Griffin v. Sec'y, Fla. Dep't of Corr.

787 F.3d 1086

Michael Allen GRIFFIN, Petitioner–Appellant

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 14–14851–P.

United States Court of Appeals, Eleventh Circuit.

May 28, 2015.

Martin J. McClain, Linda McDermott, McClain & McDermott, PA, Wilton Manors, FL, for Petitioner–Appellant.

Sandra Jaggard, Attorney General's Office, Miami, FL, for Respondents–Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before: ED CARNES, Chief Judge, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

Opinion

ED CARNES, Chief Judge:

Florida prisoner Michael Griffin asks us to reconsider the single-judge order denying him a certificate of appealability (COA). He argues that jurists of reason could debate whether Federal Rule of Civil Procedure 60(b)(5) and 60(b)(6) permit him to challenge the district court's judgment denying his § 2254 petition by seeking a retroactive application of the Supreme Court's decisions in Trevino v. Thaler and Martinez v. Ryan. See Trevino, –––U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) ; Martinez, –––U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

Insofar as the Rule 60(b)(6) part of the application is concerned, it is squarely foreclosed by our decision in Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir.2014). For that reason, no COA should issue on it. See Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1261 (11th Cir.2009) (holding that a COA should be denied where the claim “is foreclosed by a binding decision [of] this Court”) (quotation marks omitted). The Rule 60(b)(5) part of the application is not already covered by binding precedent precisely on point, so we will discuss it. Griffin's contention is that the final clause in Rule 60(b)(5), which permits litigants to challenge “a final judgment [when] applying it prospectively is no longer equitable,” permits him to use Martinez and Trevino to raise ineffective-assistance-of-counsel claims that in his previous federal habeas proceeding were denied based on procedural default.

I.

Griffin shot and killed Officer Joseph Martin while attempting to evade the police after burglarizing a Florida hotel. Griffin v. State, 639 So.2d 966, 967 (Fla.1994). He was convicted of first-degree murder, along with several other felonies, and sentenced to death.¹ Id. at 967–68. The Florida Supreme Court affirmed his convictions and sentence on direct appeal. Id. at 972 & n. 4. It also affirmed the denials of his two motions for postconviction relief. Griffin v. State, 866 So.2d 1, 22 (Fla.2003) (affirming the denial of Griffin's first Rule 3.851 motion); Griffin v. State, 992 So.2d 819 (Fla.2008) (unpublished) (affirming the denial of Griffin's second Rule 3.851 motion).

Griffin then turned to federal court, filing a 28 U.S.C. § 2254 petition in October 2008. The district court denied his petition a year later. Griffin v. McNeil, 667 F.Supp.2d 1340, 1373 (S.D.Fla.2009). In its order, the court rejected five of Griffin's ineffective-assistance-of-counsel claims on the grounds that they were (1) procedurally barred and (2) meritless. See id. at 1357–62, 1366–67. Both the district court and this Court denied Griffin's motions for a COA, and the Supreme Court denied certiorari in May 2012. See Griffin v. Tucker, ––– U.S. ––––, 132 S.Ct. 2440, 182 L.Ed.2d 1070 (2012).

Two years later, Griffin filed a motion in the district court under Federal Rule of Civil Procedure 60(b) seeking relief from the court's judgment denying his § 2254 petition. He argued that, based on the Supreme Court's recent decisions in Trevino and Martinez, he should be allowed to present four of his five ineffective-assistance-of-counsel claims that had been held to be procedurally barred when his federal habeas petition was denied in 2009. The district court denied the motion, reasoning that, among other things, Griffin's challenge could not be brought under Rule 60(b). Griffin then filed a motion under Federal Rule of Civil Procedure 59(e) asking the court to alter or amend its order denying Griffin's Rule 60(b) motion. The court denied that motion as well. Having failed to persuade the district court, Griffin filed a notice of appeal and requested a COA, but the district court declined to grant one.

Griffin thereafter filed a motion in this Court seeking a COA, which a single judge of this panel denied. Griffin responded by filing a motion requesting that the Court reconsider the denial of a COA and grant one on the following issue: “Whether Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) entitles Mr. Griffin to relief from the denial of his habeas petition under Federal Rule of Civil Procedure 60(b)(5) or 60(b)(6) such that the District Court should excuse Mr. Griffin's procedural default barring his ineffective-assistance-of-trial-counsel claim?” As we have already explained, the Rule 60(b)(6) part of the issue is squarely foreclosed by our decision in Arthur, 739 F.3d at 631. We turn now to whether a COA should be granted on the Rule 60(b)(5) part of it.

II.

To appeal the denial of a Rule 60(b)(5) motion, a habeas petitioner must be granted a COA. See 28 U.S.C. § 2253(c)(1) ; Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir.2006). Where the issue involves both a procedural and a substantive component, a COA may not issue unless the petitioner makes the required showings: (1) “that he had a valid claim of the denial of a constitutional right,” and (2) “that the procedural ruling is wrong.”

Jackson, 437 F.3d at 1295 (quoting Gonzalez v. Sec'y for Dep't of Corr., 366 F.3d 1253, 1267 (11th Cir.2004) ). “These two ‘substantial showings,’ both procedural and substantive, mean that it must be ‘debatable among reasonable jurists' both that the petitioner was denied a constitutional right, and that the district court's procedural decision was wrong.” Id. (quoting Gonzalez, 366 F.3d at 1268 ); see Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004) ; Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S.Ct. 1595, 1603–04, 146 L.Ed.2d 542 (2000) ; see also Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must show 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.”) (alteration omitted) (quotation marks omitted).

Griffin relies on the last clause in Rule 60(b)(5), which states that “the court may relieve a party ... from a final judgment” if “applying it prospectively is no longer equitable.” Fed.R.Civ.P. 60(b)(5). None of the advisory committee notes define “prospectively,” but the word means “[e]ffective or operative in the future.” See Black's Law Dictionary 1417 (10th ed.2014). The plain meaning of “prospectively” in this context is reinforced by decisions of the Supreme Court and this Court.

A.

The Supreme Court has made it clear that Rule 60(b)(5) applies in ordinary civil litigation where there is a judgment granting continuing prospective relief, such as an injunction, but not to the denial of federal habeas relief. In Agostini v. Felton, the Board of Education of the City of New York sought relief from a permanent injunction that was based on the Supreme Court's earlier interpretation of the Establishment Clause in Aguilar v. Felton. See Agostini, 521 U.S. 203, 208–09, 117 S.Ct. 1997, 2003, 138 L.Ed.2d 391 (1997) (citing Aguilar, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985) ). The Agostini Court held that the Board was entitled to relief under Rule 60(b)(5) because later Establishment Clause decisions had effectively overruled Aguilar, making ongoing injunctive relief based on that decision inequitable. See Agostini, 521 U.S. at 237, 117 S.Ct. at 2017.

In its Agostini opinion, the Supreme Court limited its holding in the course of rejecting the argument that the decision would create “a deluge of Rule 60(b)(5) motions premised on nothing more than the claim that various judges or Justices have stated that the law has changed.” Id. at 238, 117 S.Ct. at 2018. The Court explained that, because the last clause of Rule 60(b)(5) applies only to judgments with “prospective application,” there would be:

no effect outside the context of ordinary civil litigation where the propriety of continuing prospective relief is at issue. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 [103 L.Ed.2d 334] (1989) (applying a more stringent standard for recognizing changes in the law and “new rules” in light of the “interests of comity” present in federal habeas corpus proceedings).

Agostini, 521 U.S. at 239, 117 S.Ct. at 2018. The Court's citation of Teague was to contrast federal habeas with “ordinary civil litigation where the propriety of continuing prospective relief is at issue.”Id. With federal habeas, the operative provision was not Rule 60(b)(5) but the retroactivity test announced in the Teague decision. That test, as the Court noted, is “more stringent” than the 60(b)(5) one. Id.

The reason there was no need to worry about “a deluge of Rule 60(b)(5) motions” based on nothing more than a change in the law, the Court reasoned, is that the rule does not apply in most civil cases including, for example, federal habeas cases. Id. at 238–39, 117 S.Ct. at 2018. The reason it does not apply is that, unlike civil cases in which the judgment granted injunctive relief of some sort, there is no injunctive relief or continuing prospective effect within the meaning of Rule 60(b)(5) in federal habeas cases. In this way the Court sent a clear message in its Agostini opinion that Rule 60(b)(5) does not apply in federal habeas proceedings, at least the typical ones where the judgment is an unconditional denial of habeas relief with no injunctive relief.²

The Supreme Court bolstered Agostini 's interpretation of ...