Almendarez v. Huddleston

Full title: Michael ALMENDAREZ, Plaintiff-Appellant v. Parole Officer Timothy…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jul 28, 2011

434 F. App'x 397 (5th Cir. 2011)

Opinion

No. 10-11228 Summary Calendar.

July 28, 2011.

Michael Almendarez, Rosharon, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:10-CV-333.

Before SMITH, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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 authorized 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 To the extent that Almendarez's parole was revoked as a result of the warrant, the holding in Heck is applicable to claims attacking the validity of the parole proceedings. 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 Almendarez'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.