The U.S. Court of Appeals for the Fifth Circuit has developed a reputation for divisiveness among its members.
But Thursday, Judge Don Willett, Judge Carolyn King and Judge Dana Douglas — three jurists nominated by three different presidents and considered to have widely differing judicial leanings — came together in a unanimous opinion that highlighted what appears to be a major injustice, publicly sought a reversal of precedent by the full Fifth Circuit and demonstrated judicial restraint.
In a 22-page opinion authored by Judge Willett, the Fifth Circuit panel stated that it is time for its en banc court to join six other federal circuits in allowing non-imprisoned criminal defendants to sue local and state officials for violating their constitutional rights even though their convictions were never overturned.
Judge Willett told the story of Erma Wilson, who claims she was falsely accused and wrongly convicted of cocaine possession 22 years ago in Midland. The state judge in her case sentenced her as a first offender to eight years of community supervision. The felony conviction prevented Wilson from becoming a registered nurse, which was her dream job.
Then last year, Wilson filed a civil rights lawsuit under section 1983 in the Western District of Texas.
And that is what brought her case to the attention of the Fifth Circuit.
“Wilson doggedly maintained her innocence (and does to this day) insisting that the cocaine found on the ground was not hers — and she rejected multiple plea deals, a rare choice in today’s plea-bargain age,” Judge Willett wrote. “Erma Wilson placed her faith in the justice system, trusting she would get due process and a fair trial.”
“Wilson’s faith was misplaced,” he wrote. “In Wilson’s trial — and in hundreds of others in Midland County spanning decades — bedrock judicial norms were dishonored.”
Two decades after her conviction in state court, Wilson learned that then-Midland County Assistant District Attorney Ralph Petty had moonlighted as a night law clerk for state judges that were ruling in cases that Petty’s office was prosecuting.
“Disturbingly, Petty was working both sides of the bench, seeking favorable rulings while also writing them,” Willett wrote. “Lady Justice wears a blindfold because justice is supposed to be meted out evenhandedly. She holds scales because evidence is supposed to be weighed impartially. These ancient symbols of fairness and clearsightedness — the very moral force underlying a just legal system — are mocked if one side can rig the game by calling its own balls and strikes.
After conducting an ethics investigation, the Texas Supreme Court in 2021 concluded Perry had engaged in professional misconduct and took away his law license.
“Petty’s conflict of interest was undeniable, and it flattened Wilson’s constitutional guarantee of a fair trial,” he wrote.
Justice Willett wrote that “this disturbing case also underscores that the American legal system regularly leaves constitutional wrongs unrighted.”
“Many worthy [section] 1983 claims go unfiled, and those that are filed must navigate a thicket of immunity doctrines that shield government wrongdoing, thus turning valid claims into vanquished ones,” he wrote. “And here, there is a threshold hurdle that Wilson must overcome before she even reaches the formidable immunity gauntlet: the ‘favorable termination’ rule from Heck v. Humphrey (plus our own post-Heck precedent).“
The U.S. Supreme Court ruled in its 1994 decision in Heck that a plaintiff must show that his or her conviction or prison sentence was reversed or declared invalid before they can seek damages under section 1983 for unconstitutional conviction or imprisonment.
The justices were concerned that prisoners would use section 1983 lawsuits in conjunction with federal habeas petitions as a mechanism of delaying justice.
“The wrinkle here is that Petty’s conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence, making federal habeas a non-option,” Willett wrote. “Heck aims to avoid a collision between [section] 1983 and federal habeas, but Wilson (and the amici supporting her) argue that Heck is inapplicable where federal habeas is unavailable. Other circuits have agreed, holding that favorable termination should only be required when a [section] 1983 plaintiff is eligible for federal habeas relief.
“This is a solid argument — but a foreclosed one in this circuit,” he wrote.
That’s because the Fifth Circuit, in 2000’s Randell v. Johnson, gave an “expansive reading of Heck” which said “noncustodial plaintiffs must meet the favorable-termination requirement, too — even if it’s practically impossible for them to do so.”
“Our answer [in Randall] was absolute,” Judge Willett wrote. “We understood Heck to have created a ‘universal favorable termination requirement.’ That is, we read Heck to have held — ‘unequivocally’ — ‘that unless an authorized tribunal or executive body has overturned or otherwise invalidated the plaintiff’s conviction, his claim ‘is not cognizable under [section] 1983.’”
“Put simply, our rule of orderliness bars relief for the disorderliness that Wilson suffered,” Judge Willett wrote. “This result is unseemly. But as a three-judge panel bound by controlling circuit precedent, our hands are tied.”
Judge Willett said only the en banc court or the Supreme Court “can deliver a different result that better aligns with Congress’ broad textual command in [section] 1983.”
“To be sure, the policy rationales underlying Heck are considerably less salient when applied to non-Heck-typical plaintiffs (like Wilson) with no access to federal habeas,” Judge Willett wrote. “But Randell says what it says. More, it says what it says emphatically. Randell may have been a three-page per curiam opinion decided without the benefit of oral argument (perhaps because Randell was pro se), but that makes it no less binding.”
Judge Willett and the panel wrote that they “are unconvinced by Randell’s reasoning, which twice uses ‘unequivocally’ in describing Heck’s holding.” But the panel is “also unconvinced that the Supreme Court has unequivocally superseded Randell, as opposed to leaving the issue unsettled.”
The three-judge panel noted that six federal circuits — the Second, Fourth, Sixth, Ninth, Tenth and Eleventh circuits — have relaxed their precedents for noncustodial plaintiffs.
“The Heck rule as to federal habeas-ineligible plaintiffs may well have been weakened by various footnoted pronouncements,” Judge Willett wrote. “But as a middle management circuit court, we must heed the Supreme Court’s admonition of leaving to the Court “the prerogative of overruling its own decisions.”
“Rabid sports fans howl nonstop about blown calls and revel in accusing officials of losing their team the game — or even rigging it,” he wrote. “We expect fair play in sports. So too in courts. We want all of life’s arbiters to enforce the rules impartially. And in litigation, America’s other national pastime, judges (unlike umpires who simply shout, ‘You’re out!’) are expected to painstakingly explain why something is inside or outside the legal strike zone.”
“Today’s result is difficult to explain,” Judge Willett wrote. “What allegedly happened here (and in hundreds of other criminal cases in Midland County) is utterly bonkers: the presiding judge employed a member of the prosecution team as a right-hand adviser.”
Judge Willett wrote that Wilson “has suffered the fallout of a criminal justice system that offended the gravest notions of fundamental fairness.”
“She seeks accountability for unconstitutional wrongdoing that upended her life,” he wrote. “However, our 2000 decision in Randell not to relax Heck’s favorable-termination requirement for noncustodial plaintiffs has not been overruled.”
“At least not yet.”
Wilson is represented by Jaba Tsitsuashvili and Robert McNamara of the Institute for Justice in Virginia. Midland County and Petty are represented by Richard Layne Rouse and Miles Robert Nelson of Shafer, Davis, O’Leary & Stoker in Odessa.
The case is Erma Wilson v. Midland County, No. 22-50998.