Summary
In Carter v. Hardy, 543 F.2d 555 (5 Cir. 1976) (Carter II), the plaintiff argued that he was entitled to expunction and a declaratory judgment because the state convictions were predicated on an unconstitutional statute.
Summary of this case from Cavett v. EllisOpinion
No. 76-2813. Summary Calendar.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.
December 6, 1976. Rehearing and Rehearing En Banc Denied February 7, 1977.
Albert H. Carter, pro se.
Gus Drake, Anthony D. Sheppard, Asst. County Attys., Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
Appellant Carter again sues under 42 U.S.C. § 1983 seeking expungement of records of his 1963 and 1965 Texas bad-check convictions. See Carter v. Hardy, 526 F.2d 314 (5th Cir. 1976). In the first suit he claimed that the convictions should be held constitutionally invalid because, he alleged, he had been indigent at the time of trial and had been denied counsel. We affirmed dismissal of the complaint on the ground that Carter had not alleged exceptional circumstances sufficient to invoke the court's "exceedingly narrow scope" of power to order expunction of state conviction records, relying on Rogers v. Slaughter, 469 F.2d 1084 (5th Cir. 1972).
The only difference between the instant case and Carter's earlier suit is that this one challenges the constitutionality of the statute under which he was convicted, rather than of the procedures at trial. We do not think this difference is material, and therefore affirm the district court's dismissal. Hill v. Johnson, 539 F.2d 439 (5th Cir. 1976); Carter v. Hardy, supra.
AFFIRMED.