Griffin v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin
v. Civil No. 16-cv-382-JD
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
John R. Griffin has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (Doc. No. 1). The petition is
here for preliminary review to determine whether Griffin’s
claims are facially valid and may proceed. See Rule 4 of the
Rules Governing Section 2254 cases (“§ 2254 Rules”); LR
4.3(d)(4)(A).
Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual matter,
accepted as true, to state a facially valid claim to relief that
is cognizable in a federal habeas action. See McFarland v.
Scott, 512 U.S. 849, 856 (1994). When a habeas petitioner is
proceeding pro se, the assertions contained in the petition are
construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
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Background
Griffin was charged with offenses relating to a bank
robbery that occurred on September 11, 2013, in Merrimack, New
Hampshire. The state court, following an evidentiary hearing on
May 8, 2014, denied Griffin’s motion to suppress evidence
recovered from him by Merrimack Police Department (“MPD”)
officers on September 11, 2013. Griffin pleaded guilty to those
charges and was sentenced to a term of imprisonment.
Griffin was released on parole in 2016. While on parole,
Griffin litigated a state habeas petition and mailed a letter to
the prosecutor in his criminal case, Assistant Hillsborough
County Attorney Nicole Thorspecken, regarding a motion for
reconsideration Griffin was filing in that state habeas petition
(“May 2016 Letter”). The letter was considered to be
threatening, and Griffin’s mailing of that letter led to parole
revocation proceedings.
The New Hampshire Adult Parole Board revoked Griffin’s
parole in June 2016, after a hearing. Griffin is currently in
state prison, serving the sentence imposed on the bank robbery
conviction, following the June 2016 revocation of his parole.
Claims
The petition asserts the following claims for relief:
1. On September 11, 2013, MPD Lt. Paul Trepaney subjected
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Griffin to (a) a Terry stop without a reasonable suspicion
that Griffin had committed a crime; and (b) a warrantless
arrest without probable cause, in violation of Griffin’s
Fourth Amendment rights.
2. MPD Lt. Paul Trepaney engaged in “deliberate
deception” and lied under oath in the May 8, 2014 hearing
on the motion to suppress evidence, in violation of
Griffin’s Fourteenth Amendment right to due process.
3. The prosecutor in Griffin’s criminal case knowingly
presented MPD Lt. Trepaney’s false testimony in the May 8,
2014 hearing on the motion to suppress, in violation of
Griffin’s Fourteenth Amendment right to due process.
4. Griffin’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel in connection with the May 8, 2014 suppression
hearing, in that:
a. Griffin’s trial counsel, Attorney Donald Blaszka,
Jr., failed to offer exculpatory evidence at the
suppression hearing;
b. Trial counsel failed to read discovery materials,
in preparation for the suppression hearing;
c. Trial counsel failed to confer with Griffin, in
preparation for the suppression hearing;
d. Trial counsel failed to maintain a duty of
loyalty to Griffin at the suppression hearing; and
e. Trial counsel failed to call police witnesses MPD
Det. Jim Sullivan and MPD Officer Daniel Lindblom, to
impeach the testimony of Lt. Trepaney at the
suppression hearing.
5. Parole Board proceedings that resulted in the
revocation of Griffin’s parole in June 2016 were initiated
in retaliation for Griffin’s May 2016 Letter to the
prosecutor in Griffin’s criminal case, in violation of
Griffin’s First Amendment rights.
6. Griffin’s conviction, state proceedings relating to
Griffin’s motion to suppress, the December 31, 2014 order
denying Griffin’s motion to suppress, and the revocation of
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parole violated Griffin’s state constitutional rights.
7. The December 31, 2014 order denying Griffin’s motion
to suppress, issued by Superior Court Judge Kathleen
McGuire:
a. Violated Griffin’s Sixth Amendment right to
compulsory process to obtain witnesses in his favor.
b. Is plain error and an unsustainable exercise of
discretion;
c. Is based on an unreasonable determination of
facts, under 28 U.S.C. § 2254(d)(2); and/or
d. Is contrary to federal law established by the
holdings of the Supreme Court and/or is an
unreasonable application of that law, under 28 U.S.C.
§ 2254(d)(1).
Discussion
I. Claim 1
Claim 1 asserts violations of Griffin’s Fourth Amendment
rights. There are few circumstances in which a Fourth Amendment
claim may provide grounds for federal habeas relief. See Sanno
v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001) (“federal habeas court
ordinarily cannot revisit a state court’s disposition of a
prisoner’s Fourth Amendment claims” (citing Stone v. Powell, 428
U.S. 465, 482 (1976)). A decision regarding whether Claim 1 may
proceed in this case is appropriately resolved after respondent
appears. Accordingly, without prejudice to respondent’s ability
to move to dismiss any claim on any valid basis, the court has
issued an order this date directing service of the petition.
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II. Claim 6
Griffin has asserted claims for relief in the petition
(identified collectively as Claim 6, above) based on alleged
violations of his state constitutional rights. The federal
habeas statute, 28 U.S.C. § 2254(a), provides that “a federal
court may issue a writ of habeas corpus to a state prisoner only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal quotation
marks and citation omitted). “‘[F]ederal habeas corpus relief
does not lie for errors of state law.’” Id. (citation omitted).
Accordingly, Claim 6, as identified above, alleging violations
of Griffin’s state rights under the state constitution, should
be dismissed.
III. Claim 7
A. Claim 7(a)
In the claim summarized above as Claim 7(a), Griffin
asserts that Judge McGuire’s December 31, 2014 Order denying
Griffin’s motion to suppress violated Griffin’s Sixth Amendment
right to “compulsory process for obtaining witnesses in his
favor.” Judge McGuire’s order is not part of this court’s
record at this time. Nothing stated in the petition or
elsewhere in the record here suggests that a facially valid
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claim of a denial of the Sixth Amendment right of compulsory
process could be present in this case. Accordingly, the
district judge should dismiss Claim 7(a), without prejudice to
Griffin’s ability to file a timely motion to amend the petition
to state a facially valid claim of a denial of his Sixth
Amendment right to compulsory process.
B. Remaining Subparts of Claim 7
The remainder of Claim 7, subparts (b), (c), and (d) above,
sets forth arguments about the standard of review that this
court should apply in reviewing Griffin’s Fourth and Fourteenth
Amendment claims relating to the denial of Griffin’s motion to
suppress. Claim 7(b) asserts that Judge McGuire’s order is
based on findings and rulings that are “plain error” and an
“unsustainable exercise of discretion,” which are two types of
standards of review that could be applied if this court sat in
the shoes of an appellate court reviewing Judge McGuire’s order.
But this court is not the New Hampshire Supreme Court, and those
particular standards are generally inapplicable to this court’s
inquiry in reviewing a § 2254 petition. And while this court
will look to the standards set forth in 28 U.S.C. § 2254(d) in
determining how much deference is due to Judge McGuire’s
findings and rulings regarding matters that were adjudicated on
the merits, Griffin’s arguments about Judge McGuire’s findings
of fact and conclusions of law, set forth in the pertinent
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subparts of Claim 7, do not state separate, facially valid bases
for this court to find that Griffin’s custody violates his
federal rights. Accordingly, the claims summarized above as
Claims 7(b), (c), and (d), should be dismissed, to the extent
Griffin seeks to assert them as separate grounds for relief.
Conclusion
For the foregoing reasons, the district judge should
dismiss Claims 6 and 7, as identified in this Report and
Recommendation. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen day
period may be extended upon motion. Failure to file objections
within the specified time waives the right to appeal the
district court’s order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 5, 2017
cc: John R. Griffin, Jr., pro se
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