Griffin (ID 75066) v. Pryor et al

Filing 8

ORDER ENTERED: Petitioner's motion 5 for reconsideration under Fed.R.Civ.P. Rule 60(b) is denied and any new claim contained therein is dismissed without prejudice. The court denies a certificate of appealability. Signed by Senior District Judge Sam A. Crow on 09/17/14. Mailed to pro se party Ethan Griffinby 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.
O R D E R
On November 22, 2013, this court entered a Memorandum and Order
dismissing these two cases as time barred, which challenge the same
convictions on the same grounds.1

Both cases are before the court

upon Mr. Griffin’s “Petition for Reconsideration” (Docs. 7, 5).
These post-judgment motions were filed more than 28 days after entry
of judgment and are therefore treated as Motions for Relief from
Judgment under Rule 60(b) of the Federal Rules of Civil Procedure.
Having considered the motions together with the relevant materials

1

Petitioner alleges in his motions that when this court ordered him to show
cause as to why Case No. 13-3166 should not be dismissed, he “inadvertently” thought
his petition had to be re-done and sent in a new petition, causing the second case
(13-3194) to be filed. The cases were thus not intended as separate actions. The
court meant to consolidate these cases and stated as much in the body of its November
22, 2013, order. However, consolidation was omitted from the order language.
1

in the files, the court finds that no valid grounds are stated and
denies the motions.

STANDARDS
Relief under Rule 60(b) is “extraordinary and may be granted
only in exceptional circumstances.”

Allender v. Raytheon Aircraft

Co., 439 F.3d 1236, 1242 (10th Cir. 2006)(citation omitted).

A

“litigant shows exceptional circumstances by satisfying one or more
of Rule 60(b)’s six grounds for relief from judgment.”2

Van Skiver

v. U.S., 952 F.2d 1241, 1244 (10th Cir. 1991), cert. denied, 506 U.S.
828 (1992).

Rule 60(b) does not permit a losing party to reargue

merits, rehash or restate arguments previously addressed, or present
new legal theories or supporting facts that could have been included
in petitioner’s earlier filings.

Wilkins v. Packerware Corp., 238

F.R.D. 256, 263 (D.Kan. 2006), aff’d 260 Fed.Appx. 98 (10th Cir.
2008)(citing Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324,
1332 (10th Cir. 1996)); Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000).

Rule 60(b) is not a substitute for appeal.

Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576-77 (10th Cir. 1996).
2
Rule 60(b) provides in pertinent part that the court may relieve a
party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud . . . misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, it is based on an earlier judgment that has
been reversed or vacated, or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
2

The party seeking relief from a judgment bears the burden of
demonstrating he satisfies the prerequisites for such relief.

Van

Skiver, 952 F.2d at 1243–44.
Post-judgment motions in federal habeas corpus cases are
subject to the additional restrictions that apply to second and
successive petitions set forth in 28 U.S.C. § 2244(b) and may not
be used to circumvent that statute’s strict requirements.3

Gonzales

v. Crosby, 545 U.S. 524 (2005); Spitznas v. Boone, 464 F.3d 1213 (10th
Cir. 2006); see also United States v. Pedraza, 466 F.3d 932, 933 (10th
Cir. 2006).

In particular, the court notes that under § 2244(b) “[a]

state prisoner may not file such a petition without precertification
by the court of appeals that the petition meets certain stringent
criteria.”

Gonzales, 545 U.S. at 528 (citing § 2244(b)).

Thus, a

Rule 60(b) motion that seeks to add a new ground for relief qualifies
as a successive application as does a motion that “attacks the federal
court’s previous resolution of a claim on the merits.”

3

Id. at 532,

As the Supreme Court explained:
The relevant provisions of the AEDPA-amended habeas statutes, 28
U.S.C. §§ 2244(b)(1)-(3), impose three requirements on second or
successive habeas petitions: First, any claim that has already been
adjudicated in a previous petition must be dismissed. § 2244(b)(1).
Second, any claim that has not already been adjudicated must be
dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual
innocence. § 2244(b)(2). Third, before the district court may accept
a successive petition for filing, the court of appeals must determine
that it presents a claim not previously raised that is sufficient to
meet § 2244(b)(2)’s new-rule or actual-innocence provisions.
§
2244(b)(3).

Gonzalez, 545 U.S. at 529—30.

3

533-34; U.S. v. Bovie, 28 Fed.Appx. 734, 735 (10th Cir. 2001); see
Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007)(post-judgment
effort to raise new claim by motion under Rule 59(e) is equivalent
of second or successive petition under § 2244(b)).

On the other

hand, a 60(b) movant is not asserting a successive habeas corpus claim
“when he merely asserts that a previous ruling which precluded merits
determination was in error – for example, a denial for reasons such
as failure to exhaust, procedural default, or statute-of-limitations
bar.”

Gonzales, 545 U.S. at 532, fn. 4.

GROUNDS ALLEGED IN MOTION
Petitioner’s motions are identical.

They are divided into

“BACKGROUND” and “ARGUMENTS AND AUTHORITIES,” and none of his
allegations are designated as grounds for relief.

Nor are the

intended grounds easily discernible from petitioner’s allegations.
First, Mr. Griffin recounts the procedural history of his second
60-1507 motion initiated by him in January 2012 and alleges that in
this state habeas action he “added to his prior allegations” the
“charge of multiplicity instruction was given to the jury which
caused the petitioner to be sentenced in multiplicity.”4

Second, Mr.

4

However, a multiplicity claim was not included in The Kansas Court of
Appeals’ summary of petitioner’s claims:
Griffin contended he was prejudiced by the release of a guilty verdict
in the trial of a codefendant . . . while Griffin’s trial was still
in progress . . . and there were errors in the jury instructions,
including the failure to give a lesser-included offense instruction.
4

Griffin alleges under “Arguments and Authority” that he filed his
2012 state habeas motion to raise the “new issue” of “multiplicity
which led the petitioner to being sentenced to murder and burglary”
and that this new issue was not addressed in state court and has “not
been addressed before.”

5

Petitioner’s

references to certain

exhibits suggest that he believes dismissal of his second 60-1507
as successive, which included his new multiplicity claim, was
erroneous.

He also argues that the failure of either Judge Wheeler

or his last appellate attorneys to address this multiplicity issue
“produced extraordinary circumstances” and should not be held
against him.

Petitioner asserts that this scenario is grounds for

equitable tolling.

He also alleges that he diligently pursued all

the different arguments he could find and claims that his nearly 100
pages of exhibits prove his diligence.

He states that this court

should reconsider his petition “in order to stop a miscarriage of
justice.”

In addition,

petitioner

argues the merits of his

Griffin v. State, 294 P.3d 362, 2013 WL 646494 (Kan.App. Feb. 15, 2013).
5

In his motions, petitioner refers the court to “page 6 of exhibit 88” and
“page 3 exhibit 67,” but no exhibits are numbered 67 or 88. The first appears
to be a reference to page 6 of a “Memorandum in Support of Habeas Corpus” filed
by Mr. Griffin in the Lyon County District Court in his second 60-1507 action.
Motion for Reconsideration (Doc. 5 at 89). The second appears to reference the
“Memorandum Decision” of Judge Wheeler filed on February 28, 2012. Id. at 65.
Petitioner takes issue with Judge Wheeler’s finding that petitioner’s multiplicity
claim was “previously dealt with in motions or on direct appeal.” Petitioner
disagrees and alleges that there “is no mention of multiplicity in any of the old
jury instructions arguments from trial to now” and that the judge’s holding is
“an untrue statement of facts.” However, petitioner’s own exhibit of his 60-1507
motion relied upon by Judge Wheeler contains petitioner’s statements that the
grounds raised therein were “previously presented” to a court and that no grounds
had “not been previously presented.” Id. at 76.

5

multiplicity claim, contending that when a murder occurs during a
felony, the defendant may be charged with both the murder and the
felony in separate counts, but may only be convicted of either felony
murder or the underlying felony, not both.

He claims that he was

improperly convicted and sentenced for both.6

ANALYSIS
None of petitioner’s allegations entitle him to relief from
judgment under Rule 60(b).

His main assertion that he has a new

multiplicity claim certainly is not grounds for such relief.
claim was not even raised in Mr. Griffin’s federal petition.

This
As

noted earlier, Rule 60(b) does not permit a losing party to present
new legal theories or supporting facts that could have been included
in petitioner’s earlier filings.

Even if it had been included, the

court’s finding of a time bar would have precluded its consideration
on the merits.

Petitioner has not identified Rule 60(b) or any of

its subsections as the basis for his motion.

He does not allege or

show that his multiplicity claim amounts to “newly discovered
evidence that, with reasonable diligence, could not have been

6

Petitioner cites “Felony murder K.S.A. 21-3401” and “Multiplicity K.S.A.
21-3707(2)” for his argument that “separate offenses may be charged in separate
counts, but upon prosecution for the same crime the defendant may be convicted
of either the crime charged or the lesser included crime but not both.” Violations
of state law are not grounds for federal habeas corpus relief.

6

discovered in time to move for a new trial,”7 which entitles one to
relief under Fed.R.Civ.P. Rule 60(b)(2). 8

Moreover, petitioner’s

allegations are not shown to “involve the type of rare, unanticipated
circumstances contemplated by Rule 60(b)(6) such that enforcement
of the court’s prior order would be inequitable.”

See Welch v.

Centrex Home Equity Co., L.L.C., 224 F.R.D. 490, 497 (D.Kan. 2004).
None

of

petitioner’s

allegations

in

his

motion

are

typical

post-judgment challenges to the court’s findings on equitable
tolling.

He does not allege error in the court’s determination of

any significant date or its calculations and conclusion that his
application was filed beyond AEDPA’s time limit.
Furthermore, petitioner’s assertion of a new claim does not
entitle him to equitable tolling as he contends.

He was advised in

the court’s show cause order that the crucial question had become
whether or not he was entitled to equitable tolling and given time
“to allege facts establishing his entitlement to equitable tolling.”
7

Nor does petitioner suggest that his new claim amounts to newly discovered
evidence entitling him to a later start date of the statute of limitations. “If
the petition alleges newly discovered evidence, . . . the filing deadline is one
year from ‘the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.’” McQuiggin
v. Perkins, ___U.S.___, 133 S.Ct. 1924, 1929 (2013)(citing § 2244(d)(1)(D)). Mr.
Griffin could not credibly allege that the factual predicate for his new claim,
his convictions of both felony murder and the underlying felony, was discovered
any later than his convictions in state court.
In any event, the claim of
entitlement to a later start date under § 2244(d) could have been raised prior
to judgment and is a new legal theory that is not properly raised in a motion relief
from judgment.
8

He does not articulate “mistake, inadvertence, surprise or excusable
neglect” warranting relief under Rule 60(b)(1). Nor do his allegations contain
any suggestion of fraud or void judgment.

7

Yet he made no mention of a new multiplicity claim in his response.
Even if the court could consider this new claim and new supporting
facts in a post-judgment motion, petitioner’s assertion of a new
claim to challenge his conviction, without more, is not grounds for
equitable tolling.9
The same principles defeat Mr. Griffin’s arguments that the
state court and his last appellate attorneys failed to address the
multiplicity issue.

These arguments are a new claim by petitioner

of ineffective assistance of appellate counsel.10

A new allegation

that

state

appellate

proceedings,

counsel

without

was

more,

is

ineffective
not

in

evidence

of

criminal

“extraordinary

circumstances” for purposes of a Rule 60(b) motion challenging a

9

The only new claim that overcomes § 2244(d)’s statute of limitations is a
convincing one of factual innocence, which falls within the “miscarriage of justice
exception.” See McQuiggin, 133 S.Ct. at 1928; Laurson v. Leyba, 507 F.3d 1230,
1232 (10th Cir. 2007).
The Tenth Circuit has “stress[ed] that this actual
innocence exception is rare and will only be applied in the extraordinary case.”
Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010)(internal quotation marks
omitted).
To take advantage of the “actual innocence” exception, a habeas
petitioner must “present[] evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless constitutional error. . . .” Schlup v.
Delo, 513 U .S. 298, 316 (1995). Furthermore, the petitioner must “support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Id. at 324. Mr. Griffin has
not claimed to have newly discovered evidence of his factual innocence and alleges
no facts to qualify him for the actual innocence exception. In any event, any
such claim or evidence must have first been presented in his habeas corpus petition
rather than a post-judgment motion.
10

The claim that Mr. Griffin’s appellate attorneys were constitutionally
ineffective for failing to raise a multiplicity claim on his behalf apparently
was not exhausted, has been procedurally defaulted in state court, and is
time-barred in this court. Petitioner raised claims of ineffective assistance
of counsel in state court, and his last 60-1507 motion was successive because he
had prior opportunities to raise all his claims, not necessarily because the judge
mistakenly believed he had previously litigated his multiplicity claim.
8

judgment

dismissing

a

federal

petition

as

untimely

or

for

establishing equitable tolling.11
Mr. Griffin does argue that he was diligent and busy trying to
find and pursue all possible claims.

Diligence is one of two

elements that must be established for equitable tolling.
this allegation is conclusory.

However,

Petitioner does not describe how he

pursued proper claims with reasonable diligence throughout the
crucial one-year time period from its start through its expiration
or that any extraordinary circumstances beyond his control occurred
during that period.
1998). 12

See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

Moreover, the time for him to have presented all his

arguments for equitable tolling was prior to judgment.

The court

repeats that Rule 60(b) does not permit consideration of new
supporting facts that could have been included in earlier filings.
Petitioner alleges no exceptional circumstances that prevented him
from making this argument in either his petition or his response to
the court’s show cause order.
Petitioner’s claim of manifest injustice is nothing more than
a conclusory statement.

11

Such a claim might be grounds for relief from judgment in a court in which
the attorney appeared and failed to present a valid claim on his client’s behalf.
12

Petitioner’s bald statement that his exhibits establish his diligence is
insufficient. He does not point to any particular exhibit and explain how it shows
that he was pursuing a tolling-type action during the time the statute of
limitations was running.

9

It is evident that Mr. Griffin’s new claim of multiplicity and
related new claim of ineffective assistance of appellate counsel
amount to a second and successive habeas application, rather than
grounds for a Rule 60(b) motion.

To the extent that Mr. Griffin is

attempting to obtain an adjudication on the merits of these new
claims, that portion of his motion is subject to the gatekeeping
requirements for a second and successive habeas application.

This

court has no jurisdiction to hear new claims unless the applicant
has obtained authorization from the Tenth Circuit Court of Appeals
to file a second and successive petition. 13

Mr. Griffin does not

indicate that he sought and received the Circuit’s certification that
his multiplicity claim falls within the criteria for an exception
to the successive-petition bar set forth in § 2244(b)(3).14
In summary, the court concludes that Mr. Griffin’s allegations
do not entitle him to relief from the judgment entered herein and
that to the extent he seeks review of new claims, those claims are
dismissed, without prejudice, for lack of jurisdiction.
In the event that it may be required, the court also finds that
petitioner has not made “a substantial showing of the denial of a
13

The court declines to exercise its discretion to transfer these allegations
to the Tenth Circuit for consideration of authorization because the petition is
untimely and the interests of justice would not be served. See In re: Cline, 531
F.3d 1249 (10th Cir. 2008).
14

As noted, § 2244 requires dismissal of any claim in a successive application
that has not already been adjudicated unless it relies on either a new and
retroactive rule of constitutional law or new facts showing a high probability
of actual innocence, § 2244(b)(2). And it is the Court of Appeals, not the district
court, that determines if the un-adjudicated claim qualifies under § 2244(b)(2)’s
new-rule or actual-innocence provisions. § 2244(b)(3).
10

constitutional right,” and that a certificate of appealability under
28 U.S.C. § 2253(c)(2) is denied as a result.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s Motions
for Reconsideration under Fed.R.Civ.P. Rules 60(b)(Docs. 5 & 7) are
denied, and any new claims contained therein are dismissed, without
prejudice.
IT IS FURTHER ORDERED that the court denies a certificate of
appealability in these cases.
IT IS SO ORDERED.
Dated this 17th day of September, 2014, at Topeka, Kansas.

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

11