Anthony Grigsby v. ZETTIE COTTON , Superintendent

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3356
A NTHONY G RIGSBY ,
Petitioner-Appellant,
v.
Z ETTIE C OTTON , 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.
____________
A RGUED A PRIL 19, 2006—D ECIDED A UGUST 1, 2006
____________
Before C OFFEY , E ASTERBROOK , and M ANION , Circuit Judges.
M ANION , 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 bur-
glary 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

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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) (unpub-
lished 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 peti-
tions. We begin with the petitions attacking his 1978

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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 post-
conviction 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 post-
conviction 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 with-
out 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

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4 No. 04-3356
petition, though the court granted his request to withdraw
that petition in October 1996. Grigsby filed his second post-
conviction 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

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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 viola-
tion 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 for-
feiture. 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

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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 invali-
date 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 peti-
tion 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.

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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 inde-
pendent 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 exhaus-
tion of state remedies for his 1988 conviction—the convic-
tion 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 regard-
ing Grigsby’s attacks on his current sentence are docket

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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 independ-
ent 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 jurisdic-
tion 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.

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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 crim-
inal 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 mat-
ter immediately vested in the criminal division of the
Lake Superior Court. At the same time the juvenile

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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 delin-
quency. 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 defen-
dants 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 jurisdic-
tion 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-

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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.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-06

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