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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 17-10674
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 8:16-cv-02295-VMC-AEP



VINCENT JAMES KROCKA,

                                            Plaintiff - Appellant,

versus

HILLSBOROUGH COUNTY SHERIFF'S OFFICE,
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE UNITED STATES ATTORNEY-TAMPA DIVISION,
SUSAN C. BUCKLEW,
in her capacity as Judge,
COLLEEN D. MURPHY-DAVIS, et al.,

                                            Defendants - Appellees.

                     ________________________

             Appeals from the United States District Court
                  for the Middle District of Florida
                    ________________________

                          (February 6, 2019)
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Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

      Vincent James Krocka appeals the district court’s sua sponte dismissal of his

complaint as untimely. Mr. Krocka contends that his complaint was timely filed

within the four-year statute of limitations applicable to claims brought under 28

U.S.C. § 1983 in Florida, given that he learned of the events underlying his claim

years after they occurred.     Because Mr. Krocka’s claims are not currently

cognizable, we affirm the district court’s dismissal on other grounds.

                                          I

      In July of 2016, Mr. Krocka, a federal inmate, filed a six-count complaint

under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971), against numerous federal and state defendants in

connection with a 2004–2006 criminal investigation, his 2006 federal arrest, and his

2008 federal trial. The district court, by virtue of its authority under 28 U.S.C. §

1915A, screened and dismissed the complaint as time-barred by the applicable four-

year statute of limitations. A closer look at the history of Mr. Krocka’s case,

however, suggests that the issues are not so straightforward.

                                         A

      On April 5, 2004, Mr. Krocka was arrested on unrelated state-law charges. In

April of 2006, while in state custody awaiting trial, Mr. Krocka was indicted in


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federal court on 17 counts of using the United States mail to deliver threatening

letters with the intent to extort a thing of value from his then estranged wife, Grace

Krocka, in violation of 18 U.S.C. § 876(b) and (c). The government eventually filed

a superseding indictment containing 19 counts asserting violations of 18 U.S.C. §

876, as well as six counts of witness tampering, in violation of 18 U.S.C. §

1512(b)(1), related to letters he sent his wife and at least one of his sons while

incarcerated.

      On October 10, 2008, a federal jury convicted Mr. Krocka on five counts of

using the mail to deliver a letter containing a threat, five counts of using the mail to

send extortionate threats, and six counts of witness tampering. The district court

later granted a motion for judgment of acquittal as to three of the counts. It sentenced

Mr. Krocka to 121 months’ imprisonment to be served consecutively to his state

court sentence.

      Mr. Krocka filed a direct appeal, challenging a number of the district court’s

rulings. See United States v. Krocka, 376 F. App’x 983, 984 n.1 (11th Cir. 2010).

Though the panel rejected the majority of his arguments, it concluded that the district

court erred in denying his motion for judgment of acquittal as to two counts of

witness tampering involving his son, Jeffrey Krocka. See id. 985–86. Because the

panel concluded that “no rational juror could interpret the letters as attempting to

intimidate, threaten, or corruptly persuade Jeff Krocka in order to influence, delay,


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or prevent his testimony,” it reversed his convictions as to counts 24 and 25 of the

indictment, vacated his sentence, and remanded for resentencing. It affirmed his

convictions as to the remaining counts. See id. at 986.

      Prior to his resentencing, Mr. Krocka filed a motion to vacate, set aside, or

correct sentence under 28 U.S.C. § 2255. In the motion, Mr. Krocka raised eight

separate claims, including witness tampering. In a supporting memorandum, Mr.

Krocka presented largely the same allegations regarding the prosecution’s coaching

of his wife as presented in this appeal. Specifically, he asserted that Mrs. Krocka’s

pre-lunchtime testimony indicated she did not believe Mr. Krocka to be a threat, but

that, during the lunch recess, the government must have coached or “corrected” Mrs.

Krocka’s testimony as reflected by her change in demeanor while on the stand after

the recess. Mr. Krocka attached the February 2012 affidavit of his son, Jeffrey

Krocka, to the memorandum. The affidavit outlined the facts upon which his witness

tampering assertions were based. In September of 2012, Mr. Krocka voluntarily

dismissed his motion to vacate.

      Following resentencing and another direct appeal, see United States v.

Krocka, 522 F. App’x 472, 474 (11th Cir. 2013), Mr. Krocka filed a second motion

to vacate under § 2255 in June of 2014. Again, he raised witness tampering (the

alleged coaching of his wife) as a basis for setting aside his conviction and sentence.

The district court denied the motion. It concluded that Mr. Krocka’s witness


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tampering claim was procedurally defaulted, and refused to issue a certificate of

appealability. Mr. Krocka then filed a motion for reconsideration, which the district

court denied, and he appealed. We declined to issue a certificate of appealability,

agreeing with the district court that Mr. Krocka could have challenged the

government’s alleged witness tampering on direct appeal. We rejected Mr. Krocka’s

argument that he did not learn of the witness tampering until after his direct appeal,

given that he had “shown no cause external to his defense that prevented him from

discovering these facts from his sons before his direct appeal.”

         In the wake of that decision, Mr. Krocka filed in the district court a motion

for judicial recusal, a motion to disqualify the Assistant United States Attorney, and

a motion for miscellaneous relief or relief from judgment. The district court denied

each of these motions, and denied a certificate of appealability. We denied a

certificate of appealability in March of 2018.

         In July of 2016, while his § 2255 proceedings were pending, Mr. Krocka filed

his complaint under § 1983.1

                                                      B

         Following the district court’s sua sponte dismissal of his § 1983 complaint,

Mr. Krocka filed a motion for reconsideration. In it, Mr. Krocka requested that the

district court reinstate his complaint with respect to only counts five and six.


1
    Though the complaint was not docketed until August of 2016, it is dated July 25, 2016.
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Accordingly, we limit our recitation of the allegations in the complaint to those

relevant to these claims alone.

      According to the complaint, Assistant United States Attorney Colleen

Murphy-Davis, at the request of certain county defendants, agreed to review

evidence of Mr. Krocka’s alleged witness tampering and extortionate mailings, and

seek a federal indictment while he was in state custody. He alleges that AUSA

Murphy-Davis knew or should have known that the evidence was collected illegally,

and that she failed to advise his wife of her spousal privilege before she testified. He

also alleges that, during his 2008 trial on the federal charges, AUSA Murphy-Davis

and other county defendants secretly met with, and coached, Ms. Krocka while on

break from her cross-examination, telling her to “say how [she] felt.”

      According to Mr. Krocka, his wife clearly changed her testimony in response

to this coaching, and then supplied answers to support the prosecution’s case. Mr.

Krocka alleges that, as a result of this conspiracy to tamper with a witness, he was

denied due process and a fair trial, and “was unlawfully convicted by corrupt

means.” He also asserts he suffered reputational damage, loss of liberty, and other

economic damages.

      In support of these allegations, Mr. Krocka attached two affidavits from his

sons, Jeffrey and Daniel Krocka. Jeffrey Krocka’s affidavit, dated February 17,

2012, sets forth the following relevant facts:


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      1. Around noon on the second day of trial, the district court ordered a recess
         for lunch.

      2. Someone accompanying AUSA Murphy-Davis asked Mrs. Krocka, to step
         into one of the anterooms.

      3. When Jeffrey attempted to follow his mother into the room, one of the
         individuals accompanying the AUSA immediately told him to leave.

      4. Jeffrey and his brother waited more than ten minutes, but less than twenty,
         for their mother to exit.

      5. During lunch, Jeffrey noticed his mother “seemed upset, and obviously
         something was troubling her.” Her “demeanor was much different than
         when she had first exited the Courtroom, as compared to when she exited
         the anteroom[.]”

      6. It was Jeffrey’s belief that “something was said” to his mother “by the
         prosecution about her testimony that greatly upset” her.

      In an undated affidavit, Daniel Krocka stated the following:

      1. While he was waiting for his mother to take him and his brother to lunch
         on the second day of trial, AUSA Murphy-Davis, one of the county
         defendants, and other unidentified individuals approached Mrs. Krocka
         and asked her to step into a nearby room.

      2. They were in the room for approximately ten minutes.

      3. During lunch, Ms. Krocka “was visibly upset and disturbed.”

      4. Years later, Daniel Krocka asked his mother what was discussed in the
         room that day and she replied: “They told me to testify and to say how I
         felt.”

      Mr. Krocka also alleged that District Judge Susan Bucklew committed acts of

“official misconduct.” More specifically, Mr. Krocka asserted that Judge Bucklew

denied him a fair trial, that she was biased in favor of the government as evidenced
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by certain rulings, and that she covered up the government’s misconduct. Mr.

Krocka asserted that Judge Bucklew’s misconduct violated his First, Fourth, Fifth,

and Sixth Amendment rights, and caused him to be unlawfully convicted and

imprisoned.

      Mr. Krocka’s prayer for relief included a request for compensatory damages

arising out of his loss of liberty, legal costs, and unlawful imprisonment; punitive

damages; and declaratory or injunctive relief requiring the Hillsborough County

Sheriff’s Office personnel to classify and treat Mr. Krocka as a non-dangerous

individual. He also claims he is entitled to a reversal of his conviction and immediate

release.

      In his motion for reconsideration, filed after the district court dismissed his

complaint, Mr. Krocka argued counts five and six were not time-barred, given that

he had only begun to learn of the facts underlying his claims in early 2011, when

one of his sons made an offhand comment about an official slamming a conference

room door in his face. According to the motion, “[t]he entire sum and substance of

what was done and said to Grace [Krocka] regarding the clandestine conference

room meeting[] was not known fully until [Mr. Krocka’s] lawyer . . . interviewed

Jeffrey Krocka in 2012, and took Daniel Krocka’s initial affidavit in August 2014[.]”

Mr. Krocka also argued that he did not learn what his former wife was told in the

conference room until he read Daniel Krocka’s first affidavit. He explained “the


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unlawful conduct complained of became an undisputed fact on August 24, 2012[,]”

and therefore the July 25, 2016 complaint was timely filed with respect to the witness

tampering count. Further, he appeared to argue that, insofar as his claim against

Judge Bucklew involved her failure to investigate or act upon the witness tampering

allegations, it was also timely filed given the date he learned of the facts underlying

the claim. The district court, again citing to authority discussing the applicable four-

year statute of limitations but providing no further analysis, denied the motion.

       Mr. Krocka, in October of 2016, filed a “response” to the order denying his

motion for reconsideration, reiterating his arguments related to the date he

discovered the underlying facts. While awaiting an order on his “response,” Mr.

Krocka filed the present appeal. Eventually, in June of 2017, the district court,

treating his response as a motion to vacate judgment, also denied that motion, citing

prosecutorial and judicial immunity. 2

                                              II

       We review a district court’s sua sponte dismissal of a complaint as frivolous

under 28 U.S.C. § 1915A for an abuse of discretion. See Miller v. Donald, 541 F.3d



2
  Mr. Krocka previously filed a “Motion to Accept First Brief in Excess of Thirty (30) Pages and
in Excess of 13,000 Words,” to which he attached a proposed 72-page brief addressing the statute
of limitations issue, as well as the immunity issues. We denied the motion, explaining that Mr.
Krocka needed to address only the statute of limitations question. Given that Mr. Krocka was not
given an opportunity to brief the issues of prosecutorial and judicial immunity, and because we
conclude his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), we do not address
these topics.
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1091, 1100 (11th Cir. 2008). A claim is “frivolous” if it “lacks an arguable basis

either in law or in fact.” Id. (citation and quotation marks omitted).

      The district court, citing Clark v. Georgia Pardons and Paroles Board, 915

F.2d 636, 641 n.2 (11th Cir. 1990), concluded that Mr. Krocka’s time-barred

complaint was due to be dismissed under § 1915A(b)(1) as frivolous. Accordingly,

we review the district court’s order under the abuse of discretion standard. See

Miller, 541 F.3d at 1100.

      Under § 1915A, the district court is required to “review . . . as soon as

practicable after docketing, a complaint in a civil action in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity.”

§ 1915A(a). If the district court concludes the complaint, or any portion of it, “is

frivolous, malicious, . . . fails to state a claim,” or “seeks monetary relief from a

defendant who is immune,” it must dismiss the complaint in whole, or in part, as

required. § 1915A(b)(1)–(2).

      A complaint may be dismissed on the basis of an affirmative defense only

when the defense appears on the face of the complaint. See Bingham v. Thomas,

654 F.3d 1171, 1175 (11th Cir. 2011). “Otherwise . . . affirmative defenses must be

raised in a responsive pleading.” Id. The expiration of a statute of limitations

constitutes such an affirmative defense. See La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845–46 (11th Cir. 2004) (“A statute of limitations bar is an affirmative


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defense, and plaintiffs are not required to negate an affirmative defense in their

complaint. . . . Not surprisingly, our cases say that a Rule 12(b)(6) dismissal on

statute of limitations grounds is appropriate only if it is apparent from the face of the

complaint that the claim is time-barred.” (internal citations and quotation marks

omitted)).

                                                III

                                                A

      “Federal courts apply their forum state’s statute of limitations for personal

injury actions to actions” brought under 42 U.S.C. § 1983. Lovett v. Ray, 327 F.3d

1181, 1182 (11th Cir. 2003) (citation and quotation marks omitted). Federal courts

applying Florida law to § 1983 suits use a four-year statute of limitations. See

Henyard v. Sec’y, Dep’t of Corr., 543 F.3d 644, 647 (11th Cir. 2008). Federal law,

however, determines when the statute of limitations begins to run and, under federal

law, “the statute of limitations does not begin to run until the facts which would

support a cause of action are apparent or should be apparent to a person with a

reasonably prudent regard for his rights.” Lovett, 327 F.3d at 1182 (citation and

quotation marks omitted).

      Attached to Mr. Krocka’s complaint were both Jeffrey’s 2012 affidavit and

Daniel’s undated affidavit. The complaint alleged that “[t]he adult sons did not

speak to the Plaintiff’s attorney at [the time of the incident] due to their unfamiliarity


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with proper trial procedures[,]” and that the “content of a conversation Daniel . . .

had with his mother at a later date about what occurred in the conference room . . .

were memorialized in his affidavit supplied . . . in 2013.” Complaint ¶¶ 110–11.

      We need not decide whether Mr. Krocka had sufficient information to bring

his claim in 2011, when he first spoke with his sons regarding the incident, in 2012

when Jeffrey signed his affidavit, or in 2013 or 2014 when Daniel executed his first

affidavit describing the conversation with his mother. We find persuasive the

defendants’ arguments regarding the non-cognizability of Mr. Krocka’s § 1983 and

Bivens claims, both of which are predicated on the purported illegality of his

conviction and sentence. Because we may affirm the district court’s dismissal order

on any ground supported by the record, irrespective of whether the district court

relied upon, or even considered, it, we affirm the dismissal of Mr. Krocka’s

complaint. See Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

                                         B

      The Supreme Court, in Heck v. Humphrey, 512 U.S. 477 (1994), held that

             to recover damages for allegedly unconstitutional
             conviction or imprisonment, or for other harm caused by
             actions whose unlawfulness would render a conviction or
             sentence invalid, a § 1983 plaintiff must prove that 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
             habeas corpus.


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Id. at 486–87 (footnote and citation omitted). The Court explained that, “[a] claim

for damages bearing that relationship to a conviction or sentence that has not been

so invalidated is not cognizable under § 1983.” Id. at 487. We later held that Heck

applied to bar Bivens actions brought for damages against federal actors as well. See

Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).

      Despite having had two counts of conviction reversed on appeal, Mr. Krocka

remains in prison for a number of witness tampering convictions involving his

former wife—whose testimony he claims was coached. Because, in this instance, a

judgment in Mr. Krocka’s favor “would necessarily imply the invalidity of his

conviction or sentence,” Heck, 512 U.S. 487, and Mr. Krocka’s conviction and

sentence have not yet been overturned, he cannot seek or obtain relief at this time.

                                         C

      Despite affirming the dismissal of Mr. Krocka’s complaint, we briefly note

why it is necessary to correct the grounds upon which his complaint is dismissed. A

dismissal on statute of limitations grounds, which “has the effect of precluding a

plaintiff from refiling his claim,” is “tantamount to a dismissal with prejudice[.]”

Mickles on behalf of herself v. Country Club Inc., 887 F.3d 1270, 1280 (11th Cir.

2018) (citation and internal quotation marks omitted). But Mr. Krocka’s claims,

predicated as they are on the invalidity of his conviction and confinement, do not

accrue until (and if) his conviction and sentence are overturned. Accordingly, the


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statute of limitations has not yet begun to run on his claims. See Abella, 63 F.3d at

1066. Though we affirm the dismissal of Mr. Krocka’s complaint, that dismissal is

without prejudice. Mr. Krocka is free to file another complaint alleging the same

grounds in the event his conviction or sentence are overturned or expunged at a later

date. See id. at 1065–66. We remand so that the district court can amend its order

of dismissal to reflect that it is without prejudice.

      AFFIRMED AND REMANDED WITH INSTRUCTIONS.




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