Jose Miguel Perez v. Michael A. Georgelis

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4420
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JOSE MIGUEL PEREZ,
Appellant
v.
MICHAEL A. GEORGELIS;
DONALD R. TOTANO;
CHERYL ONDECHECK
_______________________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 07-cv-03539)
District Judge: Honorable John R. Padova
_______________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 13, 2009
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Filed: November 13, 2009)
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OPINION OF THE COURT
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PER CURIAM
Appellant Jose Miguel Perez, a Pennsylvania state prisoner, filed a civil rights
action pursuant to 42 U.S.C. § 1983 in United States District Court for the Eastern

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District of Pennsylvania. He claimed that Lancaster County Court of Common Pleas
Judge Michael A. Georgelis (now retired), former Lancaster County District Attorney
Donald R. Totaro, and former Assistant District Attorney Cheryl Ondecheck violated his
constitutional rights during his 1992 trial when an informant testified against him in
exchange for “economic benefits.” In his civil rights complaint, Perez sought a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1974) (hearing required where defendant
shows that false statement was included in search warrant affidavit, if false statement was
necessary to finding of probable cause).
The defendants moved to dismiss the complaint. In an order entered on July 22,
2008, the District Court, noting that the motion to dismiss was unopposed, granted the
defendants’ motion and dismissed the complaint on the basis of Heck v. Humphrey, 512
U.S. 477 (1994), because success in the action would call into question the validity of
Perez’s conviction. The court found that Perez had not met Heck’s requirement that his
conviction be invalidated through available state or federal remedies.
Perez filed a timely motion for reconsideration, in which he asserted that he had
not had an opportunity to respond in opposition to the motion to dismiss through no fault
of his own. The District Court then gave Perez the opportunity to submit briefs in
opposition to the motion. Following the submission of the briefs, the District Court, in an
order entered on October 10, 2008, denied Perez’s motion for reconsideration. The court
determined that there was no error in its original decision and rejected Perez’s argument

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that his mere request for a Franks hearing would not call the validity of his conviction
into question. The court explained: “the hearing that [Perez] requests is a forum in which
he would prove that his conviction was invalid because the government presented false
and misleading testimony against him at a suppression hearing and at trial.” The District
Court did not agree that Bradley v. Prior, 305 F.3d 1287 (11th Cir. 2002), the case on
which Perez relied, dictated a finding that Heck did not bar the suit because Bradley
involved only the production of DNA evidence for testing. Perez appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. A state prisoner’s
section 1983 action is barred, no matter the relief sought, if success in that action would
necessarily demonstrate the invalidity of his conviction. Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005) (citing Heck, 512 U.S. at 486-87). Heck was based on the Supreme
Court’s desire to prevent parallel litigation over the issues of probable cause and guilt.
512 U.S. at 484. The Court sought to prevent the possibility of two conflicting
resolutions arising out of the same successful prosecution, and preclude a convicted
criminal defendant from collaterally attacking his conviction through the vehicle of a civil
suit. See id. Therefore, as a prerequisite to a civil suit, the Court held that a plaintiff
must prove that his conviction and sentence have been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
a determination, or called into question by a federal court’s issuance of a writ of habeas
corpus. See id. at 486-87. A claim bearing the necessary relationship to a conviction or

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The defendants asserted in their motion to dismiss that the Pennsylvania Superior1
Court affirmed on May 2, 1994. Perez filed three state post-conviction petitions, the last
of which was filed on November 3, 2005, and all of the petitions were unsuccessful.
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sentence that has not been invalidated is not cognizable. See id. at 487.
The District Court properly determined that Heck applies to bar Perez’s civil rights
action. He was convicted following a jury trial of three counts of possession with intent
to distribute cocaine and one count of delivery of cocaine. Judge Georgelis sentenced
him to a total term of imprisonment of 24 to 80 years imprisonment. The judgment of
conviction and sentence has never been invalidated, and Perez does not suggest
otherwise. Bradley, 305 F.3d 1287, notes that success in a section 1983 action seeking1
the production of evidence for DNA testing does not necessarily demonstrate or even
imply that a conviction is invalid because it is not known whether the evidence is
exculpatory or inculpatory, or even lost. Therefore, we agree with the District Court that
Bradley is inapposite. Perez’s challenge to the truthfulness of an informant’s statements
necessarily calls into question the validity of his conviction, because the informant’s
statements in Perez’s case have already been established to be inculpatory. Cf.
Wilkinson, 544 U.S. at 82 (section 1983 remains available for procedural challenges
where success in action would not necessarily spell immediate or speedier release).
We will affirm the District Court’s order granting the defendants’ motion and
dismissing the complaint. The appellees’ motion to be excused from filing a brief is
granted.

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