United States District Court, D. New Hampshire
Warren L. Griffin, Jr.
Warden, New Hampshire State Prison for Men
A. DiClerico, Jr. United States District Judge
L. Griffin, Jr. seeks habeas corpus relief pursuant to 28
U.S.C. § 2254 from his state court convictions. The
warden moves to dismiss the petition on the grounds that
Griffin's claims are not exhausted and that exhaustion is
procedurally barred. The warden also contends that the claims
are untimely and that equitable tolling does not apply.
Griffin did not file a response to the motion.
was convicted in October of 2012 on charges of armed robbery,
criminal threatening, falsifying evidence, and witness
tampering. He appealed, arguing that the trial court erred in
failing to suppress identifications made in court and out of
court and by allowing evidence of his gang affiliation. His
convictions were affirmed by the New Hampshire Supreme Court.
State v. Griffin, 2014 WL 11641029, at *6 (N.H.
Sept. 19, 2014). Griffin did not seek a writ of certiorari
from the United States Supreme Court.
23, 2016, Griffin filed a petition in state court for
collateral relief. In support, Griffin argued that he had
received ineffective assistance of counsel due to
counsel's failure to communicate a first plea offer made
by the prosecutor. The state court held a hearing and denied
the petition on March 22, 2017.
state court found that counsel's representation was not
constitutionally deficient and that Griffin has not shown any
prejudice even if the representation had been deficient. The
state court noted that Griffin was indicted on new charges,
including witness tampering, after the initial plea offer
that caused the prosecutor to withdraw the second plea offer.
The court found that his counsel was not responsible for the
change in the case due Griffin's own actions. Griffin did
not appeal that decision.
filed his petition under § 2254 in this court on
December 12, 2017. In support of the petition, Griffin
alleges that his counsel was ineffective in failing to
communicate the first plea offer. He states that he did not
appeal the decision denying his state petition because he did
not know of the time limitations. He also states that he was
unaware of the first plea offer until his mother asked him
about it in 2015, after she received Griffin's file from
Exhaustion and Procedural Default
under § 2254 is available only when the petitioner has
exhausted his federal claims in state court unless the state
does not provide corrective process or the process would be
ineffective to protect the rights of the petitioner. §
2254(b)(1)(A). Exhaustion includes presenting federal claims
to the state's highest court. Janosky v. St.
Amand, 594 F.3d 39, 50 (1st Cir. 2010). Because Griffin
did not appeal the state court's ruling on his petition
for collateral review, he did not exhaust the claim raised
there. He concedes that he can no longer appeal that
petitioner fails to “meet the State's procedural
requirements for presenting his federal claims[, he] has
deprived the state courts of an opportunity to address the
merits of those claims in the first instance.”
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017)
(internal quotation marks omitted). Federal courts,
therefore, will not hear claims that were not presented to
the state court because of an independent and adequate state
procedural ground. Id. A petitioner may overcome the
bar of procedural default by showing “cause to excuse
his failure to comply with the state procedural rule and
actual prejudice resulting from the alleged constitutional
violation.” Id. 2064-65 (internal quotation
marks omitted). Alternatively, a petitioner may seek review,
despite a procedural default, to avoid a fundamental
miscarriage of justice due to his actual innocence. Lee
v. Corsini, 777 F.3d 46, 62 (1st Cir. 2015).
Griffin does not argue or even suggest that he is actually
innocent of the crimes of conviction. Because he did not
respond to the motion to dismiss, he has not addressed the
cause and prejudice showings necessary to overcome procedural
default. “Cause for a procedural default exists where
something external to the petitioner, something that cannot
fairly be attributed to him, impeded his efforts to comply
with the State's procedural rule.” Maples v.
Thomas, 565 U.S. 266, 280 (2012) (internal quotation
marks omitted). Griffin's ignorance of the appeal
deadline is not cause for purposes of excusing his default.
See Felton v. Goguen, 2017 WL 7792576, at *9 (D.
Mass. Sept. 27, 2017) (discussing cases).
prejudice, Griffin would need to show that the alleged
ineffective assistance of counsel “worked to his actual
and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” United States
v. Frady, 456 U.S. 152, 170 (1982). Griffin's case
does not support any finding of prejudice.
the Antiterrorism and Effective Death Penalty Act, a petition
for habeas corpus relief from a state court conviction is
subject to a one-year statute of limitations. 28 U.S.C.
§ 2244(d)(1). Certain circumstances will toll the
limitations period, when applicable. § 2244(d)(2). If,
on the other hand, the one-year period expires before the
petitioner files a federal petition, a new state court filing
does not restart the limitations period. See Anderson v.
Cline, 397 Fed.Appx. 463, 464 (10th Cir. 2010)
(“And it is long settled that a state court motion for
collateral relief cannot restart the clock on a limitations
period that has already expired.”); DiCe ...