United States District Court, N.D. California
ORDER OF DISMISSAL
WILLIAM H. ORRICK, United States District Judge
Terry R. Hawes alleges in this federal civil rights action
that his state conviction is invalid and that in consequence
he is owed money damages by the Governor of the State of
California and the state superior court judge who presided
over his criminal trial. The United States Supreme Court in
Heck v. Humphrey, 512 U.S. 477, 486-487 (1994)
barred claims brought under 42 U.S.C. § 1983 that, if
successful, would appear to invalidate a conviction or
sentence that has not already 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. As Hawes remains incarcerated and his
complaint does not indicate that his conviction or sentence
has been invalidated or reversed, Heck appears to
preclude his claim. Accordingly, this suit is DISMISSED.
2009, after two trials in the Marin County Superior Court,
Hawes was found guilty of rape by a foreign object, attempted
forcible rape, making criminal threats, and assault with the
intent to commit rape. People v. Hawes, No. A127151,
2011 WL 4527800 at *1 (Cal.Ct.App. Sept. 29, 2011). He was
sentenced to 33 years and eight months to life in state
prison. Id. Hawes appealed the judgment.
2011, the state appellate court affirmed the convictions, but
remanded for resentencing. Id. at *25. On remand,
Hawes was sentenced to 27 years and eight months to life in
state prison. People v. Hawes, No. A134359, 2012 WL
4558924 (Cal.Ct.App. Sept. 27, 2012). Hawes appealed again.
Id. In 2013, the state appellate court remanded the
case so that the sentencing court could give Hawes credit for
the time he had served between his original sentencing date
and his resentencing date. Id.
these convictions and sentence that Hawes contends are
Standard of Review
initial review of this pro se complaint, the court must
dismiss any claim that is frivolous or malicious, or fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e). Pro se
pleadings must be liberally construed. See Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a 42 U.S.C. § 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. Heck, 512 U.S. at 486-487. A
claim for damages based on a conviction or sentence that has
not been so invalidated is not cognizable under section 1983.
Id. at 487. Where a state prisoner seeks damages in
a section 1983 suit, the district court must therefore
consider whether a judgment in favor of the plaintiff ...