Griham v. United States

• Decision Date: 13 June 2019
• Docket Number: 2:06-cr-00334-RDP-JEO,Case No. 2:16-cv-08117-RDP
• Parties: Dedrick Lamon GRIHAM, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Alabama

389 F.Supp.3d 986

Dedrick Lamon GRIHAM, Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 2:16-cv-08117-RDP

2:06-cr-00334-RDP-JEO

United States District Court, N.D. Alabama, Southern Division.

Signed June 13, 2019

Kevin L. Butler, Federal Public Defender Northern District of Alabama, Allison Case, Assistant Federal Public Defender Northern District of Alabama, Alexander Peter Vlisides, Office of the Federal Public Defender the Northern District of Alabama, Birmingham, AL, for Petitioner.

US Attorney Jay E. Town, Michael B. Billingsley, William Gott Simpson, US Attorney's Office, William C. Athanas, Waller Lansden Dortch & Davis LLP, Birmingham, AL, for Respondent.

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

This case is before the court on Petitioner Dedrick Lamon Griham's motion to vacate his sentence under 28 U.S.C. § 2255. (Civil Doc. # 1; Cr. Doc. # 78).¹ For the reasons explained below, the court holds (1) that it lacks jurisdiction to consider Griham's motion, and (2) that transferring this matter to the United States Court of Appeals for the Eleventh Circuit under 28 U.S.C. § 1631, as Griham requests, would be improper. Griham's § 2255 motion is therefore due to be denied.

I. Background

This is Griham's second motion to vacate under 28 U.S.C. § 2255. The court therefore provides a brief history of Griham's initial convictions, sentence, and first § 2255 motion.

Among other crimes, Griham was convicted in 2007 of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (Cr. Doc. # 52 at 1). As relevant here, Griham received a life sentence under the Armed Career Criminal Act ("ACCA") on the felon-in-possession count. (Id. at 2). Griham appealed his convictions, and the Eleventh Circuit affirmed. United States v. Griham , 278 F. App'x 960 (11th Cir. 2008).

Griham filed his first § 2255 motion in 2009, asserting various challenges to his convictions and sentence. (Cr. Doc. # 71). This court denied that motion as untimely under the one-year statute of limitations for § 2255 motions established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. § 2255(f). Griham v. United States , 2:09-cv-08029 (N.D. Ala. Oct. 8, 2009).

Griham filed his second § 2255 motion on June 21, 2016. (Civil Doc. # 1 at 5; Cr. Doc. # 78 at 5). He argues that his life sentence should be vacated under Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated ACCA's residual clause as unconstitutionally vague, and Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), which held that Johnson applies retroactively on collateral review.

II. Analysis

Griham's § 2255 motion requires the court to decide two issues. The first is whether the court has jurisdiction to consider the motion. If the court lacks jurisdiction, the second question is whether the court should transfer this matter to a court of competent jurisdiction (here, the Eleventh Circuit) pursuant to 28 U.S.C. § 1631. The court concludes both that it lacks jurisdiction and that transfer to the Eleventh Circuit under § 1631 is impermissible. Griham's § 2255 motion is therefore due to be denied.

A. This Court Lacks Jurisdiction to Consider Griham's Second § 2255 Motion

A federal prisoner seeking to file a "second or successive" § 2255 motion must seek authorization from the Eleventh Circuit before a district court may consider the motion. 28 U.S.C. §§ 2255(h), 2244(b)(3)(A) ; United States v. Holt , 417 F.3d 1172, 1175 (11th Cir. 2005). When a prisoner fails to seek or obtain such authorization, a district court lacks jurisdiction to consider the merits of the motion. In re Bradford , 830 F.3d 1273, 1277 (11th Cir. 2016) ; Farris v. United States , 333 F.3d 1211, 1216 (11th Cir. 2003). The question here is whether Griham's instant § 2255 motion is "second or successive" within the meaning of the relevant provisions of AEDPA. If it is, then this court lacks jurisdiction to consider the motion because the Eleventh Circuit has not authorized it to do so.

Griham's instant § 2255 motion (filed in 2016) is of course second in time to his first § 2255 motion, which he filed in 2009. But that does not necessarily mean his motion is "second or successive" for AEDPA purposes. See Stewart v. United States , 646 F.3d 856, 857 (11th Cir. 2011). Under Eleventh Circuit precedent, an application for postconviction relief² is only "second or successive" if it follows an application that was previously disposed of in a "judgment on the merits." Boyd v. United States , 754 F.3d 1298, 1302 (11th Cir. 2014). This court denied Griham's first § 2255 motion as untimely under AEDPA's one-year statute of limitations. The question is thus whether that denial of Griham's first § 2255 motion as untimely was a "judgment on the merits" that renders his second motion "successive" and therefore subject to the strictures of 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A).

The Eleventh Circuit has never held in a published decision that the denial of an application for postconviction relief as untimely is a judgment on the merits that renders subsequent applications second or successive. But in unpublished decisions, three panels of the Eleventh Circuit have reached that conclusion. See Boykin v. United States , 592 F. App'x 809, 812 (11th Cir. 2014) ; Candelario v. Warden , 592 F. App'x 784, 785 n.1 (11th Cir. 2014) ; Carter v. United States , 405 F. App'x 409, 410 (11th Cir. 2010). Additionally, at least six other federal courts of appeals have likewise concluded (in published or unpublished opinions) that the denial of a habeas petition or § 2255 motion as untimely renders subsequent applications for postconviction relief successive. Villanueva v. United States , 346 F.3d 55, 61 (2d Cir. 2003) ; Rohn v. Horton , 508 F. App'x 170, 171 (3d Cir. 2013) ; In re Flowers , 595 F.3d 204, 205 (5th Cir. 2009) ; Altman v. Benik , 337 F.3d 764, 766 (7th Cir. 2003) ; McNabb v. Yates , 576 F.3d 1028, 1029 (9th Cir. 2009) ; In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011). For the reasons explained below, the court concludes that the Eleventh Circuit's unpublished panel decisions and the decisions of the Second, Third, Fifth, Seventh, Ninth, and Tenth Circuits are correct. The denial of an application for postconviction relief as untimely under AEDPA's statute of limitations is a judgment on the merits that renders subsequent applications second or successive.

Though the Eleventh Circuit has not squarely confronted this issue in a published opinion, this court does not write on an entirely blank slate. The Eleventh Circuit has explained that the dismissal of an application for postconviction relief without prejudice does not render later applications successive under AEDPA. Boyd , 754 F.3d at 1302 ; Dunn v. Singletary , 168 F.3d 440, 441 & n.2 (11th Cir. 1999). There are several reasons an application for postconviction relief might be dismissed without prejudice, including (1) to allow the prisoner to exhaust state postconviction remedies, Slack v. McDaniel , 529 U.S. 473, 485-89, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ; (2) because the prisoner failed to comply with technical filing requirements, Dunn , 168 F.3d at 441 n.2 ; and (3) because the district court determined it lacked jurisdiction to consider the application (for example, because it concluded the application was successive), Boyd , 754 F.3d at 1302. In these instances of dismissal without prejudice, the application for postconviction relief is not adjudicated "on the merits" and therefore does not render subsequent applications successive. Id.

On the other hand, the dismissal of an application for postconviction relief with prejudice ordinarily does render subsequent applications successive under AEDPA. Dunn , 168 F.3d at 441-42.³ The question this case presents is simply whether the dismissal of a § 2255 motion as untimely is a "dismissal with prejudice" or "judgment on the merits" that renders subsequent applications for postconviction relief successive.

It has long been recognized that a dismissal "with prejudice" denotes the adjudication of a claim "in a way that finally disposes of a party's claim and bars any future action on that claim." With Prejudice , Black's Law Dictionary (11th ed. 2019). Usually, a dismissal with prejudice means the court adjudicated the substance of the party's claim and found it to be without merit. See Dismissal , Black's Law Dictionary (11th ed. 2019) (defining "dismissal with prejudice" as "[a] dismissal, [usually ] after an adjudication on the merits, barring the plaintiff from prosecuting any later lawsuit on the same claim"). But not always. Sometimes, a court may dismiss an action without reaching the substantive merits of a party's claim in a way that nonetheless "finally disposes of a party's claim and bars any future action on that claim." With Prejudice , Black's Law Dictionary (11th ed. 2019). One example of this scenario is when a court dismisses an action as barred by the applicable statute of limitations. Though it is not necessary for a court to delve into the "merits" of an untimely claim (at least in the colloquial sense of that word), a dismissal on statute-of-limitations grounds is still "with prejudice" and constitutes a "judgment on the merits" for res judicata purposes. See 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4441, pp. 213-14, 217 (2d ed. 2002) (identifying the "clearly correct rule that dismissal of a prior action as barred by the statute of limitations precludes a second action on the same claim in the same system of courts" and explaining that "a limitations dismissal is a judgment on the merits that bars a second action on the same claim"); Restatement (Second) of Judgments § 19 cmt. f (1982) (explaining that a judgment for the defendant on statute-of-limitations grounds bars another action by the plaintiff...