Griffey v. Lindsey

Decision Date26 September 2003
Docket NumberNo. 99-17643.,99-17643.
Citation345 F.3d 1058
PartiesWallace Levan GRIFFEY, Petitioner-Appellant, v. Gary LINDSEY, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Alyssa T. Koo (argued) and David Goodwin, Heller Ehrman White & McAulifee LLP, San Francisco, California, for the petitioner-appellant.

Peggy S. Ruffa (argued) and Margo J. Yu, Deputy Attorney General, San Francisco, California, Office of the California Attorney General, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-97-20703-JF.

Before: Robert R. Beezer, Sidney R. Thomas, and Richard R. Clifton, Circuit Judges.


BEEZER, Circuit Judge.

Wallace Levan Griffey appeals the district court's denial of his habeas corpus petition, brought under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253. We hold that Griffey's petition is governed by the substantive standards of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that Griffey was not entitled to an evidentiary hearing on any of his claims. On the merits, we affirm the denial of Griffey's habeas petition.


Griffey challenges his conviction on eleven criminal counts, including several counts of rape and burglary, arising out of three different incidents. The first incident involved a burglary and rape in a Monterey, California hotel on July 25, 1983. The second incident involved the rape of a female jogger in a neighboring town on August 14, 1983. The third incident involved the burglary and rape of a woman in her Monterey hotel room on August 16, 1983, as well as the terrorizing of her roommate.

Before trial, Griffey moved to exclude the identifications made by two of the victims, each of whom identified Griffey as the rapist. The state trial court held a hearing and denied Griffey's motion. Griffey was convicted by a jury on all eleven counts and sentenced to a 65-year term of imprisonment.

Following his conviction, Griffey appealed. The California Court of Appeal rejected Griffey's appeal and the California Supreme Court denied his petition for review. At this point, Griffey began a series of collateral challenges to his conviction. We relate Griffey's post-conviction history in detail because of its importance in resolving the procedural issues in this case.

Between 1987 and 1993, Griffey filed four separate habeas corpus petitions in the California courts: one in the California Superior Court and three in the California Supreme Court. In support of Griffey's first California Supreme Court habeas petition, Griffey attached several hundred pages of documentary evidence. All four state petitions were denied.

Griffey filed his first federal habeas corpus petition in 1991, which was dismissed for failure to exhaust. In July 1993, Griffey filed his second federal habeas corpus petition.

The district court determined in June 1995 that several of Griffey's allegations in the 1993 petition had not yet been exhausted in state court. The district court dismissed the petition, but gave Griffey leave to amend, so that Griffey could delete the unexhausted allegations. Griffey attempted to amend his petition by striking the unexhausted allegations from his petition. The district court, however, determined that Griffey did not adequately amend the petition and dismissed the petition. On appeal, we summarily reversed in an unpublished order and recognized that the court clerk could delete the portions of the amended petition that Griffey wanted deleted.

Before the deletions, Griffey's federal habeas petition contained 14 broad claims. Many of these broad claims included numerous sub-claims. The unexhausted allegations were among these sub-claims. Following remand, the district court did not order the clerk to strike Griffey's unexhausted sub-claims as Griffey requested. The district court instead ordered that each of the broad claims containing the unexhausted sub-claims be stricken in their entirety.

Griffey fought this order, applying to us for a writ of mandamus. We denied the mandamus request in an unpublished order and instructed Griffey that he could eventually appeal if he objected to the district court's rulings.1

Following the dismissal of Griffey's mandamus request, Griffey moved for a stay of the habeas proceedings while pursuing exhaustion before the California Supreme Court. In the alternative, Griffey requested that the district court allow him to dismiss the petition without prejudice. The district court denied the motion for a stay, but granted Griffey's request to dismiss the action without prejudice. In so doing, the district court made clear that it was dismissing the entire action.

After Griffey exhausted his claims by filing his fourth habeas petition in California's Supreme Court, he filed the present federal habeas corpus petition.

The district court concluded that Griffey's current petition is governed by AEDPA. The district court denied Griffey's claims on their merits without an evidentiary hearing. Griffey appeals.

The district court granted a certificate of appealability ("COA") limited to four issues:

1) whether AEDPA applies to this case;

2) whether the district court correctly denied an evidentiary hearing based on Griffey's failure to establish that he attempted to and was prevented from developing the facts in state court, or to bring himself within the exception to 28 U.S.C. § 2254(e)(2);

3) whether Petitioner received ineffective assistance of counsel; and

4) whether Petitioner's due process rights were violated by an allegedly suggestive identification procedure.


Griffey's federal petition is governed by AEDPA. AEDPA significantly alters the legal standards and procedures governing federal habeas petitions, generally making it more difficult for prisoners to qualify for habeas relief. AEDPA applies to all federal habeas petitions filed after April 24, 1996, see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001), and Griffey filed his present federal habeas petition in August 1997.

Griffey argues that his current petition should not be governed by AEDPA because the federal habeas petition he filed in 1993 was improperly dismissed. In effect, Griffey asks us to set aside the final judgment governing his last petition and then allow him to use Federal Rule of Civil Procedure 15(c) to relate his current petition back to the filing date of his earlier petition.2

It is settled law in this circuit that one cannot use Rule 15(c) once an action has been dismissed and a final judgment entered unless the judgment is set aside under Federal Rules of Civil Procedure 59(e) or 60(b).3 See Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir.1996). This rule applies equally to habeas petitions. See 28 U.S.C. § 2242; Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1402, 155 L.Ed.2d 363 (2003).

In Ford v. Hubbard, 330 F.3d 1086 (9th Cir.2003), however, we recently allowed a habeas petitioner to use Rule 15(c) to relate time-barred habeas petitions back to timely filed petitions that were, like Griffey's petition, dismissed on exhaustion grounds. See id. at 1093, 1102. Ford does not specifically discuss Rules 59(e) or 60(b), but relies on improprieties in earlier, final dismissals to justify application of Rule 15(c). See id. at 1102-03. Ford does, however, draw on a line of cases that are grounded on an explicit recognition of the connection between Rule 60(b) and our circuit's back-dating principles in the habeas context.4

We do not understand Ford to reject the requirement that a case be reopened under Rule 59(e) or Rule 60(b) before Rule 15(c) can be invoked. Nor do we understand Ford to reject the general rule that legal errors cannot justify Rule 60(b) relief once the time for filing an appeal under Federal Rule of Civil Procedure 4 has passed. See Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982).5

We conclude that Ford fits into an exception to Rule 60(b)'s general rule: a petitioner may qualify for relief under Rule 60(b) based on a legal error if he can show "extraordinary circumstances which prevented or rendered him unable to prosecute an appeal." See Plotkin, 688 F.2d at 1293. In Ford, that extraordinary circumstance was the effective transformation of the petitioner's dismissals "without prejudice" into dismissals "with prejudice" caused by judicial interpretations of AEDPA's statute of limitations.6 See 330 F.3d at 1100.

Griffey cannot show similar extraordinary circumstances which prevented or rendered him unable to prosecute his appeal. Griffey was aware that the district court's decisions could be challenged on direct appeal. In fact, we explicitly informed Griffey about the appeal option when we rejected his application for a writ of mandamus.

Nor was Griffey led to abandon his appeal rights by the district court's labeling of the dismissal "without prejudice." Griffey had already appealed the district court's earlier order dismissing his petition without prejudice.

Finally, this is not a situation like Ford, where a dismissal ostensibly "without prejudice" is substantively transformed. See 330 F.3d at 1100. No one contends that Griffey's petition is time-barred. There are simply no extraordinary circumstances justifying Rule 60(b) relief for Griffey. Griffey cannot benefit from Ford's holding.

In requesting dismissal of his second federal petition, Griffey knowingly took a path that foreclosed appellate review of the orders he now challenges.7 As a result, Griffey is ineligible for Rule 60(b) relief. See Plotkin, 688 F.2d at 1293. Because Griffey is not eligible for Rule 60(b) relief, he cannot use Rule 15(c) to relate his current petition back to his earlier petitions.8 See Lindauer, 91 F.3d at 1357; see also Henry v. Lungren, 164...

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