Grigsby v. Cotton

• Decision Date: 01 August 2006
• Docket Number: No. 04-3356.,04-3356.
• Parties: Anthony GRIGSBY, Petitioner-Appellant, v. Zettie COTTON, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

456 F.3d 727

Anthony GRIGSBY, Petitioner-Appellant, v. Zettie COTTON, Superintendent, Respondent-Appellee.

No. 04-3356.

United States Court of Appeals, Seventh Circuit.

Argued April 19, 2006.

Decided August 1, 2006.

Rehearing Denied September 1, 2006.

J. Gregory Deis (argued), Tiloma Jayasinghe, Mayer, Brown, Rowe & Maw, New York, NY, for Petitioner-Appellant.

Steve Carter, Andrew K. Kobe (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge.

In 1988 an Indiana state court enhanced Anthony Grigsby's sentence for attempted armed robbery to 50 years' imprisonment because the court found he was a habitual offender. He had pleaded guilty to armed robbery in 1978 and had been convicted of burglary in 1986. Grigsby filed this petition for a writ of habeas corpus, 28 U.S.C. § 2254, in April 2004, alleging, as relevant to this appeal, that his 1978 guilty plea was unconstitutional because the state failed to provide him counsel during his juvenile waiver hearing (Grigsby was 16 years old when he was arrested). Thus the conviction, he argued, could not properly have been used to enhance his 1988 sentence. The district court denied the petition and this court granted Grigsby a certificate of appealability. See Grigsby v. Cotton, No. 04-3356 (7th Cir. Apr. 14, 2005). We affirm the denial of relief.

Police arrested 16-year-old Anthony Grigsby on August 19, 1977, on suspicion that he was involved in a murder and armed robbery. A "case chronology" indicates that an initial hearing was held on the same day. At some point, not disclosed by the record, Grigsby was formally transferred from juvenile to criminal court, and on November 9, 1977, counsel entered an appearance in the Criminal Court of Marion County on Grigsby's behalf. Grigsby pleaded guilty only to the armed robbery charge. On June 14, 1978, when Grigsby was still only 17 years old, the court sentenced him as an adult to 10 years' imprisonment. Indiana v. Grigsby, No. CR 77-346D (Sup.Ct. Marion County 1978).

Grigsby was next convicted of burglary in 1986 and, in 1988, of attempted armed robbery.¹ He is currently serving a 50-year sentence for the attempted robbery, which was enhanced because he was a habitual offender. Indiana v. Grigsby, No. CR 87-136E (Sup.Ct. Marion County 1988), aff'd, No. 49A02-8904-CR-142 (Ind. Ct.App.1989) (unpublished memorandum decision). Though the record does not reveal the state court's sentencing calculations, the parties agree that Grigsby's habitual offender status was in part based on his 1978 conviction for armed robbery.

Grigsby pursued numerous state post-conviction petitions. We begin with the petitions attacking his 1978 conviction. In May 1995 he filed his first petition for post-conviction relief, apparently while he was serving the present term of imprisonment for his 1988 conviction. Grigsby alleged that the judge in his 1978 case did not properly conduct the plea colloquy and did not find an "adequate factual basis" for his plea. In March 2000, at Grigsby's request, the court dismissed his 1995 petition without prejudice.

In the meantime, in July 2001, Grigsby filed a second post-conviction petition, asserting that his 1978 conviction should be set aside because counsel was ineffective. He argued that he did not receive a juvenile waiver hearing and thus, according to him, the criminal court was without jurisdiction, but that counsel failed to discover the error. The court conducted an evidentiary hearing and denied the petition, finding that "the evidence shows that there was a juvenile waiver hearing" and, in the alternative, that the doctrine of laches barred review of his 1978 conviction because the state had destroyed its case files.² Grigsby appealed, arguing that the state had not proved laches, and the Indiana Court of Appeals affirmed, Grigsby v. Indiana, No. 49A02-0301-PC-75, 2003 WL 22891194 (Ind.Ct.App.2003) (unpublished memorandum decision). The Indiana Supreme Court denied Grigsby's request for transfer.

We turn next to the petitions that Grigsby filed against his 1988 conviction. In January 1991, he filed a post-conviction petition, though the court granted his request to withdraw that petition in October 1996. Grigsby filed his second post-conviction petition in November 1999, and the court denied it in July 2000. Grigsby appealed, the Indiana Court of Appeals affirmed, Grigsby v. Indiana, No. 49A02-8-PC-490 (Ind.Ct.App.2001) (unpublished memorandum decision), and the Indiana Supreme Court denied Grigsby's request for leave to transfer.

Grigsby filed the § 2254 petition at issue in this appeal in April 2004. After he filed several traverses and amended petitions— prompted by district court orders instructing him to clarify the conviction he was challenging and whether he had presented his challenge to the state courts—his filings eventually converged on a single issue. Grigsby argued that his rights to due process and effective assistance of counsel were violated because his 1988 conviction was enhanced based on his 1978 conviction, which, according to him, was unconstitutionally obtained because he did not receive counsel at the time of his juvenile waiver hearing. The district court denied the petition. The court relied on Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), to find that Grigsby met the custodial requirement of § 2254. However, citing Martin v. Deuth, 298 F.3d 669, 671-72 (7th Cir.2002), the court found that Grigsby could not challenge the use of his 1978 conviction to enhance his 1988 sentence because he had fully served the sentence for his 1978 conviction.

We begin with the district court's reliance on Lackawanna. In Lackawanna and Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Supreme Court established the principle that "once a state conviction is no longer open to direct or collateral attack in its own right ...," a habeas petitioner "generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Lackawanna, 532 U.S. at 404, 121 S.Ct. 1567. But, the Court recognized a single exception: a petitioner may challenge an enhanced sentence when it is based on a previous conviction that was obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which announced the Sixth Amendment right to counsel. Lackawanna, 532 U.S. at 404-05, 121 S.Ct. 1567.

Grigsby's petition is facially consistent with the exception described in Lackawanna. Martin, in which the petitioner failed to assert the Lackawanna exception, 298 F.3d at 672, does not bar Grigsby's petition. Thus the question for us is whether his 1978 conviction was obtained in violation of his Sixth Amendment right to counsel. Grigsby argues that his right to counsel was presumptively violated because the record is silent regarding counsel's presence at his juvenile waiver hearing. Accordingly, he contends that the burden shifts to the state to prove the absence of a Sixth Amendment violation. Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

Before we reach the merits of Grigsby's claim, we must first address three separate procedural issues, all raised for the first time on appeal by the state. The state contends that the petition is untimely and that the Lackawanna claim is barred by procedural default. Procedural bars, as Grigsby suggests, are affirmative defenses subject to forfeiture. See Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997); Lewis v. Sternes, 390 F.3d 1019, 1029 (7th Cir.2004). And, arguments generally may not be raised for the first time on appeal. Canaan v. McBride, 395 F.3d 376, 382 (7th Cir.2005). But, we are under no obligation to strictly enforce a state's forfeiture or a petitioner's procedural failings. Rather, we must decide whether "the interests of justice" require a resolution of the merits of a petition despite procedural defenses raised for the first time on appeal. Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); see Day v. McDonough, ___ U.S. ___, ___-___, 126 S.Ct. 1675, 1681-82, 164 L.Ed.2d 376 (2006); Jones v. Hulick, 449 F.3d 784, 787-88 (7th Cir.2006).

Here, the state's only responsive pleading in the district court was its response, which was filed before Grigsby refined his petition with several amendments and traverses. In its response, the state observed that Lackawanna allows a petitioner to assert a Sixth Amendment violation to invalidate a prior conviction used to enhance his present sentence, but went on to explain that the "[p]etitioner makes no claim that this is the case, and no such claim is readily apparent." The state did not, however, address the timeliness of Grigsby's petition or any potential procedural default.

We will not enforce the alleged untimeliness of Grigsby's petition. The state's argument on appeal chastises Grigsby for not arguing—presumably in his opening brief—that we should look past the alleged untimeliness of his petition and his procedural default. But it was the state's duty to raise those defenses in the district court, and it has provided us no reason to excuse its failure to do so. Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir.2004) (a procedural default "is an affirmative defense that the state is obligated to raise and preserve and ... one that it can waive."). The timeliness of the petition, regardless of the claims it raised, was clear at the time the state filed its response. The period of limitations set out in 28 U.S.C. § 2244(b)(3) is not jurisdictional, and thus we are not bound to enforce it against a petitioner. See Day, 126 S.Ct. at 1681. In this case, it would be inappropriate for us to reach a timeliness argument that the state...