Thursday, September 7, 2017
Ninth Circuit Declares:
Guilty Plea at Retrial Doesn’t Bar Suit Over Initial Conviction
Panel Reinstates Action by a Man Who Was Released on a Writ of Habeas Corpus Based On Testimony of Officer Who Was Later Fired for Role in Rampart Corruption
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reinstated an action for violation of civil rights brought by a man who was convicted of attempted murder, ordered released from prison by a federal judge based on possible chicanery on the part of an officer linked to the Rampart scandal, and, after bringing suit, pled guilty to the attempted murder and was sentenced to time served.
The guilty plea of plaintiff Paul Blumberg does not necessarily bar his action under 42 U.S.C. §1983, a memorandum opinion declares. Signing the opinion were Ninth Circuit Judges M. Margaret McKeown and Consuelo Callahan, joined by District Court Senior Judge Gordon J. Quist of the Western District of Michigan.
While remanding the case, for a second time, the judges said in a footnote that Blumberg, who represented himself, conceded at oral argument “that under his theory for proceeding, he would not be entitled to compensatory damages.”
Blumberg was convicted on June 9, 1998 of a 1997 attempt on the life of a rival gang member. The conviction was affirmed by the Court of Appeal and the California Supreme Court denied review.
Habeas Corpus Granted
On Feb. 7, 2010, U.S. District Court Judge (now Senior Judge) Christina A. Snyder of the Central District of California granted Blumberg’s petition for a writ of habeas corpus after adopting the report and recommendation of Magistrate Judge Stephen J. Hillman (since deceased).
Blumberg contended in his petition that false testimony was presented by then-Los Angeles Police Officer Brian Hewitt (discharged in March 1999), Los Angeles County Deputy Sheriff Brad Foss, and former gang member Jose Reyes. Hewitt was a member of the Community Resources Against Street Hoodlums (“CRASH”) anti-gang unit of the LAPD’s Rampart Division, publicly exposed in the late 1990s for widespread corruption.
“With respect to Hewitt,” Hillman wrote, “Petitioner tracked specific instances of misconduct by Hewitt while assigned to the Rampart division and CRASH—most predating Hewitt’s testimony at Petitioner’s trial and occurring before Hewitt was relieved of duty just days before Petitioner’s sentencing—evidencing Hewitt’s propensity for planting evidence and committing perjury. Petitioner chronicled convictions over-turned to date as a result of that misconduct.”
Impeachment evidence concerning Hewitt and the other witnesses that should have been turned over to the defense, pursuant to the 1963 U.S. Supreme Court opinion in Brady v. Maryland, was withheld, Hillman said, commenting:
“In short, the suppressed evidence collectively would have entitled the jury to find that Hewitt’s testimony was presumptively unreliable and false….”
Sues Hewitt, Others
Blumberg’s civil rights action is against Hewitt, Foss, the City of Los Angeles, and the County of Los Angeles.
The action was dismissed by then-U.S. District Court Judge Gary Feess of the Central District of California (now a mediator) based on Blumberg’s guilty plea. The Ninth Circuit on Oct. 21, 2014, affirmed the dismissal as to all causes of action but one.
The memorandum opinion says:
“[T]o the extent that Blumberg’s procedural due process and conspiracy claims are premised on the ‘Brady violations’ and ‘fabrication of evidence’ in his overturned 1998 conviction, the district court improperly dismissed such claims, as Blumberg’s original conviction has been reversed and his later guilty plea was ‘completely insulated from’ defendants’ alleged violations.”
For that proposition, it cited its 2014 decision in Jackson v. Barnes. There, the court held that a man who was convicted of murder based on evidence gained in violation of his Miranda rights, then, following reversal, reconvicted without use of his improperly elicited admissions, was not barred from suing for the Fifth Amendment violation at his first trial.
Judge Steven Reinhardt wrote that “this is one of those cases in which a plaintiff who has been lawfully convicted is not barred” by the United States Supreme Court’s 1994 decision in Heck v. Humphrey.
In that case, the majority opinion declared:
“We hold 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,...
The opinion in Heck continues:
“A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.”
On April 7, 2015, the Ninth Circuit amended its opinion in Blumberg’s case to spell out:
“We therefore reverse and remand for the district court to consider if and to what extent Blumberg’s plea to the crime of attempted murder affects his §1983 claims.”
Leave to Amend
On remand, Blumberg moved for leave to amend his pleading. District Court Judge Manuel Real of the Central District of California did not rule on the motion, dismissing the action as barred by the decision in Heck.
It was that decision that was reversed yesterday. Citing Jackson, the opinion says:
“Resolving whether Blumberg’s §1983 claims are barred by Heck depends on the interplay between those claims and his subsequent guilty plea….
The district court did not address whether Blumberg’s §1983 claims necessarily imply the invalidity of his subsequent guilty plea. Instead, the district court simply stated that his claims ‘necessarily require demonstration of [Blumberg’s] alleged innocence.’ ”
The memorandum opinion says that U.S. Supreme Court opinions do not require a showing of “actual innocence.”
“The district court abused its discretion by dismissing these claims without the opportunity to amend because, first, Blumberg’s §1983 complaint was filed before his guilty plea and, second, dismissal without leave to amend is generally improper unless the complaint ‘could not be saved by amendment.’…Without comparing a proposed amended complaint against Blumberg’s subsequent guilty plea, we cannot determine whether amendment would be futile.”
Copyright 2017, Metropolitan News Company