Griffin v. Kelley

Filing 10

RECOMMENDED DISPOSITION recommending that 1 the Petition for a Writ of Habeas Corpus be denied and this habeas case be dismissed, with prejudice; and further recommending that a Certificate of Appealability be denied. Objections due within 14 days of the entry of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 2/27/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

JAMES R. GRIFFIN
ADC #162792
VS.

PETITIONER

5:17-CV-00158-DPM/JTR

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge D.P. Marshall, Jr. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of the entry of this
Recommendation. The failure to timely file objections may result in waiver of the
right to appeal questions of fact.
I. Background
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus
filed by Petitioner, James R. Griffin (“Griffin”). Doc. 1. Before addressing Griffin’s
habeas claims, the Court will review the procedural history of the case in state court.

1

On January 11, 2016, Griffin appeared, with counsel, in the Circuit Court of
Craighead County, Arkansas, and, pursuant to a negotiated plea, pleaded guilty to
one count of rape and two counts of sexual assault in the second degree. State of
Arkansas v. James R. Griffin, Craighead County Circuit Court Case No. CR 20150751 (“state criminal case”).1 Griffin was sentenced to an aggregate term of 360
months imprisonment. Docs. 5-1, 5-2.
Griffin did not pursue a direct appeal from his convictions.2 Griffin also did
not pursue post-conviction relief under Rule 37 of the Arkansas Rule of Criminal
Procedure.3
On August 17, 2016, Griffin filed a petition for a writ of error coram nobis in
the state criminal case. Doc. 5-4. On April 21, 2017, having received no ruling on
his pending petition, Griffin filed a petition for a writ of mandamus in the Arkansas
Supreme Court. Doc. 5-5. On April 28, 2017, the Craighead County Circuit Court
entered an Order denying his petition for a writ of error coram nobis, holding that
the alleged basis for relief was not cognizable. Doc. 5-6.

1

Circuit Judge Victor Hill presided. Respondent advises that this proceeding was
recorded, but has not been transcribed. Doc. 6-4.
2

Because he pled guilty, his right to appeal was limited. See, e.g., Arkansas Rule of
Appellate Procedure – Criminal 1(a) & Arkansas Rule of Criminal Procedure 24.3(b).
3

The time for Griffin to do so has expired. See Arkansas Rule of Criminal Procedure
37.2(c)(i)(2016)(requiring Rule 37 petition to be filed within 90 days of entry of judgment on
guilty plea).

2

On May 18, 2017, Griffin appealed the Craighead County Circuit Court’s
denial of a writ of error coram nobis to the Arkansas Supreme Court.
On June 8, 2017, Griffin, proceeding pro se, initiated this § 2254 action.4 In
his Petition, he alleges three grounds for relief:
(1) he is actually innocent of rape, as demonstrated by the
original police report and investigative statements from all interested
parties;
(2) his trial counsel was constitutionally ineffective in failing to
discover, from facts readily available in the police file, information
helpful to the defense and in failing to challenge the prosecution’s
version of the facts; and
(3) his rape conviction was obtained in violation of his due
process rights because it was obtained through fraud, duress, and
mistake on the part of the prosecution team, defense counsel, and the
trial court.
On January 18, 2018, the Arkansas Supreme Court held the Griffin’s request
for an extension of time to file a brief in support of his pending petition for writ of
error coram nobis was moot because it was clear from the record that Griffin could
not prevail on appeal. 5 In doing so, the Court noted that Griffin could not prevail
on appeal because “none of the claims were cognizable in a coram nobis petition.”
Exhibit A at 1.

4

The first page of his habeas Petition indicates that it is a “precautionary filing.”

5

To complete the record in this case, a copy of the Arkansas Supreme Court’s January 18,
2018 ruling is attached as Exhibit A to this Recommended Disposition.

3

Respondent argues that all of Griffin’s habeas claims are procedurally
defaulted. Doc. 5. Griffin has filed a Reply. Doc. 8. Thus, the issues are joined
and ripe for resolution.
For the reasons discussed below, the Court recommends that the Petition for
a Writ of Habeas Corpus be denied, and the case dismissed, with prejudice.
II. Discussion
A habeas petitioner must “fairly present” his claims in state court before
seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845-848-49 (8th
Cir. 2011); 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus
... shall not be granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State”); Perry v. Kemna, 356 F.3d 880, 886 (8th Cir.
2004) (“To avoid a procedural default, a habeas petitioner must ‘present the same
facts and legal theories to the state court that he later presents to the federal
courts.’”); Miller v. Lock, 108 F.3d 868, 871 (8th Cir. 1997) (“[B]oth the factual
grounds and legal theories on which the claim is based must have been presented to
the highest state court in order to preserve the claim for federal review.”).
By exhausting all available state court remedies, a habeas petitioner gives the
State that convicted him an “‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam).
4

When a petitioner fails to fully exhaust his claims in state court and the time
for doing so has expired, his claims are procedurally defaulted.

Coleman v.

Thompson, 501 U.S. 722, 731-32 (1991). When a procedural default occurs, federal
habeas review of the claim is barred unless the prisoner can demonstrate “cause” for
the default and “actual prejudice” as a result of the alleged violation of federal law,
or demonstrate that failure to consider his claim will result in a “fundamental
miscarriage of justice.” Id. at 750.
Respondent argues that all of Griffin’s habeas claims are procedurally
defaulted because none of the claims he now asserts were fully exhausted in state
court and the time for doing so has expired. Alternatively, Respondent argues the
claims should be denied on the merits. The Court agrees that Griffin’s claims are
either inexcusably procedurally defaulted or fail on the merits.
Griffin acknowledges that he failed to seek Rule 37 relief, but he contends
that his petition for error coram nobis was a “proper vehicle” for challenging his
guilty plea because it was obtained “through fear, duress, and threat.” While a writ
of coram nobis may issue to remedy “a coerced guilty plea,” “allegations made in
support of error coram nobis that are premised on ineffective-assistance-of-counsel
claims are not cognizable in error coram nobis proceedings.” Nelson v. State, 2014
Ark. 91, *5; see also Friend v. Norris, 364 Ark. 315, 317, 219 S.W.3d 123 (Ark.
2005) (per curiam) (state habeas corpus challenge to validity of guilty plea should
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have been brought in a timely filed Rule 37 petition for post-conviction relief).
Additionally, the Arkansas Supreme Court does not accept a petitioner’s allegation
that his claim involves a coerced guilty plea. Instead, the court “looks to the true
nature of a petitioner’s claim.” Nelson v. State, 2014 Ark. 91 at *5 (concluding that
Nelson’s claim, while couched in terms of a coerced guilty plea, was actually based
on alleged ineffective assistance of counsel). Here, the Circuit Court, which rejected
Griffin’s writ or error coram nobis as being premised solely on “having been
ineffectively represented” by his counsel, construed all of Griffin’s challenges to his
plea as rooted in his attorney’s alleged errors. Doc. 5-6.
On appeal, the Arkansas Supreme Court ruled initially that none of Griffin’s
claims were cognizable. Exhibit A at p. 1. This is consistent with the Circuit Court’s
ruling. However, as to Griffin’s claim that his guilty plea was coerced, the Court
went on to hold that he failed to meet his burden of presenting evidence in support
of that claim. Exhibit A at p. 3. To the extent that the Arkansas Supreme Court’s
ruling could be construed as rejecting, on the merits, Griffin’s claim that his plea
was coerced, the claim is not procedurally defaulted and may be addressed on the
merits. However, the claim still fails because Griffin has not established either of
the two limited circumstances that would permit him to obtain federal habeas relief.6
6

By statute, this Court can grant habeas relief as to any claim adjudicated “on the merits
in State court proceedings unless the adjudication of the claim[:] (1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

6

Thus, Griffin’s argument that he properly asserted that his plea was coerced in his
coram nobis petition will not save this claim, which is either procedurally defaulted
or fails on the merits.
As to Griffin’s procedurally defaulted claims, the Court still may proceed to
address the merits of those claims if he can demonstrate the “cause and prejudice”
or “actual innocence” exceptions to procedural default. See Washington v. Delo, 51
F.3d 756, 760 (8th Cir.1995) (cause and prejudice exception generally requires a
showing of “some external impediment” that prevented the raising of a habeas claim,
and that the “obstacle caused actual prejudice.”); Schlup v. Delo, 513 U.S. 298, 327,
(1995) (actual innocence exception requires a petitioner to show that it is more likely
than not that no reasonable juror would have convicted him in light of the new
evidence.”). If a habeas petitioner does not establish cause, there is no need to
consider whether he has established prejudice. Sherron v. Norris, 69 F.3d 285, 289
(8th Cir. 1995).
Griffin argues that his appeal of the denial of a petition for a writ of error
coram nobis was “illegally thwarted” in state court. This conclusory assertion fails

on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Griffin has proven neither.

7

to address or explain why Griffin did not fairly and properly present his claims in
state court.7 Accordingly, this bare allegation is insufficient to establish cause.
Griffin also argues that the state court lacked jurisdiction to issue the
Judgment and Commitment Order. For cause, Griffin points to Respondent’s
statement that a recording of the state court change of plea hearing had yet to be
located and might not be available. Doc. 5 at 1-2, n. 1. However, Respondent later
advised the Court that a recording of the guilty-plea colloquy had been located and
was available. Doc. 9. Respondent’s initial uncertainty as to the availability of the
plea hearing transcript has no bearing on the state court’s jurisdiction or Griffin’s
procedural default.
Griffin’s generalized and sweeping allegations fail to establish “cause” to
excuse his procedural default.8 Nor can Griffin’s pro se status and any unfamiliarity
with the law or procedural matters establish the necessary “cause.” See Smittie v.
Lockhart, 843 F.2d 295, 298 (8th Cir. 1988). Because Griffin has not established

7

Because Griffin failed to file a Rule 37 petition, the narrow equitable exception to
procedural default recognized in Martinez v. Ryan, 132 S.Ct. 1309 (2012) does not apply. See,
e.g., Anderson v. Clarke, 2014 WL 1203032, *5 (E.D. Va. March 24, 2014) (“Martinez does not
apply when the defendant fails to initiate any state court collateral review proceeding
whatsoever”); Anderson v. Koster, 2012 WL 1898781, *9 (W.D. Mo. 2012) (“Martinez is
inapposite because, here, the petitioner himself is at fault for not filing a pro se [postconviction]
motion in the first place.”).
8

Cause requires a showing of some objective factor, external to the petitioner’s defense
and not fairly attributable to him, impeding him from constructing or raising his claims in state
court or complying with the state’s procedural rules. Coleman, 501 U.S. at 753. If no cause has
been shown, the prejudice element need not be addressed. McCleskey v. Zant, 499 U.S. 467, 602
(1991).

8

cause for his default, there is no reason to address prejudice. Murphy v. King, 652
F.3d 845, 850 (8th Cir. 2011).
Griffin also has not demonstrated a miscarriage of justice through actual
innocence. Griffin points to the original police report and investigative statements
as “evidence” of his innocence, but he fails to explain how such evidence establishes
his actual innocence.9

Nor does he explain how such evidence was “new” and

unavailable to him through the exercise of reasonable diligence before he pled guilty.
Finally, assuming Griffin intended to assert a free-standing actual innocence
claim, that claim also fails. First, the law is unresolved as to whether such a claim
is even cognizable. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
Second, assuming such a claim is cognizable, Griffin’s failure to establish actual
innocence sufficient to excuse his procedural default means that he also cannot make
the “extraordinarily high” showing required to establish a free-standing actual
innocence claim. Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014) (omitting

9

See Oglesby v. Bowersox, 592 F.3d 922, 926 (8th Cir. 2010) (“a habeas petitioner [must]
present new evidence that affirmatively demonstrates that he is innocent of the crime for which he
was convicted”) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)); Embrey v.
Hershberger, 131 F.3d 739, 741 (8th Cir. 1997) (“in noncapital cases the concept of actual
innocence is easy to grasp, because it simply means the person didn't commit the crime”); Kidd v.
Norman, 651 F.3d 947, 953 (8th Cir. 2011) (habeas petitioner must “come forward not only with
new reliable evidence which was not presented at trial, but ... come forward with new reliable
evidence which was not available at trial through the exercise of due diligence.”); see also McCall
v. Benson, 114 F.3d 754, 758 (8th Cir. 1997) (noting that the habeas petitioner had not attempted
to invoke actual innocence but that “in light of his guilty plea, such an attempt would be
unpersuasive”).

9

citations and internal quotations) (explaining that free-standing actual innocence
claim, if recognized, would require “more convincing proof” that than the “gateway”
standard for procedurally defaulted claims).
Thus, Griffin’s claims are either inexcusably procedurally defaulted or fail on
the merits.10
III. Conclusion
IT IS THEREFORE RECOMMENDED THAT the Petition for a Writ of
Habeas Corpus be DENIED and this habeas case be DISMISSED, WITH
PREJUDICE. IT IS FURTHER RECOMMENDED THAT a Certificate of
Appealability be DENIED pursuant to Rule 11(a) of the Rules Governing Section
2254 Cases.
Dated this 27th day of February, 2018.

____________________________________
UNITED STATES MAGISTRATE JUDGE

10

Griffin’s guilty plea would prevent any merits inquiry into his contention that the State’s
evidence was insufficient to prove his guilt. “When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea.” Tolett v. Henderson, 411 U.S. 258, 267 (1973). Accordingly, a habeas
challenge to a conviction that results from a guilty plea is limited to the “voluntariness” of the
guilty plea and whether the defendant understood the charges and the consequences of the guilty
plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Thus, post-guilty plea, a habeas petitioner “may
only present [ineffective assistance of counsel] claims relating to the plea advice” and those claims
must relate to the voluntariness of the plea. See Whitepipe v. Weber, 536 F. Supp.2d 1070, 1082
(D. S.D. 2007) (omitting citation); see also Bass v. United States, 739 F.2d 405, 406 (8th Cir.
1984); Coleman v. Hobbs, Case No. 5:10-CV-00248-JMM-JTK, 2012 WL 2870812 (E.D. Ark.
June 14, 2012).

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