JAMES W. GRIFFIN, Petitioner,
DAN SCNURR, Warden, et al., Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se petition for writ of habeas corpus was filed by a state inmate pursuant to 28 U.S.C. § 2254. Respondents filed an Answer and Return, and petitioner filed his Traverse as well as a "Motion for Citation of Supplemental Authorities." Having considered these filings, the court rules upon petitioner's motions and requires additional briefing by both parties.
CLAIMS IN FEDERAL PETITION
In his federal petition, Mr. Griffin claims: (1) the "Aid/Abet instruction" impermissibly lowered the State's burden on the element of intent; (2) ineffective assistance of appellate counsel in that she abandoned 7 of the 10 claims that had been presented to the Kansas Court of Appeals (KCA) on direct appeal to the Kansas Supreme Court (KSC) against his wishes and thereby "sabotaged" his exhaustion efforts; and (3) prosecutorial misconduct in misrepresenting the law of aiding and abetting in a manner that shifted the State's burden of persuasion.
In 2005, Mr. Griffin was convicted in the District Court of Shawnee County, Kansas of attempted second-degree intentional murder (K.S.A. 21-3402(a)(K.S.A. 2006 Supp.) and K.S.A. 21-3301), attempted aggravated robbery (K.S.A. 21-3427 and K.S.A. 21-3301), and conspiracy to commit aggravated robbery (K.S.A. 21-3427 and K.S.A. 21-3302). State v. Griffin, 153 P.3d 570, *1 (Kan.App. Mar. 16, 2007), rev.denied (Kan. Sept. 27, 2007)(hereinafter Griffin DIRAPP). He was sentenced to 296 months in prison. These offenses arose out of an attempted robbery of a Carlos O'Kelly's restaurant in Topeka in 2002. See Griffin v. Kansas, 260 P.3d 1250, *1 (Kan.App. Oct. 7, 2011), rev.denied, (Kan. Mar. 16, 2012)(hereinafter Griffin PC2). "Griffin was alleged to have been the driver of the vehicle from which the shooter exited to shoot the general manager of the restaurant." Id. The manager was seriously and permanently injured as a result of the shooting.
Mr. Griffin directly appealed. The opinion of the KCA indicated that Griffin, represented by appointed appellate counsel, raised 10 different issues in this initial step of his direct appeal: (1) district court erred in failing to give a jury instruction on informant testimony; (2) prosecutorial misconduct during trial and closing by use of improper cliche and references to facts not in evidence; (3) the evidence was insufficient to convict Griffin of attempted second-degree intentional murder and attempted aggravated robbery; (4) defective complaint failed to provide sufficient notice of charges; (5) Batson challenge to jury selection; (6) district court erred in failing to instruct the jury on reckless attempted second-degree murder as a lesser included offense; (7) district court erred in sentencing; (8) excessive publicity denied fair trial; (9) jury misconduct and (10) ineffective assistance of trial counsel. See Griffin DIRAPP. The KCA affirmed. Appellate counsel filed a Petition for Review,  which the Kansas Supreme Court (KSC) summarily denied on September 27, 2007.
Mr. Griffin then pursued pro se challenges to his convictions by way of state collateral proceedings. On April 1, 2008, he filed his first state post-conviction motion pursuant to K.S.A. 60-1507. This motion was denied, and the denial was affirmed by the KCA on March 12, 2010. Griffin PC1. The KCA summarized petitioner's claims as: (1) ineffective assistance of trial counsel "for failing to move to dismiss the attempted second-degree murder charge because the charging document was defective in that it did not allege that Griffin was an aider and abettor of the charged attempted second-degree murder" and (2) failure of trial court "to instruct the jury on aggravated battery as a lesser included offense of attempted second-degree murder." Griffin PC1 at *1. The KSC denied review on May 18, 2010.
On June 15, 2010, petitioner filed a pro se "motion for relief from judgment" under K.S.A. 60-260 in Shawnee County District Court in which he sought a new trial on the count of Attempted Murder, Intentional Second-Degree, K.S.A. 21-3402(a). He argued that the giving of Jury Instructions No. 7 and No. 8 together impermissibly lowered the State's burden on the element of intent. On November 19, 2010, the state district court found 60-1507 was the exclusive remedy for petitioner's claims, construed the motion as another 60-1507 motion challenging his convictions, and denied it as successive. The State alleges that Mr. Griffin did not appeal this denial.
On February 14, 2011, Mr. Griffin filed another pro se 60-1507 motion in Shawnee County District Court, which was denied. Griffin PC2. In this motion, he claimed that his appellate counsel was ineffective in that she "sabotaged" his direct appeal by abandoning several issues in his Petition for Review. The KCA affirmed, and the KSC denied review on March 16, 2012. Id.
Mr. Griffin filed his pro se § 2254 petition in federal court on June 19, 2012.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM
Petitioner presents Ground Two in his petition as: "Ineffective Assistance of appellate counsel: (Joyce Yeager)." In support of this claim,  he alleges that his appellate counsel raised 10 issues on direct appeal to the KCA, then without his permission and contrary to his "clearly identified" desire, abandoned 7 of those claims by failing or refusing to present them to the KSC in his Petition for Review. In addition, he complains that appellate counsel failed to raise the claim of ineffective assistance of trial counsel as he requested. He alleges that appellate counsel thereby "sabotaged" his ability to bring the abandoned claims in a 60-1507 motion and in a federal habeas petition.
Petitioner first raised this claim in state court in his second 60-1507 motion. The state district judge found that this claim could have been but was not raised in Mr. Griffin's first 60-1507 motion and that he provided no excuse for his failure to assert it there. They held that this motion was "clearly successive" as well as untimely, and that manifest injustice was not shown. Griffin PC2 at *3. In addition, the judge found "nothing to support the Petitioner's conclusory allegation that his appellate counsel was ineffective." The judge concluded that petitioner had "failed to establish that counsel's assistance on appeal was deficient or that any alleged deficiency prejudiced his rights to a fair trial." Griffin P2 at *1. The KCA reasoned that "[a]pellate counsel is not required or obligated to raise all the issues the defendant requests, " and that "[c]ounsel should only raise issues that in his or her reasonable professional judgment have merit." Id. at *2. In addition, they found that this was "precisely what Griffin's counsel did." Id.
Petitioner argues again before this court that on direct appeal he had a right to have all the claims that were argued in his brief to the KCA presented in his Petition for Review to the KSC and that the record shows he is reiterating what appellate counsel abandoned on review to the KSC. He specifically mentions his claims that the essential element of intent was not proven and that his trial counsel was ineffective as important claims that were abandoned by appellate counsel.
Because Mr. Griffin did not raise this claim in his first 60-1507 motion, he did not fully and properly exhaust state court remedies when they were available. It has long been established that exhaustion of available and adequate state court remedies is a prerequisite to filing a habeas corpus petition in federal court. Granberry v. Greer, 481 U.S. 129 (1987); Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). Under normal circumstances, where state remedies are still available and time is left on the one-year statute of limitations, a federal court dismisses unexhausted ...