Griffin v. Warden, New Hampshire State Prison

          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 ...