# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 21, 2018 *

Decided May 23, 2018

Before

J OEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17

‐ 2511

TERRANCE MACK,

Plaintiff

‐ Appellant

,

v

.

CITY OF CHICAGO, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 17 C 3302

Milton I. Shadur,

J udge

.

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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 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 O ʹ Neal 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 hisNo. 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 prejudicedNo. 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