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Heck bar not apparent on the face of the record, so dismissal inappropriate

By John Wesley Hall, Jr.

For Heck bar to apply for a motion to dismiss, it must appear on the face of the record that the search claim collaterially attacks the conviction. Since this did not, it was improper to dismiss without discovery and further development of the claims. Johnson v. Fla. Dep't of Law Enforcement, 2008 U.S. App. LEXIS 2546 (11th Cir. February 4, 2008) (unpublished).* Stone v. Powell bar applies in capital case. Brown v. Sirmons, 2008 U.S. App. LEXIS 2543 (10th Cir. February 5, 2008)* ("[H]e pointlessly seeks a ruling that Stone does not apply to capital cases, although we have previously applied it in such cases. See, e.g., Cannon v. Gibson, 259 F.3d 1253, 1260-62 (10th Cir. 1999); ...."). Since this court found that the officer did not lie during the suppression hearing, the 2255 on the same issue fails...continue to full post

Full post as published by Fourth Amendment on February 07, 2008 (boomark / email).