Griggs v. State of Alabama

Filing 26

ORDER denying 23 Motion for Leave to Appeal in forma pauperis; denying 24 Motion for Certificate of Appealability. Signed by Chief Judge William H. Steele on 5/27/2014. (Copy mailed to Appellant). (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTHUR LEE GRIGGS,
Petitioner,
v.
TONY PATTERSON,
Respondent.

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CIVIL ACTION 12-0085-WS-B

ORDER
This closed habeas corpus matter comes before the Court on petitioner’s Motion for
Issuance of a Certificate of Appealability (doc. 24) and his Request to Proceed on Appeal In
Forma Pauperis (doc. 23).
This Court has previously entered an Order (doc. 21) and Judgment (doc. 22) making
specific findings that petitioner “is not entitled to a certificate of appealability” and “is not
entitled to appeal in forma pauperis.” (Doc. 22, at 1.) Petitioner, Arthur Lee Griggs, now moves
the Court to revisit both of those determinations. With respect to denial of a Certificate of
Appealability (“COA”), Griggs protests that making that determination contemporaneously with
adjudication of his § 2254 petition “is not the normal course of procedure.” (Doc. 24, at 2.)
Petitioner is incorrect. The Rules Governing Section 2254 Cases in the United States District
Courts expressly direct that “[t]he district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rule 11(a). That is precisely what this
Court did; therefore, petitioner’s suggestion that it was procedurally abnormal or improper for
this Court to adjudicate the COA issue at the same time that it denied the § 2254 petition is
contrary to the rules.
More generally, the Court remains of the opinion that issuance of a COA is unwarranted
in this case. Griggs has not made “a substantial showing of the denial of a constitutional right,”
including a showing that “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To be sure, Griggs argues that Rothgery v. Gillespie
County, Tex., 554 U.S. 191, 128 S.Ct. 2578 (2008), announced a new rule recognizing a right to
counsel at the initial appearance stage, and that this new rule re-started Grigg’s one-year AEDPA
clock pursuant to 28 U.S.C. § 2244(d)(1)(C). Petitioner misreads Rothgery, in which the
Supreme Court acknowledged that in previous decisions dating back to 1986 and 1977, “we have
twice held that the right to counsel attaches at the initial appearance before a judicial officer.”
554 U.S. at 199. Under these circumstances, no reasonable jurist could debate whether Rothgery
opened the AEDPA door for Griggs to initiate a § 2254 petition in 2012 alleging that his Sixth
Amendment right to counsel was violated in an initial court appearance and preliminary hearing
that occurred nearly 30 years earlier.1
As Griggs’ alternative ground for appeal, he announces his intention to argue that the
alleged deprivations of his Sixth Amendment right to counsel were of jurisdictional magnitude,
so as to “create a Fundamental Miscarriage of Justice exception to the AEDPA Statutory
preclusion provisions.” (Doc. 24, at 2.) Both the Eleventh Circuit and the Supreme Court have
“emphasized the narrow scope of the fundamental miscarriage of justice exception,” have
refused to extend it beyond the context of “factual innocence,” and have linked it to actual
innocence for the purpose of insuring that the exception “would remain rare and would only be
applied in the extraordinary case.” McKay v. United States, 657 F.3d 1190, 1198-99 (11th Cir.
2011) (citations omitted). Under the circumstances presented here, the Court finds that no
reasonable jurist could debate whether Griggs has shown a fundamental miscarriage of justice
that might toll the strict AEDPA filing deadline. (See also doc. 15, at 12-13.)
For all of these reasons, as well as those set forth in the Report and Recommendation
(doc. 15) previously adopted by the undersigned, the Court remains of the opinion that petitioner
has not made a substantial showing of the denial of a constitutional right, and that issuance of a
1

Petitioner’s assertion that he “was prohibited from filing his denial of counsel
claim in state court” (doc. 24, at 3) until Rothgery was decided misses the point. For AEDPA
purposes, what matters is whether there was an impediment to Griggs raising his claim in federal
court via § 2254 petition, not whether the state court would have recognized the challenged right
in a post-conviction petition filed there. Griggs could have filed a § 2254 petition raising his
Sixth Amendment claim decades earlier, and Rothgery did not change that calculus in the
slightest; therefore, this claim is obviously time-barred.

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COA is unwarranted. Accordingly, the Motion for Certificate of Appealability is denied.
Similarly, the Court remains of the opinion that Griggs’ appeal from the denial of § 2254 relief is
not taken in good faith because his asserted grounds for appeal are frivolous; therefore, the
Motion for Leave to Proceed In Forma Pauperis is likewise denied.2
DONE and ORDERED this 27th day of May, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

2

See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good faith.”); Napier v. Preslicka, 314 F.3d
528, 531 (11th Cir. 2002) (action is frivolous for § 1915 purposes if it is without arguable merit
either in law or in fact).

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