United States District Court, N.D. Mississippi, Aberdeen Division
ORDER DENYING PLAINTIFF'S MOTION  FOR RELIEF
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the plaintiff's motion
 under Fed.R.Civ.P. 59(e) to alter or amend the
court's judgment  of dismissal of this case as
malicious. In the judgment of dismissal, the court noted that
the plaintiff had represented to the court:
Ms. McElrath has refused to produce the paperwork for
plaintiff to obtain counsel, and still today Monday, July 17,
2017, the plaintiff is still unable to defend himself against
criminal charges against himself.
at 6. The court noted that the plaintiff had been represented
by counsel as to the felony charges for a period of years -
up to and including the date he made the above statement,
when he was represented by two attorneys on his
direct appeal. The court also noted that for a substantial
portion of the relevant time period, Mr. Ryan was not
incarcerated in the facility where Ms. McElrath worked - and
was thus not subject to her influence or interference
regarding appointment of counsel.
Ryan now argues that he was not referring to a lack of
representation as to his felony charges; instead, he was
referring to a misdemeanor charge of resisting arrest in
Lowndes County Justice Court, State of Mississippi v.
Brent Ryan, 2-11902. He also argues that the statement
was referring to a lack of representation during his pursuit
of state post-conviction collateral relief. Thus, he now
alleges that the statement applied both to his defense
against misdemeanor charges and his pursuit of state
allegations are dubious, at best. Mr. Ryan has submitted
numerous lengthy pleadings, motions, supplements, and
responses to the court, but never mentioned a failure to
appoint counsel as to the misdemeanor charge or state
post-conviction collateral relief until the court issued the
show-cause order. The order made clear that, despite his
representation to the contrary, Mr. Ryan was represented by
multiple attorneys throughout the trial on felony charges and
during the direct appeal of his conviction. In any event, as
discussed below, Mr. Ryan's new allegations are also
State was not required to appoint counsel in either of these
scenarios (with a single exception regarding appointment of
counsel to defend misdemeanor charges, which the court will
discuss below). First, the right to counsel extends only
through the first appeal as of right - and not through state
post-conviction collateral relief proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct.
1990, 1993, 95 L.Ed.2d 539 (1987). Thus, Mr. Ryan was not
entitled to counsel during his pursuit of state
addition, the right to counsel does not apply to defense of
misdemeanor charges - unless the sentence ultimately imposed
includes a term of imprisonment:
We therefore hold that the Sixth and Fourteenth Amendments to
the United States Constitution require only that no indigent
criminal defendant be sentenced to a term of imprisonment
unless the State has afforded him the right to assistance of
appointed counsel in his defense.
Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct.
1158, 1162, 59 L.Ed.2d 383 (1979). Mr. Ryan has not alleged
that he was ever prosecuted or sentenced on the misdemeanor
resisting arrest charge, much less that he was sentenced to a
term of incarceration. As such, Mr. Ryan has not alleged facts
sufficient to support his claim that he was constitutionally
entitled to representation for the misdemeanor charge.
even if Mr. Ryan could show that he had been convicted on the
misdemeanor charge without counsel and sentenced to a term of
imprisonment, he is barred from pursuing relief under 42
U.S.C. § 1983 regarding that conviction until it has
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, 28
U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
Heck v. Humphrey, 114 S.Ct. at 2372 (emphasis
added); see also Boyd v. Biggers, 31 F.3d 279, 283
(5th Cir. 1994). Only if the court finds that the
plaintiff's § 1983 suit, even if successful,
“will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, ” should the
Section 1983 action be allowed to proceed. See Mackey v.
Dickson, 47 F.3d 744, 746 (5th Cir. 1995).
Again, Mr. Ryan has not even alleged that he has been
convicted on the misdemeanor charge - or that he was