United States District Court, D. New Hampshire
ORDER
Joseph
DiClerico, Jr. United States District Judge
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 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]
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
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. See Order,
document no. 12. In response, Griffin chose to stay
the case in this court in order to file an appeal of the
denial of his state habeas 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
...