NONPRECEDENTIAL DISPOSITION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 December 15, 2021 *
Decided December 15, 2021
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 20-2004
BRANDON MOCKBEE, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:19-cv-00548-SEB-MPB
JOHN LEE, et al., Sarah Evans Barker,
Defendants-Appellees. Judge.
* We have agreed to decide the 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. 20-2004 Page 2
ORDER
Brandon Mockbee, an Indiana prisoner, sued many of the public officials
involved in his criminal trial. The district court dismissed his claims as barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and for other reasons. Mockbee appeals, raising several
challenges to the court’s Heck analysis. We affirm with one modification.
Mockbee was convicted of Indiana state crimes and received a sentencing
enhancement under the state’s habitual offender statute, Ind. Code § 35–50–2–8 (2015),
based on several out-of-state convictions. Soon after, the Indiana Supreme Court ruled
that out-of-state convictions alone cannot trigger that enhancement. Calvin v. State,
87 N.E.3d 474, 479 (Ind. 2017), superseded by statute, 2018 Ind. Legis. Serv. P.L. 20-2018
(H.E.A. 1033). Based on that ruling, the state court of appeals reversed Mockbee’s
enhancement as not supported by substantial evidence, otherwise affirmed his
conviction and sentence, and remanded to allow for a retrial of the enhancement.
Mockbee v. State, 97 N.E.3d 311 (Ind. App. 2018).
Mockbee then brought this suit against the prosecutors, the judges, and a court
reporter who handled his case for violating his constitutional rights by tampering with
the trial record and applying an unlawful sentencing enhancement. See 42 U.S.C. § 1983.
(He also sued prison officials for not allowing him adequate access to legal materials
and other wrongs, but he does not press those claims on appeal.) At screening, the
district court dismissed his complaint with prejudice, see 28 U.S.C. § 1915A, ruling that
the claims related to trial-tampering and the enhancement were barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and, in any case, the prosecutors and judges had absolute
immunity.
Mockbee argues that his claims are not barred by Heck. Starting with the claims
of tampering with the trial record, Mockbee says that he is not collaterally attacking his
conviction, so Heck does not apply. But there is no other way to interpret these claims. A
determination that the judge, court reporter, and two prosecutors conspired to tamper
with the docket and hearing transcripts would “necessarily imply the invalidity” of his
conviction, Heck, 512 U.S. at 487; see also Dominguez v. Hendley, 545 F.3d 585, 588–89
(7th Cir. 2008). Mockbee may not seek damages for these claims unless and until his
conviction is set aside. Heck, 512 U.S. at 487.
As for the claims based on the sentencing enhancement, Mockbee argues that he
did satisfy Heck because the enhancement was reversed on appeal. Under Heck, a
constitutional tort based on a conviction can go forward if “the conviction or sentence
No. 20-2004 Page 3
has been reversed on direct appeal,” Heck, 512 U.S. at 487, and Mockbee’s sentencing
enhancement was. Although the appellate court’s order allowed for a retrial of the
enhancement, the docket here reflects that the prosecutors accepted a shorter sentence
without it. And a reversal resulting in a shorter sentence is a favorable termination
under Heck. See Bronowicz v. Allegheny Cnty., 804 F.3d 338, 348 (3d Cir. 2015) (no Heck bar
when appellate court vacated sentence and remand resulted in shorter sentence).
We nonetheless uphold the dismissal of the sentencing enhancement claims
because the defendants are immune from suit. The prosecutors were performing their
duties in the judicial process when they sought the enhancement, so they are shielded
by absolute immunity. Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011) (citing Imbler v.
Pachtman, 424 U.S. 409, 420–29 (1976)). And a judge has absolute immunity for his
judicial acts except in the clear absence of jurisdiction, even if “the action he took was in
error, was done maliciously, or was in excess of his authority.” John v. Barron, 897 F.2d
1387, 1391 (7th Cir. 1990). The state trial judge had jurisdiction over Mockbee during
sentencing, so he too is immune.
We conclude with some housekeeping. A claim barred by Heck is premature; it
should be dismissed without prejudice so it can be refiled if the conviction is later
reversed. Johnson v. Rogers, 944 F.3d 966, 968 (7th Cir. 2019). We therefore modify the
judgment to reflect that the record-tampering claims are dismissed without prejudice.
As modified, the judgment is AFFIRMED.