Michael Almendarez v. Timothy Huddleston

Fifth Circuit

Michael Almendarez v. Timothy Huddleston

434 F. App'x 397

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 28, 2011

Docket10-11228

StatusUnpublished

Cited by1 cases

This text of 434 F. App'x 397 (Michael Almendarez v. Timothy Huddleston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Michael Almendarez v. Timothy Huddleston, 434 F. App'x 397 (5th Cir. 2011).

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Opinion

PER CURIAM: *

Michael Almendarez, Texas prisoner # 1601384, appeals the district court’s dismissal, as barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), of his 42 U.S.C. § 1983 suit concerning the issuance and execution of a parole revocation warrant. He argues that the parole warrant was illegally issued, that part of his confinement pursuant to the warrant was unlawful, and that his claims are not barred by Heck. See Tex. Gov’t Code Ann. § 508.281 (requiring a revocation hearing to occur before 41 days after arrest).

Almendarez’s suit is not cognizable under § 1983. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for harms 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 author- ' ized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. To the extent that Almendarez’s parole was revoked as a result of the warrant, the holding in Heck is applicable to claims attacking the validity of the parole proceedings. *398 See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.1995). Regardless, as the district court noted, because Almendarez has been granted credit toward his sentence for his convictions for indecency with a child and sexual assault, any ruling by the district court calling into question the validity of the parole warrant and his incarceration pursuant to the warrant would necessarily imply the invalidity of his current sentence. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. Additionally, as for Almenda-rez’s claim that Tex. Gov’t Code Ann. § 508.254 violates the Constitution, where an issue raised on appeal has not been advanced in the district court, it is not properly before the court of appeals. Williams v. Ballard, 466 F.3d 330, 335 (5th Cir.2006).

Consequently, the district court’s order dismissing Almendarez’s § 1983 suit is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Michael Almendarez, Texas prisoner # 1601384, appeals the district court’s dismissal, as barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), of his 42 U.S.C. § 1983 suit concerning the issuance and execution of a parole revocation warrant. He argues that the parole warrant was illegally issued, that part of his confinement pursuant to the warrant was unlawful, and that his claims are not barred by Heck. See Tex. Gov’t Code Ann. § 508.281 (requiring a revocation hearing to occur before 41 days after arrest).

Almendarez’s suit is not cognizable under § 1983. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for harms 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 author- ' ized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. To the extent that Almendarez’s parole was revoked as a result of the warrant, the holding in Heck is applicable to claims attacking the validity of the parole proceedings. *398 See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.1995). Regardless, as the district court noted, because Almendarez has been granted credit toward his sentence for his convictions for indecency with a child and sexual assault, any ruling by the district court calling into question the validity of the parole warrant and his incarceration pursuant to the warrant would necessarily imply the invalidity of his current sentence. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. Additionally, as for Almenda-rez’s claim that Tex. Gov’t Code Ann. § 508.254 violates the Constitution, where an issue raised on appeal has not been advanced in the district court, it is not properly before the court of appeals. Williams v. Ballard, 466 F.3d 330, 335 (5th Cir.2006).

Consequently, the district court’s order dismissing Almendarez’s § 1983 suit is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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434 F. App'x 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-almendarez-v-timothy-huddleston-ca5-2011.

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