Kenney v. Commonwealth of MA , 111 F. App'x 20 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2460
RICHARD F. KENNEY,
Plaintiff, Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Richard F. Kenney on brief pro se.
Thomas F. Reilly, Attorney General, and Susanne G. Reardon,
Assistant Attorney General, on brief for appellees.
September 29, 2004
Per Curiam. We have reviewed the parties’ briefs and the
record on appeal. There was neither abuse of discretion nor error
of law in the district court’s September 4, 2003 order dismissing
appellant’s § 1983 complaint pursuant to 28 U.S.C. § 1915A. We
affirm.
Contrary to appellant’s contention, neither the district
court’s March 7, 2001 reinstatement of his complaint (after a
previous order of dismissal had mistakenly issued) nor this court’s
order of May 17, 2001 barred the district court’s subsequent
dismissal under § 1915A. Neither action constituted a ruling on
the sufficiency of the complaint. And, notwithstanding that the
district court had issued some summonses in April 2001, no
defendant had, as yet, been served when the court conducted its §
1915A screening in September 2003.
Moreover, as the district court correctly concluded,
appellant’s civil rights claim for money damages is foreclosed by
Heck v. Humphrey, 512 U.S. 477 (1994). His request for declaratory
relief is barred as well. See Edwards v. Balisok, 520 U.S. 641(1997) (applying Heck rule to request for declaratory relief under
§ 1983). And, his request for injunctive relief (new trial or
immediate release), which is effectively relief appropriate only
via habeas corpus, fares no
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better. His current claim that his complaint was “an application
for writ of habeas corpus using § 1983 as a vehicle” is both newly
raised and, ultimately, unavailing. See Preiser v. Rodriguez, 411
U.S. 475, 489-90 (1973) (prisoner can not evade habeas requirement
of exhaustion of remedies by labeling a petition seeking habeas-
type relief as a § 1983 action).
To the extent that appellant's § 1983 action alleged
interference with his access to court, appellant's appellate brief
mentions only a gauzy allegation that the Massachusetts Supreme
Judicial Court improperly refused to remove his appointed counsel
from representing him on appeal. But, there is no federal
constitutional right to self representation on direct appeal from
a criminal conviction. Martinez v. Ct. App. of Cal., 528 U.S. 152(2000). Moreover, appellant was given the opportunity to file his
own pro se appellate brief. This claim, therefore, was also
properly dismissed pursuant to § 1915A. We deem waived any other
allegation regarding interference with access to court.
Finally, we note that appellant has filed a motion
complaining that this court issued its notice taking this case upon
the submitted briefs and without oral argument before it had
received his reply brief. In fact, however, the time for filing
the reply brief had expired when the court issued its submission
notice on April 20. A reply brief is due within 14 days after
service of the appellees’ brief. 1st Cir. Loc. R. 31(a)(1). The
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appellees’ brief was served on March 16 and filed in this court on
March 17. Appellant’s brief was received on April 27. The reply
brief was, itself, dated April 21, which was 36 days after service
of the appellees’ brief. In any event, we have considered anew the
motion’s request for oral argument and it is denied.
Affirmed.
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