Cheddie Lamar Griffin v. United States

C
           USCA11 Case: 19-10331     Date Filed: 03/10/2021   Page: 1 of 13



                                                              [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 19-10331
                            ________________________

   D.C. Docket Nos. 8:18-cv-01721-RAL-TGW; 8:08-cr-00027-RAL-TGW-1


CHEDDIE LAMAR GRIFFIN,

                                                   Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                   Respondent - Appellee.

                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                  (March 10, 2021)

Before ROSENBAUM, LUCK, and JULIE CARNES, Circuit Judges.

PER CURIAM:

         Cheddie Lamar Griffin appeals the district court’s denial of his second or

successive 28 U.S.C. § 2255 motion to vacate his conviction for using, carrying, or
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possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. §

924(c)(1)(A). Griffin’s conviction was predicated on a separate conviction for

kidnapping under 18 U.S.C § 1201(a). After careful review, we affirm.

                                           I.

      Griffin and his coconspirators kidnapped an individual at gunpoint and robbed

him by forcing him to withdraw money from an ATM. A few weeks later, Griffin

robbed a car-stereo store at gunpoint. In connection with those crimes, Griffin was

indicted and charged with one count of carjacking, in violation of 18 U.S.C. § 2119

(Count One); one count of kidnapping, in violation of 18 U.S.C. § 1201 (Count

Three); two counts of robbery, in violation of 18 U.S.C. § 1951 (Counts Five and

Eight); one count of armed robbery, in violation of 18 U.S.C. § 2113(a), (d), and (e)

(Count Six); and four counts of brandishing a firearm in relation to a crime of

violence, in violation of § 924(c) (Counts Two, Four, Seven, and Nine). A jury

found Griffin guilty of all nine counts.

      Griffin was sentenced to concurrent terms of imprisonment consisting of 15

years for carjacking, life for kidnapping, 20 years for each of the two counts of

robbery, and 25 years for armed robbery. He also received consecutive sentences

for each of his four § 924(c) convictions, totaling an additional 82 years’

imprisonment. In all, Griffin was sentenced to life plus 82 years’ imprisonment.




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       Griffin filed a direct appeal, and we affirmed. United States v. Griffin, 380 F.

App’x 840 (11th Cir. 2010). In 2011, Griffin filed his first § 2255 motion to vacate.

It was unsuccessful.

       A few years passed, and in 2015, the Supreme Court issued Johnson v. United

States, 

576 U.S. 591

(2015). In Johnson, the Court held that the so-called residual

clause within the definition of the term “violent felony,” in the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally

vague. 

Johnson, 576 U.S. at 606

. A year later, the Supreme Court made clear that

Johnson announced a new rule of constitutional law that is retroactively applicable

to cases on collateral review. Welch v. United States, 

136 S. Ct. 1257

, 1264-65

(2016).

       After Johnson issued, Griffin filed an application with this Court seeking

authorization to file a second or successive motion to vacate his § 924(c) convictions.

Griffin relied on Johnson to argue that his § 924(c) convictions were invalid because

Johnson’s retroactively applicable new rule invalidating § 924(e)’s residual clause,

which offered a definition of the term “violent felony,” rendered § 924(c)’s similarly

worded residual clause, 1 which provided a definition of the term “crime of violence,”

§ 924(c)(3)(B), unconstitutionally vague.


       1
          Section 924(c)’s residual clause defines a “crime of violence” as a felony that, “by its
nature, involves a substantial risk that physical force against the person or property of another may
be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).
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       On July 27, 2016, we denied Griffin’s application with respect to his § 924(c)

convictions based on his robbery and carjacking convictions. We explained that

even assuming Johnson’s new rule meant that § 924(c)’s residual clause was also

unconstitutionally vague, those crimes still qualified as “crimes of violence” under

§ 924(c)’s elements (or use-of-force) clause, § 924(c)(3)(A). 2 But, “under Johnson,”

we granted Griffin’s application challenging his § 924(c) conviction (Count Four)

based on his federal kidnapping conviction because we had not yet determined

whether federal kidnapping, as defined in 18 U.S.C. § 1201(a), qualified as a “crime

of violence” under § 924(c)’s elements clause.

       On July 16, 2018, Griffin filed in the district court the motion to vacate that

we had authorized nearly two years earlier. In it, he challenged his kidnapping-

predicated § 924(c) conviction. But instead of relying solely on Johnson, Griffin

argued that his kidnapping conviction could no longer serve as a predicate crime of

violence under § 924(c) because of both Johnson and the Supreme Court’s decision

in Sessions v. Dimaya, 

138 S. Ct. 1204

(2018). Dimaya held the residual clause of

18 U.S.C. § 16, which defined the term “crime of violence” for purposes of the




       2
         Section 924(c)’s elements (or use-of-force) clause alternatively defines the term “crime
of violence” as “an offense that is a felony and has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” 18 U.S.C. §
924(c)(3)(A).
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Immigration and Nationality Act, 3 to be unconstitutionally vague, based on a

“straightforward application” of Johnson. 

Dimaya, 138 S. Ct. at 1213

.

        On October 4, 2018, we held that Johnson and Dimaya did not make §

924(c)’s residual clause unconstitutionally vague. Ovalles v. United States, 

905 F.3d 1231

, 1233-34 (11th Cir. 2018) (en banc), abrogated by United States v. Davis, 

139 S. Ct. 2319

, 2324 (2019). Relying on Ovalles, the district court denied Griffin’s

motion to vacate on January 4, 2019.

        Ovalles’s holding was short-lived: On June 23, 2019, the Supreme Court held

in United States v. Davis, 

139 S. Ct. 2319

, 2336 (2019), that § 924(c)’s residual

clause is unconstitutionally vague.              Two months later, we granted Griffin a

certificate of appealability on the following issue: “Whether Griffin’s 18 U.S.C §

924(c) conviction charged in Count Four of the superseding indictment is valid?” 4

        Now, on appeal, Griffin argues, based on Davis, that § 924(c)’s residual clause

is unconstitutionally vague, and, as a result, his kidnapping-predicated § 924(c)

conviction is no longer valid.




        3
          Section 16’s residual clause defined the term “crime of violence” to mean “any other
offense that is a felony and that, by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the offense.” 18 U.S.C.
§ 16(b).
        4
          Griffin’s § 924(c) conviction charged in Count Four is predicated on his federal
kidnapping conviction charged in Count Three.
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                                           II.

      In a § 2255 proceeding, we review questions of law de novo, and we review

the district court’s findings of fact for clear error. United States v. Pickett, 

916 F.3d 960

, 964 (11th Cir. 2019). We may affirm for any reason supported by the

record. Castillo v. United States, 

816 F.3d 1300

, 1303 (11th Cir. 2016).

                                          III.

      First, we must determine whether we have jurisdiction to hear this case. The

government contends that the district court’s jurisdiction and therefore our

jurisdiction on this appeal is limited to the Johnson claim that we authorized Griffin

to pursue in a second or successive § 2255 motion. For that reason, the government

argues that we cannot consider Griffin’s Davis claim.

      District courts lack jurisdiction to consider second or successive motions that

have not been authorized by this Court. See 28 U.S.C. § 2244(b)(3)(A); see Farris

v. United States, 

333 F.3d 1211

, 1216 (11th Cir. 2003). We may grant authorization

only if the second or successive motion will contain “(1) newly discovered evidence

that, if proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h).


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      This Court has jurisdiction to hear appeals of “final order[s]” in § 2255

proceedings. 28 U.S.C. § 2253(a). Before we can hear an appeal from the “final

order in a proceeding under section 2255,” a movant must obtain a certificate of

appealability from either this Court or the district court.

Id. § 2253(c)(1)(B). To

obtain a certificate of appealability, a movant must make “a substantial showing of

the denial of a constitutional right.”

Id. § 2253(c)(2). With

respect to the district court’s jurisdiction, we expressly authorized

Griffin under § 2255(h)(2) to file a second or successive motion “challenging his

conviction for Count 4 under Johnson.” So the district court’s jurisdiction was

limited to Griffin’s Johnson claim.

      Nevertheless, Griffin also asserted a Dimaya claim when he filed his second

or successive motion with the district court. He did so even though Griffin never

sought authorization and we never authorized Griffin to file a second or successive

motion based on Dimaya, so the district court lacked jurisdiction to consider

Griffin’s Dimaya claim.

      On the other hand, our jurisdiction, unlike the district court’s, is shaped by the

certificate of appealability. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell,

537 U.S. 322

, 336 (2003) (“[U]ntil a [certificate of appealability] has been issued

federal courts of appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.”). Once a certificate of appealability has been granted, the


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jurisdictional prerequisite to appeal in a post-conviction relief proceeding has been

met. See Thomas v. Crosby, 

371 F.3d 782

, 784 (11th Cir. 2004) (“Notably, there is

no question we have jurisdiction in this case. . . . [T]he first COA gave us jurisdiction

over the appeal.”); Pagan v. United States, 

353 F.3d 1343

, 1344–45 (11th Cir. 2003)

(“A COA is usually a jurisdictional prerequisite to an appeal in a post-conviction

relief proceeding following a state or federal court conviction.”).

       Here, we granted Griffin’s motion for a certificate of appealability on this

question: “[w]hether [his] 18 U.S.C. § 924(c) conviction charged in Count Four of

the superseding indictment is valid?”               Because we granted a certificate of

appealability, we have jurisdiction to consider Griffin’s appeal.

                                              IV.

       But that we have jurisdiction to consider Griffin’s appeal does not mean we

have the opportunity to reach the merits of the issues he raises on appeal. Here, the

government argues that § 2255’s statute of limitations prevents us from considering

Griffin’s claim at all.5

       Before reaching the substance of the government’s argument, we must address

a threshold issue—whether the government waived its time-bar defense. The




       5
          The government also argues that Griffin procedurally defaulted his Johnson claim, that
his claim cannot succeed under the concurrent-sentence doctrine, and that, in any case, the claim
fails on the merits. We do not reach these issues because, regardless, we conclude that Griffin’s
Johnson claim is time barred.
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government invokes its time-bar defense for the first time on appeal; it did not raise

this defense in the district court. And § 2255’s statute of limitations is “not a

jurisdictional bar,” so it can be waived or forfeited. In re Jackson, 

826 F.3d 1343

,

1347-48 (11th Cir. 2016) (citation and internal quotations omitted). In general, a

“statutory time limitation” defense is forfeited if it is not raised in the defendant’s

answer. Day v. McDonough, 

547 U.S. 198

, 202 (2006). Once an affirmative defense

is forfeited, it normally cannot be raised on appeal. Wood v. Milyard, 

566 U.S. 463

,

470 (2012).

      But this rule “is not absolute.” Ramirez v. Secretary, U.S. Dep’t of Transp.,

686 F.3d 1239

, 1250 (11th Cir. 2012). This is especially true in habeas cases, where

the Supreme Court has acknowledged that “the bar to court of appeals’ consideration

of a forfeited habeas defense is not absolute.” 

Wood, 566 U.S. at 471

. Indeed, the

Supreme Court has held that courts of appeals have the authority even “to raise a

forfeited timeliness defense on their own initiative.”

Id. at 473.

      Here, Griffin did not respond to the government’s time-bar defense by raising

the waiver defense. In fact, Griffin did not respond at all to the government’s

untimeliness defense. So Griffin has waived his waiver defense. See Ochran v.

United States, 

117 F.3d 495

, 503 (11th Cir. 1997); see also Momient-El v. DeTella,

118 F.3d 535

, 540 (7th Cir. 1997) (addressing exhaustion argument the state failed




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         USCA11 Case: 19-10331        Date Filed: 03/10/2021    Page: 10 of 13



to raise in the district court because the petitioner did not argue that the state waived

its argument; “the defense of waiver can itself be waived”).

      Nevertheless, that does not mean that we necessarily must consider the

government’s time-bar defense. In this case, though, “the proper resolution is

beyond any doubt,” so we conclude that it is appropriate for us to address the

argument. Access Now, Inc. v. Sw. Airlines Co., 

385 F.3d 1324

, 1332 (11th Cir.

2004) (citation and internal quotation marks omitted).

      Section 2255 provides a one-year period to file a motion to vacate. 28 U.S.C.

§ 2255(f). In many cases, the limitation period runs from “the date on which the

judgment of conviction becomes final.”

Id. § 2255(f)(1). But

a motion is still timely

if it is filed within one year of “the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.”

Id. § 2255(f)(3). The

government’s time-bar argument is a purely legal one, and it does not

raise any new factual issues: no dispute exists over the date Griffin’s conviction

became final, the date the Supreme Court issued Johnson, and the date Griffin filed

the instant § 2255 motion, so we can easily assess the legal issue—whether Griffin’s

motion was timely under § 2255’s period of limitations.




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       In evaluating that question, we must conclude that Griffin’s motion was not

timely. Griffin’s conviction became final on August 23, 2010.6 And the Supreme

Court issued Johnson on June 26, 2015. So under § 2255(f), in the absence of any

tolling, the latest Griffin could have timely filed his authorized Johnson-based

motion was June 25, 2016. Yet Griffin did not file his motion until more than two

years later—on July 16, 2018. Nor does the record here contain any basis for tolling

the statutory period.7 Under these circumstances, we must conclude that Griffin’s §

2255 Johnson claim is untimely.

                                               V.

       Although we affirm the district court’s denial of Griffin’s motion because it

was untimely under 28 U.S.C. § 2255(f), we conclude by noting that he may still


       6
           When a movant does not file a petition for certiorari with the Supreme Court, his
conviction becomes final when the 90-day period for seeking certiorari under Supreme Court Rule
13 expires. See Kaufmann v. United States, 

282 F.3d 1336

, 1338 (11th Cir. 2002). Griffin’s direct
appeal was decided on May 25, 2010. United States v. Griffin, 380 F. App’x 840 (11th Cir. 2010).
He did not file a petition for certiorari, so his conviction became final August 23, 2010, the day
his 90-day period for seeking certiorari ended.
         7
           Griffin stated in his second or successive motion before the district court that he
mistakenly believed that when the Eleventh Circuit granted his application to file a second or
successive motion based on Johnson, that sufficed as the filing of his Johnson-based motion in the
district court. “Equitable tolling is an extraordinary remedy and is applied sparingly.” Outler v.
United States, 

485 F.3d 1273

, 1280 (11th Cir. 2007). To obtain equitable tolling, a movant must
demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland v. Florida, 

560 U.S. 631

,
649 (2010) (internal quotation marks omitted). Griffin’s failure to file his second or successive
Johnson-based motion for more than two years after we authorized its filing does not qualify for
equitable tolling. First, Griffin’s failure to file sooner was not “beyond his control.” Jones v.
United States, 

304 F.3d 1035

, 1039 (11th Cir. 2002) (citation and internal quotation marks
omitted). Second, in failing to check on the status of his second or successive motion for two
years, we cannot say that Griffin was diligent. And third, nothing about these facts presents
“extraordinary circumstances.”
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have a path to challenge his § 924(c) sentence on Count Four. Griffin hasn’t sought

authorization to file a second or successive application on the basis of United States

v. Davis, 

139 S. Ct. 2319

(2019). Because we have held that “Davis announced a

new substantive rule of constitutional law in its own right,” see In re Hammoud, 

931 F.3d 1032

, 1040 (11th Cir. 2019), nothing appears to preclude Griffin from seeking

authorization to file a second or successive petition under 28 U.S.C. § 2255(h)(2)

(authorizing second or successive motions that contain “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court”), based

on Davis.

      Of course, if Griffin receives authorization and attempts to file another motion

based on Davis, he will again run into § 2255’s period of limitation: Davis

announced a new right, so the limitation period ended one year after the Supreme

Court issued Davis. 28 U.S.C. § 2255(f)(3) (the one-year limitations period runs

from “the date on which the right asserted was initially recognized by the Supreme

Court”). And because Davis was decided on June 24, 2019, Griffin needed to file

his motion by June 23, 2020.

      On the other hand, the order granting Griffin’s certificate of appealability here

did so “[i]n light of Davis,” so Griffin may be entitled to equitable tolling. See, e.g.,

Spottsville v. Terry, 

476 F.3d 1241

, 1245-46 (11th Cir. 2007) (concluding that

equitable tolling was warranted because the petitioner relied on “the misleading


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instructions” of a state court). We decide equitable-tolling claims on a “fact-specific,

case-by-case” basis, In re Jackson, 

826 F.3d 1343

, 1348 (11th Cir. 2016), and

whether Griffin might be entitled to equitable tolling on a Davis claim is not before

us. We note only that the possibility exists if and when Griffin seeks authorization

to file a second or successive application based on Davis.

      AFFIRMED.




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