Hawes v. Brown et al

Filing 12

ORDER DISMISSING CASE. Signed by Judge William H. Orrick on 06/09/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 6/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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TERRY RAY HAWES,
Plaintiff,

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Case No. 17-cv-02400-WHO (PR)
ORDER OF DISMISSAL

v.
JERRY BROWN, et al.,
Defendants.

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INTRODUCTION

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Plaintiff Terry R. Hawes alleges in this federal civil rights action that his state

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conviction is invalid and that in consequence he is owed money damages by the Governor

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of the State of California and the state superior court judge who presided over his criminal

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trial. The United States Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-487

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(1994) barred claims brought under 42 U.S.C. § 1983 that, if successful, would appear to

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invalidate a conviction or sentence that has not already been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus. As Hawes remains incarcerated and his complaint does not indicate that his

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conviction or sentence has been invalidated or reversed, Heck appears to preclude his

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claim. Accordingly, this suit is DISMISSED.

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BACKGROUND
In 2009, after two trials in the Marin County Superior Court, Hawes was found

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guilty of rape by a foreign object, attempted forcible rape, making criminal threats, and

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assault with the intent to commit rape. People v. Hawes, No. A127151, 2011 WL 4527800

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at *1 (Cal. Ct. App. Sept. 29, 2011). He was sentenced to 33 years and eight months to life

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in state prison. Id. Hawes appealed the judgment. Id.
In 2011, the state appellate court affirmed the convictions, but remanded for

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resentencing. Id. at *25. On remand, Hawes was sentenced to 27 years and eight months

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to life in state prison. People v. Hawes, No. A134359, 2012 WL 4558924 (Cal. Ct. App.

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Sept. 27, 2012). Hawes appealed again. Id. In 2013, the state appellate court remanded

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United States District Court
Northern District of California

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the case so that the sentencing court could give Hawes credit for the time he had served

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between his original sentencing date and his resentencing date. Id.
It is these convictions and sentence that Hawes contends are invalid.

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DISCUSSION
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Standard of Review
In its initial review of this pro se complaint, the court must dismiss any claim that is

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frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks

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monetary relief against a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915(e). 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. 1988).

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A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55
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(9th Cir. 1994).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
In order to recover damages for an allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction
or sentence has been reversed on direct appeal, expunged by executive order, declared

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United States District Court
Northern District of California

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invalid by a state tribunal authorized to make such determination, or called into question

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by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-487. A

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claim for damages based on a conviction or sentence that has not been so invalidated is not

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cognizable under section 1983. Id. at 487. Where a state prisoner seeks damages in a

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section 1983 suit, the district court must therefore consider whether a judgment in favor of

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the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it

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would, the complaint must be dismissed unless the plaintiff demonstrates that the

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conviction or sentence has been invalidated. Id. at 487.

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Hawes’s convictions were affirmed on appeal. While there appear to have been

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some appellate issues concerning his sentence, those issues concern the sentence’s length,

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not its constitutional validity. A judgment in this case that defendants violated Hawes’s

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constitutional rights in connection with his trial and sentence would therefore necessarily

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imply the invalidity of his conviction or sentence. Accordingly, Hawes’s section 1983 suit

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is barred by Heck and must be dismissed.

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This dismissal is without prejudice. Hawes may refile his suit if he can show that

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his conviction has been invalidated in one of the ways specified in Heck, which as I

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indicated does not appear from the record to be the case. If Hawes refiles, he should be

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aware that his claims for damages against the trial court judge will never be sustainable. A
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state judge is absolutely immune from civil liability for damages for acts performed in his

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judicial capacity. See Pierson v. Ray, 386 U.S. 547, 553-55 (1967); Duvall v. County of

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Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Presiding over Hawes’s trial and imposing

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sentence are without doubt acts performed in the judge’s judicial capacity. Further, if

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Hawes can overcome the Heck bar, he must allege with specificity how the Governor of

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California is liable for damages. Here, Hawes lists him as a defendant, but has not alleged

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any facts showing legal liability.

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CONCLUSION
This federal civil rights action is DISMISSED. The Clerk shall enter judgment in
favor of defendants, and close the file.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: June 9, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

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