Griffin v. Warden, NHSP

2017 DNH 138

• Court: District Court, D. New Hampshire
• Decided: July 17, 2017
• Docket: 16-cv-382-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John R. Griffin, Jr.

v. Civil No. 16-cv-382-JD Opinion No. 2017 DNH 138 Warden, New Hampshire State Prison for men

O R D E R

John Griffin, who is proceeding pro se, seeks a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 for relief from his

state conviction on bank robbery charges and the subsequent

revocation of his parole. As construed on preliminary review,

Griffin alleges five claims in support of his petition. The

Warden has filed an answer, and counsel states that she is in

the process of obtaining copies of Griffin’s state court

filings.

Griffin has moved for modification of his custody status,

for discovery, for an evidentiary hearing, and for sanctions.

The Warden objects to those motions. Griffin filed a response

to the Warden’s objection.

I. Custody

Griffin asks the court to order the Warden to release him

on his own recognizance. In support, Griffin asserts that he

has presented a strong showing in support of his petition and that he is not a danger to the public. The Warden objects,

arguing that Griffin does not meet the requirements for release

while his habeas petition is pending.

A habeas petitioner has no presumption of innocence, and

instead, the state has “a substantial interest in executing its

judgment.” Glynn v. Donnelly, 470 F.2d 95, 99 (1st Cir. 1972).

For those reasons, there is “a formidable barrier for those who

seek interim release while they pursue their collateral

remedies.” Id. In order to seek release on bail, a § 2254

petitioner must show both that he has raised substantial

questions in support of his petition on which he has a high

likelihood of success and that extraordinary circumstances

support release. Marchetti v. O’Brien, 2016 WL 5660412, at *5-6

(D. Mass. Sept. 29, 2016); Graham v. Sabol, 2010 WL 971820, at

*1-*2 (D. Mass. Mar. 9, 2010).

Griffin has made neither showing here. Therefore, Griffin

cannot be released on personal recognizance.

II. Discovery

Griffin moves for discovery under Rule 6 of the Rules

Governing Section 2254 Cases before the Warden has filed the

materials required under Rule 5. He asks to have the Warden

produce his state habeas petition with supporting documentation,

police reports and other documents related to the robbery on

2 September 11, 2013, the transcript of his suppression hearing,

and state court documents. Griffin represents that the

documents he seeks were filed with his state habeas petition and

should be part of the state record of that proceeding.

In the answer, counsel for the Warden represents that she

is in the process of obtaining the pleadings filed with the New

Hampshire Supreme Court. Counsel explains further in the

response to Griffin’s motion what documents have been obtained

and the efforts taken to obtain transcripts. Counsel

anticipates that the transcripts will be ready soon and plans to

file and send to Griffin copies of the court record documents

with the transcripts.

Despite Griffin’s accusations of dishonesty and a lack of

due diligence by counsel for the Warden, nothing out of the

ordinary appears to have occurred. Once counsel files and

provides to Griffin the materials required by Rule 5, Griffin

will have the opportunity to file a motion under Rule 6, if

necessary, to obtain additional documents.

III. Hearing

Griffin seeks an evidentiary hearing because the Warden has

not yet produced the record from his habeas proceeding in state

court. Griffin’s motion is premature because the Warden has

been directed to file the materials required by Rule 5. See

3 Order, doc. no. 29; see also Rule 8, Rules Governing Section

2254 Cases.

IV. Sanctions

Griffin seeks sanctions against the Warden under Federal

Rule of Civil Procedure 37 because the Warden has not yet

produced the state court record. The Warden has been directed

to comply with Rule 5 and has represented that those materials

will be filed as soon as the transcripts are received by

counsel. Therefore, sanctions are neither needed nor

appropriate.

Conclusion

For the foregoing reasons, the petitioners motion for a

change in his custody status (document no. 35), motion for

discovery (document no. 36), motion for an evidentiary hearing

(document no. 37), and motion for sanctions (document no. 34)

are denied.

The Warden shall file and provide to Griffin the materials

required by Rule 5 on or before August 1, 2017, or file a status

report to explain the delay.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge July 17, 2017

4 cc: John R. Griffin, pro se Elizabeth C. Woodcock, Esq.