Judge Joseph Bianco
After pleading guilty—in state court—to two counts of attempted robbery. Griffin was sentenced to five years in prison and five years’ supervision. He sought 28 USC §2254 habeas relief on June 21, 2013. The court’s Aug. 13 order directed Griffin to show cause why his petition should not be dismissed for failure to exhaust claims in state court. Griffin claimed trial court error in denial of his plea withdrawal motion, and that counsel failed to meet with him and pursue the plea’s withdrawal. The court dismissed Griffin’s petition. He conceded that he did not exhaust his state court remedies but wrongly believed no such remedies remained available. Griffin’s record-based claims of excessive bail, an illegally imposed sentence and erroneous information in his criminal record were not beyond state court review. He has until Feb. 17, 2014, to seek permission to file a late appeal. Claims of trial counsel’s ineffectiveness and prosecutorial misconduct also were not beyond state court review. To exhaust a claim for prosecutorial misconduct a petitioner must raise it as part of a motion to vacate judgment under Criminal Procedure Law §440.10—which lacks a limits statute—and then seek leave to appeal to the Appellate Division. Griffin did not do so.
