Erlin v. U.S., 00-16986.

• Decision Date: 19 April 2004
• Docket Number: No. 00-16986.,00-16986.
• Citation: 364 F.3d 1127
• Parties: Darrow Kierov ERLIN, Plaintiff, and Barbara Snow-Erlin, Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

364 F.3d 1127

Darrow Kierov ERLIN, Plaintiff, and Barbara Snow-Erlin, Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 00-16986.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2002.

Filed April 19, 2004.

Margaret Engelhardt (argued), certified law student at University of California School of Law, Davis, California, for the appellant.

Carter C. White (briefed supplemental opening brief), Supervising Attorney, University of California School of Law, Davis, California, for the appellant.

Darrow Kierov Erlin (briefed opening brief), pro per, Oakland, California, appellant.

Jocelyn Burton, Assistant U.S. Attorney, San Francisco, California, for the appellee.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding.

Before: KOZINSKI and KLEINFELD, Circuit Judges, and BEISTLINE,^* District Judge.

OPINION

KLEINFELD, Circuit Judge.

This is a statute of limitations case. The issue is when a cause of action accrued for purposes of the statute of limitations under the Federal Tort Claims Act. The action is for miscalculation of parole, with consequent imprisonment of a person who should have been released.

Facts

Erlin committed crimes both before and after the Sentencing Reform Act of 1984, and kept committing new ones while still under sentence for the old ones, making computation of his release date complex. He was convicted in 1984 for conspiracy to manufacture and attempt to manufacture methaqualone, in violation of 21 U.S.C. §§ 841 and 846. He was sentenced to three years, on condition that he be confined six months, with the remaining two-and-a-half years suspended, plus five-years probation to commence upon his release.¹ While on probation after his May 1986 release from prison, Erlin was convicted in 1988 of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Erlin to ten years to serve, followed by eight years of supervised release. The ten-year sentence was not subject to parole. In addition, the probation on Erlin's 1984 conviction was revoked, and the remaining two-and-a-half years of imprisonment imposed, to be served consecutively with the ten-year sentence.

The Bureau of Prisons aggregated the sentences² and treated the combined time as a thirteen-year sentence for the purpose of calculating Erlin's release date. He was released February 17, 1995. His release was pursuant to a statute then in effect providing for mandatory release at the expiration of the term, less time deducted for good conduct, with the prisoner deemed to be on parole thereafter until the expiration of the term to which he was sentenced less 180 days.³

Erlin again failed to comply with conditions. He was arrested for driving under the influence on March 19, 1996. On account of his failure to report the arrest, his failure to report his change of address, his excessive use of alcohol, and his driving under the influence, the Parole Commission issued a warrant for his arrest, and he was arrested on this federal warrant on June 28, 1996. His supervised release on the ten-year cocaine term was revoked, and he was sentenced to serve an additional six months in prison. In addition, the Parole Commission revoked his mandatory-release parole and ordered him to serve an additional twenty months of imprisonment consecutively with the six months on his supervised-release revocation.

Erlin filed a timely administrative appeal of the twenty-month sentence that the Parole Commission tacked on. He lost. On January 13, 1997, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Central District of California. He prevailed, and the court granted the writ on October 16, 1997. Erlin was released November 7, 1997. The basis for the writ was that Erlin's parole should have been based only on his 1984 three-year sentence, not the aggregated thirteen-year sentence, because parole had been abolished when the ten-year sentence was imposed, so parole had expired and the Parole Commission had no jurisdiction over Erlin when it imposed the additional and consecutive twenty months. The United States did not appeal, and that decision became final. We therefore have no occasion to examine the correctness of the district court's decision that held that Erlin was mistakenly confined too long. Erlin claims that the effect of the determination in his habeas case is that he served 311 days in prison after he should have been released.

On November 1, 1998, slightly less than a year after his November 7, 1997 release, Erlin filed a claim under the Federal Tort Claims Act for damages on account of the error, and he filed suit on November 4, 1998. He claimed that he suffered a stroke while in prison under the mistaken calculation. He died after release, and his widow is pursuing this appeal on behalf of his estate.

The theory of the claim is negligence in miscalculating Erlin's release date, not false imprisonment. The district court dismissed the suit, holding that Erlin's cause of action had accrued on or about May 9, 1996, when the Parole Commission issued the warrant based on the miscalculated parole expiration. Based on that date, the court held that the two-year limitations period on FTCA suits expired before Erlin filed his claim on November 1, 1998. Erlin appeals.

Analysis

We review the district court's dismissal on statute-of-limitations grounds de novo.⁴ We also review de novo the question of the appropriate accrual date, unless the choice of that date turns in part on what a reasonable person knew or should have known. In that instance, the question is a mixed question of law and fact, which we review for clear error.⁵

The relevant statute of limitations is two years to file a claim, then six months from notice of denial.⁶ The six months to file the action in court is not at issue in this appeal, just the two years to file the claim. The issue is when the cause of action accrued.

Even though the action is for miscalculation of the release date, we conclude that the cause of action did not accrue when the Parole Commission made the miscalculation. The reason is that one more thing had to happen before Erlin had a claim for the miscalculation. He had to prevail in a habeas case establishing that he was entitled to release. So long as he was incarcerated, a judgment for damages for the miscalculation would necessarily imply that he was wrongfully imprisoned. Thus, the cause of action could not accrue until he won a writ of habeas corpus. Erlin filed his claim within two years of the issuance of the writ, so his action was timely.

We so infer from the Supreme Court's reasoning in Heck v. Humphrey.⁷ That was a § 1983 suit for damages resulting from constitutional torts in the course of a criminal investigation and prosecution. Although the lawsuit did not seek release as a remedy, just damages, the Supreme Court held that the cause of action did not accrue when the constitutional torts occurred. The Court held as follows:

[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, 28 U.S.C. § 2254.⁸

The Court noted that the somewhat analogous common law tort of malicious prosecution requires favorable termination of the criminal prosecution in favor of the accused, because of the interest in avoiding parallel litigation over common issues such as guilt, the strong judicial policy against the creation of two conflicting resolutions, and the undesirability of collateral attack on the criminal prosecution in a civil suit.⁹ In light of these interests, the Court concluded that the "hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement."¹⁰

The Heck requirement of favorable termination of the criminal proceeding before a § 1983 action can be brought does "not engraft an exhaustion requirement upon § 1983, but rather den[ies] the existence of a cause of action."¹¹ Thus, the "statute of limitations poses no difficulty" while other challenges to the conviction or imprisonment are being pursued, "since the § 1983 claim has not yet arisen."¹² The § 1983 cause of action "does not accrue until the conviction or sentence has been invalidated."¹³

It is clear enough that Heck is distinguishable from the case at bar. Erlin does not challenge the validity of his convictions or the sentences imposed upon those convictions, and the invalidity of his convictions or sentences is not necessary to his damages claim. But this is a distinction without a difference. Erlin's claim for damages was for the miscalculation of his required term of imprisonment under his valid sentences. A judgment that the term had been miscalculated, issued while he was still imprisoned, would raise the same problems that led the Court to hold in Heck that no § 1983 cause of action had accrued.

Another distinction between this case and Heck is the federal statute under which the plaintiff sues. Heck involved a § 1983 action. Here, the Federal Tort Claims Act supplies the statutory basis for the suit. This distinction also makes no difference, under the ratio decidendi of Heck. Just as a successful § 1983 action would have impugned the validity of the conviction in Heck, so too would a successful suit under the FTCA have impugned...