In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3356

ANTHONY GRIGSBY,

Petitioner-Appellant,

v.

ZETTIE COTTON, Superintendent,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 04 C 645—John Daniel Tinder, Judge.

____________

ARGUED APRIL 19, 2006—DECIDED AUGUST 1, 2006

____________

Before COFFEY,EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge. In 1988 an Indiana state court

enhanced Anthony Grigsby’s sentence for attempted armed

robbery to 50 years’ imprisonment because the court

found he was a habitual offender. He had pleaded guilty

to armed robbery in 1978 and had been convicted of burglary in 1986. Grigsby filed this petition for a writ of habeas

corpus, 28 U.S.C. § 2254, in April 2004, alleging, as relevant

to this appeal, that his 1978 guilty plea was unconstitutional

because the state failed to provide him counsel during his

juvenile waiver hearing (Grigsby was 16 years old when he
2 No. 04-3356

1 The record does not indicate the dates Grigsby was released

from prison, thus enabling him to commit the subsequent crimes.

was arrested). Thus the conviction, he argued, could not

properly have been used to enhance his 1988 sentence. The

district court denied the petition and this court granted

Grigsby a certificate of appealability. See Grigsby v. Cotton,

No. 04-3356 (7th Cir. Apr. 14, 2005). We affirm the denial of

relief.

Police arrested 16-year-old Anthony Grigsby on August

19, 1977, on suspicion that he was involved in a murder and

armed robbery. A “case chronology” indicates that an initial

hearing was held on the same day. At some point, not

disclosed by the record, Grigsby was formally transferred

from juvenile to criminal court, and on November 9, 1977,

counsel entered an appearance in the Criminal Court of

Marion County on Grigsby’s behalf. Grigsby pleaded guilty

only to the armed robbery charge. On June 14, 1978, when

Grigsby was still only 17 years old, the court sentenced him

as an adult to 10 years’ imprisonment. Indiana v. Grigsby,

No. CR 77-346D (Sup. Ct. Marion County 1978).

Grigsby was next convicted of burglary in 1986 and, in

1988, of attempted armed robbery.1

 He is currently serving a

50-year sentence for the attempted robbery, which was

enhanced because he was a habitual offender. Indiana v.

Grigsby, No. CR 87-136E (Sup. Ct. Marion County 1988),

aff’d, No. 49A02-8904-CR-142 (Ind. Ct. App. 1989) (unpublished memorandum decision). Though the record does

not reveal the state court’s sentencing calculations, the

parties agree that Grigsby’s habitual offender status was

in part based on his 1978 conviction for armed robbery.

Grigsby pursued numerous state post-conviction petitions. We begin with the petitions attacking his 1978
No. 04-3356 3

2 The state court found that Grigsby failed to demonstrate the

absence of a juvenile waiver hearing because a “Pre-Sentence

Report” filed in his 1978 case stated that he was “waived to

criminal court.” The court also commented that Grigsby’s counsel

during the 1978 case testified at the evidentiary hearing on the

post-conviction petition that he would have investigated the

criminal court’s jurisdiction.

conviction. In May 1995 he filed his first petition for postconviction relief, apparently while he was serving the

present term of imprisonment for his 1988 conviction.

Grigsby alleged that the judge in his 1978 case did not

properly conduct the plea colloquy and did not find an

“adequate factual basis” for his plea. In March 2000, at

Grigsby’s request, the court dismissed his 1995 petition

without prejudice.

In the meantime, in July 2001, Grigsby filed a second postconviction petition, asserting that his 1978 conviction should

be set aside because counsel was ineffective. He argued that

he did not receive a juvenile waiver hearing and thus,

according to him, the criminal court was without jurisdiction, but that counsel failed to discover the error.

The court conducted an evidentiary hearing and denied the

petition, finding that “the evidence shows that there was a

juvenile waiver hearing” and, in the alternative, that the

doctrine of laches barred review of his 1978 conviction

because the state had destroyed its case files.2

 Grigsby

appealed, arguing that the state had not proved laches, and

the Indiana Court of Appeals affirmed, Grigsby v. Indiana,

No. 49A02-0301-PC-75 (Ind. Ct. App. 2003) (unpublished

memorandum decision). The Indiana Supreme Court denied

Grigsby’s request for transfer.

We turn next to the petitions that Grigsby filed against his

1988 conviction. In January 1991, he filed a post-conviction
4 No. 04-3356

petition, though the court granted his request to withdraw

that petition in October 1996. Grigsby filed his second postconviction petition in November 1999, and the court denied

it in July 2000. Grigsby appealed, the Indiana Court of

Appeals affirmed, Grigsby v. Indiana, No. 49A02-8-PC-490

(Ind. Ct. App. 2001) (unpublished memorandum decision),

and the Indiana Supreme Court denied Grigsby’s request

for leave to transfer.

Grigsby filed the § 2254 petition at issue in this appeal

in April 2004. After he filed several traverses and amended

petitions—prompted by district court orders instructing him

to clarify the conviction he was challenging and whether he

had presented his challenge to the state courts—his filings

eventually converged on a single issue. Grigsby argued that

his rights to due process and effective assistance of counsel

were violated because his 1988 conviction was enhanced

based on his 1978 conviction, which, according to him, was

unconstitutionally obtained because he did not receive

counsel at the time of his juvenile waiver hearing. The

district court denied the petition. The court relied on

Lackawanna County District Attorney v. Coss, 532 U.S. 394

(2001), to find that Grigsby met the custodial requirement of

§ 2254. However, citing Martin v. Deuth, 298 F.3d 669, 671-72

(7th Cir. 2002), the court found that Grigsby could not

challenge the use of his 1978 conviction to enhance his 1988

sentence because he had fully served the sentence for his

1978 conviction.

We begin with the district court’s reliance on Lackawanna.

In Lackawanna and Daniels v. United States, 532 U.S. 374

(2001), the Supreme Court established the principle that

“once a state conviction is no longer open to direct or

collateral attack in its own right . . . ,” a habeas petitioner

“generally may not challenge the enhanced sentence
No. 04-3356 5

through a petition under § 2254 on the ground that the prior

conviction was unconstitutionally obtained.” Lackawanna,

532 U.S. at 404. But, the Court recognized a single exception:

a petitioner may challenge an enhanced sentence when it is

based on a previous conviction that was obtained in violation of Gideon v. Wainwright, 372 U.S. 335 (1963), which

announced the Sixth Amendment right to counsel.

Lackawanna, 532 U.S. at 404-05.

Grigsby’s petition is facially consistent with the exception

described in Lackawanna. Martin, in which the petitioner

failed to assert the Lackawanna exception, 298 F.3d at 672,

does not bar Grigsby’s petition. Thus the question for us

is whether his 1978 conviction was obtained in violation

of his Sixth Amendment right to counsel. Grigsby argues

that his right to counsel was presumptively violated because

the record is silent regarding counsel’s presence at his

juvenile waiver hearing. Accordingly, he contends that the

burden shifts to the state to prove the absence of a Sixth

Amendment violation. Burgett v. Texas, 389 U.S. 109, 114-15

(1967).

Before we reach the merits of Grigsby’s claim, we must

first address three separate procedural issues, all raised for

the first time on appeal by the state. The state contends that

the petition is untimely and that the Lackawanna claim is

barred by procedural default. Procedural bars, as

Grigsby suggests, are affirmative defenses subject to forfeiture. See Trest v. Cain, 522 U.S. 87, 89 (1997); Lewis v.

Sternes, 390 F.3d 1019, 1029 (7th Cir. 2004). And, arguments

generally may not be raised for the first time on appeal.

Canaan v. McBride, 395 F.3d 376, 382 (7th Cir. 2005). But, we

are under no obligation to strictly enforce a state’s forfeiture

or a petitioner’s procedural failings. Rather, we must decide

whether “the interests of justice” require a resolution of the
6 No. 04-3356

merits of a petition despite procedural defenses raised for

the first time on appeal. Granberry v. Greer, 481 U.S. 129, 136

(1987); see Day v. McDonough, 126 S. Ct. 1675, 1681-82 (2006);

Jones v. Hulick, 449 F.3d 784, 787-88 (7th Cir. 2006).

Here, the state’s only responsive pleading in the district

court was its response, which was filed before Grigsby

refined his petition with several amendments and traverses.

In its response, the state observed that Lackawanna allows a

petitioner to assert a Sixth Amendment violation to invalidate a prior conviction used to enhance his present sentence,

but went on to explain that the “[p]etitioner makes no claim

that this is the case, and no such claim is readily apparent.”

The state did not, however, address the timeliness of

Grigsby’s petition or any potential procedural default.

We will not enforce the alleged untimeliness of Grigsby’s

petition. The state’s argument on appeal chastises Grigsby

for not arguing—presumably in his opening brief—that

we should look past the alleged untimeliness of his petition and his procedural default. But it was the state’s duty

to raise those defenses in the district court, and it has

provided us no reason to excuse its failure to do so.

Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir. 2004) (a

procedural default “is an affirmative defense that the state is

obligated to raise and preserve and . . . one that it can

waive.”). The timeliness of the petition, regardless of the

claims it raised, was clear at the time the state filed its

response. The period of limitations set out in 28 U.S.C.

§ 2244(b)(3) is not jurisdictional, and thus we are not bound

to enforce it against a petitioner. See Day, 126 S. Ct. at 1681.

In this case, it would be inappropriate for us to reach a

timeliness argument that the state did not raise in its

response in the district court, and which did not form the

basis for the district court’s ruling. Compare Day, 126 S. Ct.
No. 04-3356 7

at 1684 (district court may raise timeliness sua sponte despite

state’s erroneous concession that habeas petition was

timely), with Eberhart v. United States, 126 S. Ct. 403,

407 (2005) (per curiam) (government forfeited timeliness

of defendant’s Federal Rule of Criminal Procedure 33(b)

motion by raising it after district court ruled on motion’s

merits).

We also cannot determine that Grigsby failed to present

his claim to the state courts or should be barred by an

independent and adequate state procedural ruling. The state

argues that Grigsby failed to present his Lackawanna claim

to the Indiana Supreme Court and that the Indiana Court of

Appeals ruled that laches barred him from attacking his

1978 conviction. A habeas petitioner must ordinarily present

his claim to the highest state court to preserve federal

review, see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999);

Cossel v. Miller, 229 F.3d 649, 653 (7th Cir. 2000), and we

cannot consider a claim if we determine that “the state court

decision rests on a state procedural ground that is independent of the federal question and adequate to support the

judgment,” Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003).

The state constructs its procedural default and laches

arguments based on the 2001 post-conviction petition that

Grigsby filed in his 1978 case. That round of post-conviction

proceedings, however, is not relevant to Grigsby’s exhaustion of state remedies for his 1988 conviction—the conviction for which he now seeks collateral relief. Grigsby pursed

post-conviction relief for his 1988 conviction, but the state

has not provided any petitions, responses, or judicial

memoranda pertaining to that round of proceedings, nor

has it described the claims pursued and resolved during

those proceedings. The only evidence in the record regarding Grigsby’s attacks on his current sentence are docket
8 No. 04-3356

sheets. The state’s laches argument similarly ignores the

relevant post-conviction proceedings: those that attack

Grigsby’s 1988 conviction. The state has therefore failed to

meet its burden of showing that Grigsby did not properly

present his claims to the Indiana courts or that an independent and adequate state procedural ruling exists.

We turn now to the merits of Grigsby’s petition. His

Lackawanna claim turns on whether his juvenile waiver

hearing was a “critical stage[ ] of the prosecution” during

which Gideon required representation by counsel. Jackson

v. Miller, 260 F.3d 769, 775 (7th Cir. 2001). In 1977 Indiana

vested jurisdiction over “individuals under the age of

eighteen (18) years at the time the offense is alleged to have

been committed” in the juvenile courts. See Ind. Code § 31-

5-7-13 (1976). The juvenile court could, however, hold a

hearing to determine whether it should waive jurisdiction and transfer the juvenile to criminal court, if he was

sixteen years of age or older and was charged with certain

enumerated offenses. See Ind. Code § 31-5-7-14 (1976).

Generally, juveniles are entitled to counsel at waiver

hearings. See Application of Gault, 387 U.S. 1, 36 (1967)

(interpreting Kent v. United States, 383 U.S. 541, 561 (1966),

as confirming a juvenile’s right to counsel at a waiver

hearing); Summers v. State, 230 N.E.2d 320, 325 (Ind. 1967)

(applying Kent to establish juvenile’s right to full hearing

prior to transfer and right to counsel at hearing). And,

because “[p]resuming waiver of counsel from a silent record

is impermissible,” Burgett, 389 U.S. at 114-15, the state bears

the burden of proving that Grigsby’s Sixth Amendment

right to counsel was honored. But here the state does not

argue that counsel was in fact provided. Thus, Grigsby’s

claim would, without more, be a basis for granting his

habeas corpus petition.
No. 04-3356 9

3 The state also argues that, in addition to being unnecessary, a

juvenile waiver hearing did not occur in this case. (According

to the state, “[t]he scant record of a waiver proceeding is likely

because no proceeding was necessary and never occurred.”). The

state relies, in part, on Grigsby’s own post-conviction filings

in state court, in which he argued that he was deprived of a

waiver hearing (not simply counsel at the hearing). But a

state court, after conducting an evidentiary hearing, found that

a juvenile waiver hearing had occurred. The state’s conjecture

here, based only on the law as it existed in 1977, is insufficient

to overcome this factual finding, even though Grigsby once took

the same position that the state now asserts. Moreover, as

Grigsby points out, the state itself argued in the state court that

“[a]ll evidence indicates that a juvenile waiver hearing was

conducted before Defendant’s case was waived to adult criminal court.”

The state, however, challenges the notion that the juvenile

courts had original jurisdiction over Grigsby. In 1977, when

Grigsby’s waiver hearing would have occurred, the state

criminal courts had original jurisdiction over a juvenile

charged with first degree murder.3 See Ind. Code § 31-5-7-13

(1976). Contemporaneous state supreme court decisions

confirm this practice. See, e.g., Snodgrass v. State, 406 N.E.2d

641, 645 (Ind. 1980); Blythe v. State, 373 N.E.2d 1098, 1099

(Ind. 1978); Lindley v. State, 373 N.E.2d 886, 888-89 (Ind.

1978) (“child” defined to exclude all persons charged with

first degree murder). Notably, in Lindley, the court found

that a waiver hearing was not required to establish the

criminal court’s jurisdiction:

When the indictment for first degree murder was

returned by the grand jury, jurisdiction over the matter immediately vested in the criminal division of the

Lake Superior Court. At the same time the juvenile
10 No. 04-3356

division was immediately divested of jurisdiction. The

juvenile court subsequently did the only thing which by

law it could do it dismissed the petition for delinquency. We therefore hold there was no error in the

failure to hold a waiver hearing.

Lindley, 373 N.E.2d at 888-89. The court further observed,

relying on State ex rel. Imel v. Municipal Court, 72 N.E.2d 357

(Ind. 1946), “that it is the charge that is controlling.” Lindley,

373 N.E.2d at 888. Thus, contrary to the weight of general

precedent that explains the importance of counsel at a

juvenile waiver hearing, see Application of Gault, 387 U.S. at

36, the state argues that Grigsby, by operation of statute,

was not within the jurisdiction of the juvenile courts

because he was charged with first degree murder.

Grigsby responds that it is irrelevant that a juvenile

waiver hearing was optional; he contends that, because he

received a hearing, he was entitled to counsel. But defendants are entitled to counsel only at critical stages and, if the

hearing was optional and his transfer was automatic under

the Indiana Code, the waiver hearing was no longer

“critical” to Grigsby. Cf. Simpson v. State, 381 N.E.2d 1229,

1232 (Ind. 1978) (“Since the Juvenile Court had no jurisdiction over appellant as to the felony murder charge, the

waiver order on that charge was of no effect.”); Ind. Code §

35-13-4-1 (1976) (including felony murder within definition

of first degree murder). If the transfer to criminal court was

a fait accompli, as the state suggests it was, Grigsby’s Sixth

Amendment right could not have been transgressed.

Contemporaneous Indiana Supreme Court precedent

portrays a uniform application of state law and thus

Grigsby cannot claim that his Sixth Amendment right to

counsel was violated. Grigsby argues that “[n]owhere does

the Supreme Court, in its decisions upholding the obser-
No. 04-3356 11

vance [sic] the Sixth Amendment and due process rights at a

juvenile waiver hearing, allow for the right to counsel to be

diminished because the court may, many years later, be

found to not have proper jurisdiction over the case.” That

argument, however, does not undermine the state’s position

that a juvenile waiver hearing was not, under the Indiana

Code, a critical stage at the time it would have occurred.

Because his constitutional right to counsel was not violated,

Grigsby cannot set aside the use of his 1978 conviction to

enhance his 1988 sentence.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-1-06