Griffin v. NH State Prison, Warden

Filing 41

ORDER denying 34 Motion for Sanctions; denying 35 Motion for Modification of Custody Status; denying 36 Motion for Discovery; denying 37 Motion for a Hearing. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v.

Civil No. 16-cv-382-JD
Opinion No. 2017 DNH 138

Warden, New Hampshire
State Prison for men
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 on bank robbery charges and the subsequent
revocation of his parole.

As construed on preliminary review,

Griffin alleges five claims in support of his petition.

The

Warden has filed an answer, and counsel states that she is in
the process of obtaining copies of Griffin’s state court
filings.
Griffin has moved for modification of his custody status,
for discovery, for an evidentiary hearing, and for sanctions.
The Warden objects to those motions.

Griffin filed a response

to the Warden’s objection.
I.

Custody
Griffin asks the court to order the Warden to release him

on his own recognizance.

In support, Griffin asserts that he

has presented a strong showing in support of his petition and

that he is not a danger to the public.

The Warden objects,

arguing that Griffin does not meet the requirements for release
while his habeas petition is pending.
A habeas petitioner has no presumption of innocence, and
instead, the state has “a substantial interest in executing its
judgment.”

Glynn v. Donnelly, 470 F.2d 95, 99 (1st Cir. 1972).

For those reasons, there is “a formidable barrier for those who
seek interim release while they pursue their collateral
remedies.”

Id.

In order to seek release on bail, a § 2254

petitioner must show both that he has raised substantial
questions in support of his petition on which he has a high
likelihood of success and that extraordinary circumstances
support release.

Marchetti v. O’Brien, 2016 WL 5660412, at *5-6

(D. Mass. Sept. 29, 2016); Graham v. Sabol, 2010 WL 971820, at
*1-*2 (D. Mass. Mar. 9, 2010).
Griffin has made neither showing here.

Therefore, Griffin

cannot be released on personal recognizance.
II.

Discovery
Griffin moves for discovery under Rule 6 of the Rules

Governing Section 2254 Cases before the Warden has filed the
materials required under Rule 5.

He asks to have the Warden

produce his state habeas petition with supporting documentation,
police reports and other documents related to the robbery on

2

September 11, 2013, the transcript of his suppression hearing,
and state court documents.

Griffin represents that the

documents he seeks were filed with his state habeas petition and
should be part of the state record of that proceeding.
In the answer, counsel for the Warden represents that she
is in the process of obtaining the pleadings filed with the New
Hampshire Supreme Court.

Counsel explains further in the

response to Griffin’s motion what documents have been obtained
and the efforts taken to obtain transcripts.

Counsel

anticipates that the transcripts will be ready soon and plans to
file and send to Griffin copies of the court record documents
with the transcripts.
Despite Griffin’s accusations of dishonesty and a lack of
due diligence by counsel for the Warden, nothing out of the
ordinary appears to have occurred.

Once counsel files and

provides to Griffin the materials required by Rule 5, Griffin
will have the opportunity to file a motion under Rule 6, if
necessary, to obtain additional documents.
III.

Hearing
Griffin seeks an evidentiary hearing because the Warden has

not yet produced the record from his habeas proceeding in state
court.

Griffin’s motion is premature because the Warden has

been directed to file the materials required by Rule 5.

3

See

Order, doc. no. 29; see also Rule 8, Rules Governing Section
2254 Cases.
IV.

Sanctions
Griffin seeks sanctions against the Warden under Federal

Rule of Civil Procedure 37 because the Warden has not yet
produced the state court record.

The Warden has been directed

to comply with Rule 5 and has represented that those materials
will be filed as soon as the transcripts are received by
counsel.

Therefore, sanctions are neither needed nor

appropriate.
Conclusion
For the foregoing reasons, the petitioners motion for a
change in his custody status (document no. 35), motion for
discovery (document no. 36), motion for an evidentiary hearing
(document no. 37), and motion for sanctions (document no. 34)
are denied.
The Warden shall file and provide to Griffin the materials
required by Rule 5 on or before August 1, 2017, or file a status
report to explain the delay.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
July 17, 2017
4

cc:

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

5