martinez’s claim, and the scope of his potential
damages.
STANDARD OF REVIEW
We review the district court’s grant of a motion to dismiss
de novo. Cassirer v. Thyssen-Bornemisza Collection Found.,
737 F.3d 613, 615 (9th Cir. 2013). In reviewing the district
court’s decision we treat the facts alleged in RosalesMartinez’s complaint as true, id., and we construe his
complaint liberally because he drafted it pro se, Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, we
are “not bound to accept as true a legal conclusion couched
as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotation marks omitted). The
complaint “must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).

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BACKGROUND
I. District Court Proceedings

Rosales-Martinez, proceeding pro se, filed his complaint
on December 1, 2010 against the State of Nevada, the City of
Reno, Washoe County (in which Reno is located), police
officials and prosecutors of those governmental entities, and
Guadalupe Cortez, a confidential informant to the police who
testified against him.1 Rosales-Martinez alleged that Officer
Palmer and other defendants entered into an agreement with
Guadalupe Cortez to release him if he could help trap
Rosales-Martinez as he committed a drug crime.
Rosales-Martinez was arrested on drug charges. Cortez
was the only witness to testify against him. The Nevada state
court ordered the government in pre-trial proceedings to
disclose Cortez’s criminal history to Rosales-Martinez but,
Rosales-Martinez alleges, the government did not do so.
Plaintiff alleges that the defendants knew or should have
known that Cortez had an extensive criminal history under
the alias Jorge Algarin,2 and did not disclose that history to
the prosecutor or to Rosales-Martinez.

1

Plaintiff served the complaint on four defendants: the City of Reno;
Officer Colby Palmer, an employee of the City of Reno Police
Department; Washoe County; and Officer Heidi Poe, an employee of the
Washoe County Parole and Probation Department; other defendants were
not served.
2

Rosales-Martinez alleges that the defendants’ records contained copies
of Algarin’s criminal history and Algarin’s fingerprints, which would have
indicated that Algarin and Cortez were the same person.

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After a July 2004 trial, Rosales-Martinez was convicted
of two counts of Trafficking in a Controlled Substance, one
count of Unlawful Giving Away of a Controlled Substance,
and one Count of Possession of a Controlled Substance. On
September 28, 2004, Rosales-Martinez was sentenced to a
term of imprisonment of ten to twenty-five years.
Plaintiff alleges that he learned that Cortez and Algarin
were the same person while in prison. With this information,
Rosales-Martinez, on an unknown date, filed a petition in the
Washoe County District Court for habeas corpus, claiming
that the State’s failure to disclose Cortez’s criminal history
violated his constitutional rights. On December 2, 2008, the
state District Court granted Rosales-Martinez’s petition and
ordered his release from prison.
On December 1, 2010, almost two years after he was
ordered released, Plaintiff filed this federal court lawsuit. He
alleges that defendants violated his constitutional rights by
failing to disclose Cortez’s criminal history during pre-trial
proceedings, and even after his conviction. He alleges that
the City of Reno and Washoe County violated his
constitutional rights by failing to train employees in record
keeping, by failing to create an adequate system for storing
and retrieving information, and by treating MexicanAmericans differently from other American citizens.
Defendants Palmer and the City of Reno moved to
dismiss Rosales-Martinez’s complaint for failure to state a
legally sufficient claim, arguing, inter alia, that the action
was time-barred. Defendants Poe and Washoe County also
filed a motion to dismiss and motions for a more definite
statement, pursuant to Federal Rule of Civil Procedure 12(e).

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On December 13, 2011, the district court granted the City
of Reno and Palmer’s motion to dismiss, and dismissed the
complaint against all defendants as barred by the statute of
limitations, without leave to file an amended complaint.
Applying the two-year statute of limitations that governs
§ 1983 actions filed in Nevada, the district court reasoned that
Rosales-Martinez’s cause of action had accrued when he first
“knew or had reason to know of Defendants’ alleged
withholding of exonerating information.” That was the time,
the district court ruled, that Plaintiff knew that his
constitutional rights to a fair trial had been violated because
of the prosecution’s failure to produce Brady and Giglio
material. See Brady v. Maryland, 373 U.S. 83 (1963); Giglio
v. United States, 405 U.S. 150 (1972). Since RosalesMartinez had known about these violations before the
December 2, 2008 order of the Washoe County District Court
ordering his release from prison, more than two years had
elapsed before Rosales-Martinez filed his § 1983 action on
December 1, 2010. Hence, the district court ruled, RosalesMartinez could no longer sue.
II. The Record on Appeal
Rosales-Martinez, proceeding pro se, filed a timely
appeal from the district court’s judgment. This Court
appointed pro bono counsel to represent him on appeal.
Just seven days before the oral argument scheduled in this
case, Washoe County moved to supplement the record on
appeal with court records relating to the ending of RosalesMartinez’s jail term. Specifically, Washoe County asked this
Court to take judicial notice of a stipulated agreement
between the prosecutor and Rosales-Martinez, a plea of guilty
by Rosales-Martinez to the least serious of the charges of

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which he was convicted, and his sentence of a certain portion
of the time he served in custody. These documents, if
admitted, suggested the possibility of a different context to
Rosales-Martinez’s allegation that the Washoe County
District Court simply ordered him to be released in response
to his petition for habeas corpus.
The court documents are summarized as follows: A
stipulated agreement of December 2, 2008 between RosalesMartinez (represented by counsel) and the State of Nevada,
acting through the Washoe County District Attorney’s Office,
providing that Rosales-Martinez’s conviction “[was] vacated
based on the cumulative errors ground as alleged in [RosalesMartinez’s habeas] petition;” that, in return, RosalesMartinez would plead guilty to one count of Unlawful Giving
Away of a Controlled Substance, a crime which had been
charged in Count IV of the Second Amended Information
against Rosales-Martinez; and that Rosales-Martinez would
withdraw his petition for habeas corpus with prejudice. The
stipulated agreement went on to provide that the State would
recommend to the court that Rosales-Martinez be
immediately sentenced to time served, and would dismiss all
other charges against Rosales-Martinez, with prejudice.
In a second court document dated the same day, RosalesMartinez signed a guilty plea memorandum, pursuant to
which he pleaded guilty to the offense of Unlawful Giving
Away a Controlled Substance in violation of Nev. Rev. Stat.
§ 453.321. In the plea memorandum, he stated that he gave
methamphetamine, a Schedule I controlled substance, to an
undercover police officer and that he faced imprisonment for
a period of one to six years in the Nevada State Department

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of Corrections.3 The plea memorandum noted that the State
had agreed to stipulate that the time served in his case would
be “all the time that I have served,” but also noted that the
state court was not bound by the parties’ agreement and could
impose a different sentence.
In a third court document, the minutes of a court
proceeding based on the stipulation between the parties, the
Washoe County District Court “vacate[d] the convictions” in
Rosales-Martinez’s criminal case “based on the cumulative
errors ground [sic] as alleged in [his habeas] petition.” On
December 2, 2008, the court entered an amended judgment,
finding that Rosales-Martinez was guilty of the crime of
Unlawful Giving Away of a Controlled Substance. The court
imposed a punishment of “time already served” and gave
Rosales-Martinez credit for five hundred and one days time
served.4 The Court’s amended order was nunc pro tunc,5 to
September 28, 2004.

3

Section 453.321(1)(a) provides that “it is unlawful for a person to . . .
give away . . . a controlled . . . substance.” Under Nevada law, a violation
of subsection (1) involving a schedule I controlled substance, such as
methamphetamine, shall be punished by between one and fifteen years’
imprisonment, depending on the defendant’s prior offenses, and a fine of
not more than $20,000. Nev. Rev. Stat. § 453.321(2)(a)–(c). A first time
offender faces imprisonment of between one and six years. Id.
4
If Rosales-Martinez had been incarcerated between September 28,
2004 and December 2, 2008, as he alleges, his time in prison substantially
would have exceeded 501 days.
5

“A nunc pro tunc order is an order that is entered retroactive to a
certain date.” Mack v. Estate of Mack, 206 P.3d 98, 101 n.2 (Nev. 2009).

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Presumably, Rosales-Martinez was released from custody
on the same day as all this occurred, on December 2, 2008, as
he alleges in his complaint.
DISCUSSION
I. The Motion to Supplement the Record and Take
Judicial Notice
We grant Washoe County’s motion to supplement the
record. It is well established that we may take judicial notice
of judicial proceedings in other courts. See Dawson v.
Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006); U.S. ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971
F.2d 244, 248 (9th Cir. 1992). And, while the motion was
filed at the eleventh hour, the Ninth Circuit Rules do not
place time limits on requests that this Court take judicial
notice of proceedings in other courts. The court documents
provide relevant and material details adding to and clarifying
the allegations of the complaint relating to plaintiff’s release
from jail. Without the court documents, we would be bound
to accept, without question, Rosales-Martinez’s allegation
that the Washoe County District Court had granted his habeas
petition on the basis of its allegations. The court documents
reveal a more complicated and somewhat different account,
suggesting the invalidity of the more serious counts of drug
trafficking, the continuing validity of Rosales-Martinez’s
conviction for the less serious drug crime of Unlawful Giving
Away, and a new sentence giving credit for a portion of the
jail term that he already served.
There is no question that justice requires us to consider
the full events relating to the invalidation of Plaintiff’s
convictions and jail term, and not merely a simplified, and

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perhaps somewhat misleading, conclusory allegation of what
occurred. Courts are instructed, in deciding Rule 12(b)(6)
motions, to read the allegations of a complaint in the context
of the full documents which the allegations purport to
summarize and, where appropriate, to accept the documents,
rather that a characterization of the documents, as the true
account. See Cooper v. Pickett, 137 F.3d 616, 622–23 (9th
Cir. 1997). Thus, we grant Washoe County’s motion to
supplement the record, and we take judicial notice of the
court documents presented by the motion.
II. The Accrual of Rosales-Martinez’s Claim
The district court dismissed Rosales-Martinez’s claim as
untimely because it was not filed within the two years
allowed by Nevada law. Nevada law provides the statute of
limitations because, in the absence of a federal provision for
§ 1983 actions, the analogous state statute of limitations for
personal injury claims applies. The applicable statute of
limitations in Nevada is two years. Perez v. Seevers,
869 F.2d 425, 426 (9th Cir. 1989); Nev. Rev. Stat.
§ 11.190(4)(e).
However, “[f]ederal law determines when a cause of
action accrues and the statute of limitations begins to run for
a § 1983 claim.” Bagley v. CMC Real Estate Corp., 923 F.2d
758, 760 (9th Cir. 1991). In the ordinary case, “[a] federal
claim accrues when the plaintiff knows or has reason to know
of the injury which is the basis of the action.” Id. (internal
quotation marks omitted). Applying that rule, the district
court evaluated Rosales-Martinez’s claims. The complaint
alleges that Rosales-Martinez was injured by the suppression
of evidence and his wrongful conviction. Thus, the district
court ruled that Rosales-Martinez was aware that Defendants

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failed to produce Cortez’s criminal record some time before
his sentence was invalidated on December 2, 2008, and
therefore more than two years before Rosales-Martinez filed
his § 1983 action, on December 1, 2010.
However, as we recently held, a prisoner’s claim for relief
based on an unlawful sentence does not accrue until his
sentence is invalidated, necessarily a later date than when he
learned of the prosecutor’s unlawful actions. See Jackson v.
Barnes, — F.3d —, Dkt. No. 09–55763, 2014 WL 1424448,
at *3 (9th Cir. April 14, 2014). That decision followed Heck,
512 U.S. 477.6
In Heck, plaintiff Heck, a state prisoner serving time for
voluntary manslaughter, filed a § 1983 action in federal court
seeking damages for various constitutional violations that he
alleged had occurred during his prosecution. Noting “the
hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal
judgments,” id. at 486, the Supreme Court dismissed Heck’s
case, holding 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 § 1983 plaintiff must prove
that the conviction or sentence has been

6
Defendants argue that Rosales-Martinez cannot rely on Heck in this
Court, because he did not cite it before the district court. But, since
Rosales-Martinez argued in the district court that the statute of limitations
did not begin to run until his release from prison he preserved the
argument, even though he did not expressly cite Heck.

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reversed on direct appeal, expunged by
executive order, declared invalid by a state
tribunal authorized to make such
determination, or called into question by a
federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.

Id. at 486–87.
The Supreme Court explained that under its ruling, a
§ 1983 action challenging a conviction or sentence does not
“exist[]” until the conviction or sentence is invalidated. Id. at
489. Since such an action cannot be pursued until the
underlying conviction or sentence is invalidated, “a § 1983
cause of action for damages attributable to an
unconstitutional conviction or sentence cannot accrue until
the conviction or sentence has been invalidated.” Id. at
489–90. Thus, the Heck rule for deferred accrual “delays
what otherwise would be the accrual date of a tort action until
the setting aside of an extant conviction which success in that
tort action would impugn.” Wallace v. Kato, 549 U.S. 384,
393 (2007) (emphasis omitted).
To determine whether the Heck rule applies, “the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence.” Heck, 512 U.S. at 487 (emphasis
added); see also Weilburg v. Shapiro, 488 F.3d 1202,
1206–07 (9th Cir. 2001) (finding Heck inapplicable to a
§ 1983 action based on an alleged violation of extradition
rights, because the “allegations, if proven, would not
invalidate [plaintiff’s] incarceration”). If a judgment in favor
of the plaintiff would necessarily imply the invalidity of a
conviction or sentence, then the cause of action does not

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accrue until that conviction or sentence has been invalidated.
Heck, 512 U.S. at 487; Wallace, 549 U.S. at 393. This
requires an inquiry into what a plaintiff would need to prove
in order to succeed on his theory of the case, not an inquiry
into whether a plaintiff would be able to succeed on the
merits. See Owens v. White, 342 F.2d 817, 819 (9th Cir.
1965) (“Whether [a] plaintiff’s claim has accrued is a
question of law . . . [that] does not reach the merits of the
claim but instead involves the very existence of the claim
itself.”).
Rosales-Martinez seeks to recover damages in this civil
case because of an unconstitutionally procured conviction in
his criminal case. Rosales-Martinez claims that his
conviction and imprisonment were invalid because the
Defendants failed to disclose in his criminal case the criminal
history of Cortez, the main witness against him, thus violating
their constitutional obligations and Rosales-Martinez’s right
to a fair trial. If Rosales-Martinez were to recover a
judgment in his civil case, it would mean that his conviction
was invalid. Heck therefore teaches that Rosales-Martinez’s
claims did not accrue until the Nevada court vacated those
convictions on December 2, 2008. Since Rosales-Martinez
commenced his lawsuit on December 1, 2010, less than two
years after December 2, 2008, his claim was timely and the
district court erred in dismissing it as time-barred. We
discuss the remedy for that error later in this decision.
III.

Claims Against Palmer

Defendant police officer Colby Palmer adds an additional
argument for dismissing the complaint against him. Palmer
argues that the district court should have dismissed RosalesMartinez’s claims against him, even if timely, because the

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complaint did not allege that Palmer acted with deliberate
indifference or reckless disregard.7 As Palmer argues, “[a]
§ 1983 plaintiff must show that police officers acted with
deliberate indifference to or reckless disregard for an
accused’s rights or for the truth in withholding evidence from
prosecutors.” Tennison v. City and County of San Francisco,
570 F.3d 1078, 1089 (9th Cir. 2009).
We reject Palmer’s argument. Rosales-Martinez’s
complaint alleges that Palmer knew or should have known
about Cortez’s criminal history and that Palmer “failed or
refused” to disclose that history when ordered to do so by the
County Court. Particularly in the context of a pro se
complaint, the allegation of willful conduct is sufficient.
IV.

Claims Against Washoe County and the City of
Reno

Rosales-Martinez concedes that his complaint, as written,
does not plead sufficient facts to state claims for municipal
liability. Accordingly, his claims against Washoe County and
the City of Reno are dismissed without prejudice. On
remand, Rosales-Martinez should be given an opportunity to
file an amended complaint against these defendants. See A.E.
ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637–38
(9th Cir. 2012); Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978).

7
Even though the district court did not address this argument, we
consider it in the first instance because Palmer raised the argument before
the district court and “we may sustain the dismissal for reasons not
addressed by the court below.” Perugini v. Safeway Stores, Inc., 935 F.2d
1083, 1086 (9th Cir. 1991).

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V. Considering the Judicially Noted Facts of Record
on Remand
The court records relating to the invalidation of RosalesMartinez’s conviction and his release from custody present a
more complicated picture of the events than the simple
allegation of his complaint, that “[u]pon review of the
petition for habeas corpus,” the state court ordered his
release. When reading a complaint that incorporates or
summarizes documents, we may also consider the documents
thus incorporated or summarized. See Cooper, 137 F.3d at
622–23.
On December 2, 2008, Rosales-Martinez agreed to plead
guilty on the understanding that the prosecutor would
recommend a sentence of “time served,” which could be “all
the time I have served,” but accepted that the court “could
impose a different sentence.” The sentencing judge gave
Rosales-Martinez credit for 501 days “time served,” nunc pro
tunc to September 28, 2004, the date of Rosales-Martinez’s
original twenty year sentence. Immediately after this
agreement, plea, and sentence, Rosales-Martinez was freed.
The fact that Rosales-Martinez was reconvicted following
the vacation of his initial convictions, means that he still has
an outstanding conviction. This outstanding conviction raises
the question whether Rosales-Martinez’s § 1983 action is
barred by Heck’s holding that “[a] claim for damages [based]
on a conviction or sentence that has not been so invalidated
is not cognizable.” See Heck, 512 U.S. at 487.
We held recently that a successive conviction of guilt
following a re-trial did not bar a § 1983 claim. Jackson, 2014
WL 1424448, at *3. In that case, the prosecutor had offered

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Jackson’s admission as proof of guilt. However, the
admission was obtained unconstitutionally, without advising
Jackson of his right to remain silent, in violation of Miranda
v. Arizona, 384 U.S. 436 (1966). The conviction was held
invalid. Jackson, who remained in prison having been
convicted of other crimes, was re-tried, convicted, and
sentenced to twenty-six years in prison.
Meanwhile, Jackson filed a § 1983 lawsuit, seeking
damages for his initial conviction. The district court
dismissed the suit, holding that under Heck v. Humphrey, his
claim for damages was inconsistent with the judgment of
conviction following his re-trial. The panel reversed, holding
that since the conviction initially obtained was invalidated, a
§ 1983 lawsuit would not be inconsistent, even though the
later trial produced a like judgment of conviction. See
Jackson, 2014 WL 1424448 at *3 (noting that the § 1983
action did “not have any bearing on” the second conviction).
The panel ruled that while Jackson could state a claim, he
was not entitled to any compensatory damages for his time in
prison, since Jackson “was not imprisoned for any additional
time as a result of his first, illegal conviction.” Id. at *4.
However, Jackson could seek punitive and nominal damages.
Id. The panel remanded the case to the district court for
further proceedings not inconsistent with the panel’s ruling.
Jackson cited with approval a recent en banc decision of
the Second Circuit, Poventud v. City of New York, — F.3d —,
No. 12-1011, 2014 WL 182313 (2d Cir. Jan. 16, 2014) (en
banc). There, the defendant had been convicted in the New
York state courts of attempted murder, robbery and assault of
a driver of a taxicab, and sentenced to a term of custody of 10
to 20 years. After serving six years, the state court

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invalidated the conviction because of the prosecutor’s failure
to disclose material evidence relevant to the credibility of the
main witness against defendant, in violation of his
constitutional right to a fair trial under Brady, 373 U.S. 83,
and Giglio, 405 U.S. 150. Defendant then entered into a plea
agreement with the prosecutor pursuant to which defendant
pleaded guilty of attempted robbery, agreed to a sentence of
one year of the time he served, and immediately was released.
He then filed a § 1983 lawsuit. The district court dismissed
his claim as inconsistent with Heck v. Humphrey. The
Second Circuit, en banc, reversed and remanded to the district
court for further proceedings. The en banc court wrote six
opinions. Ten of the judges favored a remand to sort out the
scope of consistency and inconsistency with Heck; six
seemed to favor dismissal of the case.
In Poventud, the defendant had contested his guilt by
presenting an alibi. The dissenting judges argued that his
plea of guilty to attempted robbery was inconsistent with any
notion of alibi as a defense, and a § 1983 lawsuit, if allowed,
would be inconsistent with the judgment of conviction
ultimately obtained, and thus also be inconsistent with Heck
v. Humphrey. See Poventud, 2014 WL 182313 (Jacobs, J.,
dissenting); id. (Livingston, J., dissenting). Judge Lynch,
concurring with the majority, expressed the view that
defendant’s agreement to plead guilty to a lesser offense and
to a time-served sentence was the practical price for
immediate freedom, and that this realism should prevail over
notions of logical consistency. The rest of the majority took
the view that there was no inconsistency between the
defendant’s § 1983 claim based on the invalidation of the
conviction for attempted murder and his plea, after that
invalidation, to attempted robbery of the taxicab driver. The

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en banc court left the issue of damages to the district court to
sort out. See Poventud, 2014 WL 182313, at *11 & n.8.
The viability and scope of Rosales-Martinez’s § 1983
claim, in relation to Heck v. Humphrey and pursuant to
Jackson should be evaluated by the district judge on remand.
In that connection, Rosales-Martinez’s December 2, 2008
guilty plea to one of the original four counts and the credit he
received for 501 days of prison time for that sentence
suggests a continuous validity to a portion of his original
conviction and sentence, and a possible inconsistency
between it and a § 1983 action, which may pose a distinction
with Jackson. In Jackson, the entire initial conviction was
held invalid; thus, the Ninth Circuit held, the § 1983 case
could proceed without violating the rule of Heck v.
Humphrey. In our case, Rosales-Martinez pleaded guilty to
one of the four counts of his original conviction, with the
other three being held invalid. On remand, the district judge
might consider if this and other differences between the case
before us and the decision in Jackson are significant. For
example, the district judge may wish to consider the extent to
which Rosales-Martinez can seek compensatory damages
based on the convictions that were vacated as invalid, and the
time he served on the count that remained valid, for which he
was given credit for 501 days of time served. The district
judge may also wish to consider whether any of the facts
Rosales-Martinez allocuted to in his December 2, 2008 plea
are inconsistent with his allegations in this § 1983 action.
These questions are illustrations; the district judge is free to
pursue all relevant facts and inquiries.
Although we took judicial notice of the court records
relating to Rosales-Martinez, Rosales-Martinez has not had
an opportunity to present his views with regard to these

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records. A court of appeals should not rule on the significance
of Rosales-Martinez’s plea in the absence of a complete
record and the comments of both sides, plaintiff and
defendants, and without the benefit of the district court’s
analysis. Accordingly, we remand this case to the district
court so that it may consider such a full record.
CONCLUSION
Rosales-Martinez’s § 1983 claims for wrongful
conviction did not accrue until his convictions were vacated.
Accordingly, the district court erred in dismissing his action
as untimely. On remand, the district court should consider if
and to what extent Rosales-Martinez’s plea to the crime of
Unlawful Giving Away of Controlled Substances affects his
§ 1983 action.
REVERSED and REMANDED.

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