Griffin v. NH State Prison, Warden

Filing 65

///ORDER denying 64 Motion for Reconsideration. The dismissal of the Petitioner's claims due to a failure to exhaust is without prejudice to raising unexhausted claims in state court. 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 226

Warden, New Hampshire
State Prison
O R D E R
John Griffin, proceeding pro se, sought relief from his
conviction and sentence in state court pursuant to 28 U.S.C. §
2254.

The court granted the warden’s motion to dismiss on the

grounds that the some of his claims were procedurally defaulted
or waived and the remainder were unexhausted.

Griffin moves for

reconsideration, arguing among other things that he had raised
meritorious claims that police officers lied during his
suppression hearing, that the court should not have found
procedural default, that he received ineffective assistance of
counsel during his criminal proceeding, that his guilty plea was
nullified, and that he satisfied the requirements for
exhaustion.

The warden did not respond to Griffin’s motion.
Standard of Review

Reconsideration of an order is “‘an extraordinary remedy
which should be used sparingly.’”

Palmer v. Champion Mtg., 465

F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et

al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
For that reason, reconsideration is “appropriate only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.”

United States v. Allen, 573 F.3d 42, 53 (1st

Cir. 2009; see also LR 7.2(d).

A motion for reconsideration

cannot succeed when the moving party is attempting “to undo its
own procedural failures” or “advanc[ing] arguments that could
and should have been presented earlier.”

Allen, 573 F.3d at 53.

A motion for reconsideration also is not a means to reargue
matters that were considered and rejected in the previous order.
Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st
Cir.2014) (internal quotation marks omitted).
Discussion
Griffin has not shown grounds to reconsider the order
dismissing his petition.1

Instead, Griffin reargues his § 2254

claims and raises new theories, but not new evidence, to support
his petition.

In large part, Griffin continues to argue that

Although the order also addressed other filings, Griffin has
not moved for reconsideration on those matters.
1

2

the defense’s suppression motion was improperly denied during
his state criminal proceeding.
Despite his protestations to the contrary, Griffin
procedurally defaulted the claims that were raised in his state
court habeas petition when he failed to file a timely appeal.
He has not shown cause or prejudice to excuse the default.2
Davila v. Davis, 137 S. Ct. 2015, 2062 (2017).

Therefore, the

procedurally defaulted claims cannot be considered here.

Id.

As explained in the prior order, Griffin also waived claims
one through four by pleading guilty to the charges against him.
Griffin’s new attacks on his guilty plea were not raised as a
claim in his petition.

Therefore, those arguments do not

support a motion for reconsideration.3

In his motion for reconsideration as in his objection to the
motion to dismiss, Griffin argues that cause exists to excuse
his procedural default because his counsel provided ineffective
assistance during the suppression hearing and in failing to file
an interlocutory appeal of the denial of the suppression motion.
The appeal at issue for purposes of procedural default is
Griffin’s untimely appeal of the denial of his state habeas
petition, when he was not represented by counsel. Counsel’s
performance during the suppression hearing and counsel’s failure
to appeal the suppression order are not relevant to Griffin’s
procedural default. To the extent Griffin also argues that his
arrest and incarceration during the state habeas proceeding
caused him to file a late appeal, he has not shown that those
circumstances caused the late appeal.
2

Griffin challenged his guilty plea in his state habeas
petition. The state court, however, found that his claim of an
involuntary plea was not credible and denied habeas relief. See
document no. 33-1, at 2. He did not allege that claim in his
federal petition.
3

3

Griffin does not show grounds to reconsider dismissal for
failure to exhaust.

To proceed under § 2254, a petitioner must

show that he has exhausted his claims in state court.
2254(b)(1).

§

In his state court petition, Griffin raised claims

alleging that the denial of his motion to suppress was plain
error and that his counsel provided ineffective assistance.

The

state court held a hearing on the petition and found that
Griffin’s claims “boil down to the fact that[,] after [his]
Motion to Reconsider the denial of the Motion to Suppress was
denied, [Griffin] claims Attorney Introcaso refused to file an
interlocutory appeal to the New Hampshire Supreme Court . . .
[so that] he was forced to plead guilty.”

Document 33-1, at 2.

The state habeas court further found: “In substance, he claims
that his plea was involuntary because he was not provided the
effective assistance of counsel during plea bargaining.”

Id.

The state court petition and his motion for reconsideration were
denied.
Griffin raised claims in his federal petition that he did
not raise in state court.4

On preliminary review, the court

The following claims were allowed based on preliminary
review of Griffin’s petition filed here:
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 without probable cause, in
violation of Griffin’s Fourth Amendment rights.
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recognized that Griffin presented a mixed petition and offered
options that would allow Griffin to avoid dismissal of the
petition for failure to exhaust claims.
12.

See Order, document no.

In response, Griffin chose to stay the case in this court

in order to file an appeal of the denial of his state habeas

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. 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.

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petition with the New Hampshire Supreme Court.

Order, document

no. 16.
Although Griffin was notified that he had raised
unexhausted claims in his federal petition and was allowed time
to return to state court to exhaust his claims, he chose only to
appeal the superior court’s decision denying his state petition.
His appeal was denied as untimely.

For that reason, to the

extent his claims were raised in the state court petition, they
were procedurally defaulted.

As a result, those claims were

dismissed here, leaving only unexhausted claims.

The remaining

claims were dismissed because they were not exhausted.
§ 2254(b)(1).
Griffin did not and does not seek a second opportunity to
exhaust his state court remedies.

Instead, he asks the court to

grant him a Franks hearing so that he can show that the police
officers who testified at the suppression hearing were
“testilying.”

He asks the court to grant his habeas petition

based on those allegations.

He has not shown that an exception

to the exhaustion rule would apply in this case.
Conclusion
For the foregoing reasons, the petitioner’s motion for
reconsideration (document no. 64) is denied.

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The dismissal of the petitioner’s claims due to a failure
to exhaust is without prejudice to raising unexhausted claims in
state court.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
October 19, 2017
cc:

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

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