Esquibel v. Williamson , 421 F. App'x 813 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
December 3, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARK ANTHONY ESQUIBEL,
Plaintiff - Appellant, No. 10-1357
v. (D. Colorado)
BRIAN WILLIAMSON; OFFICER (D.C. No. 1:10-CV-01279-ZLW)
SMITH; OFFICER TODIS; SHERIFF
J. GRAYSON ROBINSON;
DOUGLAS G. BECHTEL,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Mark Anthony Esquibel, a Colorado state prisoner appearing pro se,
appeals the dismissal of his complaint against several persons involved in a
criminal prosecution against him: the deputy district attorney who prosecuted
him, Douglas Bechtel; the deputy state public defender appointed to represent
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
him, Brian Williamson; and the police officers who arrested him, Dan Smith and
William Todis. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
On June 3, 2010, Mr. Esquibel, proceeding in forma pauperis, filed a pro se
prisoner complaint in the United States District Court for the District of Colorado.
The complaint alleged several claims under 42 U.S.C. § 1983 arising out of his
arrest, detention, and prosecution by Colorado state authorities. The district court
ordered him to file an amended complaint clarifying the factual basis of his
claims, and he did so on July 21, 2010. The amended complaint alleged that on
November 20, 2009, he was illegally detained by Smith and Todis and that the
detention constituted an illegal search and seizure in violation of the Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution. He also
alleged that Bechtel and Williamson had conspired to withhold exculpatory
evidence by failing to introduce Todis’s police report documenting Mr. Esquibel’s
arrest or to produce Todis as a witness at his preliminary hearing. He asserted
that Todis’s report and testimony would have contradicted Smith’s report and
preliminary-hearing testimony. (He also sought relief from defendant Sheriff J.
Grayson Robinson; but he has not argued on appeal that the district court erred in
dismissing his claims against the sheriff.) The amended complaint included an
assertion that 28 U.S.C. § 2254 provided an “additional or alternative” basis of
jurisdiction for his claims. R., Vol. 1 at 98. It asked for compensatory and
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punitive damages and a “preliminary injunction to prevent irreparable injury and
adequate corrective process be applied.” Id. at 113.
The district court, acting sua sponte under § 1915(e)(2)(B)(i), dismissed the
amended complaint in an order dated August 5, 2010. Mr. Esquibel filed his
notice of appeal on August 11. On September 23 the district court denied his
motion to proceed in forma pauperis on appeal.
II. DISCUSSION
Because Mr. Esquibel is proceeding pro se, we construe his pleadings
liberally. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). We first
address his claim for habeas relief, and then address his claims under § 1983.
A. § 2254 Application
Liberally construing Mr. Esquibel’s amended complaint, the district court
read it to seek habeas relief under 28 U.S.C. § 2254; but it dismissed the claim as
premature. We affirm the dismissal because Mr. Esquibel has not shown that he
exhausted his state remedies before filing his amended complaint.
A state prisoner generally may not raise a claim for federal habeas corpus
relief unless he “has exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, a habeas applicant must pursue it
through “one complete round of the State’s established appellate review process,”
giving the state courts a “full and fair opportunity” to correct alleged
constitutional errors. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a state
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prisoner has not properly exhausted state remedies, the federal courts ordinarily
will not entertain an application for a writ of habeas corpus unless exhaustion
would have been futile because either “there is an absence of available State
corrective process” or “circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii). The
applicant bears the burden of proving that he exhausted state court remedies, see
McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009), or that exhaustion would
have been futile, see Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981).
Mr. Esquibel has not shown that he exhausted his state remedies before
filing his amended complaint on July 21, 2010. To be sure, it appears that
Mr. Esquibel raised in state court some of the issues raised in that amended
complaint. But the only matter presented to a state appellate court before he filed
his amended complaint was his petition to the Colorado Supreme Court for a writ
of prohibition and mandamus to set aside the denial of his pretrial request for
habeas relief in Colorado state district court. The petition was denied on May 6,
2010. Such a petition for extraordinary and discretionary relief does not satisfy
the exhaustion requirement. See Castille v. Peoples, 489 U.S. 346, 351 (1989);
Edmiston v. Colorado, 158 F. App’x 980, 981–82 (10th Cir. 2005) (unpublished).
In any event, it would be remarkable if Mr. Esquibel could have exhausted his
state remedies by the time he filed his amended complaint in federal court
because his conviction in state court was on July 20, 2010, only one day before
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the filing. (The fact of Mr. Esquibel’s conviction does not appear in the district-
court record but is disclosed in his brief in this court.)
Because Mr. Esquibel has failed to show that he exhausted his state
remedies and has not argued that exhaustion would have been futile, we affirm
the district court’s dismissal of his habeas claim.
B. § 1983 Claims
As for Mr. Esquibel’s § 1983 claims, he challenges only the district court’s
dismissal of the damages claims against defendants Bechtel, Williamson, Smith,
and Todis. The district court, apparently not informed that Mr. Esquibel had been
convicted the day before he filed his amended complaint, abstained from
exercising jurisdiction over these claims under Younger v. Harris, 401 U.S. 37(1971). Although it would have been proper for the district court to stay this case
so that a judgment could not have any preclusive effect on the pending criminal
prosecution, dismissal of the damages claims on that ground was error. See
Wallace v. Kato, 549 U.S. 384, 393–94 (2007); Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 719 (1996); D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223,
1228 (10th Cir. 2004). Nevertheless, we can affirm the dismissal on other
grounds.
The claim against Bechtel is barred by his immunity from suit. “State
prosecutors are entitled to absolute immunity against suits brought pursuant to
§ 1983 for activities intimately associated with the judicial process.” Gagan v.
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Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (emphasis, ellipsis, and internal
quotation marks omitted). To determine whether a prosecutor is entitled to
absolute immunity, “the determinative factor is advocacy because that is the
prosecutor’s main function.” Id. (internal quotation marks omitted). Absolute
prosecutorial immunity applies to both claims that a prosecutor willfully used
perjurious testimony and claims that a prosecutor willfully suppressed evidence.
See Imbler v. Pachtman, 424 U.S. 409, 431 n.34 (1976); Robinson v.
Volkswagenwerk AG, 940 F.2d 1369, 1372 n.4 (10th Cir. 1991) (it is a
“well-settled rule that a prosecutor cannot be held personally liable for the
knowing suppression of exculpatory information” (internal quotation marks
omitted)).
Also, public defenders ordinarily cannot be held personally liable under
§ 1983 when “performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding” because they do not “act under color of state
law.” Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Although a public
defender may act “‘under color of state law’ when engaged in a conspiracy with
state officials to deprive his client of constitutional rights,” Hunt v. Bennett, 17
F.3d 1263, 1268 (10th Cir. 1994), a mere conclusory allegation of conspiracy will
not suffice. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556–57 (2007); Hunt, 17 F.3d at 1268. Here,
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the amended complaint contains “no facts establishing an agreement or meeting of
the minds” between Bechtel and Williamson. Hunt, 17 F.3d at 1268.
Turning to Mr. Esquibel’s claims against Smith and Todis, we hold that
they are barred by Heck v. Humphrey, 512 U.S. 477 (1994). That decision
disallows § 1983 claims that, if successful, would necessarily imply the invalidity
of a previous conviction, unless the conviction has been set aside. Id. at 487. As
the Supreme Court stated:
[I]n 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.
Id. at 486–87. There is no evidence that Mr. Esquibel’s convictions have been
reversed, expunged, declared invalid, or called into question. He appears to argue
that because two of the original five charges against him were dismissed, he has
received a favorable determination sufficient to go forward on his § 1983 claims.
The question under Heck is not, however, whether some charges were dismissed,
but whether a judgment in his favor on his civil claims “would necessarily imply
the invalidity” of the convictions on the remaining charges. Id. at 487.
The sole allegations against the two officers in the amended complaint are
that they detained and searched him in violation of the Fourth, Fifth, and
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Fourteenth Amendments. Although “a suit for damages attributable to an
allegedly unreasonable search may lie even if the challenged search produced
evidence that was introduced in a state criminal trial resulting in the § 1983
plaintiff’s still-outstanding conviction,” id. at 487 n.7, the suit is cognizable only
when the evidence would have been admissible despite the unlawful search or the
conviction would have been obtained without the evidence, see id.; Beck v. City of
Muskogee Police Dep’t, 195 F.3d 553, 559 n.4 (10th Cir. 1999). Here, however,
Mr. Esquibel’s own brief on appeal states that his “conviction aris[es] from police
officer’s violations of Plaintiff’s Fourth, Fifth and Fourteenth Amendments on
grounds that officers lacked reasonable suspicion unsupported by probable cause
on which to detain and question Plaintiff,” Aplt. Br. at 6 ¶ 8, and that “[t]he
Constitutional violations were central to the state criminal conviction,” id. ¶ 9.
Based upon his own contention that Smith and Todis’s alleged misconduct
directly led to his conviction, his § 1983 claims against them are barred by Heck
unless his conviction is set aside.
Finally, we note that Mr. Esquibel’s amended complaint includes a request
for injunctive relief, and that Heck serves to bar only actions “to recover damages
for allegedly unconstitutional conviction or imprisonment.” Heck, 512 U.S. at
486 (emphasis added). We do not address the injunction request, however,
because it is not clear from the complaint what injunctive relief he is seeking and
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because his brief on appeal failed to contest the district court’s dismissal of any
claim for injunctive relief.
III. CONCLUSION
We AFFIRM the dismissal of the amended complaint. We GRANT
Mr. Esquibel’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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