Tony Payano v. THOMAS L. POTTER and GREGORY D. GRAMS

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 13, 2014*
Decided February 13, 2014
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐2144
TONY PAYANO,
Plaintiff‐Appellant,
v.
THOMAS L. POTTER and
GREGORY D. GRAMS,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 12‐cv‐889‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Tony Payano, a Wisconsin prisoner, seeks damages under 42 U.S.C. § 1983 for
the year he spent in state prison after an appellate court vacated his conviction and
ordered a retrial but before the Supreme Court of Wisconsin reinstated the conviction.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED . R. A PP . P. 34(a)(2).

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No. 13‐2144 Page 2
The district court dismissed the lawsuit. Because Heck v. Humphrey, 512 U.S. 477 (1994),
bars this suit, we affirm.
Based on the complaint’s allegations, which we take as true, Payano’s criminal
case began in 2005 after he shot a plain‐clothes police officer who was forcibly entering
his apartment. He was charged with recklessly causing injury with a dangerous weapon
and recklessly endangering safety. WIS. STAT. §§ 940.23(2)(a), 941.30(2). At his first trial,
Payano asserted that he had acted in self‐defense and testified that he was unaware that
the intruders breaking down his door were police officers with a no‐knock search
warrant. That trial ended in a hung jury. At the second trial, an informant testified that
he saw Payano in his apartment with cocaine and a gun the day before police arrived at
his door. The prosecutor argued from this evidence that Payano shot the officer, not in
self‐defense, but to buy time to dispose of the cocaine (no drugs were found in the
apartment). The jury found Payano guilty, and he was sentenced to 17½ years in prison.
Appellate proceedings gave Payano the short‐lived victory that is the basis for
this suit. The state’s court of appeals vacated the conviction and remanded the case in
2008 for a new trial. State v. Payano, 752 N.W.2d 378, 388 (Wis. Ct. App. 2008). It ruled
that the informant’s testimony was irrelevant to Payano’s claim of self‐defense and also
unfairly prejudicial. Id. at 386–88. Based on that intermediate appellate victory, Payano
asked the warden to release him from prison or transfer him to a county jail that houses
pretrial detainees. Prison officials never responded, and he remained in state prison.
One year later, the Supreme Court of Wisconsin reversed the appellate decision. State v.
Payano, 768 N.W.2d 832, 864–65 (Wis. 2009). It concluded that the informant’s testimony
about drug possession suggested why Payano might have suspected that police officers
were breaking down his door and therefore, the court said, was more probative than
prejudicial. Id. Payano sued the warden and the state prosecutor over three years later,
seeking $3 million in damages for the year he spent in prison between the state court
decisions. He alleges that his detention in a state prison during that time was cruel and
unusual punishment and violated his rights to due process and equal protection.
The district dismissed his claims at screening, see 28 U.S.C. § 1915A. It first
questioned whether under Heck, 512 U.S. at 487, Payano could challenge the legality of
his confinement during the year between the two appellate decisions. Given that the
intermediate appellate court had not ordered his release, the district court thought that
the criminal case had not been resolved in his favor. But even if his claims were not
Heck‐barred, the court added, Payano had not stated a claim that he was unlawfully
confined in prison while awaiting retrial. It explained that pretrial detention is

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No. 13‐2144 Page 3
constitutional and he has no constitutional right to be detained in a particular type of
institution pending trial. See Bell v. Wolfish, 441 U.S. 520, 535–37 (1979). Payano then
asked the court to reconsider and allow him to amend his complaint. He alleged that his
pretrial detention was punitive because he was kept in solitary confinement at a prison
almost 24 hours per day for a year. He cited a state law that limits solitary confinement
of jail detainees to no more than 10 days, and only for violating jail rules, and another
law that authorizes detention in state prison only for convicts sentenced to at least a
year. See WIS. STAT. §§ 302.40, 973.02. The district court denied Payano’s requests. It
observed that he already had challenged the conditions of his prison‐based solitary
confinement in a suit dismissed at summary judgment a year earlier for failure to
exhaust administrative remedies, Payano v. Grams, No. 11‐cv‐437‐slc (W.D. Wis. Mar. 1,
2012), and Payano gave no reason to revisit that ruling.
On appeal Payano maintains that his continued confinement in prison between
2008 and 2009 denied him due process. But, as the district court correctly observed,
Payano may not pursue a § 1983 suit attacking the legality of his confinement “unless
[he] can demonstrate that the conviction or sentence has already been invalidated.”
Heck, 512 U.S. at 487; see also Parish v. City of Elkhart, 614 F.3d 677, 684 (7th Cir. 2010).
The Supreme Court of Wisconsin has ruled that Payano’s conviction and sentence are
valid, so the criminal judgment remains intact and precludes this lawsuit. See Burd v.
Sessler, 702 F.3d 429, 434–35 (7th Cir. 2012).
Payano replies that he temporarily ceased to be a convicted prisoner between his
appellate victory and the Supreme Court’s reversal of it. But his premise—that he
became a pretrial detainee after the appellate court ordered a retrial—is wrong. A
prisoner whose conviction has been reversed and remanded for retrial does not become
a pretrial detainee before the reversing court’s mandate has issued. Crane v. Logli, 992
F.2d 136, 139–40 (7th Cir. 1993). Under Wisconsin law, the appellate decision vacating
Payano’s conviction was stayed while the state supreme court considered the petition
for review. See WIS. STAT. §§ 809.26(2) (“transmittal” of appellate court’s judgment “is
stayed until the supreme court rules on the petition”), 809.62(5) (petition for review
“stays further proceedings in the court of appeals”). Moreover, in the related context of
a federal civil‐rights suit for malicious prosecution, even after an appellate court has
remanded a criminal case for retrial, the Heck bar is not lifted until and unless the retrial
ends favorably. Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013); see also DiBlasio v. City
of New York, 102 F.3d 654, 658 (2d Cir. 1996) (ruling that “the reversal of a conviction
and remand for new trial is not” favorable termination under Heck); Brandley v. Keeshan,

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No. 13‐2144 Page 4
64 F.3d 195, 199 (5th Cir. 1995) (same). Payano never received a favorable, final
outcome, so Heck bars this suit.
Payano next challenges the district court’s ruling denying him leave to amend
his complaint to allege that his solitary confinement in prison during the year between
appellate decisions violated due process because the imprisonment was punitive. As in
the district court, he cites to state laws limiting when detainees can be punished with
solitary confinement or housed in prison. See WIS. STAT. §§ 302.40, 973.02. He adds that
the court should not have relied on its dismissal, based on a failure to exhaust, of his
earlier suit over the conditions of his confinement. Payano v. Grams, No. 11‐cv‐437‐slc
(W.D. Wis. Mar. 1, 2012). Payano clarifies that in this case he is not challenging the
conditions of his solitary confinement (a claim that requires exhaustion, see 42 U.S.C.
§ 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006)). Rather, he is arguing that the fact of
his solitary confinement in prison violated due process because he was entitled to the
same type of non‐punitive detention required for pretrial detainees. See Smentek v. Dart,
683 F.3d 373, 374 (7th Cir. 2012); Hart v. Sheahan, 396 F.3d 887, 892–93 (7th Cir. 2005).
Payano’s claim that his solitary confinement in state prison unconstitutionally
“punished” him assumes, again incorrectly, that between the two appellate decisions he
should have been treated as a pretrial detainee. As we have already observed, the
intermediate appellate court’s decision vacating his conviction was stayed pending
appeal and then later reversed, obviating his “pretrial detainee” theory. Because
prevailing on this proposed claim would necessarily imply that his conviction had been
conclusively invalidated, it too is Heck‐barred. See Heck, 512 U.S. at 486–87; Burd, 702
F.3d at 434–35.
In any case, Heck aside, state officials do not violate due process simply by
holding convicted prisoners in custody until retrial. After his appellate victory, Payano
asked the warden to release him or transfer him to a jail, but he does not argue that a
Wisconsin court refused to consider a request to transfer or release him on bond during
the appeal process. Nor could he. Wisconsin affords convicted defendants the
opportunity to ask a state court for post‐judgment release. See WIS. STAT. §§ 809.31(1)
(convicted defendant “who seeks release on bond pending a determination of a motion
or appeal shall file in the trial court a motion seeking release”), 969.035(5) (requiring
pretrial detention hearing to “determin[e] if the continued detention of the defendant is
justified”); State v. Salmon, 471 N.W.2d 286, 287–88 (Wis. Ct. App. 1991). So long as the
state courts were open to considering a request to release him from custody pending his
retrial, Payano cannot state a claim that due process was offended by his continued

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confinement. See Buckley v. Fitzsimmons, 20 F.3d 789, 798 (7th Cir. 1994) (explaining that
defendant given opportunity to seek bail but denied release “received all the process
that was due”); United States v. Millan, 4 F.3d 1038, 1049 (2d Cir. 1993).
AFFIRMED.

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