Kelly v. Serna

Decision Date11 July 1996
Docket NumberNo. 95-8663,95-8663
PartiesTerence George KELLY, Plaintiff-Appellant, v. Hilda T. SERNA, Robert R. Michelotti, Mona Polen Jerkins, Raleigh J. Lopez, Steven R. Wisebram, Craig A. Gillen, each individually, United States of America, Defendant-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Gary P. Bunch, Carrollton, GA, for appellant.

Kent Alexander, United States Attorney for the Northern District of Georgia, Daniel A. Caldwell, III, Nina Loree Hunt, David Wright, Lori M. Beranek, Asst. United States Attorneys, Atlanta, GA, for appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

Terence G. Kelly, an attorney, represented two defendants charged with drug offenses. During the course of that representation, agents of the Drug Enforcement Agency (DEA) received information that Kelly, himself, was involved in the criminal drug activity. Kelly was indicted by a grand jury, charged and convicted of one count of conspiracy to possess with intent to distribute cocaine and one count of aiding, abetting, and counseling the possession with intent to distribute cocaine. His conviction was reversed on appeal to this court. United States v. Kelly, 888 F.2d 732 (11th Cir.1989).

After we reversed his conviction, Kelly filed this action for malicious prosecution and various constitutional violations (Bivens claims) against several DEA agents, as well as the United States of America. The district court dismissed Kelly's Bivens claims, and entered summary judgment for defendants on his malicious prosecution claim. For the following reasons, we affirm the district court's orders.

I. BACKGROUND

Kelly represented two drug traffickers--Raul Restrepo and Cirilo Figueroa. In 1985, Restrepo arrived in Atlanta with three kilograms of cocaine and left it with Figueroa. One of the kilograms was not of good quality and Figueroa buried it. Thereafter, Restrepo sold the rest of the cocaine through Raul Montes to a purported customer who turned out to be a DEA agent. Restrepo was arrested and sought Figueroa's help in retaining a lawyer. Figueroa referred Restrepo to Kelly because Figueroa had had an attorney-client relationship with Kelly since 1979.

At Kelly's trial, Restrepo testified he told Kelly about Figueroa's involvement and possession of the third kilo of cocaine and requested Kelly to ask Figueroa to sell the cocaine and use the proceeds to pay Kelly's fee. Restrepo testified that Kelly told him Figueroa had already told Kelly about Figueroa's possession of the cocaine. Restrepo also testified that Kelly brought back a message from Figueroa that the cocaine was not salable and had been buried, that Figueroa was under pressure from police surveillance and that Figueroa could no longer financially help Restrepo.

Restrepo then decided to cooperate with the government and pled guilty. After a debriefing by DEA agents at which Kelly was present, Restrepo contacted a DEA agent and arranged a second meeting without Kelly. Restrepo told the DEA agent about the kilo of cocaine in Figueroa's possession, that Kelly knew Figueroa had it, and that Kelly had told him not to mention Figueroa's involvement.

Thereafter, Restrepo made recorded telephone calls to Kelly and Figueroa, and arranged a meeting with Kelly and DEA agents who posed as Restrepo's friend and brother-in-law, all concerning Restrepo's desire to get in touch with Figueroa to get the money or the cocaine.

During the course of the investigation, Kelly's actions and statements formed the basis for the charges that he had more than mere knowledge of the kilogram of cocaine and had willfully and knowingly become a member of the conspiracy by giving advice and counsel to Figueroa in order for Figueroa to continue to violate the law. Kelly was arrested on June 24, 1987, and indicted the next day along with Figueroa and six others. At his request, Kelly was tried by the court separately from his co-defendants; the court found him guilty on April 6, 1988. He appealed, and we reversed his conviction on September 29, 1989, for insufficient evidence, improper exclusion of testimony, and improper failure of the district judge to recuse himself.

II. ANALYSIS
A. The Bivens Claims

In this action, Kelly asserts that, during the course of their investigation of him, the DEA agents violated his constitutional rights under the Fourth, Fifth, and Ninth Amendments, and that his arrest and prosecution were illegal and his conviction invalid. These allegations state a claim for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The district court dismissed the Bivens claims as untimely-filed. The court applied Georgia's two-year personal injury statute of limitations, O.C.G.A. § 9-3-33, and held that the claims were barred because they were filed more than two years after they accrued--the day this court reversed Kelly's conviction. Kelly argues that the district court erred in holding his claims accrued on the date his conviction was reversed; he argues that his claims did not accrue until expiration of the time permitted for the United States to file a petition for a writ of certiorari to the Supreme Court.

This issue presents two separate questions: first, what is the applicable statute of limitations in a Bivens action; and second, when does that statute begin to run. We consider each in turn.

This circuit has not yet decided what statute of limitations is applicable in a Bivens action. All of the circuits which have considered this issue have decided that the same statute of limitations applicable to actions under 42 U.S.C. § 1983 should apply to Bivens actions. Sanchez v. United States, 49 F.3d 1329, 1330 (8th Cir.1995); Kurinsky v. United States, 33 F.3d 594, 599 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir.1991); Bieneman v. City of Chicago, 864 F.2d 463, 469-70 (7th Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661 (1989); Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987).

We agree with this result. Bivens actions are quite similar to those brought under § 1983. As we noted in Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995), "The effect of Bivens was to create a remedy against federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials. Thus, courts generally apply § 1983 law to Bivens cases." We reserved judgment on this issue in Abella, but we decide now to join our sister circuits and hold that a Bivens action is governed by the same statute of limitations as would a § 1983 action in that court.

In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court directed that the state limitation period applicable to personal injury actions should be applied to all actions brought pursuant to 42 U.S.C. § 1983. In accord with Wilson, we held in Mullinax v. McElhenney, 817 F.2d 711 (11th Cir.1987), that the Georgia two-year personal injury limitations period applies to § 1983 actions in a Georgia district court. See O.C.G.A. § 9-3-33. Accordingly, we hold that the district court's application of the Georgia two-year personal injury limitations period to the Bivens claims in this case was correct.

Deciding what statute of limitations applies to this action gets us only half way to our destination. Secondly, we must decide at what point the applicable statute begins to run.

A statute of limitations begins to run when the cause of action accrues. Accrual of a cause of action under 42 U.S.C. § 1983 is a question of federal law. Mullinax, 817 F.2d at 716. Recently the Supreme Court dealt with this issue in the context of § 1983 actions for damages attributable to an unconstitutional conviction or sentence. Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364, 2373, 129 L.Ed.2d 383 (1994). Analogizing such actions to those for malicious prosecution, the Court held:

Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.

Id. at ----, 114 S.Ct. at 2374 (internal citations omitted).

We have previously held that the Heck rule applies equally to a Bivens claim. Abella, 63 F.3d at 1065. Accord Tavarez v. Reno, 54 F.3d 109 (2d Cir.1995) (per curiam); Stephenson v. Reno, 28 F.3d 26 (5th Cir.1994). Thus, in Bivens actions which challenge the validity of a conviction, the cause of action accrues when the underlying conviction is reversed.

Since Kelly alleges that the investigation of him violated his constitutional rights under the Fourth, Fifth, and Ninth Amendments, and that his arrest and prosecution were illegal and his conviction invalid, his Bivens claims challenge the validity of his conviction and fall under the rule of Heck. They accrued upon "reversal" of his conviction.

Kelly's conviction was reversed on September 29, 1989. The present action was filed on December 17, 1991. The claims, therefore, appear to be time-barred.

Kelly argues, however, that his claims did not accrue until the expiration of the time allowed for the filing of a petition for certiorari, or sixty days. 1 Furthermore, the government filed a petition for rehearing of the reversal. The filing of a petition for rehearing tolls the certiorari period until the date the petition is denied, or of the entry of a subsequent judgment on rehearing. See Supreme Court Rule 20.4. The government's petition for rehearing was denied on November 30, 1989. Although the government did not file a...

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