Smith v. Renworth et al

Filing 9

ORDER OF DISMISSAL without prejudice to plaintiff filing a new civil rights action if his criminal conviction or sentence is ever set aside. The clerk shall close the file. (Illston, Susan) (Filed on 2/11/2013) Modified on 2/11/2013 (ysS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRACY S. SMITH,

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United States District Court
For the Northern District of California

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No. C 12-5106 SI (pr)

Plaintiff,

ORDER OF DISMISSAL

v.

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PATRICK RENWORTH,
Assistant Public Defender of
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Defendants.
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INTRODUCTION

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Tracy S. Smith, currently an inmate at Mule Creek State Prison, filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. His complaint is now before the court for review under 28

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U.S.C. § 1915A.

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BACKGROUND
This civil rights action stems from the use of a federal conviction for sentence
enhancement purposes in later state court criminal proceedings.

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Smith entered a plea agreement in 1991 in federal court in United States v. Tracy Shelly

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Smith, No. CR 91-20206 JW, in a case in which he had been charged with three counts of

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unarmed bank robbery and five counts of bank robbery. See Docket # 1-3. The docket for that

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case indicates he received a thirty month sentence followed by five years of supervised release.

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In 1995, he was indicted in Santa Clara County Superior Court for nine counts of robbery and

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attempted robbery (all of which allegedly took place at financial institutions) and was alleged
to have suffered many prior convictions. See Docket # 1-2. He eventually was convicted and

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sentenced on May 17, 1999 to 25 years to life in prison. See Docket # 1-5. He also was

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convicted of second degree robbery in San Mateo County Superior Court in 1996, and was

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sentenced to 25 years to life in prison on August 27, 1996. See Docket # 1-4. The abstract of

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judgment in the San Mateo County Superior Court case stated that the sentence was to be served

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consecutive to the term imposed by Santa Clara County Superior Court. Id.
In his federal civil rights complaint, Smith sues the public defenders, prosecutors, and

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judges from his two state court criminal cases, as well as the prosecutor from the federal criminal

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case.

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constitutional rights during those criminal prosecutions. Smith alleges that his plea agreement

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United States District Court
For the Northern District of California

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in the federal criminal case was breached by the use of the federal conviction for sentence

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enhancement purposes in the state court criminal cases. For relief, he asks that the court "issu[e]

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a federal order directing the state court to resentence plaintiff" without using the prior federal

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conviction for sentence enhancement purposes, "and/or pay Plaintiff the sum of $3 million

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dollars for the breach and violation of his civil rights." Docket # 1-1, pp. 7, 8.

He alleges that the state public defenders, prosecutors, and judges violated his

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The federal defendant in this action is Leo P. Cunningham, the Assistant United States

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Attorney who allegedly drafted the plea agreement that Smith entered into in federal court.

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See Docket # 1-1, pp. 5-6. Smith claims that the federal prosecutor was alerted to the allegedly

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improper use of the federal conviction for sentence enhancement purposes in state court and

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therefore had a duty "to 'secure' the breach by the state court-officials." Id. at 7. He further

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alleges that the federal prosecutor had a duty to compel "specific performance" by the state

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officials to honor the plea agreement. Id.

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DISCUSSION

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. See id.
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at § 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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a right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).
Generally, a plaintiff may not obtain damages in a § 1983 action for alleged constitutional

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violations in connection with his criminal trial as long as the conviction remains in place. Heck

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v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot bring a civil rights action for

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United States District Court
For the Northern District of California

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damages for a wrongful conviction or imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid, unless that conviction or sentence

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already has been determined to be wrongful. See id. at 486-87. A conviction or sentence may

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be determined to be wrongful by, for example, being reversed on appeal or being set aside when

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a state or federal court issues a writ of habeas corpus. See id. The Heck rule also prevents a

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person from bringing an action that -- even if it does not directly challenge the conviction or

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other decision -- would imply that the conviction or other decision was invalid. The practical

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importance of this rule is that a plaintiff cannot attack his conviction in a civil rights action for

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damages; the decision must have been successfully attacked before the civil rights action for

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damages is filed. The Heck rule was first announced with respect to an action for damages, but

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the Supreme Court has since applied the rule to an action that sought declaratory relief as well

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as damages. See Edwards v. Balisok, 520 U.S. 641, 648 (1997). That Heck applies to both

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damages and equitable relief was further clarified in Wilkinson v. Dotson, 544 U.S. 74, 81-82

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(2005). Whether the Heck rule applies requires one to consider whether success in the § 1983

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action would "necessarily demonstrate the invalidity of the confinement or its duration." Id. at

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82. If so, the § 1983 action is barred no matter the relief sought (i.e., damages or equitable

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relief) as long as the conviction has not been set aside.

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Smith claims that defendants violated his constitutional rights at his trial and during

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sentencing proceedings by using the prior federal conviction for sentence enhancement purposes.
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Smith's claims against the state actors are squarely within the Heck rule because success on them

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would call into question the validity of his conviction and sentence from the Santa Clara County

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Superior Court as well as his conviction and sentence from the San Mateo County Superior

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Court. The claims must be dismissed.
The claim against the federal prosecutor also is barred by Heck because success on that

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claim – i.e., that the federal prosecutor had a duty to make the state officials resentence Smith

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– would call into question the validity of the state court sentence because the existence of the

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duty is premised on the state sentences being impermissible. Even if the claim against the

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federal prosecutor was not barred by Heck, it would have to be dismissed as patently meritless.

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United States District Court
For the Northern District of California

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Smith alleges that his "entire (whole) understanding (according to the Plea Agreement) was and

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is contained in the writing of his contract – Plea Agreement." Docket # 1-1, p. 6. That written

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plea agreement plainly has no promise that the conviction will never be used for sentence

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enhancement purposes in later cases, notwithstanding Smith's assertion that the agreement

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provided that he would not suffer any adverse consequences not agreed to in writing. The

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agreement attached to and incorporated into the complaint shows his breach claim to be factually

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meritless. Finally, the silence of the plea agreement with regard to the possibility that the

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conviction could be used for later sentence enhancement purposes does not give rise to a claim

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because there is no duty to advise the pleading defendant of a collateral consequence such as the

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possibility of a sentence enhancement based on the guilty plea. See United States v. Garrett, 680

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F.2d 64, 65-66 (9th Cir. 1982). In other words, the plea agreement did not preclude the later use

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of the conviction, and the plea is not defective for failing to inform Smith that the conviction

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could later be used in later cases for sentence enhancement purposes.

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If plaintiff wishes to challenge his state court convictions or sentences, he may file a

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petition for writ of habeas corpus to assert such a challenge. Before he may file a federal habeas

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petition for writ of habeas corpus, however, he must exhaust state judicial remedies, either on

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direct appeal or through collateral proceedings, by presenting the highest state court available

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with a fair opportunity to rule on the merits of each and every issue she seeks to raise in federal

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court. See 28 U.S.C. § 2254(b)(1)(A),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
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CONCLUSION

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For the foregoing reasons, this action is DISMISSED without prejudice to plaintiff filing

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a new civil rights action if his criminal conviction or sentence is ever set aside. The clerk shall

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close the file.

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IT IS SO ORDERED.
Dated: February 11, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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