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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10351
________________________
D.C. Docket Nos. 1:16-cv-10622-WSD,
1:88-cr-00045-WSD-CMS-1
EUGENE POWELL GRIFFIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 29, 2019)
Before ED CARNES, Chief Judge, ANDERSON and JULIE CARNES, Circuit
Judges.
PER CURIAM:
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Eugene Powell Griffin, through counsel, appeals the district court’s rejection
of his motion filed pursuant to
28 U.S.C. § 2255 to vacate his 1989 federal
sentence. On appeal, Griffin challenges only the district court’s denial of his
motion to amend his pro se petition seeking to have his federal sentence vacated
because his federal sentence was enhanced based upon three prior Georgia
convictions for burglary, which prior Georgia burglary convictions have been
vacated by a Georgia habeas corpus court (referred to hereafter as Griffin’s vacatur
claim). 1 The instant § 2255 motion was filed in 2016 and is Griffin’s fourth-in-
time § 2255 motion. The district court (Judge Duffey) dismissed Griffin’s vacatur
claim for lack of jurisdiction on the basis that his motion was barred as successive.
[Doc. 159 at 1 (“Regarding the motion for leave to amend, this Court does not have
jurisdiction to hear the claim Defendant wishes to bring because neither exception
to
28 U.S.C. § 2255(h)’s prohibition against second or successive § 2255 motions
exists here.”).] This court granted a certificate of appealability on the issue:
1
Griffin’s motion also raised a Samuel Johnson v. United States, 576 U.S. ___,
135 S. Ct.
2551 (2015), claim—i.e., that his three prior Georgia burglary convictions were no longer valid
predicate violent felonies after Samuel Johnson declared the residual clause unconstitutionally
vague. That claim, however, is abandoned. Griffin concedes that our decision in United States
v. Gundy,
842 F.3d 1156, 1169 (11th Cir. 2016) (holding that Georgia’s burglary statute
qualifies as a violent felony under the enumerated crimes clause), forecloses this claim, leaving
only Griffin’s vacatur claim.
We also note that the Government concedes that when this court granted Griffin’s
application for authorization to file the instant § 2255 motion, that authorization included both
the Samuel Johnson claim and the vacatur claim.
2
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“Whether the district court erred in denying Griffin’s motion to amend his
28
U.S.C. § 2255 motion, to include, as a second claim, that his [armed career
criminal act (“ACCA”)] sentence is now void, based on the vacatur of three state
convictions for burglary.”
We have had the benefit of oral argument and have carefully studied the
briefs and relevant parts of the record. Although the procedural history of this case
is extremely complex, because we write only for the parties who are familiar with
this history, we set out only that part of the procedural history relevant to our
explanation of our resolution of this case.
DISCUSSION
For the reasons discussed at oral argument, this case is very similar to Boyd
v. United States,
754 F.3d 1298 (11th Cir. 2014). Both cases involve successively
filed § 2255 motions challenging a federal sentence that was enhanced on the basis
of prior state court convictions. Both cases involve a first § 2255 motion
completed before the prior state court convictions were vacated and multiple
subsequent § 2255 motions filed after vacatur which were denied as successive
motions over which the district court lacked jurisdiction. In Boyd, this court held
that the first § 2255 motion did not render the later § 2255 motions successive,
because those first § 2255 proceedings were completed before vacatur. That Boyd
holding compels the same conclusion with respect to Griffin’s first 1992 § 2255
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motion. Boyd’s second and third § 2255 motions both were denied as successive
and therefore beyond the jurisdiction of the district court. In Boyd’s fourth § 2255
motion, because his second and third § 2255 motions were dismissed for lack of
jurisdiction as successive (i.e., because there was no ruling on the merits), we held
that they did not render his fourth § 2255 motion successive.
In the instant case, Griffin also filed multiple § 2255 motions after the
vacatur of his three prior Georgia convictions but before his instant § 2255 motion.
We refer to these as “earlier post-vacatur motions,” and they were ruled upon by
Judge Forrester.2 And although Griffin also argued, like Boyd, that the vacatur of
his prior convictions rendered his sentence illegal, Judge Forrester dismissed his
motion for lack of jurisdiction as successive. However, unlike in Boyd, Judge
Forrester not only held that those “earlier post-vacatur motions” were successive
and thus beyond the jurisdiction of the district court, he also held in an alternative
holding that, even if he did have jurisdiction, Griffin’s vacatur claim was properly
denied because it was barred by the statute of limitations.
Specifically, while ruling on a post-vacatur motion filed by Griffin in 2009,
Judge Forrester noted that vacatur of a state conviction will only trigger a renewed
limitations period under
28 U.S.C. § 2255(f)(4) if the petitioner has acted with due
2
Judge Forrester presided over Griffin’s federal conviction and imposed the enhanced
sentence. He also presided over all of Griffin’s § 2255 motions until the last one (that is, until
the instant motion over which Judge Duffey presided).
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diligence in seeking vacatur. See Robert Johnson v. United States,
544 U.S. 295,
302,
125 S. Ct. 1571, 1577 (2005). Due diligence, Judge Forrester further
observed, is satisfied by a petitioner’s prompt filing of a state habeas petition after
his federal sentence is imposed. See
id. Judge Forrester concluded that Griffin
could not meet this requirement because he waited nearly eight years to file a state
habeas action after his federal conviction in 1989.
Thus, in the instant § 2255 motion that was before Judge Duffey, unlike in
Boyd, Griffin presents a claim that has previously been rejected on the merits in an
alternative holding. Accordingly, we believe that Griffin’s claim in the instant
§ 2255 motion has been rejected on the merits in a prior § 2255 proceeding and is
therefore successive, and Judge Duffey is due to be affirmed on this ground.
Even if we are wrong in this regard, and even if Boyd is not distinguishable
and the instant § 2255 motion is not successive, it is nevertheless barred by
AEDPA’s one-year statute of limitations because Griffin did not exercise due
diligence in seeking to obtain vacatur of his three prior Georgia burglary
convictions after his federal sentence was enhanced on the basis thereof. This is so
for the following reasons.
Judgment imposing the federal sentence being challenged by Griffin in this
appeal was entered in 1989. Obviously, the instant § 2255 motion, having been
filed in 2016, was filed long after the ordinary expiration of AEDPA’s one-year
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statute of limitations. The issue, however, is whether the vacatur of Griffin’s prior
convictions triggered a new commencement of the statute of limitations under
§ 2255(f). That subsection provides in relevant part as follows:
(f) A one-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of –
....
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2255(f)(4). We can assume arguendo, but we expressly do not decide,
that Griffin’s efforts to pursue his vacatur claim were diligent from and after the
1997 date on which the Georgia court vacated his three prior burglary convictions.
Even under that assumption, the Supreme Court’s decision in Robert Johnson
compels a conclusion in this case that Griffin falls far short of demonstrating the
due diligence necessary to entitle him to have triggered a new period of limitations
upon the vacatur of his prior convictions. There, the Supreme Court held that the
date which activates the due diligence clock is the date of the federal sentence
which is enhanced by the prior convictions which have been subsequently vacated.
See Robert Johnson,
544 U.S. at 399,
125 S. Ct. at 1581 (“settling on the date of
judgment as the moment to activate due diligence”). The Supreme Court rejected
other possible activating dates, including the date of finality of the federal
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conviction. In the Robert Johnson case, Johnson waited more than three years after
entry of his federal sentence before filing a state habeas petition seeking to vacate
the prior convictions which had served to enhance the federal sentence. The
Supreme Court held that “Johnson fell far short of reasonable diligence in
challenging the state conviction.”
Id. at 311,
125 S. Ct. at 1582.
In our case, Griffin’s federal sentence was entered in May of 1989. He did
not file his state habeas petition seeking to have his three prior burglary
convictions vacated until December 3, 1996. Obviously, Griffin waited far longer
than the three years which the Supreme Court in Robert Johnson held was much
too long to demonstrate the necessary due diligence.
Griffin argues that he satisfied the due diligence requirement when, on
February 27, 1990, shortly after his federal sentence, he wrote a letter to the state
judge, with a copy to the state prosecutor – i.e., the presiding judge and prosecutor
when he was convicted back in 1958, 1962, and 1965 of the three prior burglaries –
requesting that they vacate his three burglary convictions. Judge Forrester rejected
this argument in the 2009 ruling discussed above. As an initial matter, Judge
Forrester found it significant that Griffin had not mentioned the letter in any of his
previous post-conviction motions and that the state court’s electronic docket did
not contain any record of the letter. But even assuming Griffin had submitted the
letter as he claimed, Judge Forrester concluded that Griffin still could not show he
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acted with due diligence because the letter was not properly filed or verified, it
contained no supporting affidavits as required by Georgia law, and it was sent to
the incorrect recipients at the wrong address. In addition, Judge Forrester
emphasized that Griffin took no action to follow up on the letter during the six
years between the date he allegedly submitted the letter in February 1990 and the
date he initiated state habeas proceedings in December 1996.
We agree with Judge Forrester’s ruling on this issue. We can assume
arguendo, again without deciding, that the letter does indicate some effort on the
part of Griffin following his federal sentence to pursue the vacatur of his prior
convictions. However, Griffin acknowledges that he did not receive an answer to
that letter, and there is no proffer of evidence of any other efforts on the part of
Griffin to pursue vacatur of his three prior Georgia convictions from that early
1990 time until December 1996 when he filed his state habeas petition. Again, that
approximately six- or seven-year delay is far more than the three-year delay which
the Supreme Court in Robert Johnson held was insufficient to demonstrate the
necessary due diligence.
Because Griffin has failed to demonstrate the necessary due diligence, from
and after the time of his federal sentencing, in pursuing the vacatur of his three
prior burglary convictions, the fact of the vacatur thereof does not constitute a
“fact[] supporting the claim . . . presented,” and Griffin cannot qualify under
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§ 2255(f)(4) for a renewed AEDPA statute of limitations. Accordingly, his vacatur
claim is barred by AEDPA’s statute of limitations.
For the foregoing reasons, the judgment of the district court is affirmed both
because Judge Duffey is correct that Griffin’s instant § 2255 motion is successive
and does not fall under either of the exceptions in § 2255(h); and even if we are
wrong in that regard, it is barred by the statute of limitations.
AFFIRMED. 3
3
Griffin’s Motion for Leave to File and Use Physical Exhibits at Oral Argument is
GRANTED.
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