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Griffin v. Attorney General

United States District Court, D. Kansas

September 17, 2014

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


SAM A. CROW, Senior District Judge.

On November 22, 2013, this court entered a Memorandum and Order dismissing these two cases as time barred, which challenge the same convictions on the same grounds.[1] Both cases are before the court upon Mr. Griffin's "Petition for Reconsideration" (Docs. 7, 5). These post-judgment motions were filed more than 28 days after entry of judgment and are therefore treated as Motions for Relief from Judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Having considered the motions together with the relevant materials in the files, the court finds that no valid grounds are stated and denies the motions.


Relief under Rule 60(b) is "extraordinary and may be granted only in exceptional circumstances." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006)(citation omitted). A "litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment."[2] Van Skiver v. U.S., 952 F.2d 1241, 1244 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). Rule 60(b) does not permit a losing party to reargue merits, rehash or restate arguments previously addressed, or present new legal theories or supporting facts that could have been included in petitioner's earlier filings. Wilkins v. Packerware Corp., 238 F.R.D. 256, 263 (D.Kan. 2006), aff'd 260 Fed.Appx. 98 (10th Cir. 2008)(citing Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996)); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Rule 60(b) is not a substitute for appeal. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576-77 (10th Cir. 1996). The party seeking relief from a judgment bears the burden of demonstrating he satisfies the prerequisites for such relief. Van Skiver, 952 F.2d at 1243-44.

Post-judgment motions in federal habeas corpus cases are subject to the additional restrictions that apply to second and successive petitions set forth in 28 U.S.C. § 2244(b) and may not be used to circumvent that statute's strict requirements.[3] Gonzales v. Crosby, 545 U.S. 524 (2005); Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006); see also United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006). In particular, the court notes that under § 2244(b) "[a] state prisoner may not file such a petition without precertification by the court of appeals that the petition meets certain stringent criteria." Gonzales, 545 U.S. at 528 (citing § 2244(b)). Thus, a Rule 60(b) motion that seeks to add a new ground for relief qualifies as a successive application as does a motion that "attacks the federal court's previous resolution of a claim on the merits. " Id. at 532, 533-34; U.S. v. Bovie, 28 Fed.Appx. 734, 735 (10th Cir. 2001); see Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007)(post-judgment effort to raise new claim by motion under Rule 59(e) is equivalent of second or successive petition under § 2244(b)). On the other hand, a 60(b) movant is not asserting a successive habeas corpus claim "when he merely asserts that a previous ruling which precluded merits determination was in error - for example, a denial for reasons such as failure to exhaust, procedural default, or statute-of-limitations bar." Gonzales, 545 U.S. at 532, fn. 4.


Petitioner's motions are identical. They are divided into "BACKGROUND" and "ARGUMENTS AND AUTHORITIES, " and none of his allegations are designated as grounds for relief. Nor are the intended grounds easily discernible from petitioner's allegations. First, Mr. Griffin recounts the procedural history of his second 60-1507 motion initiated by him in January 2012 and alleges that in this state habeas action he "added to his prior allegations" the "charge of multiplicity instruction was given to the jury which caused the petitioner to be sentenced in multiplicity."[4] Second, Mr. Griffin alleges under "Arguments and Authority" that he filed his 2012 state habeas motion to raise the "new issue" of "multiplicity which led the petitioner to being sentenced to murder and burglary" and that this new issue was not addressed in state court and has "not been addressed before."[5] Petitioner's references to certain exhibits suggest that he believes dismissal of his second 60-1507 as successive, which included his new multiplicity claim, was erroneous. He also argues that the failure of either Judge Wheeler or his last appellate attorneys to address this multiplicity issue "produced extraordinary circumstances" and should not be held against him. Petitioner asserts that this scenario is grounds for equitable tolling. He also alleges that he diligently pursued all the different arguments he could find and claims that his nearly 100 pages of exhibits prove his diligence. He states that this court should reconsider his petition "in order to stop a miscarriage of justice." In addition, petitioner argues the merits of his multiplicity claim, contending that when a murder occurs during a felony, the defendant may be charged with both the murder and the felony in separate counts, but may only be convicted of either felony murder or the underlying felony, not both. He claims that he was improperly convicted and sentenced for both.[6]


None of petitioner's allegations entitle him to relief from judgment under Rule 60(b). His main assertion that he has a new multiplicity claim certainly is not grounds for such relief. This claim was not even raised in Mr. Griffin's federal petition. As noted earlier, Rule 60(b) does not permit a losing party to present new legal theories or supporting facts that could have been included in petitioner's earlier filings. Even if it had been included, the court's finding of a time bar would have precluded its consideration on the merits. Petitioner has not identified Rule 60(b) or any of its subsections as the basis for his motion. He does not allege or show that his multiplicity claim amounts to "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial, "[7] which entitles one to relief under Fed.R.Civ.P. Rule 60(b)(2).[8] Moreover, petitioner's allegations are not shown to "involve the type of rare, unanticipated circumstances contemplated by Rule 60(b)(6) such that enforcement of the court's prior order would be inequitable." See Welch v. Centrex Home Equity Co., L.L.C., 224 F.R.D. 490, 497 (D.Kan. 2004). None of petitioner's allegations in his motion are typical post-judgment challenges to the court's findings on equitable tolling. He does not allege error in the court's determination of any significant date or its calculations and conclusion that his application was filed beyond AEDPA's time limit.

Furthermore, petitioner's assertion of a new claim does not entitle him to equitable tolling as he contends. He was advised in the court's show cause order that the crucial question had become whether or not he was entitled to equitable tolling and given time "to allege facts establishing his entitlement to equitable tolling." Yet he made no mention of a new multiplicity claim in his response. Even if the court could consider this new claim and new supporting facts in a post-judgment motion, petitioner's assertion of a new claim to challenge his conviction, without more, is not grounds for equitable tolling.[9]

The same principles defeat Mr. Griffin's arguments that the state court and his last appellate attorneys failed to address the multiplicity issue. These arguments are a new claim by petitioner of ineffective assistance of appellate counsel.[10] A new allegation that appellate counsel was ineffective in state criminal proceedings, without more, is not evidence of "extraordinary circumstances" for purposes of a Rule 60(b) motion challenging a judgment dismissing a federal petition as untimely or for establishing equitable tolling.[11]

Mr. Griffin does argue that he was diligent and busy trying to find and pursue all possible claims. Diligence is one of two elements that must be established for equitable tolling. However, this allegation is conclusory. Petitioner does not describe how he pursued proper claims with reasonable diligence throughout the crucial one-year time period from its start through its expiration or that any extraordinary circumstances beyond his control occurred during that period. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).[12] Moreover, the time for him to have presented all his arguments for equitable tolling was prior to judgment. The court repeats that Rule 60(b) does not permit consideration of new supporting facts that could have been included in earlier filings. Petitioner alleges no exceptional circumstances that prevented him from making this argument in either his petition or his response to the court's show cause order.

Petitioner's claim of manifest injustice is nothing more than a conclusory statement.

It is evident that Mr. Griffin's new claim of multiplicity and related new claim of ineffective assistance of appellate counsel amount to a second and successive habeas application, rather than grounds for a Rule 60(b) motion. To the extent that Mr. Griffin is attempting to obtain an adjudication on the merits of these new claims, that portion of his motion is subject to the gatekeeping requirements for a second and successive habeas application. This court has no jurisdiction to hear new claims unless the applicant has obtained authorization from the Tenth Circuit Court of Appeals to file a second and successive petition.[13] Mr. Griffin does not indicate that he sought ...

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