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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WILLIE J. GRIFFIN, JR.,

Petitioner,

v. Case No. 3:10cv342/RV/MD

C.J. DeROSA, 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

This cause is before the court on a petition for writ of habeas corpus filed by

petitioner under 28 U.S.C. § 2254 (doc. 1). The matter is referred to the undersigned

magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and

N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by

petitioner, it is the opinion of the undersigned that no evidentiary hearing is required

for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is

further the opinion of the undersigned that the record before the court shows that

the petition, construed as a new § 2254 petition, is subject to dismissal as an

unauthorized “second or successive” habeas corpus application, and that 

construed as a motion for relief from judgment under Federal Rule of Civil Procedure

60(b), the petition is due to be denied.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner is attacking a March 19, 1996 conviction for possession of a

controlled substance entered in the Circuit Court of Escambia County, Florida. (Doc.

1, Pet. at 1). His sentence was an 18-month term of probation. Petitioner indicates
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that he is presently in federal custody confined at the Federal Prison Camp in

Marion, Illinois.1

Petitioner first challenged his 1996 state court conviction in August of 1999,

when he sought habeas corpus relief under 28 U.S.C. § 2254 in this court. (See

Griffin v. Lowman, Case No. 3:99cv336/RH/SMN). On March 6, 2000, the petition was

dismissed with prejudice as untimely. (Id., docs. 11-13). Two and a half years later

in December of 2002, petitioner submitted for filing a “Motion for Appropriate Relief

Pursuant to Fed. R. of Civ. Proc R. 60(b).” The document was returned to petitioner

without filing on a deficiency order noting that the case was closed and would not

be reopened. (Id., doc. 16).

On July 20, 2002, petitioner filed another § 2254 petition in this court

challenging the same conviction. (See Griffin v. C.J. DeRosa, Case No.

3:02cv325/RV/MCR). On September 16, 2002, that petition was dismissed without

The court takes judicial notice of its own records in United States of America v. Willie James

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Griffin, Jr., case number 3:99cr46/RV. These records reveal that on December 14, 1999 petitioner was

convicted in this court of Conspiracy to Possess with Intent to Distribute Cocaine and Cocaine Base,

and Possession with Intent to Distribute Cocaine. (Id., doc. 62). Petitioner was sentenced to

concurrent terms of 252 months imprisonment on each count. Petitioner filed a Motion to Vacate, Set

Aside, or Correct Sentence under 28 U.S.C. § 2255 on October 4, 2002 (Id., doc. 174). That motion was

denied on May 24, 2004. (Id., docs. 263, 264). Petitioner filed a subsequent § 2255 motion, which was

dismissed as successive on August 27, 2009.

Given the brevity of petitioner’s 1996 state court sentence, and the fact that he is not in state

custody at this time, it does not appear petitioner meets the “in custody” requirement necessary for

the exercise of this court’s jurisdiction. See Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923,

1925, 104 L.Ed.2d 540 (1989); Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d

554 (1968); cf. Landry v. Hoepfner, 840 F.2d 1201, 1204 n. 8 (5 Cir. 1988) (petitioner still eligible for

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habeas corpus relief despite expiration of probation because petitioner filed petition while on

probation), cert. denied, 489 U.S. 1083 (1989). Although it is possible that the 1996 conviction was

used to enhance petitioner’s current federal sentence, petitioner neither claims, nor alleges facts to

suggest that that is the case. Even assuming the 1996 state conviction was used to enhance

petitioner’s current federal sentence, petitioner would be required to bring his suit as a challenge

under 28 U.S.C. § 2255 rather than 28 U.S.C. § 2254. See Means v. Alabama, 209 F.3d 1241, 1242 (11

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Cir. 2000) (prisoner challenging an expired state sentence used to enhance his current federal

sentence must bring suit under 28 U.S.C. § 2255 rather than § 2254). See also Van Zant v. Florida

Parole Comm’n, 104 F.3d 325, 327 (11 Cir. 1997) (“In order to meet the ‘in custody’ requirement, the

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petitioner is deemed to be challenging the current sentence that has been enhanced by an expired

conviction, rather than directly challenging the expired conviction.”).

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prejudice as an unauthorized second or successive petition. (Id., docs. 2-4).

On March 3, 2003, petitioner filed another § 2254 petition in this court

challenging the same conviction. (See Griffin v. C.J. DeRosa, Case No.

3:03cv89/LC/MD). On April 4, 2003, that petition was dismissed without prejudice as

an unauthorized second or successive petition. (Id., docs. 4, 6, 7). Petitioner’s

motion for a certificate of appealability was denied by the Eleventh Circuit on July

9, 2003, and his appeal dismissed. (Id., doc. 29). His motion for reconsideration was

denied on August 20, 2003. 

The instant petition followed. The petition raises one ground for relief: that

this court erred in dismissing petitioner’s 1999 petition “versus equitably tolling the

petition until remedies were exhausted,” and that the court erred in treating all of 2

petitioner’s subsequent petitions as unauthorized second or successive petitions. 

(Doc. 1, Pet. at 5). In support of this claim, petitioner relies on Holland v. Florida, —

U.S. —, 130 S.Ct. 2549, 177 L.Ed.2d 130 (June 14, 2010), which held that the federal

habeas limitations period of 28 U.S.C. § 2244(d) is subject to equitable tolling, and

that the case required remand for a determination whether the conduct alleged on

the part of the prisoner’s attorney rose to the level of an “extraordinary

circumstance” sufficient to permit equitable tolling. 

DISCUSSION

Construed as a § 2254 Petition

To the extent petitioner attacks his 1996 conviction and sentence, his petition

should be construed as a § 2254 petition and dismissed without prejduice as an

unauthorized second or successive petition. Title 28 U.S.C. § 2244(b)(3)(A)provides: 

“Before a second or successive application . . . is filed in the district court, the

applicant shall move in the appropriate court of appeals for an order authorizing the

Petitioner states that his 1999 petition was dismissed for failure to exhaust. That is incorrect.

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It was dismissed with prejudice as untimely and because his claims were procedurally defaulted.

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district court to consider the application.” The instant petition, which is petitioner’s

fourth petition challenging his 1996 conviction, and which follows a prior petition

which was dismissed with prejudice as time-barred, is “second or successive.” It

plainly appears from the record that petitioner has failed to obtain the Eleventh

Circuit’s authorization to file the petition. This failure operates as a jurisdictional bar

that precludes this district court’s consideration of the merits of the petition. See

Fugate v. Dep’t of Corrections, 310 F.3d 1287, 1288 (11 Cir. 2002). th

Even if the court considered the merits of the petition, this case would be

subject to dismissal because petitioner fails to state a claim upon which federal

habeas relief can be granted. His claim that this court erred in dismissing his prior

federal habeas petitions without reviewing their merits does not undermine the

validityor legalityof his detention or imprisonment (i.e., the conviction itself); rather,

it presents an attack on a proceeding collateral to petitioner’s confinement. Quince

v. Crosby, 360 F.3d 1259, 1261-62 (11 Cir. 2004) (explaining that “while habeas relief th

is available to address defects in a criminal defendant’s conviction and sentence,

an alleged defect in a collateral proceeding does not state a basis for habeas

relief.”); see also Carroll v. Secretary, DOC, 574 F.3d 1354, 1365 (11 Cir.) (collecting th

cases), cert. denied, — U.S. —, 130 S.Ct. 500, 175 L.Ed.2d 355 (2009). 

Construed as a Rule 60(b) Motion

In light of the nature of petitioner’s claim and this court’s obligation to

construe pro se pleadings liberally, the undersigned has considered whether

petitioner would be entitled to relief if his pleading was construed as a motion for

relief from judgment under Federal Rule of Civil Procedure 60(b). See Gonzalez v.

Crosby, 545 U.S. 524, 531-32, 125 S.Ct. 2641, 2647-48, 162 L.Ed.2d 480 (2005)

(holding that state prisoner’s pleading challenging only the district court’s prior

ruling that the prisoner’s federal habeas petition was time-barred, was not the

functional equivalent of a “second or successive habeas petition,” but was properly

construed as a Rule 60(b) motion, explaining, “neither the [Rule 60(b)] motion itself

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nor the federal judgment from which it seeks relief substantively addresses federal

grounds for setting aside the movant’s state conviction.” ).

Rule 60(b) provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a

party . . . from a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

newlydiscovered evidence which bydue diligence could not have been

discovered in time to move for a new trial under Rule 59(b); (3) fraud .

. ., misrepresentation, or misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment. The motion shall

be made within a reasonable time, and for reasons (1), (2), and (3) not

more than one year after the judgment, order, or proceeding was

entered or taken.

Fed. R. Civ. P. 60(b). 

Here, petitioner’s only ground for reopening the 1999 judgment is that the

Supreme Court’s decision in Holland, supra, shows the error of this court’s

dismissal of his first petition as untimely, because he alleged that his attorney failed

to file a direct appeal as requested. (Doc. 1, Pet. at 5). By relying on Holland,

petitioner appears to be arguing that his attorney’s failure to file a direct appeal

warranted equitable tolling of the federal habeas limitations period. 

The only plausible subsection petitioner could be deemed to be invoking is

Rule 60(b)(6). The Supreme Court has required a movant seeking relief under Rule

60(b)(6) to show “extraordinary circumstances” justifying the reopening of a final

judgment. Gonzalez, 545 U.S. at 535; 125 S.Ct. at 2649 (citing cases). The change

in the law worked by Holland’s holding is not an “extraordinary circumstance”

justifying reopening of the 1999 judgment. Petitioner did not present facts in his

1999 petition or the present one suggesting that his attorney’s failure to file a direct

appeal rose to the level of the attorney misconduct alleged in Holland. Moreover,

unlike the petitioner in Holland, the petitioner here neither claimed, nor alleged facts

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to suggest that he met the other prerequisite for entitlement to equitable tolling –

that he exercised diligence in attempting to file his federal habeas petition on time. 

Indeed, in the 1999 case petitioner did not even respond to the State’s assertion of

the statute-of-limitations defense, and his pleading filed in the instant case does not

remotely suggest petitioner was diligent. 

This court’s dismissal of petitioner’s 1999 petition was correct, even in light

of Holland. Therefore, the Supreme Court’s decision in Holland does not constitute

an “extraordinary circumstance,” as required for petitioner to prevail in his motion

for relief from the court’s 1999 judgment. The same applies to petitioner’s attacks

on the 2002 and 2003 judgments dismissing his subsequent § 2254 petitions as

unauthorized “second or successive” petitions. The court was correct in construing

those petitions as “second or successive” habeas applications and in dismissing

them as unauthorized. Petitioner has not alleged grounds entitling him to Rule 60(b)

relief. 

CONCLUSION

Construed as a new § 2254 petition, the instant petition should be dismissed

as an unauthorized “second or successive” habeas application. Liberallyconstrued

as a Rule 60(b) motion for relief from the 1999, 2002 and 2003 judgments, the petition

should be denied because petitioner has not demonstrated his entitlement to Rule

60(b) relief. 

CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule

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11(a), Rules Governing Section 2254 Cases. A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules

Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595,

1603-04, 146 L.Ed.2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” If there is an objection to this recommendation by either party, that

party may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the petition (doc. 1), construed as a § 2254 petition, be DISMISSED.

2. That the petition (doc. 1), construed as a Rule 60(b) motion for relief from

judgment, be DENIED and this case DISMISSED.

3. That the clerk be directed to close the file. 

4. That a certificate of appealability be DENIED. 

At Pensacola, Florida this 20 day of September, 2010.

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 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv342/RV/MD