Larry Jerome Grady v. Kevin White, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10217
Non-Argument Calendar
____________________
LARRY JEROME GRADY,
Petitioner-Appellant,
versus
KEVIN WHITE,
Capt.,
ATTORNEY GENERAL, STATE OF ALABAMA,
STATE OF ALABAMA,
LEE COUNTY, ALABAMA,
Respondents-Appellees.
____________________
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2 Opinion of the Court 23-10217
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:22-cv-00508-ECM-SMD
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Before J ORDAN , G RANT, and L AGOA, Circuit Judges.
PER CURIAM:
Larry Grady, proceeding pro se, appeals the district court’s
denial of his “Motion to Reconsider Appeal to Federal Court 2254.”
The magistrate judge construed Grady’s motion as seeking an
order (1) directing a state court to grant his application to proceed
in forma pauperis and to send litigation documents to the federal
court, and (2) granting Grady habeas relief under 28 U.S.C. § 2254.
The magistrate judge recommended dismissing Grady’s motion for
lack of jurisdiction, which the district court adopted after receiving
no objections from Grady. We agree with the magistrate judge’s
analysis and affirm.
Grady does not now challenge the district court’s
conclusions—he merely raises the same arguments about the
impropriety of his prior conviction. While we hold the allegations
of pro se litigants to “less stringent standards than formal pleadings
drafted by lawyers,” we may not “serve as de facto counsel for a
party” or “rewrite an otherwise deficient pleading in order to
sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–
69 (11th Cir. 2014). An appellant abandons any argument not
briefed on appeal, made in passing, or raised briefly without
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23-10217 Opinion of the Court 3
supporting arguments or authority. Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681–82 (11th Cir. 2014) (collecting cases). Grady
has forfeited any challenge to the district court’s conclusion that it
lacks jurisdiction over his motion.
Even if Grady had not forfeited those arguments, we would
agree with the district court’s ruling. First, “federal courts have no
general power to issue writs of mandamus to direct state courts
and their judicial officers in the performance of their duties where
mandamus is the only relief sought.” Lamar v. 118th Judicial Dist.
Ct., 440 F.2d 383, 384 (5th Cir.1971).1 The district court properly
denied Grady’s motion to the extent that he seeks a writ directing
the Lee County Circuit Court to act.
Second, to the extent Grady seeks a writ of habeas corpus
under § 2254, the district court lacked jurisdiction over his action
because it is a successive habeas petition filed without the required
appellate court permission. In 2011, Grady filed a habeas petition
challenging the same underlying conviction, and the court denied
Grady relief, dismissing his petition with prejudice. See Grady v.
Jones, No. 3:11-CV-430, 2014 WL 793541 (M.D. Ala. Feb. 26, 2014).
Grady could have raised his current arguments in his previous
habeas petition, and he has “no legitimate excuse for failure to do
so.” Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011). This
kind of successive habeas petition is only possible with permission
1 This Court has adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to close of business on September 30, 1981. Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
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4 Opinion of the Court 23-10217
from the appropriate court of appeals. 28 U.S.C. 2255(h). Because
Grady has not furnished a certification from this Court permitting
a successive habeas petition, the district court lacked jurisdiction to
grant the requested relief. Gilreath v. State Bd. of Pardons & Paroles,
273 F.3d 932, 933 (11th Cir. 2001).
On appeal, Grady has also filed a “Motion to Amend under
Newly Discovered Evidence,” which we construe as a motion to
consider supplemental arguments. We have long held that “an
appellant who does not raise an issue in his opening brief may not
do so in his reply brief [or] in a supplemental brief.” United States
v. Durham, 795 F.3d 1329, 1330 (11th Cir. 2015). So to the extent
that Grady seeks to raise new issues on appeal, the motion is
denied. And we also deny the motion to the extent that Grady
seeks leave to file a supplemental brief.
Because the district court lacked jurisdiction over Grady’s
suit, we AFFIRM.
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