RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0130p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JOHNETTA CARR, │ Plaintiff-Appellant, │ │ v. │ > No. 21-5736 │ LOUISVILLE-JEFFERSON COUNTY, KENTUCKY METRO │ GOVERNMENT; TONY FINCH, GARY HUFFMAN, TERRY │ JONES, JIM LAWSON, and SHAWN SEABOLT, Police │ Detectives, in their individual capacities; TROY │ PITCOCK and JAMES HELLINGER, Louisville Police │ Sergeants, in their individual capacities, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:20-cv-00818—Charles R. Simpson III, District Judge. Argued: May 5, 2022 Decided and Filed: June 16, 2022 Before: SILER, GIBBONS, and STRANCH, Circuit Judges. _________________ COUNSEL ARGUED: Elliot Slosar, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Peter F. Ervin, JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: Elliot Slosar, Amy Robinson Staples, Margaret Campbell, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Peter F. Ervin, Susan K. Rivera, JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees. No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 2 _________________ OPINION _________________ JULIA SMITH GIBBONS, Circuit Judge. In 2008, Johnetta Carr entered an Alford plea to second degree manslaughter, pleading guilty but maintaining her innocence. Over a decade later, she was pardoned. Carr then sued Louisville-Jefferson County, the City of Louisville, and several police officers under 42 U.S.C. § 1983, alleging her conviction was the result of constitutional violations. The district court granted defendants’ motion to dismiss, finding Carr’s § 1983 claims were not cognizable under the Supreme Court’s precedent in Heck v. Humphrey, 512 U.S. 477 (1994). As Carr’s pardon satisfies the requirements of Heck, we reverse the district court and remand for Carr to pursue her claims. I In 2005, Planes Michael Adolphe was found murdered in front of his apartment building. Adolphe and Carr had been dating at the time. Carr, who was sixteen, was arrested for Adolphe’s murder. She was indicted and entered an Alford plea1 in 2008 to second degree manslaughter, conspiracy to commit robbery, conspiracy to commit burglary, and tampering with physical evidence. She was sentenced to twenty years of imprisonment. She was paroled in 2009 and discharged in 2018. On December 6, 2019, Carr applied for a pardon, asserting her innocence. The Kentucky Innocence Project filed letters in support of her application. Three days later, Kentucky Governor Matthew Bevin pardoned Carr. In the pardon, he notes “Johnetta Carr is a strong and highly motivated woman with a very bright future.” DE 20-2, Pardon, Page ID 113. He expressed his confidence “that she will contribute in powerful ways to society as a whole and to those in her community specifically.” Id. He granted “her the full and unconditional pardon she has requested.” Id. The pardon ends, We have never previously considered whether a pardoned individual can pursue a § 1983 claim relating to her conviction. Courts that have considered the issue unanimously agree that

No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 5

pardons in some way fall under Heck’s reach. See Savory v. Cannon, 947 F.3d 409, 428–30 (7th Cir. 2020) (en banc); Wilson v. Lawrence Cnty., 154 F.3d 757, 760–61 (8th Cir. 1998); Walden v. City of Chicago, 391 F. Supp. 2d 660, 671–72 (N.D. Ill. 2005); Snyder v. City of Alexandria, 870 F. Supp. 672, 686–87 (E.D. Va. 1994). Heck holds a plaintiff can show her conviction was invalidated by showing it was “expunged by executive order.” 512 U.S. at 487. In considering whether a pardon falls under this category, the Eighth Circuit noted “‘expunge’ has two different connotations.” Wilson, 154 F.3d at 760. Expunge can mean physically destroying information, or a “more common meaning” of destroying or obliterating figuratively. Id. To choose a definition, the court looked to the other methods of invalidating a conviction under Heck— “direct appeal, state collateral proceedings, and federal habeas review.” Id. at 761. These methods do not require “literal destruction,” so the court adopted the figurative meaning of expunge. Id. A full pardon, the court found, obliterates a conviction and therefore qualifies as expungement by executive order. Id. The Seventh Circuit, similarly, has “often used ‘pardon’ or ‘executive pardon’ as synonyms for ‘expunged by executive order.’” Savory, 947 F.3d at 429.

A figurative meaning of expunge is supported by the fact that many states do not have literal expungement by executive order.^[2] In Kentucky, the governor has pardon power. Ky. Const. § 77. However, a pardon does not automatically entitle the pardoned individual to expungement of her criminal record. Harscher v. Commonwealth, 327 S.W.3d 519, 522 (Ky. Ct. App. 2010). The pardoned individual can petition a court to have her conviction expunged. Ky. Rev. Stat. Ann § 431.073(1)(c); Bedford v. Commonwealth, No. 2017-CA-001907-MR, 2018 WL 4261782, at *1 (Ky. Ct. App. Sept. 7, 2018). Therefore, Kentucky has executive pardons and judicial expungement. “There is no reason in principle or policy for the Supreme Court, for these purposes, to distinguish between prisoners in states where executive expungement orders are available, and prisoners in states . . . that do not recognize such a remedy.” Snyder, 870 F. Supp. at 686. Although “executive pardons and judicial expungement orders are not specifically listed [in Heck], they certainly seem to be within the reach of the Court’s language.” Id.

Defendants argue that Carr’s pardon does not invalidate her conviction under Heck because the pardon did not contain language indicating Carr was innocent.

In Savory v. Cannon, the en banc Seventh Circuit found no support in Heck for requiring that a pardon be based on innocence to meet the invalidation requirement. 947 F.3d at 429. Savory was convicted of first-degree murder. Id. at 412. After thirty years in prison, he was paroled and his sentence was later commuted. Id. Then, he received a general pardon from Illinois Governor Pat Quinn. Id. at 412, 428. He sued the City of Peoria and several officers under § 1983. Id. at 412. Addressing the difference between a general pardon and a pardon of innocence, the Seventh Circuit wrote, “The contention that a pardon must be based on innocence in order to serve as a favorable termination finds no support in Heck, and we see no reason to impose that additional limitation on Heck’s holding.” Id. at 429. The en banc court emphasized that none of the other methods of invalidation under Heck “require an affirmative finding of innocence.” Id. Therefore, Savory’s general pardon satisfied Heck’s invalidation requirement. Id. at 429–30.3 We agree with the Seventh Circuit.

A full pardon, even one that does not indicate an individual is innocent, fulfills the purposes of Heck’s invalidation requirement. Heck sought to avoid parallel litigation and to prevent collateral attacks on a conviction through a civil suit. Heck, 512 U.S. at 484–85. A full pardon removes all legal consequences of the individual’s conviction, avoiding the concern of parallel litigation with an outstanding criminal proceeding. See United States v. Barrett, 504 F.2d 629, 634 (6th Cir. 1974) (“A pardon is full when it freely and unconditionally absolves the person from all the legal consequences of his crime and of his conviction, direct and collateral, including punishment, whether . . . imprisonment, pecuniary penalty, or whatever else the law has provided . . . .”). As for collateral attacks, the Eighth Circuit addressed this concern: