USCA1 Opinion

November 9, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1761

JEROME E. CASSELL,

Plaintiff, Appellant,

v.

BARRY OSBORNE, ETC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Stahl,

Circuit Judges.
______________

____________________

Jerome E. Cassell on Motion for Summary Disposition pro se.

_________________

____________________

____________________

Per Curiam.
__________

"Motion

to

Compel

We

have before us appellant Cassell's

Enforcement

and

Compliance," which

we

construe as requesting relief from briefing requirements, and

a summary disposition of the appeal.

Cassell

court

of

felonious

conviction

actions

was

convicted

sexual

was pending

assault.

on direct

in federal district

challenging

the

validity

in a

the

Hampshire state

While

appeal, he

court under

of

New

his

filed several

42 U.S.C.

conviction

criminal

and

1983,

seeking

equitable

subject

relief and damages.

of an opinion issued

Three of the

suits were the

by this court

in April, 1994.

Cassell v. Osborn, No. 93-1557, etc., Slip op. (1st Cir. Apr.
_______
______

26, 1994).

of

There we affirmed the district court's

most of

which

Cassell's claims,

were

arguably

estoppel in the

remanded

dismissed

appeal.

susceptible

of

state proceedings.

for reconsideration

or

but vacated

stayed pending

Id. at 13.
___

The

those dismissals

being

raised

as

The latter claims

as to

the

dismissal

whether they

conclusion

an

were

should be

of the

state

district court decided to stay the

claims.

Pursuant

decision in Heck
____

to

the

v. Humphrey,
________

Supreme

Court's

114 S. Ct.

intervening

2364 (1994),

the

district

court

later

dismiss the claims.

among the circuits

granted

a motion

by

defendants

In Heck, the Court resolved

____

by ruling that "a

1983

to

a conflict

cause of action

-2-

for

damages attributable

to an

unconstitutional conviction

does

not

accrue
______

invalidated."

also
____

until

the

conviction

has

been

Heck, 114 S. Ct. at 2373 (emphasis added); see

____
___

Guzman-Rivera v.
_____________

Rivera-Cruz, 29 F.3d
___________

3, 5

(1st Cir.

belief

that

1994).

Appellant

dismissal under

is

mistaken

in

his

Heck violates this court's

____

earlier mandate.

This dismissal will not prejudice the resolution of any issue

pending before

that

his

the state's appellate

1983

suit is

premature.

court.

As

It

we

means only

explained in

response to another, similar appeal by Cassell, the dismissal

also "does not

timely

prevent him

complaint

from later filing

for damages

should

he

a proper

first succeed

and

in

having his conviction reversed on direct appeal, expunged, or

otherwise declared

invalid by a tribunal

such a determination."

op. at 2 (1st

Cassell v.
_______

Cir. Oct. 5, 1994)

authorized to make

Ober, No. 94-1796,

____

(citing
______

slip

Guzman-Rivera, 29
_____________

F.3d at 5).

Accordingly, we grant appellant's motion insofar as

_____

it seeks relief

from the briefing schedule, deny

____

for "enforcement,"

See
___

Loc.

and summarily affirm the

______

R. 27.1.

Cassell's

his motion

judgment below.

appellate motions

labelled

"Petition for Habeas Corpus Ad Testificandum," and "Motion to

Introduce

Evidence,"

consideration of

are

the same

dismissed
_________

without

prejudice

contentions and issues

to

raised in

-3-

his

separately

docketed appeal,

(Appeal no. 95-2158).

Cassell v.
_______

New Hampshire,
_____________

-4-