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Griffin v. Attorney General

United States District Court, Tenth Circuit

November 22, 2013

ETHAN GRIFFIN, Petitioner,
v.
ATTORNEY GENERAL, STATE OF KANSAS, Respondent. ETHAN M. GRIFFIN, Petitioner, REX PRYOR, et al., Respondents.

MEMORANDUM AND ORDER

Sam A. Crow U.S. Senior District Judge

On September 25, 2013, Mr. Griffin, a state prisoner, filed his first habeas corpus application in federal court challenging his 2002 state convictions in State v. Griffin, Lyon County Case No. 01CR471.[1]See Griffin v. Attorney General, Case No. 13-3166-SAC (hereinafter CASE I). The court screened the application and on October 15, 2013, entered an order in which it found that the petition appeared to be time-barred. Mr. Griffin was ordered to show cause why the action should not be dismissed under 28 U.S.C. § 2244(d)(1) as well as satisfy the filing fee within the prescribed time.

The time in which Mr. Griffin was to comply with the court’s screening order in CASE I has expired with nothing further filed by him in this case. The court may dismiss this action without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure, which authorizes a district court to order the dismissal of an action for failure to prosecute as well as for failure to comply with the Federal Rules of Civil Procedure or ‘a court order.’” Young v. U.S., 316 Fed.Appx. 764, 771 (10th Cir. Mar. 12, 2009)(unpublished case cited as persuasive authority)(citing Fed.R.Civ.P. 41(b)).

On November 12, 2013, Mr. Griffin filed a second, complete habeas corpus application in federal court, in which he seeks to challenge the same 2002 state convictions as he challenged in CASE I. Griffin v. Pryor, Case No. 13-3194-SAC (hereinafter CASE II). The court consolidates these two cases for all purposes. In his petition filed in CASE II, Mr. Griffin incorrectly states that he has not previously filed any petition in federal court regarding the conviction under challenge, and that he has no such petition pending.

FINDINGS OF FACT

In both these habeas corpus applications the threshold issue presented is whether or not the petition is time-barred. Petitioner does not provide most dates relevant to this issue in either of his federal petitions. However, he attaches a copy of the February 2012 Memorandum Decision of the District Court of Lyon County to both petitions, and it sets forth many of the pertinent dates and facts regarding petitioner’s efforts to challenge his convictions in state court:

Following a jury trial Griffin was convicted of two counts of felony murder, five counts of aggravated battery, and two counts of burglary.[2] He was sentenced to two consecutive life terms plus 72 months consecutive to the two life terms. The convictions and sentences were affirmed on direct appeal in State v. Griffin, 279 Kan. 634, 112 P.3d 862 (2005)(Griffin I).
During the direct appeal of the convictions, the Kansas Supreme Court granted Griffin’s motion for a remand to address his claims of ineffective assistance of trial counsel . . . . An evidentiary hearing was conducted by the trial court upon remand resulting in a holding that Griffin failed to demonstrate that his trial court’s performance was deficient and no prejudice was shown to have resulted from any claimed errors.
Griffin’s claims of ineffective assistance were then considered by the Kansas Supreme Court on direct appeal. Following affirmation of his convictions, Griffin filed, in Lyon County District Court Case No. 06CV142, a motion for post-conviction relief pursuant to K.S.A. 60-1507. In this motion he argued that his trial and appellate counsel were ineffective in multiple respects and that his trial counsel had evidenced a hostile attitude toward him. The district court appointed counsel and conducted a non-evidentiary hearing resulting in a denial of his claims of ineffective assistance as the same had been addressed on direct appeal in Griffin I. Griffin’s claim of having a hostile trial counsel was also denied as having no merit.
Griffin then appealed the denial of his K.S.A. 60-1507 motion to the Court of Appeals where it was assigned Case No. 98, 222. (Griffin II). In an unpublished opinion filed September 19, 2008 (Mandate issued April 21, 2009) the Court of Appeals affirmed the trial court’s denial of Griffin’s 60-1507 motion.
On January 9, 2012, Griffin filed the instant motion for relief pursuant to K.S.A. 60-1507 and it was assigned Case No. 2012CV4.

Griffin v. State of Kansas, Case No. 2012CV4 (Lyon Co.Dist.Ct., Feb. 28, 2012). Mr. Griffin’s convictions were affirmed by the Kansas Supreme Court (KSC) on June 3, 2005. State of Kansas v. Ethan M. Griffin, 279 Kan. 634, 112 P.3d 862 (2005). On August 8, 2006, he filed his first motion for post-conviction relief pursuant to K.S.A. 60-1507. See Griffin v. State, 294 P.3d 362, at *1 (Kan.App. 2013)(Table). The district court denied relief and the Kansas Court of Appeals (KCA) affirmed. The KSC denied review on April 21, 2009. See Griffin v. State, 192 P.3d 184 (Kan.App. Sept. 19, 2008). Mr. Griffin filed his second 60-1507 motion on January 9, 2012. Griffin, 294 P.3d 362, at *1.[3] Mr. Griffin executed his first federal petition in CASE I on September 24, 2013.

LEGAL STANDARDS

As Mr. Griffin was informed in the court’s prior screening order in CASE I, the statute of limitations for filing a federal habeas corpus petition is set forth ...


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