USA v. Troy Markeith Griffin

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11808
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY MARKEITH GRIFFIN,
a.k.a. OGC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:15-cr-00453-MSS-AEP-1
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2 Opinion of the Court 23-11808
____________________
Before ROSENBAUM, J ILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Troy Markeith Griffin, a federal prisoner proceeding pro se,
filed motions in the district court, seeking dismissal of the indict-
ment against him and suppression of evidence used at his criminal
trial. The district court dismissed the motions, concluding that it
lacked jurisdiction to consider them. After careful consideration,
we affirm.
I.
In November 2015, Griffin, along with several others, was
charged with conspiracy to commit Hobbs Act robbery (Count
One), Hobbs Act robbery (Count Two), and brandishing a firearm
in furtherance of a crime of violence, specifically the conspiracy
charged in Count One (Count Three). A jury found Griffin guilty
of all three crimes. The district court sentenced him to a total sen-
tence of 294 months’ imprisonment: 210 months for Counts One
and Two, followed by a consecutive sentence of 84 months for
Count Three. On an initial direct appeal, we affirmed Griffin’s con-
victions and sentence. See United States v. Griffin (Griffin I), 724 F.
App’x 808 (11th Cir. 2018) (unpublished).
Griffin, proceeding pro se, filed a § 2255 motion to vacate his
sentence, primarily raising ineffective-assistance-of-counsel claims.
During those proceedings, the district court ordered the govern-
ment to address the effect of United States v. Davis, 139 S. Ct. 2319
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23-11808 Opinion of the Court 3
(2019), on Griffin’s conviction on Count Three. In response, the
government conceded that this conviction should be vacated. The
district court subsequently vacated the conviction on Count Three
but otherwise denied Griffin relief. The district court then held a
new sentencing hearing and imposed a sentence of 235 months for
Counts One and Two.
Griffin appealed. He argued that his new sentence was not
substantively reasonable. But we concluded that the “district court
was within its discretion to resentence him to 235 months’ impris-
onment” and affirmed. United States v. Griffin (Griffin II), No. 21-
12727, 2023 WL 239763, at *3 (11th Cir. Jan. 18, 2023) (un-
published). Griffin also argued on appeal that the district court
abused its discretion by not vacating all of his convictions and or-
dering a new trial. Id. at *2 n.1. We dismissed this portion of the
appeal, concluding that we “lack[ed] jurisdiction to entertain” it be-
cause Griffin did “not have a certificate of appealability.” Id.
After we issued our decision in Griffin II but before the man-
date in that appeal issued, Griffin filed a motion in the district court
under Federal Rule of Criminal Procedure 12(b)(3), seeking dismis-
sal of the indictment. He argued that the defect with respect to the
firearm charge in Count Three infected the “whole of the indict-
ment” and that, as a result, the indictment was “not plain, concise[,]
or definite.” Doc. 425 at 1–2.1 A few days after Griffin filed this mo-
tion, we issued the mandate in Griffin II.
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 23-11808
After reviewing Griffin’s Rule 12(b)(3) motion, the district
court issued an order, noting that Griffin was challenging the in-
dictment but that any “claim collaterally attacking his convictions
and sentences” had to be raised in a motion to vacate filed under
28 U.S.C. § 2255. Doc. 428 at 2. The district court explained that it
could construe Griffin’s filing as a § 2255 motion but warned him
about the limit on second or successive § 2255 motions. The court
asked Griffin whether he agreed that his motion should be con-
strued as seeking relief under § 2255. Griffin responded that he did
not agree with his motion being construed as a motion to vacate
under § 2255 and stated that he was proceeding instead under Rule
12(b)(3). He later filed a motion to suppress “all and any evidence”
pertaining to the firearm charge in Count Three. Doc. 430 at 2. He
purported to file that motion under Rule 12(b)(3) as well.
The district court dismissed both of Griffin’s motions. The
court explained that because an appellate court had previously af-
firmed his convictions and sentences, Griffin’s case was “no longer
pending” before the district court, and thus it “lack[ed] jurisdiction
to rule on” the motions. Doc. 431 at 2. This is Griffin’s appeal.
II.
We review “de novo questions regarding a district court’s
subject matter jurisdiction.” United States v. Wilson, 979 F.3d 889,
902 n.6 (11th Cir. 2020).
III.
Federal Rule of Criminal Procedure 12 provides that certain
types of motions, including motions to suppress and some types of
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23-11808 Opinion of the Court 5
motions raising defects in indictments, must be filed before trial.
Fed. R. Crim. P. 12(b)(3)(B), (C). If a defendant files one of these
motions after the start of trial, the motion is “untimely,” and a
court may consider the motion only if the defendant “shows good
cause” for the delay. Fed. R. Crim. P. 12(c)(3); United States v. An-
dres, 960 F.3d 1310, 1316 (11th Cir. 2020).
In addition, when an appeal is filed, the district court is di-
vested of jurisdiction “over the matters at issue in the appeal, ex-
cept to the extent that the trial court must act in aid of the appeal.”
Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986). In
United States v. Diveroli, while a defendant’s direct appeal was pend-
ing, he filed a motion to dismiss in the district court, arguing that
there was a defect in the charging document. 729 F.3d 1339, 1340–
41 (11th Cir. 2013). Although the district court considered the mer-
its of the motion, we held that it lacked jurisdiction to entertain the
motion while the defendant’s direct appeal was pending. Id. at
1341–43. And in United States v. Elso, we held that a district court
“lacked authority to hear” a Rule 12(b)(3) motion filed after the de-
fendant’s direct appeal proceedings had concluded. 571 F.3d 1163,
1166 (11th Cir. 2009).2
2 At the time Diveroli and Elso were decided, an earlier version of Federal Rule
of Criminal Procedure 12(b)(3) was in effect. Under that version of the rule, a
district court could hear a claim that the indictment failed to state an offense
so long as the motion was filed “while the case [was] pending.” Elso, 571 F.3d
at 1166 (quoting Fed. R. Crim. P. 12(b)(3)). Even considering that Rule 12(b)(3)
was later amended to provide that such a motion be filed before trial, Diveroli
and Elso nevertheless tell us that a district court lacks jurisdiction to consider a
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6 Opinion of the Court 23-11808
Here, by the time Griffin filed his Rule 12(b)(3) motion to
dismiss, the district court had vacated his conviction on Count
Three and imposed a new sentence on Counts One and Two. In
addition, we had issued our opinion in Griffin II affirming the new
sentence, although we had not yet issued the mandate for that ap-
peal. Because the direct appeal was pending in an appellate court
when Griffin filed the motion to dismiss, the district court lacked
jurisdiction to consider it. See Diveroli, 729 F.3d at 1341. It is true
that we issued the mandate in Griffin II a few days later. But because
we affirmed, our decision meant that Griffin’s direct appeal pro-
ceedings had concluded, and his case had ended. See Elso, 571 F.3d
at 1165–66. The district court thus lacked jurisdiction to consider
his motion to dismiss. See id. at 1166. Similarly, the district court
lacked jurisdiction to consider the motion to suppress because Grif-
fin filed it after his direct appeal had concluded.3 Id.
AFFIRMED.
Rule 12(b)(3) motion filed while the defendant’s direct appeal is pending or
after his appellate proceedings have concluded.
3 Also pending before the Court is Griffin’s Motion for Default. That motion
is DENIED.
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