1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JAMES R. ZUEGEL, Case No. 21-cv-07538-BLF

8 Plaintiff,

ORDER GRANTING MOUNTAIN

9 v. VIEW DEFENDANTS' MOTION TO

DISMISS WITHOUT LEAVE TO

10 MARCO GARCIA, et al., AMEND 11 Defendants. [Re: ECF No. 16]

12 13 Déjà vu. In this case, Plaintiff James Zuegel alleges multiple violations of 42 U.S.C. 14 § 1983 by Defendants City of Mountain View and Mountain View police officers Marco Garcia, 15 Patrick Ward, and Britton Moore arising out of Zuegel’s warrantless arrest on June 7, 2015. 16 Zuegel himself characterizes this case as a “follow-on” to a previous case before this Court in 17 which the Court dismissed similar § 1983 claims as barred by Heck v. Humphrey, 512 U.S. 477 18 (1994), and in which Zuegel eventually prevailed on other claims before a jury. See Zuegel v. 19 Mountain View Police Dep’t, No. 17-cv-3249 (N.D. Cal., filed Jun. 6, 2017) (“Zuegel I”). 20 Understandably, Defendants now move to dismiss the claims in this case, arguing that they 21 are res judicata due to the judgment in Zuegel I. See ECF No. 16 (“MTD”); see also ECF No. 29 22 (“Reply”). Zuegel argues that the claims are not res judicata and that the Heck bar has been lifted 23 because habeas relief is no longer available to him after his probation ended. See ECF No. 28 24 (“Opp.”). The Court previously found this motion suitable for disposition without oral argument.1 25 See ECF No. 24; Civ. L.R. 7-1(b). For the following reasons, the Court finds that the Heck bar 26 27 1 Zuegel’s request to restore this motion to the argument calendar is DENIED. ECF No. 30. The 1 remains because Zuegel’s claims were not pursued diligently through other avenues of review. 2 The motion to dismiss is thus GRANTED WITHOUT LEAVE TO AMEND, and the Clerk shall 3 close the case. 4 I. BACKGROUND 5 A. Zuegel I 6 On June 6, 2017, Zuegel filed his original lawsuit in this Court. See Zuegel I, ECF No. 1. 7 The Court first evaluated Zuegel’s claims in that lawsuit in April 2018 after he obtained counsel 8 and filed an amended complaint. See Zuegel I, Order Granting Motion to Dismiss First Amended 9 Complaint, ECF No. 40 (“Apr. ’18 Ord.”). As the Court summarized in that Order, in the 10 amended complaint, Zuegel asserted claims arising out of incidents occurring between May and 11 June 2015. Zuegel alleged that on May 23, 2015, he and his wife accompanied their severely 12 autistic son JR (and his autism service dog) to the Mountain View El Camino YMCA for a swim 13 lesson. Id. at 2 (citing the amended complaint). After the lesson, as Zuegel waited for his family 14 on one of the couches at the YMCA, two young girls sat near him on the couch and talked to 15 Zuegel about his son’s service dog. Id. JR emerged making loud noises, sat between Zuegel and 16 one of the girls, and tried to “dart” away. Id. Zuegel grabbed JR by the back of his shirt to try to 17 prevent him from darting away, as he normally did, and said something to the effect of “sit your 18 butt down.” Id. Zuegel and his family left after briefly encountering a woman who appeared to be 19 the mother of one of the girls. Id. 20 Zuegel alleged that days later and unknown to Zuegel, the girl’s mother reported to the 21 Mountain View Police Department that a man with a service dog at the YMCA had slapped her 22 daughter on the butt and asked her, “How old are these buns?” Apr. ’18 Ord. at 2–3. The young 23 girl corroborated these allegations in a follow-up interview, although also saying that the man did 24 not “touch any private areas.” Id. at 3. Based on these interviews, Officers Ward and Moore 25 arrived at and entered Zuegel’s home at 9:33 p.m. on June 7, 2015 without an arrest or search 26 warrant and arrested Zuegel in the presence of his wife and JR after he refused to be interrogated 27 without counsel or his wife present. Id. The arrest was extremely distressing to the family and 1 police station. Id. Zuegel was confined overnight and for part of the following day until his wife 2 posted bail. Id. 3 The Santa Clara District Attorney charged Zuegel with misdemeanor sexual battery and 4 misdemeanor soliciting or engaging in lewd conduct in public in violation of California Penal 5 Code §§ 242-243.4(3)(1), 647(a). Apr. ’18 Ord. at 3–4. Zuegel alleged that to avoid having to 6 register as a sex offender, on September 30, 2016, he pled no contest to misdemeanor disorderly 7 conduct. Id. Zuegel was placed on probation for three years, ordered to perform 75 hours of 8 community service, and barred from coming within 300 yards of the YMCA. Id. 9 In the amended complaint in Zuegel I, Zuegel asserted four state law claims against the 10 Defendants here, one § 1983 claim against Officers Garcia, Ward, and Moore, and one § 1983 11 claim against the Mountain View Police Department and City of Mountain View. Apr. ’18 Ord. at 12 4. As is relevant here, in April 2018, this Court dismissed the § 1983 claims asserted in the First 13 Amended Complaint, largely without leave to amend. Id. at 5–15. The Court found that the 14 § 1983 claims for false arrest, lack of a warrant, coercion to consent to a search of his phone, 15 violation of his right to remain silent, violation of his right to counsel, and violation of his due 16 process right not to be interrogated were barred by Heck because establishing the basis for 17 damages under § 1983 for those courses of conduct would necessarily demonstrate the invalidity 18 of the underlying conviction. Id. at 6, 12 (citing Heck, 512 U.S. at 481–82). The Court held that 19 those claims were “properly the subject of habeas corpus proceedings which [Zuegel] allege[d] he 20 [wa]s simultaneously pursuing.” Id. at 11, 12. The Court granted Zuegel leave to amend solely to 21 attempt to allege a § 1983 claim based on “the circumstances surrounding the manner of the 22 arrest”—the nighttime arrest or arrest without consent to enter absent exigent circumstances— 23 because those courses of conduct would not demonstrate the invalidity of the plea. Id. at 15. 24 Otherwise, his § 1983 claims were dismissed without leave to amend. Id. at 6, 11, 12, 15. 25 Zuegel proceeded to trial on two claims—one for warrantless entry and arrest against 26 Officers Moore and Ward and one for Monell liability against the City on a failure to train theory 27 related to the first claim. See Zuegel I, ECF No. 108 (denying summary judgment on those 1 Zuegel’s residence in violation of the Fourth Amendment, but that they had remained inside after 2 consent was withdrawn, thus violating the Fourth Amendment. See Zuegel I, ECF No. 178 at 1–2 3 (jury verdict). The jury found that the Fourth Amendment violation was not a result of the City’s 4 deliberate indifference for failure to train. Id. at 2. The jury awarded Zuegel $3,000 in total 5 damages, with fault apportioned equally between Officers Ward and Moore. Id. at 2–3. The 6 Court entered judgment on November 23, 2020. See Zuegel I, ECF No. 179. The Court later 7 denied the defendants’ motion for judgment as a matter of law and granted in part Zuegel’s request 8 for attorneys’ fees. See Zuegel I, ECF No. 223. Zuegel’s appeal of the Court’s orders on the 9 motions to dismiss and motion for summary judgment is still pending at the Ninth Circuit.2 See 10 9th Cir. No. 21-16277. 11 B. Zuegel’s State Habeas Proceedings 12 Zuegel’s plea to and conviction of the state misdemeanor charge occurred on September 13 30, 2016. See Zuegel I, ECF No. 19-4; accord Compl. ¶ 54 (stating the Zuegel’s three years of 14 probation were completed on September 30, 2019). Zuegel filed his petition for a writ of habeas 15 corpus in the Santa Clara County Superior Court on December 19, 2017, fifteen months after his 16 conviction. See Request for Judicial Notice (“RJN”) Ex. H, ECF No. 16-10, at 67–113. The 17 Superior Court denied the writ on February 2, 2018. See id. at 115–19. He filed a writ of habeas 18 corpus in the Sixth District Court of Appeal on April 2, 2018, id. at 121–252, which was denied on 19 November 1, 2018, id. at 254. He filed his habeas petition in the Supreme Court of California on 20 December 31, 2018. See generally id. The Supreme Court denied the petition on July 10, 2019— 21 approximately two-and-a-half months before Zuegel’s probation was set to end—thus exhausting 22 Zuegel’s state habeas remedies. See RJN Ex. I. Zuegel did not file a federal habeas petition 23 because he “could not realistically complete” those proceedings in the limited time before his 24 probation would end and the habeas petition would become moot. See Opp. at 9. 25 C. Zuegel II 26 Zuegel filed this case on September 28, 2021, two days short of two years from the 27 1 termination of his probation. See ECF No. 1 (“Compl.”). Zuegel characterizes the case as a 2 “follow-on” to Zuegel I that is based on the same conduct but which asserts claims that have 3 supposedly newly “accrued” under § 1983 due to the unavailability of federal habeas relief after 4 the termination of Zuegel’s probation. Id. ¶¶ 1–2. The Complaint asserts four § 1983 claims: 5 (1) against Officers Ward and Moore for arrest without probable cause, id. ¶¶ 55–57; (2) against 6 Officers Ward and Moore for arrest in retaliation for assertion of constitutional rights, id. ¶¶ 58– 7 60; (3) against Officer Ward and Detective Garcia for transportation to county jail for booking 8 without probable cause, id. ¶¶ 61–64; and (4) against the City of Mountain View under Monell v. 9 Dep’t of Soc. Servs., 436 U.S. 658 (1978), Compl. ¶¶ 65–71.3 Zuegel seeks compensatory and 10 punitive damages and attorneys’ fees. Id. at 26. 11 II. LEGAL STANDARD 12 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 13 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 14 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 15 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 16 as true all well-pled factual allegations and construes them in the light most favorable to the 17 plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court 18 need not “accept as true allegations that contradict matters properly subject to judicial notice” or 19 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 20 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation 21 marks and citations omitted). While a complaint need not contain detailed factual allegations, it 22 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 23 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 24 25 3 The Complaint also separately asserted § 1983 claims against Gavin Newsom, Governor of 26 California, and Rob Bonta, Attorney General of California. See Compl. ¶¶ 72–91. After those 27 defendants moved to dismiss, Zuegel voluntarily dismissed his claims against them and the Court 1 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to 3 dismiss, the Court’s review is limited to the face of the complaint and matters judicially 4 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. 5 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 6 III. DISCUSSION 7 A. Requests for Judicial Notice 8 Both Zuegel and Defendants request judicial notice of materials from Zuegel I and 9 Zuegel’s habeas proceedings. Zuegel requests judicial notice of the “docket sheet and filings” in 10 Zuegel I. Opp. at 2 n.1. Because Zuegel does not identify specific entries or filings on the docket, 11 the request is DENIED. See Assurance Co. of Am. v. Nat’l Fire & Marine Ins. Co., 595 F. App’x 12 670, 672 (9th Cir. 2014) (noting that a blanket request for judicial notice “of entire case dockets” 13 made it “impossible for the court to glean from [the] request the facts [the party] wanted [the 14 court] to notice”). In contrast, Defendants request judicial notice of specific documents: the 15 amended complaint, second amended complaint, two motion to dismiss orders, the summary 16 judgment order, the judgment, and the notice of appeal/cross-appeal in Zuegel I. See RJN, ECF 17 No. 16-2, at 2. Defendants also request judicial notice of Zuegel’s habeas petition in the 18 California Supreme Court (and the lower court documents attached to it) and the California 19 Supreme Court’s order denying the habeas petition. See RJN Exs. H, I. Zuegel does not object to 20 the request and in fact cites several of these documents in his opposition. See, e.g., Opp. at 2. The 21 Court GRANTS Defendants’ request for judicial notice of these court documents for their 22 existence, not the truth of any disputed facts therein. See Reyn’s Pasta Bella, LLC v. Visa USA, 23 Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2004). 24 B. Res Judicata Does Not Bar These Claims 25 Defendants’ first argument is that the claims in this lawsuit are res judicata. MTD at 4–6. 26 Zuegel argues that they are not because the issue of whether the officers had probable cause to 27 arrest Zuegel was not adjudicated in the prior lawsuit because it was dismissed as Heck-barred. 1 “Under res judicata, a final judgment on the merits of an action precludes the parties or 2 their privies from relitigating issues that were or could have been raised in that action.” Allen v. 3 McCurry, 449 U.S. 90, 94 (1980). Res judicata “bars ‘all grounds for recovery which could have 4 been asserted, whether they were or not, in a prior suit between the same parties . . . on the same 5 cause of action, if the prior suit concluded in a final judgment on the merits.’” Int’l Union of 6 Operating Engineers-Emps. Const. Indus. Pension & Training Tr. Funds v. Karr, 994 F.2d 1426, 7 1429 (9th Cir. 1993) (quoting Ross v. Int’l Bhd. of Elec. Workers, 634 F.2d 453, 457 (9th Cir. 8 1980)). Application of res judicata requires “(1) an identity of claims, (2) a final judgment on the 9 merits, and (3) privity between parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l 10 Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Although res judicata is a defense, it can 11 be raised on a Rule 12(b)(6) motion where “the defense raises no disputed issues of fact.” Scott v. 12 Kuhlman, 746 F.2d 1377, 1378 (9th Cir. 1984). 13 There is no dispute between the parties that the first and third elements of res judicata are 14 met. First, there is an identity of claims between the two lawsuits because the “two suits arise 15 from the same transactional nucleus of operative facts.” Tahoe-Sierra, 322 F.3d at 1078. Both 16 suits concern Zuegel’s June 7, 2015 arrest by Defendants. Zuegel’s assertion of some new causes 17 of action in this lawsuit does not alter this conclusion because “[n]ewly articulated claims based 18 on the same nucleus of facts” are still res judicata “if the claims could have been brought in the 19 earlier action.” Id. at 1078. Zuegel does not argue that he could not have pleaded these claims in 20 the earlier action. Second, Zuegel and all of the Defendants here were parties to Zuegel I. 21 The dispute is over the second element: whether there was “a final judgment on the 22 merits” in Zuegel I. Defendants have not cited a case holding that Rule 12(b)(6) dismissals 23 pursuant to Heck are unequivocally “judgment[s] on the merits” such that res judicata applies. 24 Defendants are correct that a dismissal with prejudice under Rule 12(b)(6) is a “judgment on the 25 merits” for purposes of res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002); 26 Beard v. Sheet Metal Workers Union Local 150, 908 F.2d 474, 477 n.5 (9th Cir. 1990). But Heck 27 dismissals are usually without prejudice. See Heck, 512 U.S. at 479 (noting that the district court 1 1995) (Heck dismissals “must be without prejudice so that [plaintiff] may reassert his claims if he 2 ever succeeds in invalidating his conviction”); Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 787 3 (6th Cir. 2015) (“When courts dismiss claims under Heck, they typically do so without prejudice . 4 . . .”). Dismissals without prejudice are not “judgment[s] on the merits” for res judicata purposes. 5 Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001). The Court’s April 2018 6 Order in Zuegel I stated that the Heck-barred claims were dismissed without leave to amend. Apr. 7 ’18 Ord. at 11, 16. The Order did not state that the claims were dismissed with prejudice. 8 Although it may have been unclear from the Court’s Order, given the clear statement regarding 9 dismissal of Heck claims in Trimble, the dismissals should be without prejudice to reasserting the 10 claims if the Heck bar is lifted. Because the dismissals were without prejudice, they were not 11 “judgment[s] on the merits” such that res judicata would apply. 12 Res judicata accordingly does not categorically bar Zuegel’s claims here. 13 C. The § 1983 Claims Remain Heck-Barred, Notwithstanding the Alleged Unavailability of Federal Habeas Relief 14 15 The parties’ main dispute involves whether the Heck bar that was the basis for the Court’s 16 dismissal of most of Zuegel’s § 1983 claims in Zuegel I remains a bar to asserting those claims 17 today. The Court finds that the Heck bar remains. 18 Zuegel’s argument goes like this. For purposes of this case, Zuegel does not contest the 19 grounds on which the Court found that the § 1983 claims asserted in Zuegel I were barred at that 20 time or that the claims needed to be pursued through habeas proceedings. Zuegel, however, 21 asserts that circumstances have changed since the Court’s dismissal of those claims. Zuegel says 22 he did pursue his claims through state habeas proceedings, which needed to be exhausted prior to 23 asserting a federal habeas claim. He exhausted those remedies when the California Supreme 24 Court denied his petition on July 10, 2019. But Zuegel says that he had no meaningful 25 opportunity to pursue federal habeas relief because his probation ended less than three months 26 later on September 30, 2019, supposedly mooting any federal habeas claims under the Supreme 27 Court’s decision in Spencer v. Kemna, 523 U.S. 1 (1998). Zuegel says that under Spencer and its 1 probation expired and he had no meaningful opportunity to assert them, he can now assert those 2 claims as § 1983 claims in this direct proceeding. See Compl. ¶¶ 1–2; Opp. at 4–9. 3 Defendants maintain that the claims are still Heck-barred. MTD at 6–9; Reply at 3–4. 4 They say that Zuegel waived any argument based on Spencer because he did not raise it 5 immediately upon expiration of his probation, which occurred prior to the final judgment in 6 Zuegel I. MTD at 9; Reply at 4. They also contend that the holding in Spencer is narrow and 7 inapplicable to claims directly challenging the validity of an underlying conviction or plea, and 8 that in any case Zuegel was not sufficiently diligent in prosecuting his habeas claims to invoke this 9 rule. MTD at 6–8. 10 As an initial matter, Zuegel is incorrect that his federal habeas claims were mooted by the 11 expiration of his probation. When a habeas petition challenges a conviction, there is a 12 presumption of collateral consequences that renders the habeas petition not moot even after the 13 period of punishment expires. See Spencer, 523 U.S. at 12. The Supreme Court has said that it is 14 an “obvious fact of life that most criminal convictions do in fact entail adverse collateral legal 15 consequences” even after punishment ends, such as “deprivation of the right to vote, to hold 16 office, to serve on a jury, or to engage in certain businesses.” Id. at 8, 12 (quoting Sibron v. New 17 York, 392 U.S. 40, 55 (1968)). Zuegel had a presumption of collateral consequences from his 18 guilty plea to and conviction of the state misdemeanor charge such that his habeas claims were not 19 mooted when his probation expired. 20 But even if Zuegel is correct that his federal habeas claims were mooted by the expiration 21 of his probation, his proper remedy was to seek reconsideration under Civil Local Rule 7-9 in 22 Zuegel I. After all, he was aware of those facts a full 14 months before trial and he was no 23 stranger to late amendments to his complaint. Zuegel amended his complaint on June 29, 2020 to 24 add the only claim that proved successful at trial. See Zuegel I, Third Amended Complaint, ECF 25 No. 87. Furthermore, he failed to raise this issue in post-judgment motions. Thus, there is a 26 serious possibility that Zuegel waived this argument in Zuegel I such that issue preclusion applies 27 in this case. See Paulo v. Holder, 669 F.3d 911, 918 (9th Cir. 2011) (under issue preclusion, 1 the previous litigation”). 2 And, even if Zuegel’s habeas claim is not moot and he is not precluded from making this 3 argument in this new case, the Court concludes that the Spencer exception is not available to 4 Zuegel and that his dismissed § 1983 claims remain Heck-barred because he was not diligent in 5 pursuing this claim. To see why, the Court discusses Spencer, two important Ninth Circuit 6 precedents interpreting Spencer, and the two lines of district court cases applying the Ninth 7 Circuit’s cases. 8 In Spencer, the Supreme Court held that the expiration of a petitioner’s sentence moots a 9 petitioner’s federal habeas petition under Article III due to a lack of a case or controversy where 10 there are no collateral consequences from the underlying action that is challenged. Randy Spencer 11 was serving a three-year sentence for felony stealing and burglary that began in October 1990. Id. 12 at 3. After he was released on parole in April 1992, he committed a parole violation and was 13 returned to prison after his parole was revoked in September 1992. Id. at 3–5. Upon returning to 14 prison, Spencer immediately began efforts to invalidate the revocation of his parole (not the 15 underlying conviction). Id. at 5. His efforts at obtaining state court relief were unsuccessful at all 16 levels of the Missouri courts, and he then filed a petition for a writ of habeas corpus with the 17 United States District Court for the Western District of Missouri in April 1993. Id. After several 18 extensions were granted by the court and six months passed, Spencer requested in July 1993 that 19 the court expeditiously rule on his motion “to prevent his claim from becoming moot” due to the 20 upcoming expiration of his term of imprisonment. Id. at 6. Spencer’s imprisonment expired on 21 October 16, 1993 without a ruling from the district court. Id. The district court dismissed his 22 habeas petition as moot almost two years later on August 23, 1995. Id. With Justice Scalia 23 writing for the Court, the Supreme Court affirmed the district court’s dismissal of the habeas 24 petition, finding that there was lack of an Article III case or controversy because the petitioner’s 25 sentence had ended and there was no evidence he was suffering from (or was entitled to any 26 presumption of) collateral consequences from his parole revocation. One of the arguments 27 Spencer made was that dismissal of his habeas petition would prevent him from pursuing § 1983 1 sequitur, unless one believes (as we do not) that a § 1983 action for damages must always and 2 everywhere be available.” Id. Justice Scalia said that Spencer retained the ability to bring 3 damages claims for procedures that did not necessarily imply the invalidity of his parole 4 revocation because Heck would not apply to those claims. Id. 5 As the Ninth Circuit has recognized, however, to the extent that statement “means that a 6 § 1983 action is precluded even though a habeas petition would be dismissed as moot, five 7 Justices disagreed with it.” Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002). It is instead 8 Justice Souter’s concurring opinion for four Justices in Spencer that controls on this point. Justice 9 Souter wrote:

10 Heck did not hold that a released prisoner in Spencer’s circumstances is out of court on a § 1983 claim, and for reasons explained in my 11 Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any result. For all that appears here, then, 12 Spencer is free to bring a § 1983 action, and his corresponding argument for continuing habeas standing falls accordingly. 13 14 Spencer, 523 U.S. at 19 (Souter, J., concurring). Justice Stevens—the lone dissenter—agreed on 15 this point, making it the position of five Justices. See id. at 25 n.8 (Stevens, J., dissenting) (“Given 16 the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly 17 clear, as Justice SOUTER explains, that he may bring an action under 42 U.S.C. § 1983.”). 18 The Ninth Circuit applied the rule from Spencer in Nonnette. In that case, plaintiff Narvis 19 Nonnette brought a § 1983 action challenging the miscalculation of his prison sentence, revocation 20 of 360 days of good-time credits, and imposition of 100 days of administrative segregation in a 21 disciplinary proceeding after Nonnette was involved in an inmate fight. 316 F.3d at 874. The 22 district court found those claims Heck-barred because they challenged the validity of intact 23 decisions the caused Nonnette’s continued confinement. Id. The Ninth Circuit reversed. 24 Although at the time the district court made its decision Nonnette was still incarcerated, he was 25 released during the pendency of the appeal. Id. at 877. Because Nonnette was no longer 26 incarcerated, the Ninth Circuit concluded based on Justice Souter’s concurring opinion that Heck 27 did not preclude Nonnette’s § 1983 action. Id. In a footnote later in the opinion, the Ninth Circuit 1 We do not share the State’s concern that our holding will encourage prisoners to delay their challenges to loss of good-time credits until 2 their release is imminent or accomplished. The possibility of release from incarceration is the strongest incentive for prisoners to act 3 promptly to challenge such administrative action by habeas corpus after administrative remedies are exhausted. We also emphasize our 4 holding affects only former prisoners challenging loss of good-time credits, revocation of parole or similar matters; the status of prisoners 5 challenging their underlying convictions or sentences does not change upon release, because they continue to be able to petition for a writ of 6 habeas corpus. 7 Id. at 878 n.7 (citing Spencer, 523 U.S. at 7–12). 8 The Ninth Circuit further clarified the scope of this rule in Guerrero v. Gates, 442 F.3d 9 697 (9th Cir. 2006). In that case, the plaintiff former state prisoner brought § 1983 claims alleging 10 wrongful arrest, malicious conspiracy, conspiracy to bring false charges, and excessive force 11 related to two separate arrests in 1995 and 1997. Id. at 702. Guerrero left custody in 1999 and 12 filed his § 1983 suit a year later. Id. The Ninth Circuit found that Heck barred most of Guerrero’s 13 § 1983 claims. The court noted that although habeas corpus was not available to Guerrero because 14 he was no longer in custody and “exceptions to Heck’s bar for plaintiffs no longer in custody may 15 exist” based on Spencer and Nonnette, the exceptions did not apply because Guerrero did not 16 diligently seek relief through habeas procedures prior to filing his § 1983 lawsuit. Id. at 704–05. 17 Guerrero in fact never did so. Id. “Nonnette was founded on the unfairness of barring a plaintiff’s 18 potentially legitimate constitutional claims when the individual immediately pursued relief after 19 the incident giving rise to those claims and could not seek habeas relief only because of the 20 shortness of his prison sentence.” Id. at 705. The court also pointed to the footnote in Nonnette, 21 saying that it “emphasized that Nonnette’s relief from Heck ‘affects only former prisoners 22 challenging loss of good-time credits, revocation of parole or similar matters,’ not challenges to an 23 underlying conviction such as those Guerrero brought.” Id. (quoting Nonnette, 316 F.3d at 878 24 n.7). 25 Based on these cases, the Court finds that the Spencer exception does not apply to Zuegel 26 here. Under Nonnette and Guerrero, it is not even clear that Zuegel can use the Spencer exception 27 because his claim was not moot upon conclusion of probation, as it might have been were he 1 F.3d at 878 n.7. As the Court previously stated, when a habeas petition challenges a conviction, 2 there is a presumption of collateral consequences that renders the habeas petition not moot even 3 after the period of punishment expires. See Spencer, 523 U.S. at 12. The discussion of the 4 presumption of collateral consequences in Justice Scalia’s majority opinion in Spencer is not 5 affected by Justice Souter’s concurrence in that case, which only represented a majority as to the 6 Heck issue. To be sure, some judges in this Circuit have rejected a strict interpretation of the 7 footnote in Nonnette that would restrict availability of the Spencer exception to those delineated 8 matters. These courts hold that the footnote was merely “distinguishing claims that ex-prisoners 9 can continue to assert on habeas once they are released [from custody] from claims that a 10 prisoner’s release renders moot.” Beckway v. DeShong, 717 F. Supp. 2d 908, 917 (N.D. Cal. 11 2010) (allowing plaintiff who pleaded no contest to proceed with § 1983 claims under Spencer 12 exception because he was “never incarcerated” and so “habeas is unavailable to him”); Cole v. 13 Doe 1 Thru 2 Officers of the City of Emeryville Police Dep’t, 387 F. Supp. 2d 1084, 1092–93 & 14 n.2 (N.D. Cal. 2005) (rejecting narrow interpretation of the footnote because “the Ninth Circuit’s 15 focus in Nonnette was on the availability of the habeas remedy,” not on the form of the underlying 16 claims). Other courts in this Circuit have strictly interpreted the footnote and concluded that 17 Nonnette and Guerrero do not allow the types of claims asserted by Zuegel here. See Rouse v. 18 Conner, 2012 WL 2368464, at *10 (N.D. Cal. Jun. 21, 2012) (Nonnette “provide[s] relief from 19 Heck only for ‘former prisoners challenging loss of good-time credits, revocation of parole[] or 20 similar matters,’ . . . not challenges to an underlying conviction”); Wesbecher v. Landaker, 2008 21 WL 2682614, at *4 (E.D. Cal. Jul. 1, 2008) (interpreting exception as “narrow” based on Nonnette 22 footnote) (citing El v. Crain, 560 F. Supp. 2d 932, 945 (C.D. Cal. Jun. 4, 2008)). Zuegel is not 23 challenging the “loss of good-time credits, revocation of parole or similar matters” like the 24 plaintiff in Nonnette; instead, he is “collaterally challenging an underlying conviction” as was the 25 plaintiff in Guerrero.4 26 27 4 Like in Zuegel I, Zuegel does not contend that a no contest plea is treated any differently for 1 But the Court need not decide whether Nonnette and Guerrero allow the type of claims 2 Zuegel asserts here because even if they did, the Court finds that Zuegel did not diligently pursue 3 “expeditious litigation” to challenge the conduct underlying his plea. Guerrero, 442 F.3d at 704– 4 05. Here, Zuegel pled no contest to the misdemeanor charge on September 30, 2016. He filed no 5 direct appeal in state court and he waited fifteen months until December 19, 2017 to initiate his 6 state habeas proceedings. Compare Zuegel I, ECF No. 19-4 (plea), with RJN Ex. H at 67 7 (Superior Court habeas petition). This fifteen-month wait to begin pursuit of habeas claims does 8 not represent diligent pursuit of “expeditious litigation” to challenge the conduct underlying his 9 plea. Zuegel defends his diligence, saying that (1) his petition was filed two months after he 10 located counsel and filed his amended complaint in Zuegel I, and (2) that the length of the state 11 court proceedings foreclosed filing for federal habeas relief. Opp. at 8–9. While the Court does 12 not fault Zuegel for the length of deliberations by the state courts, diligence is not measured from 13 the date counsel is retained and Zuegel offers no impediment to hiring a lawyer over the preceding 14 thirteen months. Zuegel cites no case that permitted a plaintiff to initiate claims pursuant to the 15 exception articulated in Spencer after over a year’s delay of the plaintiff’s own making. The Court 16 finds that this long delay in beginning his pursuit of state habeas relief amounts to a lack of 17 diligence that precludes availability of the Spencer exception to Zuegel, even if (as the Court 18 doubts) he would otherwise qualify for it. 19 Additionally, although not directly at issue, Zuegel’s federal habeas petition may have 20 already been outside of the 1-year limitations period under the Antiterrorism and Effective Death 21 Penalty Act of 1996 (“AEDPA”) after the conclusion of his state habeas proceedings. AEDPA 22 provides that a 1-year limitations period begins running from “the date on which the judgment 23 became final by the conclusion of direct review or the expiration of time for seeking such review.” 24 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 148–54 (2012). Zuegel’s 25 conviction occurred on September 30, 2016, so his time to initiate a direct review in state court 26 ended on October 30, 2016. Cal. Rule of Court 8.853. His time to file a federal habeas petition 27 thus appears to have expired one year later on October 30, 2017, before he filed his state habeas 1 petition on December 19, 2017.° Recognizing that the statute of limitations is an affirmative 2 defense, Day v. McDonough, 547 U.S. 198, 205 (2006), the Court finds this issue relevant only as 3 || further context for the diligence inquiry. 4 The Court thus finds that the claims remain Heck-barred because Zuegel was not diligent 5 || in pursuing other avenues of review. Because the Court concludes that the Heck bar has not been 6 || lifted by the alleged unavailability of a federal habeas remedy, no claims accrued on September 7 30, 2019 such that the two-year statute of limitations applicable to the claims started to run on that 8 date. See MTD at 9; Opp. at 9-10. 9 10 Because the claims remain Heck-barred, leave to amend would be futile. Defendants’ 11 motion to dismiss will thus be GRANTED WITHOUT LEAVE TO AMEND, but WITHOUT 12 || PREJUDICE to reasserting the claims if Zuegel satisfies the favorable termination requirement of 5 13 || Heck. 512 U.S. at 486-87. 14 || IV. ORDER 15 For the foregoing reasons, IT IS HEREBY ORDERED that the Mountain View 16 || Defendants motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND because the Heck 3 17 bar remains in effect, but WITHOUT PREJUDICE to Zuegel reasserting the claims if he satisfies 18 the favorable termination requirement of Heck. The Clerk shall close the case. 19 20 || Dated: July 20, 2022 han heh Lh fama

BETH LABSON FREEMAN

22 United States District Judge 23 24 25 26 |) 5 Because his state habeas action was filed after the 1-year AEDPA limitations period appears to 27 have already run, his state habeas proceedings did not toll that limitations period. See 28 U.S.C. 28 |! § 2244(4)(2).