State v. Griffin

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NOT DESIGNATED FOR PUBLICATION

No. 119,140

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES WALTER GRIFFIN,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed January 4, 2019.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: James Walter Griffin filed a pro se motion for new trial based on
newly discovered evidence under K.S.A. 22-3501. The district court summarily denied
the motion for new trial after finding it was untimely filed. Construing Griffin's motion
liberally, however, the district court also analyzed it as a motion for habeas corpus relief
under K.S.A. 60-1507. Notwithstanding this liberal construction, the district court
summarily denied Griffin's motion after finding that (1) the motion was filed outside the
one-year statutory time limitation and (2) Griffin failed to establish manifest injustice to
justify the untimely filing. Griffin appeals, arguing the district court erred by summarily
denying him relief. Finding no error, we affirm.
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FACTS

On January 21, 2005, a jury convicted Griffin of one count of attempted murder in
the second degree, one count of attempted aggravated robbery, and one count of
conspiracy to commit aggravated robbery. During his direct appeal of those convictions,
a panel of this court found the following facts:

"Robert Fraser was the general manager of a Carlos O'Kelly's restaurant in
Topeka on January 24, 2002. When he arrived at the restaurant, he saw his wife giving a
tour to 25 second graders on a fieldtrip and then went to his office to do some paperwork.
"At around 10 a.m., he was seated with his back to the office door when he heard
a voice behind him say, 'Give me all your money.' Without turning, Frazier shoved the
person away thinking it was an employee joking around and said, 'Go back to work, I
don't really have time for this now.'
"Fraser then heard the voice which he believed to be the voice of a black male
say, 'No, I'm serious, give me all your money.' Realizing the man was not an employee,
Fraser turned and saw a man in dark clothing entirely covered except for his eyes
pointing a gun at him held in the left hand and supporting his wrist with the other.
"Fraser got up to go to the safe to get the money for the man, but the man shot
him once in the right shoulder and then ran out of the office without taking any money.
After being shot, Fraser fell to the ground and passed out after yelling for his son, who
was a cook in the restaurant. Fraser was immediately taken to Stormont-Vail Hospital
where he testified they saved his life because his 'heart stopped a few times and they got
it going again.' The bullet shattered Fraser's collar bone, then deflected at a downward
angle and finally came to rest in his spinal column. Fraser is permanently paralyzed from
the chest down as a result of the shooting.
"Robert Brett Fraser is Fraser's son and was a cook at Carlos O'Kelly's on the day
of the shooting. Around 10, he observed an individual dressed all in black come in
through the back door and head toward the office. Soon thereafter, Robert heard a loud
pop but did not know what it was. He eventually went back toward the office where he
observed his father lying on the floor with his head peeking out the office door. Robert
called 911, went back to check on Fraser, then ran out the back door to search for the
shooter in a nearby shopping center but he did not find anyone.
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"Numerous eyewitnesses testified they observed one or more of the following on
the morning of January 24, 2002: (1) A black car with dark tinted windows stop in the
street near the back entrance of Carlos O'Kelly's; (2) the passenger, dressed in all black,
exit the vehicle and enter the restaurant through the back door; (3) the passenger run from
the restaurant back to the waiting vehicle a short time later; and (4) the car drive away.
Many of these witnesses described the driver and passenger as black men and later
identified Maurice Franklin as having been the passenger.
"Several people familiar with Griffin, including his cousin [Lametrius
Crutchfield], the cousin's fiancé [Melissa Shay], and Griffin's girlfriend at the time of the
crime [Natosha Utterback], testified he told them he was the driver for a botched robbery
at a Mexican restaurant in Topeka where Franklin, his brother, shot someone who ended
up paralyzed. These witnesses testified Griffin owned a black car with tinted windows in
2002. A Topeka detective testified he located a car matching the description, after
receiving a tip, and determined the car was registered to Griffin and his wife.
"The State charged Griffin with attempted second-degree intentional murder,
attempted aggravated robbery, and conspiracy to commit aggravated robbery.
. . . .
"Griffin was convicted of all the crimes with which he was charged. The court
imposed aggravated sentences within the presumptive range for each conviction and
ordered that they be served consecutively." State v. Griffin, No. 95,346, 2007 WL
806008, at *1-2 (Kan. App. 2007) (unpublished opinion).

Griffin raised 10 separate issues in his direct appeal but a panel of our court found no
merit to any of the issues raised and ultimately affirmed his convictions. Griffin, 2007
WL 806008, at *1-10. Griffin's petition for review to the Kansas Supreme Court was
denied and a mandate was issued on September 28, 2007, and filed with the district court
on October 2, 2007.

Unable to prevail on direct appeal, Griffin filed a pro se motion for habeas corpus
relief under K.S.A. 60-1507. In this motion, Griffin alleged: (1) he received ineffective
assistance of counsel at trial and (2) the district court erred at trial by failing to instruct
the jury on a lesser included offense. The district court summarily denied the motion and,
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on appeal, a panel of this court affirmed the district court's ruling. Griffin v. State, No.
102,328, 2010 WL 923145, at *1-2 (Kan. App. 2010) (unpublished opinion). Griffin filed
a petition for review, which the Kansas Supreme Court denied. The mandate was issued
on May 20, 2010, and filed with the district court on May 24, 2010.

Griffin filed a second pro se motion for habeas corpus relief under K.S.A. 60-
1507, in which he claimed ineffective assistance of his direct appeal counsel. The district
court, again, summarily denied the motion. On October 7, 2011, a panel of this court
affirmed the district court's ruling. Griffin v. State, No. 105,807, 2011 WL 4721477, at
*1-3 (Kan. App. 2011) (unpublished opinion). Griffin's petition for review to the Kansas
Supreme Court was denied, and a mandate was issued on March 19, 2012, and filed with
the district court on March 20, 2012.

After his second motion for habeas corpus relief was denied, Griffin claims he
filed a third pro se motion for habeas corpus relief, this time in the federal court pursuant
to 28 U.S.C. § 2254 (2012). Griffin claims the United States District Court for the
District of Kansas denied the motion but granted Griffin a certificate of appealability.
Griffin asserts, however, that the Tenth Circuit Court of Appeals issued a mandate
affirming the district court's ruling on February 8, 2016. Griffin claims he filed a petition
seeking a writ of certiorari with the United States Supreme Court, but his petition was
denied on October 3, 2016. Although the federal action to which Griffin refers appears to
be highly relevant to the argument Griffin presented to the district court and, in turn, to us
on appeal, the record on appeal does not include or make reference to any documents in
the federal case. The only documents relating to the federal case (a letter from the United
States Supreme Court informing Griffin of its denial of his petition for a writ of certiorari
and what appears to be a copy of the electronic docket entries) are included as an
Appendix to Griffin's brief.

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On January 27, 2017, Griffin filed a pro se motion for a new trial, under K.S.A.
22-3501, in which he claimed that newly discovered evidence and malice by the
prosecution entitled him to a new trial. In support of that motion, Griffin attached a
notarized letter and statement signed by his cousin Lametrius Crutchfield, who
purportedly sent the notarized letter and statement to Griffin's wife on March 15, 2013. In
that letter, Crutchfield told Griffin's wife that Crutchfield had lied when he testified
against Griffin at trial and that he only did so because prosecutors from both Kansas and
Missouri were pressuring him and threatening him with legal consequences if he refused.
Crutchfield also stated that the other witnesses who testified against Griffin also lied
and/or exaggerated the truth because they wanted reward money.

On February 27, 2017, Griffin filed a pro se written request to amend his motion
for a new trial to include a claim that the prosecution knowingly used perjured testimony
to convict him in violation of his due process rights under Napue v. Illinois, 360 U.S.
264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). Finally, on April 17, 2017, Griffin
filed a second written request to amend his motion for a new trial to include a claim that
the prosecution failed to disclose exculpatory and impeachment evidence during the trial
in violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963).

The district court summarily denied Griffin's motion. In doing so, the district court
first found that under K.S.A. 2017 Supp. 22-3501, Griffin's motion for a new trial based
on newly discovered evidence was untimely because it was filed well outside the two-
year statutory period. Then, construing Griffin's pro se pleading liberally, the district
court also analyzed it as a motion for habeas corpus relief under K.S.A. 60-1507.
However, the district court summarily denied Griffin's motion under that analysis as well
after finding that (1) Griffin's motion was filed well outside the one-year statutory period
and (2) no manifest injustice existed to justify Griffin's failure to file his motion in a
timely manner. Griffin filed a motion for rehearing and a motion to amend for rehearing
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in which he claimed the district court failed to make adequate findings of fact and
conclusions of law regarding his Brady and Napue claims under Supreme Court Rule
183(j) (2018 Kan. S. Ct. R. 223). Although the district court issued a second
memorandum decision and order to expound slightly on its previous ruling, the court
ultimately affirmed its summary denial of Griffin's motion. Griffin timely filed a pro se
notice of appeal on July 13, 2017.

ANALYSIS

"A prisoner in custody under sentence of a court of general jurisdiction claiming
the right to be released" may "move the court which imposed the sentence to vacate, set
aside or correct the sentence." K.S.A. 2017 Supp. 60-1507(a). However, to be timely, any
action brought under K.S.A. 60-1507 must be brought within one year after the last
appellate court exercises jurisdiction on the direct appeal. K.S.A. 2017 Supp. 60-
1507(f)(1)(A). Otherwise, absent an affirmative showing by the prisoner that the time
limitation must be extended to prevent a manifest injustice, the district court must
summarily deny and dismiss the motion as untimely filed. K.S.A. 2017 Supp. 60-
1507(f)(2)-(3).

When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
court conducts de novo review to determine whether the motion, files, and records of the
case conclusively establish that the movant is not entitled to relief. Sola-Morales v. State,
300 Kan. 875, 881, 335 P.3d 1162 (2014); see also Laymon v. State, 280 Kan. 430, 437,
122 P.3d 326 (2005) ("[T]o the extent a decision is based only upon the 'motion, files,
and record' of a case, an appellate court is as equipped as a district court to decide the
issues efficiently and reliably, and both this court and the Court of Appeals routinely
engage in de novo review of summary denials of 60-1507 motions.").


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Timeliness

Griffin argues that his motion for a new trial, which the district court construed as
a motion for habeas corpus relief under K.S.A. 60-1507, was timely because it was filed
within one year of the denial of his petition for a writ of certiorari to the United States
Supreme Court in his federal habeas corpus action.

Pursuant to K.S.A. 2017 Supp. 60-1507(f)(1), any action seeking habeas corpus
relief under that section must be brought within one year of:

"(A) The final order of the last appellate court in this state to exercise jurisdiction
on a direct appeal or the termination of such appellate jurisdiction; or
"(B) the denial of a petition for writ of certiorari to the United States supreme
court or issuance of such court's final order following granting such petition."

In contrast to a habeas corpus challenge, which is considered to be collateral to or
separate from a criminal case, the term "direct appeal" refers to an appeal from the
judgment of conviction in the criminal case. See Baker v. State, 297 Kan. 486, 492, 303
P.3d 675 (2013) (measuring one-year statute of limitations in K.S.A. 60-1507[f] from
milestones in criminal case, including resentencing on remand); State v. Trotter, 296 Kan.
898, 904-05, 295 P.3d 1039 (2013) (direct appeal for purposes of K.S.A. 60-1507[f] is
appeal of conviction in criminal case itself); Shumway v. State, 48 Kan. App. 2d 490,
503, 293 P.3d 772 (2013) ("direct appeal" in K.S.A. 60-1507[f] refers to date upon which
conviction became final in criminal proceedings).

Here it is undisputed that Griffin's convictions became final when the Kansas
Supreme Court denied his petition for review on September 27, 2007. As such, his
current action is untimely as it was not filed until January 27, 2017, well outside the one-
year statutory period for filing an action under K.S.A. 60-1507. Despite this, Griffin
argues that his action was timely under K.S.A. 2017 Supp. 60-1507(f)(1)(B) because it
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was filed within one year of the denial of his petition for writ of certiorari by the United
States Supreme Court in his federal habeas corpus action. But Griffin's argument
misconstrues the plain language of the statute. The statute does not allow a prisoner to
bring a motion for habeas corpus relief within one year of the United States Supreme
Court denying a writ of certiorari in any action; rather, the statute only allows a prisoner
to bring a motion for habeas corpus relief within one year of the denial of a writ of
certiorari in the direct appeal of his or her criminal conviction. To hold otherwise would
undermine the purpose of the one-year time limitation as it would allow prisoners to
potentially bring actions under K.S.A. 60-1507 indefinitely, so long as they came within
a year of the termination of unrelated appeals to the United States Supreme Court.

Manifest injustice

Alternatively, Griffin argues that even if his motion was untimely, his
untimeliness should be excused because he properly established a colorable claim of
actual innocence and therefore his motion should be heard to prevent a manifest injustice.

As noted above, a prisoner has one year from when a conviction becomes final to
file a motion seeking habeas corpus relief. See K.S.A. 2017 Supp. 60-1507(f)(1).
However, courts may extend that time limitation if doing so is necessary to prevent a
manifest injustice. K.S.A. 2017 Supp. 60-1507(f)(2).

"For purposes of finding manifest injustice under [K.S.A. 60-1507], the court's
inquiry shall be limited to determining why the prisoner failed to file the motion within
the one-year time limitation or whether the prisoner makes a colorable claim of actual
innocence. As used herein, the term actual innocence requires the prisoner to show it is
more likely than not that no reasonable juror would have convicted the prisoner in light
of new evidence." K.S.A. 2017 Supp. 60-1507(f)(2)(A).

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Notably, the factors listed in K.S.A. 2017 Supp. 60-1507(f)(2)(A) constitute an
exhaustive list. As such, courts are not permitted to consider other, nonlisted factors when
determining whether manifest injustice exists. See White v. State, 308 Kan. 491, 496, 421
P.3d 718 (2018).

As a preliminary matter, the Kansas Supreme Court has held that if a prisoner files
a motion outside of the one-year statutory period under K.S.A. 60-1507 and fails to
affirmatively assert manifest injustice to the district court, the prisoner is procedurally
barred from maintaining the action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039
(2013). Here, Griffin failed to mention, let alone argue, manifest injustice in any of the
many motions he filed with the district court. Griffin acknowledges this fact but, aside
from asserting that pro se motions are to be liberally construed, Griffin does little to
otherwise address or explain the failure. As such, Griffin's motion seeking habeas corpus
relief is procedurally barred. See Trotter, 296 Kan. at 905.

Even if we were to overlook Griffin's procedural failure, he still fails to establish
he would suffer a manifest injustice if the court did not consider his claims. Griffin's
substantive claim of manifest injustice is that the newly discovered evidence he presents
establishes a colorable claim of innocence. Specifically, Griffin argues Crutchfield's
notarized letter/statement shows not only that Crutchfield lied as a witness at trial, but
also shows that every other witness who testified at trial had ulterior motives and
incentives to lie and/or exaggerate their testimony. Therefore, Griffin concludes, it is
more likely than not that no reasonable juror would have convicted him in light of
Crutchfield's statement.

We are not persuaded by Griffin's argument. First, Griffin's argument ignores the
substantial amount of evidence supporting Griffin's convictions. Such evidence included
the testimony of numerous eyewitnesses who observed a black car with tinted windows at
the scene, who described the driver and passenger of the car as black men, and who later
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identified the passenger as Maurice Franklin, Griffin's brother. This evidence also
included testimony from numerous people, including Crutchfield, that Griffin admitted to
them that Griffin was the driver during the robbery attempt. And finally, this evidence
included testimony from a Topeka detective who determined that a car matching the
witness' description was registered to Griffin and his wife. Thus, even without
Crutchfield's statement repudiating his testimony, there was sufficient evidence upon
which a reasonable juror could have convicted Griffin for his participation in the
attempted robbery at Carlos O'Kelly's.

Second, as both the State and the district court noted, the reliability of
Crutchfield's notarized letter and statement is minimal at best. This is largely because it is
filled with fantastical claims—such as a SWAT team in full tactical gear picking a lock
and invading a house with guns drawn, on multiple occasions, just to serve subpoenas—
that are simply not reasonable to believe. Furthermore, Crutchfield's unilateral claim that
other witnesses lied or exaggerated the truth in an effort to obtain reward money is
uncorroborated, unsupported by the record, and conclusory in nature. Therefore, a
reasonable juror would place little to no probative value on Crutchfield's letter/statement
and would instead rely on the substantial amount of more reliable evidence to convict
Griffin.

For all of these reasons, and even if Griffin could overcome the procedural hurdle
of his untimely filing, we find Griffin has failed to make a colorable claim of actual
innocence or otherwise show that the district court's summary denial of his motion for
habeas corpus relief resulted in a manifest injustice.

Affirmed.