Muhammad v. Close, 540 U.S. 749, 7 (2004) (per curiam)

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Cite as: 540 U. S. 749 (2004)

Per Curiam

his conviction or with the State's calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck's favorable termination requirement was inapplicable.

IV

Close tries to salvage the appellate court's judgment by arguing for the first time here that Heck is squarely on point because, if the 1983 suit succeeded, Muhammad would be entitled to restoration of some good-time credits with the result of less time to be spent in prison. Brief for Respondent 17-18. But this eleventh-hour contention was waived. The Magistrate Judge's report stated that good-time credits were not affected by the allegedly retaliatory overcharge of threatening behavior and the consequential prehearing detention Muhammad complained of, and Close had every opportunity to challenge the Magistrate Judge's position in the District Court and in the Court of Appeals. Having failed to raise the claim when its legal and factual premises could have been litigated, Close cannot raise it now. See Auer v. Robbins, 519 U. S. 452, 464 (1997).

The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for consideration of summary judgment on the ground adopted by the District Court, and for any further proceedings consistent with this opinion.

It is so ordered.

755

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