Judges: Per Curiam
Filed: May 23, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 23, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-2511 TERRANCE MACK, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 17 C 3302 CITY OF CHICAGO, et al., D
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 23, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-2511 TERRANCE MACK, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 17 C 3302 CITY OF CHICAGO, et al., De..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2018*
Decided May 23, 2018
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐2511
TERRANCE MACK, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 17 C 3302
CITY OF CHICAGO, et al.,
Defendants‐Appellees. Milton I. Shadur,
Judge.
O R D E R
Chicago police officers arrested Terrance Mack and two others in 1988 for a
drive‐by shooting that killed a young boy and maimed another child. Mack was
convicted of murder and attempted murder, and is serving a 60‐year sentence. He
brings this suit against various city officials under 42 U.S.C. § 1983, claiming that his
right to due process was violated at trial because detectives operating under former
police commander Jon Burge, who allegedly tortured criminal suspects over almost two
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐2511 Page 2
decades, physically coerced Mack’s codefendant into signing a statement that falsely
incriminated him. The district court dismissed Mack’s suit as untimely and denied his
post‐judgment request to amend the complaint. Because Mack’s original complaint
failed to state a claim and his proposed amended complaint would be barred by Heck v.
Humphrey, 512 U.S. 477 (1994), we affirm.
At his criminal trial, Mack moved to admit into evidence his codefendant’s
statement to police officers that Mack was not the shooter. The state‐court judge denied
the motion upon concluding that the extrajudicial statement was unreliable, in part
because the same codefendant later signed a written statement identifying Mack as the
gunman. This inculpatory statement is the one Mack alleges to be the product of
coercion. It was not introduced at Mack’s trial, however; instead, a jury found Mack
guilty based on the testimony of four eye witnesses. He appealed, asserting that the trial
judge’s evidentiary ruling violated his right to due process. People v. Mack, 606 N.E.2d
165, 169 (Ill. App. Ct. 1992). The Illinois Appellate Court upheld the judge’s ruling and
affirmed Mack’s convictions, id. at 169–71, 174, and the Illinois Supreme Court denied
Mack’s petition for leave to appeal, People v. Mack, 610 N.E.2d 1271 (Ill. 1993). Mack’s
federal petition for a writ of habeas corpus was denied. Mack v. Peters, 80 F.3d 230 (7th
Cir. 1996). He filed several petitions in state court seeking post‐conviction relief; all
were denied. People v. Mack, 2013 IL App (1st) 113336‐U ¶ 53.
Mack now sues the City of Chicago, its current mayor, a past mayor, Jon Burge,
and four former police detectives, contending that the detectives’ “use of torture” to
obtain “fabricated evidence against him” violated his Fourteenth Amendment right to
due process. Mack alleged that the city recently compensated his codefendant for
having been tortured into inculpating him, and that he filed this action within two years
of when this compensation was awarded. The district judge screened Mack’s original
complaint, 28 U.S.C. § 1915A(a), and believed that its untimeliness was evident on its
face. A district court can sua sponte invoke the statute of limitations in that circumstance.
See Gleash v. Yuswak, 308 F.3d 758, 760–61 (7th Cir. 2002). But here, apparently hesitant
because the statute‐of‐limitations defense is waivable, the judge took the unorthodox
step of ordering the defendants, who had not yet been served, to declare whether they
intended to waive the defense. When they answered that they did not intend to do so,
the judge dismissed the suit as barred by the two‐year statute of limitations applicable
to § 1983 claims filed in Illinois.
Mack filed motions to vacate the judgment and for permission to amend his
complaint. He wanted to add a claim that the trial judge’s reliance on the coerced,
No. 17‐2511 Page 3
inculpatory statement as reason to exclude his codefendant’s exculpatory statement
violated his Fourteenth Amendment right to due process, irrespective of whether the
inculpatory statement was admitted at trial. The district judge denied Mack’s motions,
saying again that his complaint was “hopelessly” untimely.
On appeal Mack argues that his complaint was wrongly dismissed, offering
several theories for why his suit was timely. But the appellees do not defend the
dismissal on statute‐of‐limitations grounds, thereby waiving this affirmative defense on
appeal. See McClain v. Retail Food Employers Joint Pension Plan, 413 F.3d 582, 587 n.4
(7th Cir. 2005); see also OʹNeal v. City of Chicago, 588 F.3d 406, 409 (7th Cir. 2009)
(“[A]rguments not raised on appeal are waived.”) (citation omitted). Instead, the
appellees note that we may affirm a dismissal on any ground the record supports, even
grounds different from those relied upon by the district judge, Haywood v. Massage Envy
Franchising, LLC, 887 F.3d 329, 332–33 (7th Cir. 2018), and they contend that Mack’s
original complaint failed to state a claim for violation of his own constitutional rights.
We agree with the appellees that Mack’s original complaint failed to state a
constitutional claim. He originally alleged only that police coerced his codefendant into
giving a false statement that incriminated him. But to have asserted a violation of his
own rights, instead of just his codefendant’s, Mack needed to assert, at a minimum, that
the coerced statement was admitted at his trial. See Avery v. City of Milwaukee, 847 F.3d
433, 439, 439 (7th Cir. 2017) (noting that coerced witness testimony implicates
defendant’s due‐process right to fair trial only if he was denied opportunity to impeach
that testimony because prosecutor failed to disclose coercive tactics); Petty v. City of
Chicago, 754 F.3d 416, 423 (7th Cir. 2014) (“[O]btaining a statement with coercive tactics
that inculpated the arrestee may have violated the witness’s rights, but it did not violate
the arrestee’s due process rights.”).
Mack also challenges the denial of an opportunity to amend his complaint, but
the defendants contend correctly that allowing him to amend would have been futile
because the proposed amended complaint raised a claim that is barred by Heck.
Although the district judge denied Mack leave to amend based on the
statute‐of‐limitations defense, district courts should determine the applicability of Heck
before addressing the statute of limitations. See Wallace v. Kato, 549 U.S. 384, 393 (2007)
(observing that a previously Heck‐barred claim accrues only if (and when) the
conviction is invalidated). As our review is plenary, we do so now.
We conclude that Mack’s due‐process claim based on an unfair criminal trial
necessarily would impugn the validity of his conviction, and so he cannot bring his
No. 17‐2511 Page 4
claim for damages unless his convictions are invalidated through a collateral
proceeding. See Heck, 512 U.S. at 487; Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.
2008) (“[A] § 1983 claim for a due process violation based on the denial of a fair criminal
trial may be brought only after the conviction is set aside.”). Success on Mack’s due‐
process claim would require establishing that the trial judge’s exclusion of the
exculpatory statement (based on the existence of a contradictory, coerced statement)
resulted in an unfair criminal trial. Accordingly Mack may pursue this due‐process
claim only if his convictions are invalidated.
Mack replies that success on his due‐process claim would not invalidate his
convictions. To have his convictions invalidated, Mack says, he would need to prove in
a collateral proceeding in state court that prejudice from the coerced, false,
incriminating statements so affected his criminal trial that his right to due process was
violated. See 725 ILCS 5/122‐1(f).
Mack misses the point; judgment on a § 1983 claim can “imply” that a conviction
is invalid without “invalidating” it. Hill v. Murphy, 785 F.3d 242, 248 (7th Cir. 2015).
Heck bars § 1983 claims based on allegations that, if true, would be inconsistent with a
valid conviction, even if the plaintiff “disclaims any intention of challenging his
conviction.” Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003). Indeed, judgment for
Mack on his civil claim for damages would not invalidate his conviction or result in a
new trial, but “it would cast a shadow over his conviction” and allow Mack “to argue
that he had been determined by a court to have been unjustly convicted … but was
forbidden to obtain relief on the basis of that finding.” Hill, 785 F.3d at 245. This, we
said, “Heck forbids.” Id.
Although the unavailability of collateral review sometimes renders Heck’s
favorable‐determination requirement inapplicable, Whitfield, 852 F.3d at 658; Burd v.
Sessler, 702 F.3d 429, 435 (7th Cir. 2012), we need not consider this. Mack acknowledges
that he may seek leave to file another successive petition under 725 ILCS 5/122‐1(f).
Mack also contends that the defendants waived their defense based on Heck by
not raising it in the district court. The Heck defense is not jurisdictional and therefore
may be waived, Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011), but the defendants had
no chance to raise it in the district court. The first indication of a Heck‐barred claim was
in Mack’s post‐judgment motion to file a proposed amended complaint, and there was
no briefing on that motion before the judge denied it. Furthermore, waiver results only
if the delayed assertion of an affirmative defense would cause prejudice. Schmidt v.
Eagle Waste & Recycling, Inc., 599 F.3d 626, 632 (7th Cir. 2010). Mack was not prejudiced
No. 17‐2511 Page 5
by the assertion of Heck on appeal because he had an opportunity, which he used, to
argue against its applicability.
Lastly, Mack asserts that the denial of his motion to recruit counsel prevented an
attorney from articulating his constitutional injury in a way that would avoid Heck. We
will not disturb a decision to deny recruitment of counsel unless “there is a reasonable
likelihood that the presence of counsel would have made a difference in the outcome of
the litigation.” Armstrong v. Krupiczowicz, 874 F.3d 1004, 1008 (7th Cir. 2017); Pruitt v.
Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc). Because Mack’s only grievance is the
fairness of his criminal trial, a lawyer could have done nothing to overcome Heck.
AFFIRMED