Case No.

15-35845

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MARTIN, ET AL.,

Plaintiffs-Appellants,

vs.

THE CITY OF BOISE,

Defendant-Appellee.

On Appeal from Orders of the United States District Court

For the District of Idaho
Honorable Ronald E. Bush, Presiding
(USDC No. 1:09-cv-00540-REB)

PETITION FOR PANEL REHEARING AND REHEARING EN BANC

Brady J. Hall Robert B. Luce

Michael W. Moore Boise City Attorney
Moore Elia Kraft & Hall, LLP Scott B. Muir
P.O. Box 6756 Deputy City Attorney
Boise, Idaho 83707 Boise City Attorney’s Office
(208) 336-6900 P.O. Box 500
brady@melawfirm.net Boise, Idaho 83701-0500
mike@melawfirm.net rluce@cityofboise.org
smuir@cityofboise.org

September 18, 2018

 TABLE OF CONTENTS

TABLE OF AUTHORITIES …………………………………………………...ii-iii

INTRODUCTION AND RULE 35(b)(1) STATEMENT …………………………1

ARGUMENTS

I. AN INDIVIDUAL WHO IS CONVICTED UNDER A CRIMINAL

STATUTE, BUT WHO DID NOT CHALLENGE THE
CONSTITUTIONALITY OF THE STATUTE AT THE TIME OF HIS
CONVICTION THROUGH DIRECT APPEAL OR POST-CONVICTION
RELIEF, CANNOT DO SO IN THE FIRST INSTANCE BY SEEKING
PROSPECTIVE EQUITABLE RELIEF UNDER § 1983………….……….3

II. THE PANEL INCORRECTLY DETERMINED THAT MR. MARTIN’S

AND MS. HAWKES’ DISMISSED CITATIONS GAVE RISE TO § 1983
DAMAGES CLAIMS FOR ALLEGED VIOLATION OF THE EIGHTH
AMENDMENT…………………………………………………….………..8

CONCLUSION ....... ………………………………………………………………14

CERTIFICATE OF SERVICE .. …………………………………………………15

CERTIFICATE OF COMPLIANCE .. ……………………………………………16

APPENDIX: Martin v. City of Boise, No. 15-35845 . …………………………….17

i
 TABLE OF AUTHORITIES

FEDERAL CASES

Bell v. Wolfish
441 U.S. 520 (1970)………………………………………………..……2, 11

City of Revere v. Massachusetts Gen. Hosp.

463 U.S. 239, 244 (1983)……………………………………………..…8, 11

Edwards v. Balisok
520 U.S. 641 (1997)……………………………………………………1, 6, 7

Graham v. Connor
490 U.S. 386 (1989)…………………………………………………..……11

Hawkins v. Camparet-Cassani
251 F.3d 1230 (9th Cir. 2001)………………………………….…..2, 3, 8, 12

Heck v. Humphrey
512 U.S. 477, 486-87 (1994)………………………….…..…1, 3, 4, 5, 6, 7, 8

Ingraham v. Wright
430 U.S. 651 (1977)………………………………….. 2, 8, 9, 10, 11, 13, 14

In re Grand Jury Proceedings

33 F.3d 1060, 1062 (9th Cir. 1994)…………………………….….…..12, 13

Johnson v. City of Dallas, Texas

61 F.3d 442, 444-45 (5th Cir. 1995)………………………………….……13

Joyce v. City and County of San Francisco

846 F.Supp. 843, 853 (N.D.Cal.1994)…………………………………13, 14

Lee v. City of Los Angeles

250 F.3d 668 (9th Cir. 2001)……………………………………..………3, 13

Lyall v. City of Los Angeles

807 F.3d 1178 (9th Cir. 2015)………………………………………………..3

ii
Osborne v. District Attorney’s Office for Third Judicial District
423 F.3d 1050 (9th Cir. 2005)………………………………………….2, 7, 8

Robinson v. California
370 U.S. 660 (1962)…………………………………………………...…….9

Tennessee v. Garner
471 U.S. 1 (1985)……………………………………………………….….11

United States v. Ritter

752 F.2d 435, 438 (9th Cir. 1985)………………………………………….13

Whitley v. Albers
475 U.S. 312 (1986)……………………………………………..………8, 11

Wilkinson v. Dotson
544 U.S. 74 (2005)……………………………………………….….1, 4, 5, 7

UNITED STATES CONSTITUTION

Fourth Amendment………………………………………………………………11

Eighth Amendment…………………………………1, 2, 4, 8, 9, 10, 11, 12, 13, 14

Fourteenth Amendment………………………………………..………….10, 11, 13

STATUTES
42 U.S.C. § 1983…………………………………………….1, 2, 3, 4, 5, 6, 7, 8, 12

RULES
Federal Rule of Appellate Procedure 35……………………………………………1

Federal Rule of Appellate Procedure 40……………………………………………1

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 INTRODUCTION AND RULE 35(b)(1) STATEMENT

This is a petition for a panel rehearing and rehearing en banc. Pursuant to

Rules 35(b)(1) and 40 of the Federal Rules of Appellate Procedure, the

Defendant/Appellee City of Boise (hereinafter “the City”) contends that the panel’s

September 4, 2018 decision (DktEntry: 66-1) conflicts with precedent of both the

United States Supreme Court and the Ninth Circuit Court of Appeals and

consideration by the full court is therefore necessary to secure and maintain

uniformity of the Courts’ decisions. Further, the issues involve one or more

questions of exceptional importance related to the applicability of the Heck

favorable-termination doctrine to prospective equitable relief claims and whether

the Eighth Amendment can give rise to a § 1983 claim for money damages

allegedly sustained pre-conviction.

First, the majority held that Appellants could pursue prospective declaratory

and injunctive relief under 42 U.S.C. § 1983 seeking to declare ordinances that

were the bases of prior convictions unconstitutional under the Eighth

Amendment’s Cruel and Unusual Punishments Clause. However, as the dissent of

Judge John B. Owens correctly illustrated, the majority’s holding is contrary to the

Supreme Court’s precedent in Wilkinson v. Dotson, 544 U.S. 74 (2005) and

Edwards v. Balisok, 520 U.S. 641 (1997). The majority’s decision is also

1
inconsistent with precedent in the Ninth Circuit. See Osborne v. District Attorney’s

Office for Third Judicial District, 423 F.3d 1050 (9th Cir. 2005).

Second, the panel incorrectly held that Pamela Hawkes and Robert Martin,

two Plaintiffs/Appellants who received citations that were subsequently dismissed

before conviction, can pursue damages claims under § 1983 alleging that their

citations were unconstitutional under the Eighth Amendment. Relying on

Ingraham v. Wright, 430 U.S. 651 (1977), the panel incorrectly concluded –

without citation – that “a plaintiff need demonstrate only the initiation of the

criminal process against him, not a conviction.” (DktEntry: 66-1, pg. 25-26)

The City contends that the panel misread Ingraham as nowhere in the

Supreme Court’s decision did it conclude or imply that the Eighth Amendment

applies pre-conviction. The Supreme Court recognized that the Cruel and Unusual

Punishments Clause places substantive limits not simply on what can be made

criminal, but rather on “what can be made criminal and punished as such.”

Ingraham, 430 U.S. at 667. (Emphasis added). The “and punished as such”

language is key because, consistent with Eighth Amendment jurisprudence, there

can be no punishment within the meaning of the Eighth Amendment absent a

conviction. The panel’s decision is also in conflict with Bell v. Wolfish, 441 U.S.

520 (1970) and Ninth Circuit authority. See, e.g., Hawkins v. Camparet-Cassani,

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251 F.3d 1230 (9th Cir. 2001); Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.

2001).

ARGUMENT

I. AN INDIVIDUAL WHO IS CONVICTED UNDER A CRIMINAL

STATUTE, BUT WHO DID NOT CHALLENGE THE
CONSTITUTIONALITY OF THE STATUTE AT THE TIME OF HIS
CONVICTION, THROUGH DIRECT APPEAL OR POST-
CONVICTION RELIEF, CANNOT DO SO IN THE FIRST
INSTANCE BY SEEKING PROSPECTIVE EQUITABLE RELIEF
UNDER § 1983.

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) the United States

Supreme Court held that:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been
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.

512 U.S. at 486-87 (Emphasis in the original)

It is well settled that Heck bars Appellants’ claims for damages under 42

U.S.C. § 1983 that are based on convictions that have not been successfully

challenged on direct appeal or invalidated in state post-conviction relief. See Lyall

v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015). Both the panel’s majority and
3
dissent concluded that such claims are precluded by Heck. (DktEntry: 66-1, pg. 24

and pg. 36)

However, the majority departs from U.S. Supreme Court precedent and

decisions of the Ninth Circuit by concluding that a § 1983 plaintiff whose

convictions have not been challenged on direct appeal or invalidated in state post-

conviction relief is not precluded from seeking prospective equitable relief

concerning those same ordinances on which the convictions were based.

(DktEntry: 66-1, pg. 26-28).

Here, the Appellants’ prospective equitable relief claims (i.e., declaratory

and injunctive relief) seeking relief that the ordinances under which they were

convicted violate the Eighth Amendment, if successful, would necessarily

demonstrate the invalidity of their convictions and thus violate Heck. In Wilkinson

v. Dotson, 544 U.S. 74 (2005), the Supreme Court considered whether two

prisoners who alleged their parole procedures were unconstitutional could bring an

action for money damages, declaratory relief, and injunctive relief under § 1983.

Parole officials had determined that neither were eligible for parole under Ohio’s

Parole Procedures. In the decision, the Supreme Court analyzed its prior cases,

including Heck, and instructed as follows:

These cases, taken together, indicate a state prisoner’s §

1983 action is barred (absent prior invalidation) – no
matter the relief sought (damages or equitable relief),
no matter the target of the prisoner’s suit (state conduct
4
 leading to conviction or internal prison proceedings) – if
success in that action would necessarily demonstrate the
invalidity of confinement or its duration.

544 U.S. at 81-82 (2005) (Emphasis added)

In Wilkinson, neither of the claimants sought to vacate their prior conviction.

Neither sought an order seeking immediate or speedier release into the community.

Applying the Heck favorable-termination doctrine to the facts in Wilkinson, the

Supreme Court held that the state prisoners’ claims were cognizable under § 1983

because success on those claims would not necessarily spell speedier release or

imply the invalidity of their convictions or sentences. 544 U.S. at 82. In this case,

however, Appellants seek a declaration that their convictions under the City’s

ordinances were unconstitutional and an injunction against the ordinances’ future

enforcement under the same circumstances in which they were previously cited

and convicted. If granted, such equitable relief will necessarily demonstrate the

invalidity of Appellants’ prior convictions. As Circuit Judge Owens said in his

dissent:

A declaration that the city ordinances are unconstitutional

and an injunction against their future enforcement
necessarily demonstrates the invalidity of the plaintiff’s
prior convictions. Indeed, any time an individual
challenges the constitutionality of a substantive criminal
statute under which he has been convicted, he asks for a
judgment that would necessarily demonstrate the
invalidity of his conviction.

(DktEntry: 66-1, pg. 37)

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 The United States Supreme Court’s decision in Edwards v. Balisok, 520

U.S. 641 (1997) makes clear that Heck prohibits such equitable challenges under §

1983. In Edwards a state prisoner brought claims under § 1983 alleging due

process violations regarding procedures used in a prison disciplinary hearing that

resulted in the deprivation of good time credits. The prisoner contended that prison

officials violated his rights to due process at a disciplinary proceeding when

(allegedly) a hearing officer was appointed that was biased, had concealed

exculpatory witness statements, had refused to ask specified questions, and

precluded the prisoner from offering evidence. 520 U.S. at 643-4. The prisoner

filed suit seeking damages under § 1983, but also sought equitable relief in the

form of a declaration that the procedures employed violated due process and an

injunction to prevent future violations. Id. at 643.

A Ninth Circuit Court of Appeals panel found that the challenges to the

hearing procedures were always cognizable under § 1983 and did not violate Heck.

520 U.S. 641, 644. The Supreme Court reversed the Ninth Circuit, finding that the

prisoner’s claims for both money damages and declaratory relief were not

cognizable under § 1983 as they would necessarily imply the invalidity of the

disciplinary hearing and the resulting sanctions:

We conclude, therefore, that respondent’s claim for

declaratory relief and money damages, based on
allegations of deceit and bias on the part of the
6
 decisionmaker that necessarily imply the invalidity of the
punishment imposed, is not cognizable under § 1983.

520 U.S. at 648. In coming to its statement of the Heck favorable-termination rule1,

the Wilkinson Court pointed out that in Edwards the Court applied the Heck

standard, both to a claim for money damages and also to a claim for prospective

equitable relief. 520 U.S. at 80-81.

The Ninth Circuit Court has similarly interpreted the Wilkinson language in

Osborne v. District Attorney’s Office for the Third Judicial District, 423 F.3d 1050

(9th Cir. 2005). In that case, the Court was confronted with the issue of whether a §

1983 action could be used to compel biological evidence used to convict the

plaintiff in related state court litigation. The Ninth Circuit Court analyzed Heck as

well as the Supreme Court’s decision in Wilkinson. In Osborne, the Court stated:

[Wilkinson v.] Dotson thus erases any doubt that Heck

applies to both actions for money damages and to those,
like this one, for injunctive relief, and clarifies that Heck
provides the relevant test to determine whether § 1983 is
a permissible avenue of relief for Osborne.

423 F.3d 1050, 1053. (Emphasis added)

1
Wilkinson v. Dotson, 544 U.S. at 82. (“These cases taken together, indicate that a
state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the
relief sought (damages or equitable relief), no matter the target of the prisoner’s
suit, (state conduct leading to conviction or internal prison proceedings) – if
success in that action would necessarily demonstrate the invalidity of confinement
or its duration.”)
7
 In Osborne, the Court went on to conclude that Heck did not preclude a §

1983 action seeking to compel the state to merely release certain biological

evidence. However, unlike in Osborne, Appellants in this case were not

prosecuting § 1983 claims for equitable relief merely to obtain evidence (i.e.,

photographs or statements), but rather to directly challenge the constitutionality of

the very ordinances upon which their prior convictions are based.

II. THE PANEL INCORRECTLY DETERMINED THAT MR.

MARTIN’S AND MS. HAWKES’ DISMISSED CITATIONS GAVE
RISE TO § 1983 DAMAGE CLAIMS FOR ALLEGED VIOLATION
OF THE EIGHTH AMENDMENT.

Two of the plaintiffs, Robert Martin and Pamela Hawkes, received citations

for violating the ordinances that were dismissed before the state obtained a

conviction. On appeal, the Appellants argued for the first time that Heck did not

bar a claim seeking damages for violation of the Eighth Amendment for a citation

where there was no conviction. In response, the City set forth that the alleged

damages, if any, arising from the dismissed citations are not recoverable under the

Eighth Amendment because the citations were dismissed prior to any conviction,

and thus, the Eighth Amendment does not apply based on the holding of Ingraham,

430 U.S. at 654 and other controlling authority. See, e.g., Hawkins v. Camparet-

Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001); Whitley v. Albers, 475 U.S. 312,

318-319 (1986); and City of Revere v. Massachusetts General Hospital, 463 U.S.

239, 243-44 (1983).

8
 The panel disagreed with respect to Ingraham’s application to these two

citations issued to Mr. Martin and Ms. Hawkes, and stated that the City’s reliance

on Ingraham was misplaced. It held:

Ingraham concerned only whether “impositions outside

the criminal process” — in that case, the paddling of
schoolchildren — “constituted cruel and unusual
punishment.” 430 U.S. at 667. Ingraham did not hold
that a plaintiff challenging the state’s power to
criminalize a particular status or conduct in the first
instance, as the plaintiffs in this case do, must first be
convicted. If conviction were a prerequisite for such a
challenge, “the state could in effect punish individuals in
the preconviction stages of the criminal law enforcement
process for being or doing things that under the [Cruel
and Unusual Punishments Clause] cannot be subject to
the criminal process.” Jones, 444 F.3d at 1129. For
those rare Eighth Amendment challenges concerning
the state’s very power to criminalize particular behavior
or status, then, a plaintiff need demonstrate only the
initiation of the criminal process against him, not a
conviction.

(DktEntry: 66-1, pg. 25-26). The panel also relied on Robinson v. California, 370

U.S. 660 (1962); however, the plaintiff in that case challenged the subject

ordinance only after he was convicted and sentenced.

The panel set forth the language of the Eighth Amendment and quoted

Ingraham for the conclusion that the Cruel and Unusual Punishments Clause

circumscribes the criminal process in three ways:

First, it limits the type of punishment the government

may impose; second, it proscribes punishment “grossly
disproportionate” to the severity of the crime; and third,
9
 it places substantive limits on what the government may
criminalize.

(DktEntry: 66-1, pg. 28) (Emphasis added).

However, as set forth in the above quote, the panel omitted a critical part of

the third limitation as stated by Ingraham, namely that “it imposes substantive

limits on what can be made criminal and punished as such.” Ingraham, 430 U.S.

at 667 (Emphasis added). The “and punished as such” language is key because,

consistent with Eighth Amendment jurisprudence, there is no punishment within

the meaning of the Eighth Amendment absent a conviction.

Citing to several Supreme Court decisions, Ingraham instructed that “Eighth

Amendment scrutiny is appropriate only after the State has complied with the

constitutional guarantees traditionally associated with criminal prosecutions.” 430

U.S. at 671 (n 40). It further instructed that the proper Constitutional scrutiny prior

to conviction is the Fourteenth Amendment and the Due Process Clause:

[T]he State does not acquire the power to punish with

which the Eighth Amendment is concerned until after it
has secured a formal adjudication of guilt in accordance
with due process of law. Where the State seeks to impose
punishment without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of the
Fourteenth Amendment.

Id.

Furthermore, the Court in Ingraham discussed the history of the Eighth

Amendment and stated “it is not surprising to find that every decision of this Court
10
considering whether a punishment is ‘cruel and unusual’ within the meaning of the

Eighth and Fourteenth Amendments has dealt with a criminal punishment.” 430

U.S. at 666 (citing multiple case).

The Supreme Court has consistently rejected Eighth Amendment challenges

to pre-conviction law enforcement measures such as arrest, jailing, and prosecution

recognizing that, while these pre-conviction law enforcement measures may cause

constitutionally cognizable harm, they are not protected under the Eighth

Amendment. See e.g. Bell v. Wolfish, 441 U.S. 520, 537 (1979) (n. 16) (The Due

Process Clause rather than the Eighth Amendment is proper in considering the

claims of pretrial detainees. “Due process requires that a pretrial detainee not be

punished. A sentenced inmate, on the other hand, may be punished, although that

punishment may not be ‘cruel and unusual’ under the Eighth Amendment”); City

of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (the relevant

constitutional provision for excessive force damages for suspect fleeing the scene

is not the Eighth Amendment but is, instead, the Due Process Clause of the

Fourteenth Amendment); Graham v. Connor, 490 U.S. 386 (1989) (excessive force

during investigatory stop most properly characterized as one invoking the

protections of the Fourth Amendment, not the Eighth Amendment); Tennessee v.

Garner, 471 U.S. 1, 7-22 (1985) (claim of excessive force to effect arrest analyzed

under a Fourth Amendment standard); Whitley v. Albers, 475 U.S. 312, 318–326

11
(1986) (claim of excessive force to subdue convicted prisoner analyzed under an

Eighth Amendment standard). Thus, the panel’s opinion represents a significant

departure from Eighth Amendment jurisprudence as it has been developed in our

Supreme Court.

The panel’s decision also creates a direct conflict with current Ninth Circuit

case law that has repeatedly found that the Eighth Amendment’s protections do not

attach until there is an actual conviction. In Hawkins v. Comparet-Cassani, 251

F.3d 1230, 1238 (9th Cir. 2001), Mr. Hawkins was a convicted criminal who was

forced to wear a stun belt, which had been activated, during sentencing. Mr.

Hawkins brought a § 1983 action and moved for class certification with other

convicted prisoners and pre-trial detainees. The Court held that Mr. Hawkins could

not serve as class representative for pretrial detainees because he raised an Eighth

Amendment claim which is “reserved for those convicted of crimes” and therefore

would not apply to pretrial detainees. Id.

In the case In re Grand Jury Proceedings, 33 F.3d 1060, 1062 (9th Cir.

1994), the Eighth Amendment was deemed not applicable to an attorney found in

contempt of court for refusal to produce records pertaining to a fee agreement

because there had been no formal adjudication of guilt in accordance with due

process of law. “The time to raise the issue of an Eighth Amendment violation of

12
his rights to be free from excessive fines is after the imposition of such a fine.” Id.

at 1062.

In United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985), the Ninth

Circuit held that a statute requiring aliens to carry registration cards and other

immigration documents does not violate the Cruel and Unusual Punishments

Clause of the Eighth Amendment because the “primary purpose of the clause is

directed at the method or kind of punishment imposed for a criminal violation.”

(citing Ingraham, 430 U.S. at 667).

Further, in Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), the

Ninth Circuit recognized that the Eighth Amendment’s prohibition of cruel and

unusual punishments applies only “after conviction and sentence”, that “pretrial

detainees are not convicted prisoners”, and “[t]herefore, pretrial detainees are

accorded no rights under the Eighth Amendment.” (Multiple internal citations and

quotations omitted). “Instead,” the Court wrote, “their rights arise under the Due

Process Clause of the Fourteenth Amendment.” Id. at 686.

Moreover, the panel’s decision is also in conflict with the decision of at least

one other circuit court. In Johnson v. City of Dallas, Texas, 61 F.3d 442, 444-45

(5th Cir. 1995), the Fifth Circuit Court of Appeals refused to adopt an

interpretation of Ingraham that the panel in this case has embraced. In Johnson, the

circuit judges rejected a proposition raised in Joyce v. City and County of San

13
Francisco, 846 F.Supp. 843, 853 (N.D.Cal.1994) that “an accused may challenge a

statute, prior to conviction, on the basis that it is outside the Eighth Amendment’s

‘substantive limits on what can be made criminal.’” 61 F.3d 442, 444. The Fifth

Circuit held that the Joyce court “ignored the remaining language of the Ingraham

opinion” and “spun certain language out of [Ingraham] to weave a new theory of

Eighth Amendment jurisprudence out of whole cloth.” Id. at 444. Ultimately, the

Fifth Circuit concluded correctly that Ingraham stands for the proposition that the

Eighth Amendment “was designed to protect those convicted of crimes.” Id.

(quoting Ingraham, 430 U.S at 664). “The mere fact that a convicted person can

attack the Eighth Amendment validity of a law does not affect this basic tenet.” Id.

at 444-45 (Emphasis added).

CONCLUSION

For the reasons set forth herein, the City respectfully requests that the panel

reconsider its September 4, 2018 decision consistent with the petition for

rehearing. Alternatively, the City requests that this Court grant the petition for

rehearing en banc and reverse the panel’s decision which reversed, in part, the

district court’s ruling.

DATED: September 18, 2018.

Respectfully submitted,

/s/ Brady J. Hall

Brady J. Hall

14
 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court

for the United States Court of Appeals for the Ninth Circuit by using the appellate

CM/ECF system on September 18, 2018. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the appellate CM/ECF

system.

/s/ Brady J. Hall

Brady J. Hall

15
Form 11. Certificate of Compliance Pursuant to
9th Circuit Rules 35-4 and 40-1 for Case Number 15-35845

Note: This form must be signed by the attorney or unrepresented litigant and attached to the back of
each copy of the petition or answer.

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel
rehearing/petition for rehearing en bane/answer to petition (check applicable option):

18] Contains 13,234 Iwords (petitions and answers must not exceed 4,200 words),
and is prepared in a format, type face, and type style that complies with Fed. R. App.
P. 32(a)(4)-(6).

or

D Is in compliance with Fed. R. App. P. 32(a)(4)-(6) and does not exceed 15 pages.

Signature of Att~r~ey
or ls/BradY J. Hall Date lsep 18, 2018
Unrepresented Litigant
L_~~~~~~~~~~~~~~~

(''s/" plus typed name is acceptable for electronically-filed documents)

(Rev.1211116)

16
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