Griffin (ID 75066) v. Pryor et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion 4 for leave to proceed in forma pauperis is granted; and his two other motions 2 & 3 are denied. The habeas corpus action is dismissed as time-barred under 28 U.S.C. 2244(d)(1). Signed by Senior District Judge Sam A. Crow on 11/22/2013. (Mailed to pro se party Ethan M. Griffin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ETHAN GRIFFIN,
Petitioner,
v.

CASE NO.

13-3166-SAC

CASE NO.

13-3194-SAC

ATTORNEY GENERAL,
STATE OF KANSAS,
Respondent.
ETHAN M. GRIFFIN,
Petitioner,

REX PRYOR, et al.,
Respondents.
MEMORANDUM AND ORDER
On September 25, 2013, Mr. Griffin, a state prisoner, filed his
first habeas corpus application in federal court challenging his 2002
state convictions in State v. Griffin, Lyon County Case No. 01CR471.1
See Griffin v. Attorney General, Case No. 13-3166-SAC (hereinafter
CASE I).

The court screened the application and on October 15, 2013,

entered an order in which it found that the petition appeared to be
time-barred.

Mr. Griffin was ordered to show cause why the action

should not be dismissed under 28 U.S.C. § 2244(d)(1) as well as
satisfy the filing fee within the prescribed time.
The time in which Mr. Griffin was to comply with the court’s
screening order in CASE I has expired with nothing further filed by
1
The crimes arose from Mr. Griffin’s involvement in an explosion and fire
in an apartment complex in Emporia, Kansas, that resulted in two deaths.

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him in this case.

The court may dismiss this action without

prejudice under Rule 41(b) of the Federal Rules of Civil Procedure,
which authorizes a district court to order the dismissal of an action
for failure to prosecute as well as for failure to comply with the
Federal Rules of Civil Procedure or ‘a court order.’”

Young v. U.S.,

316 Fed.Appx. 764, 771 (10th Cir. Mar. 12, 2009)(unpublished case
cited as persuasive authority)(citing Fed.R.Civ.P. 41(b)).
On November 12, 2013, Mr. Griffin filed a second, complete
habeas corpus application in federal court, in which he seeks to
challenge the same 2002 state convictions as he challenged in CASE
I.

Griffin v. Pryor, Case No. 13-3194-SAC (hereinafter CASE II).

The court consolidates these two cases for all purposes.

In his

petition filed in CASE II, Mr. Griffin incorrectly states that he
has not previously filed any petition in federal court regarding the
conviction under challenge, and that he has no such petition pending.

FINDINGS OF FACT
In both these habeas corpus applications the threshold issue
presented is whether or not the petition is time-barred.

Petitioner

does not provide most dates relevant to this issue in either of his
federal petitions.

However, he attaches a copy of the February 2012

Memorandum Decision of the District Court of Lyon County to both
petitions, and it sets forth many of the pertinent dates and facts
regarding petitioner’s efforts to challenge his convictions in state
2

court:
Following a jury trial Griffin was convicted of two counts
of felony murder, five counts of aggravated battery, and
two counts of burglary. 2
He was sentenced to two
consecutive life terms plus 72 months consecutive to the
two life terms.
The convictions and sentences were
affirmed on direct appeal in State v. Griffin, 279 Kan.
634, 112 P.3d 862 (2005)(Griffin I).
During the direct appeal of the convictions, the Kansas
Supreme Court granted Griffin’s motion for a remand to
address his claims of ineffective assistance of trial
counsel . . . . An evidentiary hearing was conducted by
the trial court upon remand resulting in a holding that
Griffin failed to demonstrate that his trial court’s
performance was deficient and no prejudice was shown to
have resulted from any claimed errors.
Griffin’s claims of ineffective assistance were then
considered by the Kansas Supreme Court on direct appeal.
Following affirmation of his convictions, Griffin filed,
in Lyon County District Court Case No. 06CV142, a motion
for post-conviction relief pursuant to K.S.A. 60-1507.
In this motion he argued that his trial and appellate
counsel were ineffective in multiple respects and that his
trial counsel had evidenced a hostile attitude toward him.
The district court appointed counsel and conducted a
non-evidentiary hearing resulting in a denial of his
claims of ineffective assistance as the same had been
addressed on direct appeal in Griffin I. Griffin’s claim
of having a hostile trial counsel was also denied as having
no merit.
Griffin then appealed the denial of his K.S.A. 60-1507
motion to the Court of Appeals where it was assigned Case
No. 98,222. (Griffin II). In an unpublished opinion
filed September 19, 2008 (Mandate issued April 21, 2009)
the Court of Appeals affirmed the trial court’s denial of
Griffin’s 60-1507 motion.
On January 9, 2012, Griffin filed the instant motion for
relief pursuant to K.S.A. 60-1507 and it was assigned Case
No. 2012CV4.
2
In CASE II Mr. Griffin alleges that he was sentenced on June 17, 2002, and
his attachments support this allegation.

3

Griffin v. State of Kansas, Case No. 2012CV4 (Lyon Co.Dist.Ct., Feb.
28, 2012).

Mr. Griffin’s convictions were affirmed by the Kansas

Supreme Court (KSC) on June 3, 2005.

State of Kansas v. Ethan M.

Griffin, 279 Kan. 634, 112 P.3d 862 (2005).

On August 8, 2006, he

filed his first motion for post-conviction relief pursuant to K.S.A.
60-1507.

See Griffin v. State, 294 P.3d 362, at *1 (Kan.App.

2013)(Table).

The district court denied relief and the Kansas Court

of Appeals (KCA) affirmed.

The KSC denied review on April 21, 2009.

See Griffin v. State, 192 P.3d 184 (Kan.App. Sept. 19, 2008).
Griffin filed his second 60-1507 motion on January 9, 2012.
294 P.3d 362, at *1.3

Mr.

Griffin,

Mr. Griffin executed his first federal petition

in CASE I on September 24, 2013.

LEGAL STANDARDS
As Mr. Griffin was informed in the court’s prior screening order
in CASE I, the statute of limitations for filing a federal habeas
corpus petition is set forth in 28 U.S.C. § 2244(d)(1) and provides:
A 1-year period of limitation shall apply to an application
for writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period
shall run from . . . (A) the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review . . . .
A statutory exception exists in that the “time during which a properly
filed application for State post-conviction or other collateral
3
The state district court denied this petition as time-barred and second or
successive under K.S.A. 60-1507. The KCA affirmed, and the KSC denied review on
August 19, 2013. Id.

4

review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation . . . .”

28

U.S.C. § 2244(d)(2).
Mr. Griffin was informed that his petition in CASE I appeared
not to have been filed within the one-year statute of limitations.
He was further informed that his petition was therefore subject to
dismissal as time-barred unless he could show his entitlement to
equitable tolling.

The court set forth the standards for equitable

tolling in its prior order in CASE I:
A litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstances stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005); see Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194
(2001)(Equitable tolling “is only available when an inmate
diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary
circumstances beyond his control.”).
In the habeas
corpus context, equitable tolling has been limited to
“rare and exceptional circumstances.” Gibson v. Klinger,
232 F.3d 799, 800 (10th Cir. 2000). The Tenth Circuit has
stated that equitable tolling “would be appropriate, for
example, when a prisoner is actually innocent, when an
adversary’s
conduct--or
other
uncontrollable
circumstance--prevents a prisoner from timely filing, or
when a prisoner actively pursues judicial remedies but
files a defective pleading during the statutory period.”
Id. (internal citations omitted); Burger v. Scott, 317
F.3d 1133, 1141 (10th Cir. 2003).
“Simple excusable
neglect is not sufficient.” Gibson, 232 F.3d at 808.
DISCUSSION
After having considered Mr. Griffin’s new petition and motions
in CASE II together with his already-screened petition in CASE I,
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the court again applies the foregoing statutory provisions to the
facts of this case.

The KSC denied review of Mr. Griffin’s direct

appeal on June 3, 2005.

The court has considered petitioner’s

contradictory statements in CASE I and CASE II regarding cert.
review, and again finds that Mr. Griffin did not file a petition for
certiorari review in the United States Supreme Court of the KSC
decision on direct appeal.

The West Law history of petitioner’s

direct appeal does not show the filing of a petition in the U.S.
Supreme Court.

The same is true of the Kansas Appellate Courts

docket for his direct criminal appeal.

The court concludes that Mr.

Griffin’s conviction and sentence became “final” as that term is used
in § 2244(d)(1) on September 1, 2005, which is ninety days after the
KSC decision on direct appeal.

See Sup.Ct. R. 13(1); Locke v.

Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).

The federal statute

of limitations thus began running in Mr. Griffin’s case on September
1, 2005, and ran unimpeded until August 8, 2006, when he filed his
first 60-1507 motion.

It follows that all but 22 days 4 of the

one-year statute of limitations expired before petitioner filed his
first

state

post-conviction

motion.

The

federal

statute

of

limitations was statutorily tolled from the time this state motion
was filed until April 21, 2009, when the KSC denied review of the
lower court’s denial and the motion was no longer pending.

The court

further finds that the federal statute of limitations began to run
4
In its prior order, the court found 19 remaining days but herein correctly
finds that 22 days remained instead.

6

again on April 22, 2009, and ran unimpeded until it expired 22 days
later.

The second 60-1507 motion filed by Mr. Griffin in January

2012 had no statutory tolling effect because the federal statute of
limitations had already expired years earlier.
Petitioner was given the opportunity but has failed to show that
he is entitled to any additional tolling of the limitations period.
As previously noted, Mr. Griffin did not respond in CASE I to the
question on “Timeliness of Petition” in his form application.

In

addition, he did not respond to the court’s order in CASE I giving
him time to allege facts establishing his entitlement to equitable
tolling or otherwise show cause why his first federal habeas petition
should not be dismissed as time-barred pursuant to 28 U.S.C. §
2244(d)(1).

Petitioner thus presented no facts whatsoever in CASE

I showing he is entitled to equitable tolling.

In CASE II,

petitioner responded to the question on timeliness that he “was not
aware of how to proceed” and “was trying to use all his means in all
the lower courts” before filing his 2254 petition in federal court.
Also in CASE II, petitioner submitted two motions with his petition.
In his “Motion for Permission to Docket out of Time” (Doc. 2), he
moves to be allowed to file his 2254 petition out of time.

As support

for this motion, he alleges that he does not have access to “the
materials needed without going through the proper channels,” and that
he “was and is somewhat still not” totally aware of all proper
procedure but is trying.

He asks the court to grant this motion “in
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order to stop a miscarriage of justice.”

Petitioner’s other

“motion” is entitled “Summary not to be Dismissed as Time Barred”
(Doc. 3).

In support of this motion, he alleges that when he received

“his final resolution from the United States Supreme Court along with
a letter from (his) attorney” advising that he needed to file as soon
as possible, he “sent off for some (2254) forms;” he “somewhat
educated” himself “in this matter;” and he “resubmitted (his) form
with the proper paperwork.”

The court is asked to “accept his form”

2254 petition “in order to stop a miscarriage of justice.”
Petitioner’s allegations made in CASE II with regard to
timeliness are clearly inadequate to satisfy his burden to show
entitlement to equitable tolling.

His allegations that he was not

aware of how to proceed are insufficient, as it has been plainly held
that ignorance of the law generally and of the AEDPA time limit in
particular will not excuse untimely filing, even for an incarcerated
pro se prisoner.

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

2000), cert. denied, 531 U.S. 1194 (2001); Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000); Miller v. Marr, 141 F.3d 976, 978 (10th
Cir.), cert. denied, 525 U.S. 891 (1998); see also Yang v. Archuleta,
525 F.3d 925, 929 (10th Cir. 2008)(“Equitable tolling is a rare remedy
to be applied in unusual circumstances, not a cure-all for an entirely
common state of affairs.”)(quoting Wallace v. Kato, 549 U.S. 384,
396 (2007)).

Nor has petitioner alleged any facts to suggest that

he is entitled to additional statutory tolling.
8

Furthermore,

petitioner’s allegation that he has not had access to unspecified
materials without following proper channels provides no logical or
legal basis for equitable tolling.

His allegations that he sent off

for and resubmitted forms include no dates or other details.
Petitioner’s

allegations

utterly

fail

to

establish

that

he

diligently pursued his claims in state court during the 343 days
between September 1, 2005, and August 8, 2006, as well as the 22 days
in April 2009 when the one-year statute of limitations ran and
expired.

Furthermore, petitioner’s assertions in his two motions,

within his requests for relief only, that a miscarriage of justice
will result if his claims are not reviewed in federal court are
nothing more than conclusory statements.

In sum, the court finds

that Mr. Griffin’s federal habeas corpus petitions were not filed
within the applicable statute of limitations, and that he has failed
to show his entitlement to additional tolling or that he falls within
the manifest injustice exception.

As a result, these two federal

habeas corpus petitions are dismissed as time-barred.

FILING FEE
In Case II, petitioner has also submitted a Motion to proceed
in forma pauperis (Doc. 4).

The financial information provided by

petitioner with regard to his account balance indicates that this
motion should be granted.
IT IS THEREFORE ORDERED that petitioner’s Motion for Leave to
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Proceed in forma pauperis (Doc. 4) is granted; and that his two other
motions in Case No. 13-3194 (Doc. 2 & 3) are denied.
IT IS FURTHER ORDERED that these two habeas corpus actions are
dismissed as time-barred under 28 U.S.C. § 2244(d)(1).
IT IS SO ORDERED.
Dated this 22nd day of November, 2013, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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