United States District Court, D. New Hampshire
R. Griffin, pro se.
Elizabeth C. Woodcock, Esq.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
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. The warden moves to
dismiss all claims, and Griffin objects. More recently
Griffin filed a motion for sanctions and a motion, titled as
an affidavit, for disqualification of the magistrate judge
from this case.
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
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).
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. Curran v. Cousins,
509 F.3d 36, 44 (1st Cir. 2007). 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. Rule 5, Rules Governing § 2254
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.
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.
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
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.
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.
filed his habeas petition in this court on August 22, 2016.
As construed on preliminary review, ...