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Griffin v. Attorney General

United States District Court, Tenth Circuit

October 15, 2013

ETHAN GRIFFIN, Petitioner,
v.
ATTORNEY GENERAL, STATE OF KANSAS, Respondent.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by an inmate of the Lansing Correctional Facility, Lansing, Kansas. Having examined all materials filed, the court finds that the petition appears to be time-barred. Mr. Griffin is given time to satisfy the filing fee and to show cause why this action should not be dismissed under 28 U.S.C. § 2244(d)(1).

FILING FEE

The statutory fee for filing a federal habeas corpus petition is $5.00. Petitioner has neither paid the fee nor submitted a motion to proceed in forma pauperis (IFP). This action may not proceed until the filing fee is satisfied in one of these two ways. A prisoner seeking to bring a habeas action without payment of fees must submit an affidavit that includes a statement of the prisoner's assets. The prisoner must also submit a certified accounting of the funds available to him in his institutional account. D.Kan.Rule 9.1(g);[1] see Rules Governing Section 2254 Cases in the United States District Courts, Rule 3(a)(2)(habeas petition must be accompanied by "a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution"). The clerk shall be directed to send petitioner forms for filing a proper IFP motion. Mr. Griffin is forewarned that if he fails to satisfy the fee within the prescribed time, this action may be dismissed without prejudice and without further notice.

FACTUAL BACKGROUND AND CLAIMS

Petitioner was convicted by a jury in the District Court of Lyon County, Kansas, of two counts of first degree murder, five counts of aggravated battery, and two counts of burglary. On August 17, 2002, he was sentenced to two consecutive life terms plus a consecutive term of 72 months.

Mr. Griffin directly appealed to the Kansas Supreme Court (KSC), which granted his motion for remand to address his claims of ineffective assistance of trial counsel. Upon remand the trial court conducted an evidentiary hearing at which Mr. Griffin and his trial counsel testified, and that court denied relief. The KSC then heard all claims on direct appeal and affirmed on June 3, 2005. State v. Griffin , 279 Kan. 634, 112 P.3d 862 (2005).

On August 8, 2006, Mr. Griffin filed a motion for post-conviction relief pursuant to K.S.A. 60-1507 in Lyon County District Court alleging multiple grounds of ineffective assistance of trial counsel and appellate counsel. See Griffin v. State , 294 P.3d 362, at *1 (Kan.App. 2013)(Table). The judge that had presided over Mr. Griffin's trial appointed counsel for him, conducted a non-evidentiary hearing, and denied relief mainly on the ground that the claims were the same as addressed on direct appeal. Id. Griffin appealed the denial to the Kansas Court of Appeals (KCA), and that court affirmed in an unpublished opinion filed on September 19, 2008. Griffin v. State , 192 P.3d 184 (Kan.App. 2008). Mr. Griffin filed a Petition for Review that was denied by the KSC on April 21, 2009.

On January 9, 2012, Mr. Griffin filed his second petition for post-conviction relief pursuant to K.S.A. 60-1507 claiming trial errors.[2] The trial judge held that this motion was "clearly successive" under K.S.A. 60-1507(c) as well as untimely under K.S.A. 60-1507 (f), and that petitioner had not shown exceptional circumstances or manifest injustice, and denied relief. Mr. Griffin appealed to the KCA, which affirmed the denial on February 15, 2013.

Mr. Griffin executed this federal petition on September 24, 2013. As ground one, he appears to allege ineffective assistance of counsel. However, as factual support for this ground, he alleges several claims: that he was prejudiced because the guilty verdict of his separately-tried co-defendant Dixon was "read" prior to petitioner's trial rather than sealed; that his motion for change of venue was withdrawn in exchange for the agreement that Dixon's verdict would be sealed, but the agreement was breached; that defense counsel was hostile toward him; and that the prosecution used inconsistent theories and misstated evidence and the law. He includes the conclusory phrase of "manifest injustice or exceptional circumstances." As ground two, petitioner repeats that he was prejudiced because he withdrew his motion for change of venue as a result of the unfulfilled agreement. As supporting facts, he alleges that he filed a motion for mistrial claiming that he was prejudiced because he gave up his motion for change of venue as a result of the cancelled agreement and it was imperative that the Dixon verdict remain sealed until his trial was completed because he was compelled to testify against Dixon. As ground three, petitioner claims that the jury instructions were erroneous in that the lesser included instruction was not included. As supporting facts he alleges that the verdict was contrary to the evidence with respect to counts one and two, and that he was charged with having committed first degree murder under two alternative theories of either aggravated arson or burglary. As ground four, petitioner claims that the trial court erred in finding that his second 60-1507 motion was successive despite a 2011 state court decision (State v. Berry).

FEDERAL PETITION APPEARS TO BE TIME-BARRED

The statute of limitations for filing a federal habeas corpus petition is set forth in 28 U.S.C. § 2244(d)(1) as follows:

A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from... (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review....

A statutory exception exists in that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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