Simpson v. Thomas

• Decision Date: 11 June 2008
• Docket Number: No. 07-16228.,07-16228.
• Citation: 528 F.3d 685
• Parties: Gary SIMPSON, Plaintiff-Appellant, v. Sergeant Jeffrey THOMAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

528 F.3d 685

Gary SIMPSON, Plaintiff-Appellant, v.Sergeant Jeffrey THOMAS, Defendant-Appellee.

No. 07-16228.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2008.

Filed June 11, 2008.

Carter C. White, Supervising Attorney, and Anjuli Fiedler and Rachel Golick, Certified Law Students, U.C. Davis School of Law, Davis, CA, for the plaintiff/appellant.

Misha D. Igra, Deputy Attorney General, Sacramento, CA, for the defendant/appellee.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding.D.C. No. CV-03-00591-MCE/GGH.

Before: STEPHEN S. TROTT and SIDNEY R. THOMAS, Circuit Judges, and MICHAEL R. HOGAN,^*District Judge.

TROTT, Circuit Judge:

Gary Simpson filed suit under 42 U.S.C. § 1983 alleging that Sergeant Jeffrey Thomas, a corrections officer at the California Medical Facility ("CMF") state prison in Vacaville, California, used excessive force after Simpson did not comply with Thomas's orders.For impeachment purposes, the district court admitted evidence of Simpson's three prior convictions more than ten years old pursuant to Federal Rule of Evidence 609(b), explaining that because his prior convictions were utilized pursuant to California's Three Strikes Law to enhance his current sentence, "those prior strikes were not and do not wash out under state law."Additionally, pursuant to Heck v. Humphrey,512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383(1994), the district court excluded any evidence or testimony that Simpson acted in self-defense after Thomas allegedly punched him, explaining that such evidence would invalidate the finding of guilt in Simpson's prison disciplinary proceeding.

After a jury trial resulted in a verdict in Thomas's favor, Simpson filed a motion for a new trial, which the district court denied.Simpson v. Thomas,No. 2:03-CV-00591, 2007 WL 1687092(E.D.C.A.June 8, 2007).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for a new trial.We hold that the use of prior convictions older than ten years to enhance a sentence for a separate conviction pursuant to California's Three Strikes Law does not bring those prior convictions within the ten year time limit of Federal Rule of Evidence 609.Additionally, we hold that Heck does not create a rule of evidence exclusion and therefore may not be used to bar relevant evidence.

IBACKGROUND

A.Factual Background

In May of 2000, Simpson pled nolo contendere to second degree armed robbery.He was sentenced to 216 months in state prison.The sentence included 60 months for the armed robbery plus a 156 month enhancement for his prior felonies.

This case arises out of an altercation on March 22, 2002, between Simpson and Thomas while Simpson was a prisoner at CMF.Both parties agree that Simpson refused to immediately comply with Thomas's order to remove a sheet from his cell window.After Simpson refused to remove the sheet, Officer Michael Webb unlocked the cell door, and Thomas entered the cell.The parties dispute what happened next.

1.Simpson's Testimony

Simpson testified that he got down off his bunk when Thomas asked him to, but refused to "turn around and cuff up."Simpson said that Thomas called him a profane name, took out his pepper spray, and threatened to use the spray.Simpson turned around and told Thomas he did not need to use the pepper spray.As Simpson turned around, "a struggle ensued" and Webb pepper sprayed both Simpson and Thomas.Eventually, Simpson "had [Thomas] by the neck . . . and took him down to [Simpson's cellmate's] bunk."During the struggle, Simpson grabbed Thomas's pepper spray and "somehow it got on the floor."After Simpson's cellmate told Simpson to let Thomas up, Simpson told Thomas, "I'm going to let you go, and I'm going to get up and put my hands behind my back."

When Simpson released Thomas, Thomas grabbed Simpson's hands and "roughed me out of the cell."Once out of the cell, Simpson was getting to the ground when Thomas slammed him down.After he was on the ground, Simpson said Thomas "punched me a few times on the right side of my face."

2.Thomas's Testimony

Thomas testified that he ordered Simpson to come out of the cell, and initially, Simpson complied.Thomas said that as Simpson moved toward the door, he ordered Simpson to turn around to be handcuffed, but Simpson resisted.Simpson pushed Thomas onto the lower bunk and held him down by the neck.Simpson grabbed Thomas's pepper spray out of his holster and somebody else took it from Simpson.Webb came into the cell and pulled Simpson off of Thomas.Thomas said that Simpson did not voluntarily let him up.

After Webb pulled Simpson off of him, Thomas ordered Simpson out of the cell and onto the ground, but Simpson did not comply.Thomas grabbed Simpson in a bear hug and forced him to the ground.After Simpson was on the ground, Thomas got on Simpson's back to hold him down and then ordered him to put his hands behind his back.Simpson complied.Thomas denied punching Simpson outside of the cell, but said that he probably hit Simpson when he was trying to get Simpson off of him.Webb testified that Thomas punched Simpson while they were in the cell.

B.The 115 Report

A CMF disciplinary officer reported the incident in a 115 Rules Violation Report ("115 Report").The hearing officer found Simpson guilty of violating California Code of Regulations tit. 15, § 3005(c)"for the specific act of battery on a Peace Officer."He then assessed Simpson 150 days of behavioral credit forfeiture.The prison referred the case to the Solano County District Attorney for possible felony prosecution, but the D.A. declined to file any charges.Simpson sought habeas relief from the disciplinary hearing, but it was denied as untimely.

C.Motions in Limine

1.Motion One—Rule 609

Prior to the trial in Simpson's § 1983 suit, Simpson filed a motion in limine to exclude evidence of his prior felonies.The district court denied the motion and admitted evidence of three prior felony convictions for: 1) burglary in 1986; 2) possession of narcotics in 1989; and 3) possession of marijuana in 1993.Although the record does not contain evidence of the exact release dates on each of these convictions, a probation report in the record indicates that all three convictions fall outside the ten-year time limit of Federal Rule of Evidence 609(b).¹

The district court admitted the prior convictions in spite of Rule 609(b)'s ten-year time limit because under California's Three Strikes Law, the prior convictions were "utilized by the sentencing court when they made the determination to give him [the sentence being served at the time of trial]" and thus "those prior strikes were not and do not wash out . . . regardless of the fact that they may be older than ten years."The district court said also that "one of the things that's utilized by the institution to determine the level of security, classification, location . . . is all based on the plaintiff's prior felony convictions."²

2.Motion Two—Heck v. Humphrey

Simpson sought to testify that Thomas punched him as soon as he entered the cell, and that Simpson's subsequent actions were in self-defense.Citing Heck,512 U.S. 477, 114 S.Ct. 2364, the district court granted Thomas's motion in limine and refused to allow Simpson to testify that Thomas had punched him first because such testimony would invalidate the result of CMF's disciplinary proceeding against Simpson related to the incident.Both the district court and Thomas agreed that "[t]his does not, however, foreclose Simpson from pursuing his allegations that excessive force was used following his assault on Sergeant Thomas."

IISTANDARD OF REVIEW

We review evidentiary rulings for abuse of discretion.United States v. Plancarte-Alvarez,366 F.3d 1058, 1062(9th Cir.2004).We review de novo a district court's interpretation of the Federal Rules of Evidence.United States v. Sioux,362 F.3d 1241, 1245 n. 5(9th Cir.2004).The decision to exclude evidence will be reversed only if it is "more likely than not that the error affected the verdict."United States v. Edwards,235 F.3d 1173, 1178(9th Cir.2000).We review de novo pure questions of law.United States v. Mateo-Mendez,215 F.3d 1039, 1042(9th Cir.2000).

IIIDISCUSSION

A.Federal Rule of Evidence 609

1.Three Strikes

We are presented with an issue of first impression: whether prior convictions more than ten years old may be used for impeachment purposes under Federal Rule of Evidence 609("Rule 609") if those prior convictions are used to enhance a sentence for a separate conviction that falls within the ten-year time limit of Rule 609(b).We hold that such convictions do not endure for the purposes of Rule 609(b) and therefore are not admissible against the witness, unless the court determines "that the probative value of the conviction supported by specific facts and evidence substantially outweighs its prejudicial effect."SeeFED. R. EVID. 609(b).Furthermore, we hold that in this case, it is more likely than not that the admission of the convictions affected the verdict, and therefore the case must be remanded for a new trial.

Rule 609(a)(1) provides "evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year . . . ."Rule 609(a)(1) is subject to the time limit of 609(b).Under 609(b), the evidence of a conviction

is not admissible if a period of more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

The district court...