Griffin v. Warden, NHSP

2017 DNH 169

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Griffin

v. Civil No. 16-cv-382-JD Opinion No. 2017 DNH 169 Warden, New Hampshire State Prison

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 based on his plea of guilty to theft by

unauthorized taking and the subsequent revocation of his parole.

As construed on preliminary review, Griffin alleges five claims

in support of his petition. The warden moves to dismiss all

claims, and Griffin objects. More recently Griffin filed a

motion for sanctions and a motion, titled as an affidavit, for

disqualification of the magistrate judge from this case.

Standard of Review

The Federal Rules of Civil Procedure apply to habeas

proceedings under § 2254 as long as the rules are not

inconsistent with statutory provisions and rules that apply to

habeas proceedings. Rule 12, Rules Governing § 2254 Cases in

the United States District Court. Although the warden’s motion

is titled as a motion to dismiss, because the warden has filed an answer, the motion is considered as a motion for judgment on

the pleadings under Federal Rule of Civil Procedure 12(c).

A motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) is reviewed under the standard used for

motions under Rule 12(b)(6). HSBC Realty Credit Corp. v.

O’Neill, 745 F.3d 564, 570 (1st Cir. 2014). In that review, the

court accepts all well-pleaded facts as true and resolves

reasonable inferences in the plaintiff’s favor. O’Shea v. UPS

Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016). To survive a

motion under Rule 12(b)(6), the complaint must state sufficient

facts to support a plausible claim for relief. In re Curran,

855 F.3d 19, 25 (1st Cir. 2017).

For purposes of a motion to dismiss and a motion for

judgment on the pleadings, the court generally is limited to the

allegations in the complaint. Fed. R. Civ. P. 12(d). The

court, however, may consider documents and materials whose

authenticity is not disputed that are submitted with the

complaint, referred to in the complaint, or submitted with the

answer to the complaint. Curran v. Cousins, 509 F.3d 36, 44

(1st Cir. 2007). Because other documents must be filed with an

answer to a § 2254 petition, the court may consider those

documents and materials along with documents and materials filed

by the petitioner in support of the petition. Rule 5, Rules

Governing § 2254 Cases.

2 Background

Griffin was arrested in September of 2013 for robbing the

Bank of America in Merrimack, New Hampshire. He was charged

with armed robbery, robbery, theft, and carrying a firearm

without a license. His counsel moved to suppress evidence

obtained by officers of the Merrimack Police Department who

stopped and searched Griffin after receiving a dispatch about

the robbery. The superior court denied the motion to suppress

and denied the motion for reconsideration.

After the motion to suppress was denied, Griffin decided to

plead guilty. During the hearing on his guilty plea held on

September 3, 2015, Griffin told the judge that he did not intend

to hurt anyone, which was an element of the offense of robbery.

As a result the hearing was terminated. Later that day, the

hearing resumed and Griffin pleaded guilty to theft by

unauthorized taking. In the acknowledgment and waiver of

rights, which he signed, Griffin agreed that he admitted the

truth of the charge of theft by unauthorized taking. Griffin

was sentenced on September 3, 2015, to three to six years in

prison and was released on parole in March of 2016.

On February 25, 2016, Griffin filed a pro se petition for

habeas corpus relief in state court in which he raised claims of

prosecutorial misconduct, plain error by the trial judge in

3 denying the motion to suppress, and ineffective assistance of

counsel. The state court held a hearing on May 6, 2016. Based

on Griffin’s hearing testimony, the court concluded that

Griffin’s claims “boil down to the fact that after a Motion to

Reconsider the denial of the Motion to Suppress was denied, he

claims Attorney Introcaso refused to file an interlocutory

appeal, he was forced to plead guilty. . . . In substance, he

claims that his plea was involuntary because he was not provided

the effective assistance of counsel during plea bargaining.”

Superior Court Order, May 16, 2016, at 3, Doc. 33-1. The court

denied the petition based on Griffin’s statements during his

change of plea hearing and denied his motion for

reconsideration.

In May of 2016, Griffin sent a letter to the prosecutor in

his criminal case that was deemed to be threatening. As a

result, the parole board revoked Griffin’s parole in June of

2016. Griffin did not appeal that decision and is currently

serving the remainder of his sentence.

Griffin filed his habeas petition in this court on August

22, 2016. As construed on preliminary review, Griffin brings

the following claims:

1. On September 11, 2013, MPD Lt. Paul Trepaney subjected

Griffin to (a) a Terry stop without a reasonable suspicion that

Griffin had committed a crime; and (b) a warrantless arrest

4 without probable cause, in violation of Griffin’s Fourth

Amendment rights.

2. MPD Lt. Paul Trepaney engaged in “deliberate deception”

and lied under oath in the May 8, 2014 hearing on the motion to

suppress evidence, in violation of Griffin’s Fourteenth

Amendment right to due process.

3. The prosecutor in Griffin’s criminal case knowingly

presented MPD Lt. Trepaney’s false testimony in the May 8, 2014

hearing on the motion to suppress, in violation of Griffin’s

Fourteenth Amendment right to due process.

4. Griffin’s conviction was obtained in violation of his

Sixth Amendment right to the effective assistance of counsel in

connection with the May 8, 2014 suppression hearing, in that:

a. Griffin’s trial counsel, Attorney Donald Blaszka, Jr.,

failed to offer exculpatory evidence at the suppression hearing;

b. Trial counsel failed to read discovery materials, in

preparation for the suppression hearing;

c. Trial counsel failed to confer with Griffin, in

preparation for the suppression hearing;

d. Trial counsel failed to maintain a duty of loyalty to

Griffin at the suppression hearing; and

e. Trial counsel failed to call police witnesses MPD Det.

Jim Sullivan and MPD Officer Daniel Lindblom, to impeach the

testimony of Lt. Trepaney at the suppression hearing.

5 5. Parole Board proceedings that resulted in the

revocation of Griffin’s parole in June 2016 were initiated in

retaliation for Griffin’s May 2016 Letter to the prosecutor in

Griffin’s criminal case, in violation of Griffin’s First

Amendment rights.

Discussion

The warden moves to dismiss all five of Griffin’s claims.

In support, the warden contends that claims one, two, and three

are procedurally barred because the New Hampshire Supreme Court

declined the discretionary appeal of Griffin’s state habeas

proceeding as untimely and the fourth and fifth claims were not

exhausted. Alternatively, the warden contends that claims one

through four were waived by Griffin’s guilty plea, that claims

one through three are not cognizable in a habeas proceeding; and

that claim five cannot be raised in a habeas corpus proceeding.

Under § 2254, a petitioner is not entitled to relief unless

he can show first that he exhausted his claims in state court.

§ 2254(b). Then, the petitioner must show that the decision of

the state court was either contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,”

§ 2254(d)(1), or that the decision “was based on an unreasonable

6 determination of the facts in light of the evidence presented in

the State court proceeding,” § 2254(d)(2).

A. Procedural Default

“Federal habeas courts reviewing convictions from state

courts will not consider claims that a state court refused to

hear based on an adequate and independent state procedural

ground.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). To

overcome that bar, a petitioner must “establish ‘cause’ to

excuse the procedural default and demonstrate that he suffered

actual prejudice from the alleged error.” Id. The petitioner

may also overcome the bar if he can show “that failure to

consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The New Hampshire Supreme Court declined to hear Griffin’s

appeal from the denial of his habeas petition because the notice

of appeal was not timely filed. Failure to file a timely appeal

is a violation of state procedural rules. Coleman, 501 U.S. at

740. Therefore, the court cannot consider the claims Griffin

raised in his state habeas petition because they are

procedurally barred unless Griffin can meet the cause and

prejudice standard.

Griffin has not met that standard. He was proceeding pro

se when he filed the state habeas petition and then attempted to

7 appeal the state court’s denial of the petition. Griffin’s

reference to his counsel during the criminal proceeding is

misplaced as counsel did not represent Griffin for purposes of

the habeas proceeding.

As a result, the court cannot consider any claims that were

raised in Griffin’s state habeas petition. Claim three in the

federal petition repeats Griffin’s claim of prosecutorial

misconduct in the state petition and is barred. Claim four in

the federal petition repeats Griffin’s second claim of

ineffective assistance of counsel in the state petition and is

barred. Claims one and two do not appear to have been raised in

the state petition, and claim five, challenging the revocation

of his parole, also was not raised in the state petition.

B. Exhaustion

Claims brought in support of a § 2254 petition must first

be raised in state court. § 2254(b). Griffin pleaded guilty

and did not file a direct appeal. The only proceeding in which

he raised claims was his state habeas proceeding. The claims

raised in the state habeas petition are procedurally defaulted

and the claims not raised there are unexhausted.

C. Guilty Plea

In addition, Griffin has waived claims one through four by

pleading guilty to the charge of theft by unauthorized taking.

8 See United State v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994);

Mack v. Dickhaut, 2012 WL 503683, at *14 (D. Mass. Jan. 25,

2012). Griffin’s claims, as allowed on preliminary review, do

not challenge his guilty plea. Therefore claims one through

four are also waived.

D. Pending Motions

Before preliminary review was complete, Griffin filed a

motion for summary judgment along with several other motions.

In light of the disposition of Griffin’s claims as explained

above, the motion for summary judgment is denied.

Griffin filed a “Motion for Sanctions for Attempted Brady

Violation by NH A.G. Office,” citing Federal Rule of Civil

Procedure 37. In the motion, Griffin states that he has

enclosed seven documents that were part of his state court

record, which he represents contain exculpatory evidence and

impeachment evidence against the Merrimack police officer who

initially stopped him after the bank robbery. He asserts that

“[b]y not reproducing these seven documents, [counsel for the

warden] does violate Brady by attempting to keep this evidence

from the Federal District Court’s consideration in the above

Petition for a Writ of habeas corpus.” Griffin did not enclose

the seven documents, as he represents he did.

9 Under Brady v. Maryland, 373 U.S. 83 (1963), “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Id. at 87. As

such, the requirements of Brady apply in the context of criminal

proceedings. Therefore, Griffin has not shown grounds to

support his motion for sanctions.

Griffin also filed a document that is titled “Affidavit for

Disqualification of Magistrate Judge Andrea K. Johnstone per 28

U.S.C.A. § 455(b)(1,2).” The caption on that filing is not for

this case, although Griffin used this case number and filed the

affidavit in this case. Further, to the extent Griffin intended

to move for the magistrate judge to recuse herself from this

case, that matter is moot.

Conclusion

For the foregoing reasons, the warden’s motion to dismiss

(document no. 48) is granted. The petitioner’s motion for

summary judgment (document no. 26) and motion for sanctions

(document no. 55) are denied. The petitioner’s affidavit for

disqualification (document no. 56) is denied as moot. The court

declines to issue a certificate of appealability as the

10 petitioner has failed to make a substantial showing of the

denial of a constitutional right. See 28 U.S.C. § 2253(c).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

August 30, 2017

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