Griffin v. NH State Prison, Warden

Filing 59

///ORDER granting 48 Motion to Dismiss; denying 26 Motion for Summary Judgment; denying 55 Motion for Sanctions; denying as moot 56 Motion to Disqualify. The court declines to issue a certificate of appealability. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

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.
claims, and Griffin objects.

The warden moves to dismiss all
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.
(1st Cir. 2007).

Curran v. Cousins, 509 F.3d 36, 44

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.
Governing § 2254 Cases.
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Rule 5, Rules

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
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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
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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.
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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

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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.
740.

Coleman, 501 U.S. at

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

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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).

and did not file a direct appeal.

Griffin pleaded guilty

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.
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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.

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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.
declines to issue a certificate of appealability as the

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The court

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.

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