Andres A. Del Real v. Moises Gomez

NONPRECEDENTIAL DISPOSITION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 6, 2009*
Decided May 11, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08-3365
ANDRES A. DEL REAL,
Plaintiff-Appellant,
v.
MOISES GOMEZ, et al.,
Defendants-Appellees.
Appeal from the United
States District Court for the
Eastern District of Wisconsin.
No. 06-C-0842
C.N. Clevert, Jr., Judge.
Order
Andres Del Real contends, in this action under 42 U.S.C. §1983, that he was wrongly
arrested and prosecuted for two shootings on October 18, 1994. His arrest occurred the
same day. He was convicted in January 1995. On March 9, 1999, Wisconsin’s Court of
Appeals held, on petition for collateral relief, that the conviction was invalid because of-
ficer Moises Gomez had testified falsely. (Gomez testified that he had not swabbed any
suspects’ hands for gunshot residue. In fact, he had swabbed Del Real’s hands, and the
results were negative.) In June 1999 the prosecutor announced that Del Real would not
be retried. This suit was filed in August 2006.
The statute of limitations for a §1983 suit in Wisconsin is six years. The district judge
concluded that the claim against the officers who arrested him accrued on the date of
the arrest, see Wallace v. Kato, 549 U.S. 384 (2007), and that the claim against the prosecu-
tor accrued when the conviction was vacated. Del Real contends that Heck v. Humphrey,
512 U.S. 477 (1994), postponed the accrual of his claims until, as a matter of state law, the
prosecutor could no longer change his mind and decide that Del Real should be tried a
second time. Wallace holds, however, that a claim for improper arrest, search, or seizure
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 08-3365 Page 2
accrues on the date of the wrong. And Heck supports the district court’s conclusion that
a claim for wrongful prosecution or any other trial-related activity by a prosecutor ac-
crues when the conviction is vacated.
The Justices held in Heck that a suit under §1983 is improper when the plaintiff can-
not prevail without contradicting a valid judgment in his criminal litigation—but that
the claim accrues when “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 ha-
beas corpus”. 512 U.S. at 486–87. See also Wallace, 549 U.S. at 391. Once the conviction
has been set aside in any of these ways, victory in a §1983 suit would not conflict with a
binding adjudication. This means that the state appellate court’s decision (or, perhaps,
the issuance of its mandate) caused Del Real’s claim against the prosecutor to accrue.
What might happen in a subsequent prosecution is neither here nor there; the claim ac-
crues as soon as the only obstacle to the litigation—the adverse judgment—has been
lifted. See Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000). Del Real did not file suit
within six years, so the district court’s judgment is affirmed.

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