Tenth Circuit Weighs in on Split Re Applicability of Heck Favorable-Termination Requirement When Plaintiff Lacks Habeas Remedy

Per Cohen v. Longshore, --- F.3d ----, 2010 WL 4069365 (10th Cir. Oct. 19, 2010):

In his amended complaint, Plaintiff sought to raise two claims: false imprisonment and denial of access to the courts. As for the false imprisonment claim, the district court concluded that this claim lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which generally prohibits an individual from recovering damages in a civil rights action for an allegedly unlawful confinement where there has not been a favorable termination of the criminal action on appeal or in a collateral action. Plaintiff argues, however, that Heck should not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 372 F. App'x 850 (10th Cir.2010). Under these circumstances, Plaintiff argues, his false imprisonment claim should not be barred by his failure to obtain relief in habeas.

The circuits have split on the question of whether the Heck favorable-termination requirement applies when the plaintiff lacks an available habeas remedy. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir.2009) (discussing the circuit split but resolving the case on other grounds).

. . .

We [] adopt the reasoning of these circuits and hold that a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.

M.D.N.C. Notes Split Re Whether 2241 or 2254 Is Proper Statute for State Inmates to Challenge Execution of Sentence

Per Reeves v. Herron, Slip Copy, 2010 WL 3945115 (M.D.N.C. Oct. 6, 2010):

The bulk of the federal statutory provisions related to habeas corpus matters are codified in “Chapter 153 of Title 28 of the United States Code.” In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997). Within this Chapter lies Section 2241, the provisions of which trace directly back to both the first Congress's codification of habeas corpus and the 1867 Congress's statutory expansion of the writ, see Felker, 518 U.S. at 659-60 & nn. 1-2, as well as the now more-commonly invoked Sections 2254 and 2255, see Vial, 115 F.3d at 1194. “Under this framework, individuals convicted of crimes in state courts seek federal habeas corpus relief through [Section] 2254. Those convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to [Section] 2255.” Id. However, in some cases, convicted state and federal prisoners can proceed directly under Section 2241 (rather than Sections 2254 or 2255, respectively), as do other persons in custody though not convicted; uncertainty over these statutory boundaries has spawned substantial litigation, for example: “[W]here a state inmate is challenging the execution of his state court sentence, circuit courts are split on whether 28 U.S .C. § 2241 or 2254 is the proper statute under which a state inmate should proceed.” Ford v. Ozmint, C/A No. 4:08-450-CMC-TER, 2009 WL 250022, at *1 n. 1 (D.S.C. Feb. 2, 2009) (unpublished). The United States Court of Appeals for the Fourth Circuit has noted this divide, but not staked out its position. See Gregory v. Coleman, 218 Fed. Appx. 266, 267 & n.* (4th Cir.2007). Although the technical issue of whether Section 2241 is available in a particular case (in lieu of Section 2254) often carries dispositive significance, see Martin v. Johnson, No. 7:07CV436, 2007 WL 2746962 (W.D.Va. Sept. 20, 2007) (unpublished), on other occasions, it does not, see Crowe v. South Carolina Dep't of Corr., C/A No. 4:08-2955-CMC-TER, 2008 WL 4831484, at *1 n. 1 (D.S.C. Nov. 4, 2008) (unpublished). Because this case appears to fall into the latter category, the Court will not focus on the subject noted in Gregory at this time.