United States District Court, N.D. Alabama, Southern Division
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 Fed.Appx. 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, 135 S.Ct. 2551 (2015), which invalidated
ACCA's residual clause as unconstitutionally vague, and
Welch v. United States, 136 S.Ct. 1257 (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 relief[2] 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
Fed.Appx. 809, 812 (11th Cir. 2014); Candelario v.
Warden, 592 Fed.Appx. 784, 785 n.1 (11th Cir. 2014);
Carter v. United States, 405 Fed.Appx. 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 Fed.Appx. 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 (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 on the same claim in the
same jurisdiction).
The
well-settled meanings of the terms “with
prejudice” and “judgment on the merits”
apply with equal force in the postconviction-relief context
as they do in ordinary civil actions. See Felker v.
Turpin, 518 U.S. 651, 664 (1996) (describing AEDPA's
restrictions on second or successive applications as “a
modified res judicata rule”). When a court reaches and
rejects the substantive merits of a prisoner's
constitutional claims, its decision “finally disposes
of” the prisoner's claim, With Prejudice,
Black's Law Dictionary (11th ed. 2019), and therefore
results in a dismissal with prejudice that renders subsequent
applications for postconviction relief successive,
Dunn, 168 F.3d at 441-42. And likewise, the
dismissal of a § 2255 motion as untimely under AEDPA
also “presents a ‘permanent and incurable'
bar to federal review” of the motion, thereby finally
disposing of the prisoner's claim. Villanueva,
346 F.3d at 61. Such a dismissal therefore operates as a
“dismissal with prejudice” or “judgment on
the merits” that renders successive any subsequent
§ 2255 motion by the same prisoner challenging the same
federal judgment.[4]
A
contrary rule would not only contravene the well-settled
understanding of the terms “with prejudice” and
“judgment on the merits”; it would also lead to
illogical results. Suppose a prisoner filed a timely §
2255 motion challenging the constitutionality of his federal
conviction, which a district court ultimately denied as
without merit after considering the constitutional claim.
There is no question the district court's denial of the
motion would count as a judgment on the merits rendering any
subsequent § 2255 motions successive. See Dunn,
168 F.3d at 441-42; Boyd, 754 F.3d at 1302. But
under Griham's proposed rule, had the prisoner delayed in
filing the exact same § 2255 motion, raising the exact
same constitutional claim, until after AEDPA's
limitations period expired, the denial of the motion as
untimely would not count as a judgment on the merits
rendering subsequent § 2255 motions successive. Such a
rule would lead to a perverse result-it would reward
prisoners who fail to comply with the congressionally imposed
time limit for filing § 2255 motions by allowing them a
second chance to collaterally attack their sentences that is
unavailable to prisoners who comply with AEDPA's statute
of limitations. Absent any textual evidence to the contrary,
the court will not lightly conclude that AEDPA requires that
anomalous result. Reiter v. Cooper, 507 U.S. 258,
267 (1993) (declining to interpret a statute to produce
“such an odd result in the absence of any such
indication in the statute”); see also Home Depot
U.S.A., Inc. v. Jackson, 139 S.Ct. 1743, 1755 (2019)
(Alito, J., dissenting) (explaining that “a good
interpreter . . . reads a text charitably, not lightly
ascribing irrationality to its author”).
Because
this court's denial of Griham's first § 2255
motion as untimely was with prejudice and operated as a
judgment on the merits, it renders his instant § 2255
motion second or successive. The court therefore concludes it
is without jurisdiction to consider the motion, as Griham did
not seek authorization from the Eleventh Circuit before
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