Brewer v. Holland et al

Filing 77

ORDER: For the reasons explained in the accompanying memorandum, the Court denies Brewer's motion for equitable relief (DN 52 ). cc: Counsel, Plaintiff (pro se) (JM)

Case 3:16-cv-00014-BJB-CHL Document 77 Filed 03/09/22 Page 1 of 5 PageID #: 787

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CHEROSCO L. BREWER
v.

PLAINTIFF
CIVIL ACTION NO. 3:16-cv-14-BJB

HOLLAND #7949 et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
The Court considers pro se Plaintiff Cherosco L. Brewer’s motion for “equitable relief.”
DN 52. For the following reasons, the Court denies his motion.
Brewer brought this 42 U.S.C. § 1983 lawsuit against seven Louisville Metro Police
Department (LMPD) officers after four traffic stops occurring on November 4, 11, 12, and 24,
2015, which resulted in state criminal charges against Brewer. DN 1. On initial review of his
complaint and two amended complaints pursuant to 28 U.S.C. § 1915A, the Court allowed
Brewer’s lawsuit to continue with respect to his search-and-seizure, equal-protection, maliciousprosecution, and excessive-force claims. See DNs 7 and 13.
After Brewer filed this lawsuit, a federal grand jury also criminally charged him in this
Court on charges arising from the November 11 and 12 traffic stops. United States v. Brewer,
3:17-cr-37-DJH. Defendants moved for a stay of this lawsuit pending resolution of the state and
federal cases against Brewer. DN 24. The Court granted the stay. DN 32. A jury verdict in the
federal case found Brewer guilty of possessing a firearm and ammunition as a convicted felon,
possessing marijuana and cocaine with intent to distribute, and possessing a firearm in
furtherance of drug trafficking. DN 54-1 at 1–2. The Court sentenced him to 20 years in federal
prison, where he is currently confined.1 Id. at 3. This Court lifted the stay of this action after

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Brewer appealed his federal conviction. The Sixth Circuit Court of Appeals affirmed, and the U.S. Supreme Court
denied his petition for writ of certiorari. United States v. Brewer, 3:17-cr-37-DJH, at DNs 289, 302.

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Defendants reported that the state cases involving two of the stops were dismissed and that the
federal conviction involved the other two stops. DN 58.
While this action was stayed, Brewer filed this motion requesting “equitable relief” due
to alleged ineffective assistance of counsel and selective enforcement and prosecution in his
federal criminal case. This motion appears to be a reaction to events during his federal
prosecution. He asserts that “equal protection requires the dismissal of the charges as the only
suitable remedy” and asks this Court to order his immediate release. DN 52 at 17. He does not
ask to amend his complaint in this § 1983 action.
Defendants have responded to Plaintiff’s motion. DN 54. Defendants argue that, to the
extent Brewer asks to add “equitable claims” in this case, he has not moved for leave to amend
and that he has no viable claim for ineffective assistance of counsel against these Defendants,
who are all LMPD officers. Id. at 2. They explain that Brewer litigated the propriety of the
November 11 and 12 stops multiple times during his federal criminal prosecution, making any
further claim as to their impropriety barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 3.
They further assert that, to the extent that Brewer possibly raises a claim of selective prosecution,
the federal criminal court held that argument lacked support. Id. at 5.2
Defendants attach documents from Brewer’s federal criminal case indicating the Court
considered and rejected claims Brewer raised regarding the reasonableness of the stops and the
allegedly selective nature of the prosecution and enforcement. Defendants also point out that
Brewer makes no showing that Defendants controlled the prosecution of the federal criminal
case against him.

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Defendants also refer to Plaintiff possibly trying to add a claim for vindictive prosecution. See DN 54 at 3. He did
raise this issue in his criminal case but does not mention it in his motion.

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A. Request for dismissal of charges and immediate release
Brewer’s motion requests dismissal of the charges he was convicted of as well as
immediate release from confinement. But when a prisoner “seeks . . . a determination that he is
entitled to immediate release or a speedier release from . . . imprisonment, his sole federal
remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). “[R]elease
from custody and dismissal of charges are not available forms of relief under § 1983.” Thornton
v. Hagan, No. 3:16-CV-P176-DJH, 2016 WL 6078306, at *4 (W.D. Ky. Oct. 14, 2016); see also
Weddle v. Dunbar, No. 1:15CV-P9-GNS, 2015 WL 2213356, at *11 (W.D. Ky. May 11, 2015)
(explaining that habeas corpus is the exclusive remedy for a request for an immediate release
from incarceration and dismissal of criminal charges). Further, Brewer does not explain how
Defendants, all of whom are Louisville police officers, would be proper defendants even if he
had requested habeas relief. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
484, 494–95 (1973) (“The writ of habeas corpus does not act upon the prisoner who seeks relief,
but upon the person who holds him in what is alleged to be unlawful custody.”). This law
requires the Court to deny Brewer’s request for relief.
B. Assertions of ineffective assistance of counsel
Brewer asserts that his trial counsel during his federal case were ineffective. He cites
Strickland v. Washington, 466 U.S. 668 (1984), the seminal case setting forth the standard for
ineffective assistance of counsel that may warrant habeas corpus relief.
If Brewer believes that his conviction violates the Constitution because of ineffective
assistance of counsel, he may raise that claim in a motion to vacate, set aside, or correct a
sentence under 28 U.S.C. § 2255. See, e.g., Bugg v. United States, No. 1:09-CV-196, 2010 WL
1492340, at *1 (E.D. Tenn. Apr. 12, 2010) (“Plaintiff’s allegations [of ineffective assistance]

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and his request for relief”—from his conviction and sentence were “more properly brought as a
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255[.]”). Brewer’s claim
regarding his trial attorneys’ alleged ineffectiveness has no place in this § 1983 action.
C. Selective enforcement/prosecution
Brewer’s motion refers to both selective enforcement and selective prosecution. But the
motion does not make clear whether it seeks to add these claims in this civil action or request
relief in his criminal case. The motion :
ask[s] this Court to apply the applicable law to reach a determination that [Brewer]
has met the requisite threshold showing [of] “some evidence of selective
enforcement”' by LMPD, and whether [Brewer] has shown evidence to request a
hearing on selective enforcement, separate to a hearing for selective prosecution.
[Brewer] asserts a separate selective prosecution claim for his Federal prosecution,
and request records to see how many of the similarly situated blacks [w]ere
recommended for federal charges with claims of illegal traffic stop and K-9 sniffs’
involved. Last, a separate selective prosecution claim when compared to other
Blacks similarly situated receiving state charges and no federal charges.
DN 52 at 17.
Defendants argue that Brewer should not be allowed to amend to add a selectiveprosecution claim in this case because he raised and lose the issue in his federal case. DN 54 at
5. Brewer makes no showing now that these Defendants controlled the prosecution of the federal
case against him. Defendants do not address selective enforcement.
Defendants also argue that the Heck doctrine would bar the addition of any claim in this
case which would undermine his federal conviction.
In Heck, the Supreme Court held:
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 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[.]
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512 U.S. at 486-87 (footnote omitted). Heck involved a state prisoner, but the doctrine also
applies where a plaintiff seeks to render invalid his federal criminal conviction. See Lanier v.
Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (holding that where a federal prisoner seeks
“relief which essentially attacked the lawfulness of his conviction, without first having that
conviction set aside, his tendered complaint failed to state a claim under Heck”).
Defendants are correct that were Plaintiff to bring claims of selective prosecution or
enforcement in this case, those claims would be barred by Heck. See, e.g., Omegbu v.
Milwaukee Cty., 326 F. App’x 940, 942 (7th Cir. 2009) (holding that a § 1983 plaintiff’s
selective-prosecution claim was barred by Heck because it would render his conviction
unlawful); Robinson v. Donovan, No. 4:13-CV-14752, 2015 WL 4528036, at *3 (E.D. Mich.
July 27, 2015) (“Under Heck, the claim[] of . . . selective enforcement may not be pursued while
Plaintiff’s convictions remain outstanding.”). Thus, even assuming that Plaintiff wants to raise
these claims in this action, he cannot unless or until his conviction has been expunged by
executive order or called into question by the grant of a motion to vacate, set aside, or correct his
sentence pursuant to § 2255.
For the foregoing reasons, the Court DENIES Brewer’s motion (DN 52).
Date:

March 9, 2022

cc:

Plaintiff, pro se
Counsel of Record
B213.009

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