UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Warren L. Griffin, Jr.

v. Civil No. 17-cv-714-JD Opinion No.

Warden, New Hampshire State Prison for Men

O R D E R

Warren L. Griffin, Jr. seeks habeas corpus relief pursuant

to

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.

Background

Griffin 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,

, at *6 (N.H. Sept. 19, 2014). Griffin did not seek a writ of certiorari from the

United States Supreme Court.

On May 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.

The 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.

Griffin 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

2 plea offer until his mother asked him about it in 2015, after

she received Griffin’s file from his counsel.

A. Exhaustion and Procedural Default

Relief 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,

(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 decision.1

When a 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

1 New Hampshire Supreme Court Rule 7(1)(B) provides that an appeal from a ruling on a petition for post-conviction relief must be filed within thirty days of the notice of decision. See N.H. Sup. Ct. R. 3 (definition of mandatory appeal). Motions for the late entry of an appeal are not favored and are “granted only upon a showing of exceptional circumstances.” N.H. Sup. Ct. R. 21(6). In this case, Griffin contends that his ignorance of the filing deadline caused him not to file an appeal at all, which would not constitute an exceptional circumstance that is necessary to excuse a late filing. See, e.g., United States v. Mottola,

(2014).

3 merits of those claims in the first instance.” Davila v. Davis,

(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.

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.”

(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,

(1st Cir. 2015).

Here, 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,

(2012) (internal quotation marks omitted). Griffin’s ignorance

of the appeal deadline is not cause for purposes of excusing his

4 default. See Felton v. Goguen,

, at *9 (D. Mass.

Sept. 27, 2017) (discussing cases).

To show 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,

(1982). Griffin’s case does not support any

finding of prejudice.

B. Timeliness

Under 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.

(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,

(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.”); DiCenzi v. Rose,

(6th Cir. 2006); Sibley v. Culliver,

(11th Cir. 2004); Cruz v. New Hampshire,

, at *2 (D.N.H. Nov. 15, 2013).

5 In his petition, Griffin contends that he could not have

raised the claim of ineffective assistance of counsel, based on

the allegedly uncommunicated first plea offer, within the time

allowed because he was not aware that the plea offer had been

made. He contends that he only learned of the first plea offer

in 2015 when his mother asked him why he had not accepted the

offer. That circumstance by itself, however, does not meet the

requirements of § 2244(d)(1)(D).

To delay the limitation period through application of

§ 2244(d)(1)(D), a petitioner must show that the factual

predicate of his claim could not have been discovered any

earlier through the exercise of due diligence. Griffin does not

explain why his mother happened to find the information about

the plea offer, which was in his file, and he did not. As such,

he has not shown that the plea offer could not have been

discovered through the exercise of due diligence.

Neither equitable tolling nor the exception to avoid a

miscarriage of justice applies in the circumstances of this

case. McQuiggin v. Perkins,

(2013); Holland

v. Florida,

(2010).

Conclusion

For the foregoing reasons, the warden’s motion to dismiss

(document no. 10) is granted. The petition is dismissed.

6 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Judge Joseph A. DiClerico, Jr. United States District Judge

August 22, 2018

cc: Warren L. Griffin, Jr., pro se Elizabeth C. Woodcock, Esq.

7