United States District Court, M.D. Florida, Jacksonville Division
JAMES H. GRIFFIN, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
H. Griffin Counsel of Record
J. DAVIS, UNITED STATES DISTRICT JUDGE
James H. Griffin, in his Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody
(Petition) (Doc. 1), challenges a 2011 Duval County
conviction for three counts of sale or delivery of
cocaine. He raises thirteen grounds for habeas
relief. As directed by this Court's Order, Respondents
filed an Answer to Petition for Writ of Habeas Corpus
(Response) (Doc. 20). Petitioner submitted his "Amended
Reply" (Reply) (Doc. 23). See Order (Doc. 7).
CLAIMS OF PETITION
Petitioner does not raise his thirteen grounds in numerical
order. The Court will, however, refer to the claims in
numerical order, as do the Respondents. The thirteen
grounds are: (1) the ineffective assistance of counsel for
failure to object to prosecutor's violation of the
Williams Rule (acquitted charges), in violation of
Petitioner's due process rights; (2) the ineffective
assistance of counsel for failure to raise sentencing
manipulation as a defense, in violation of Petitioner's
due process and equal protection rights; (3) the ineffective
assistance of counsel for coercing and inducing Petitioner to
reject the state's plea offer; (4) the ineffective
assistance of counsel for advising Petitioner to reject the
state's initial plea offer; (5) the ineffective
assistance of counsel for misadvising Petitioner to reject
the state's offer with promises of a lesser sentence at
the bottom of the guidelines; (6) the ineffective assistance
of counsel for failure to inform Petitioner of
"involvement of an open plea" and advise Petitioner
of the sentencing procedure; (7) the ineffective assistance
of counsel for failure to raise the unconstitutionality of
the Drug Abuse Prevention and Control Act, Fla. Stat. §
893.13, in violation of Petitioner's due process rights;
(8) the ineffective assistance of counsel based on the
cumulative errors of counsel, in violation of
Petitioner's due process and equal protection rights; (9)
the ineffective assistance of counsel for failure to
adequately inform Petitioner of the state's final offer
of ten years, preventing Petitioner from making an informed,
conscious decision; (10) the ineffective assistance of
counsel for failure to object to the state's comments
about various charges for which Petitioner had been
acquitted, in violation of Petitioner's due process
rights; (11) the trial court erred at sentencing by
improperly taking into consideration offenses for which
Petitioner was acquitted, in violation of Petitioner's
due process rights; (12) a double jeopardy violation at
sentencing based on the trial court's consideration of
offenses for which Petitioner had already been sentenced or
acquitted; and (13) the ineffective assistance of counsel
during the plea bargain process for failure to advise
Petitioner of the availability of entering an Alford
It is a
petitioner's burden to establish the need for a federal
evidentiary hearing; Petitioner has not met this burden.
Chavez v. Sec'y, Fla. Dep't of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011), cert.
denied, 565 U.S. 1120 (2012). Indeed, a district
court is not required to hold an evidentiary hearing if the
record refutes the asserted factual allegations or otherwise
precludes habeas relief. Schriro v. Landrigan, 550
U.S. 465, 474 (2007).
case, the Court is able to "adequately assess
[Petitioner's] claim[s] without further factual
development," Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004), as the pertinent facts are fully developed
in this record or the record otherwise precludes habeas
relief. Thus, no evidentiary proceeding will be conducted by
this Court; however, the Court will carefully review the
thirteen grounds raised in the Petition, see Long v.
United States, 626 F.3d 1167, 1169 (11th Cir. 2010) (per
curiam) ("The district court must resolve all claims for
relief raised on collateral review, regardless of whether
relief is granted or denied.") (citing Clisby v.
Jones, 960 F.2d 925, 936 (11th Cir. 1992) and Rhode
v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009)).
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254; Ledford v. Warden,
Ga. Diagnostic & Classification Prison, 818 F.3d
600, 642 (11th Cir. 2016), cert. denied,
137 S.Ct. 1432 (2017). "AEDPA limits the scope of
federal habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla. Dep't of Corr., 871
F.3d 1231, 1243 (11th Cir. 2017), petition for cert.
filed, (U.S. May 18, 2018) (No. 17-9015). This
narrow scope of review under AEDPA provides for habeas relief
only if there are extreme malfunctions, certainly not to be
used as a means to correct state court errors.
Ledford, 818 F.3d at 642 (quoting Greene v.
Fisher, 565 U.S. 34, 38 (2011)).
courts may grant habeas relief if:
the state court's decision "was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States," or "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
A state court's decision rises to the level of an
unreasonable application of federal law only where the ruling
is "objectively unreasonable, not merely wrong; even
clear error will not suffice." Virginia v.
LeBlanc, 582 U.S. __, __, 137 S.Ct. 1726, 1728, 198
L.Ed.2d 186 (2017) (per curiam) (quoting Woods v.
Donald, 575 U.S. __, __, 135 S.Ct. 1372, 1376, 191
L.Ed.2d 464 (2015) (per curiam)). This standard is
"meant to be" a difficult one to meet.
Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct.
770, 786, 178 L.Ed.2d 624 (2011).
Rimmer v. Sec'y, Fla. Dep't of Corr., 876
F.3d 1039, 1053 (11th Cir. 2017), cert.
denied, No. 17-8046, 2018 WL 1278461 (U.S. June 11,
also must presume that 'a determination of a factual
issue made by a State court [is[ correct,' and the
petitioner 'ha[s] the burden of rebutting the presumption
of correctness by clear and convincing evidence.' 28
U.S.C. § 2254(e)(1)." Morrow v. Warden,
886 F.3d 1138, 1147 (11th Cir. 2018). Additionally,
"[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts." Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting
Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 568 U.S. 1233 (2013).
in Wilson v. Sellers, 138 S.Ct. 1188, 1194 (2018),
the Supreme Court concluded there is a "look
through" presumption in federal habeas law, as silence
implies consent. See Kernan v. Hinojosa, 136 S.Ct.
1603, 1605-606 (2016) (per curiam) (adopting the presumption
silence implies consent, but refusing to impose an
irrebutable presumption). This presumption is employed when a
higher state court provides no reason for its decision;
however, it is just a presumption, not an absolute rule.
Wilson, 138 S.Ct. at 1196. "Where there are
convincing grounds to believe the silent court had a
different basis for its decision than the analysis followed
by the previous court, the federal habeas court is free, as
we have said, to find to the contrary." Id. at
mindful of this holding, this Court will undertake its
review. If the last state court to decide a prisoner's
federal claim provides an explanation for its merits-based
decision in a reasoned opinion, "a federal habeas court
simply reviews the specific reasons given by the state court
and defers to those reasons if they are reasonable."
Id. at 1192. But, if the relevant state-court
decision on the merits is not accompanied by a reasoned
opinion, for example the decision simply states affirmed or
denied, a federal court "should 'look through'
the unexplained decision to the last related state-court
decision that does provide a relevant rationale."
Id. At this stage, the federal court presumes the
unexplained decision adopted the same reasoning as the lower
court; however, the presumption is not irrebutable.
Id. See Hinojosa, 136 S.Ct. at 1606 (strong
evidence may refute the presumption). Indeed, the state may
rebut the presumption by showing the higher state court
relied or most likely relied on different grounds than the
lower state court, "such as alternative grounds for
affirmance that were briefed or argued to the state supreme
court or obvious in the record it reviewed."
Wilson, 138 S.Ct. at 1192.
the § 2254(d) standard is difficult to meet, the
standard is meant to be difficult. Rimmer, 876 F.3d
at 1053 (opining that to reach the level of an unreasonable
application of federal law, the ruling must be objectively
unreasonable, not merely wrong or even clear error). When
applying the stringent AEDPA standard, state court decisions
must be given the benefit of the doubt. Trepal v.
Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1107
(11th Cir. 2012) (quotation and citations omitted),
cert. denied, 568 U.S. 1237 (2013).
INEFFECTIVE ASSISTANCE OF COUNSEL
claims he received the ineffective assistance of counsel in
violation of the Sixth Amendment to the United States
Constitution. In order to prevail on this Sixth Amendment
claim, he must satisfy the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668, 688 (1984),
requiring that he show both deficient performance
(counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different).
respect to an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a petitioner
must show there is a "reasonable probability that, but
for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Of note, ineffective
assistance of counsel may also require that a plea be set
aside on the ground that it was involuntary because
voluntariness implicates not only threats and inducements but
also ignorance and incomprehension. See id. at 56
(quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)) (noting that the "longstanding test for
determining the validity of a guilty plea is 'whether the
plea represents a voluntary and intelligent choice among the
alternative courses of action open to the
Court recognizes that,
in a post conviction challenge to a guilty plea:
[T]he representations of the defendant, his lawyer, and the
prosecutor at [the plea] hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of
verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly
Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct.
1621, 1629, 52 L.Ed.2d 136 (1977) (citations omitted);
see also United States v. Gonzalez-Mercado, 808 F.2d
796, 799-800 and n. 8 (11th Cir. 1987) (while not
insurmountable, there is a strong presumption that statements
made during a plea colloquy are true, citing
Blackledge and other cases).
Bryant v. McNeil, No. 4:09CV22-SPM/WCS, 2011 WL
2446370, at *2 (N.D. Fla. May 17, 2011) (Report and
Recommendation), report and recommendation
adopted by Bryant v. McNeil, No. 4:09CV22-SPM/WCS, 2011
WL 2434087 (N.D. Fla. June 16, 2011).
Petition is timely filed. See Response at 15-17.
concede that grounds one, two, three, four, five, six, nine,
ten, and thirteen were exhausted in the state court system.
See Response at 20. They contend, however, that
grounds seven, eight, eleven, and twelve are unexhausted.
Id. More specifically, with respect to grounds
seven, eleven, and twelve, Respondents assert Petitioner
failed to properly exhaust his state court remedies because
he did not specifically include these grounds in his initial
brief on appeal from the denial of his post conviction
motion. Response at 56-59, 67-69.
Court is unpersuaded by Respondent's argument. Petitioner
appealed the denial of his post conviction motion. Ex. J. The
First District Court of Appeal (1st DCA) affirmed per curiam.
Ex. M. The mandate issued June 1, 2016. Id. The 1st
DCA denied Petitioner's motion to recall the mandate. Ex.
Q. Although Petitioner did not address all of his claims in
his appeal brief, he was not required to do so because he did
not receive an evidentiary hearing on his Rule 3.850 motions.
Rule 9.141(b)(2), Fla. R. App. P. "[A] defendant who
chooses to file a brief upon summary denial of his
postconviction motion is not required to raise all
postconviction claims in order to exhaust them."
Kirkland v. Sec'y, Dep't of Corr., No.
8:13-cv-1545-T-27TGW, 2016 WL 309055, at *6 n.2 (M.D. Fla.
Jan. 26, 2016) (citing Darity v. Sec'y, Dep't of
Corr., 244 Fed.Appx. 982, 984 (11th Cir. 2007) (opining
date, Darity has not been overturned, and although
Darity is an unpublished decision, it remains
persuasive authority from the Eleventh Circuit. The Court is
convinced that Petitioner invoked one complete round of the
state's established appellate review process by appealing
the summary denial of his Rule 3.850 motions. But see
Watson v. State, 975 So.2d 572, 573 (Fla. 1st DCA 2008)
(per curiam) (noting the impropriety of reviewing speculative
and unsupported arguments in a brief addressing a summary
denial of a post conviction motion). Thus, grounds seven,
eleven, and twelve are exhausted. See Fowler v.
Sec'y, DOC, No. 3:12-cv-815-J-39MCR, 2015 WL
1470695, at *10 (M.D. Fla. Mar. 31, 2015) (finding a claim
exhausted and properly before the Court as the petitioner did
not receive an evidentiary hearing on this particular post
conviction ground and was not required to brief that issue on
appeal of denial of post conviction relief).
respect to ground eight, Respondents assert Petitioner did
not raise a cumulative error of counsel claim in the state
trial court in his post conviction motions, and this claim
should be deemed unexhausted as the state court did not
address the claim of cumulative error. Response at 59-60.
Petitioner does not address Respondents' contention in
review, the trial court denied a claim of cumulative error of
counsel. Ex. H at 231. The Court finds Petitioner
sufficiently raised the claim before the trial court as it
acknowledged the claim and addressed it. After the trial
court's denial of this ground, Petitioner appealed. Ex.
J. The 1st DCA affirmed per curiam. Ex. M. As noted above,
any failure to brief this particular issue on appeal did not
serve as a waiver of the claim as Petitioner was not required
to file a brief because he did not receive an evidentiary
hearing. The Court finds Ground eight exhausted as well.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Grounds One and Ten
raises very similar claims in grounds one and ten of the
Petition, and they will be addressed together. In ground one,
Petitioner claims his counsel was ineffective for failure to
object to the prosecutor's violation of the
Williams Rule (acquitted charges), in violation of
Petitioner's due process rights. Petition at 13. In
ground ten, Petitioner claims counsel was ineffective for
failure to object to the state's comments about the
charges for which Petitioner was acquitted, in violation of
Petitioner's due process rights. Id. at 5.
exhausted these claims in ground six of his 3rd Rule 3.850
motion, Ex. H at 22-23, in amended ground seven of his 11th
Rule 3.850 motion, Ex. I at 2-4, and by appealing the denial
of his post conviction motions. Ex. J at 23-31. It is
important to note that the trial court renumbered these
claims as ground five in its decision denying the motions for
post conviction relief. Ex. H at 224-27. On May 4, 2016, the
1st DCA affirmed the decision of the trial court without
opinion. Ex. M. The mandate issued on June 1, 2016.
trial court, before addressing Petitioner's claims of
ineffective assistance of counsel, set forth the applicable
two-pronged Strickland as a preface to addressing
the claim of ineffective assistance of counsel, and
referenced Hill, setting forth the requirement for
meeting the prejudice prong in the context of a guilty plea.
Ex. H at 218-19. The record shows the 1st DCA affirmed the
decision of the trial court in denying these grounds. Ex. J.
Under Wilson, this Court assumes that the court of
appeals adopted the reasoning of the trial court. The state
has not attempted to rebut this presumption. Wilson,
138 S.Ct. at 1192. The state court did not unreasonably apply
Strickland. The Court concludes AEDPA deference is
warranted as the state court's adjudication of this claim
is not contrary to or an unreasonable application of
Strickland, or based on an unreasonable
determination of the facts. Petitioner is not entitled to
habeas relief on grounds one and ten.
trial court, applying the Strickland standard,
rejected Petitioner's claims under the heading:
"Failure to Object to Williams Rule Violations
and Comments Regarding Crimes for Which Defendant was
Acquitted[.]" Ex. H at 224. First, the court outlined
Petitioner's complaints about counsel's failure to
object to the prosecutor's references to previous crimes
and other negative comments, including a failure to object to
the state's discussion of crimes, shootings, and
robberies for which Petitioner was acquitted, as well as
other disparaging remarks (calling Petitioner a woman-beater,
a menace to society, and a pursuer of a life of crime).
Id. at 225. The court also noted Petitioner's
additional complaint about a statement the court made at
sentencing concerning the need to impose a sentence the
defendant should have received seventeen years ago.
trial court, in denying post conviction relief, found it was
proper for the state to discuss Petitioner's criminal
history at sentencing. Id. The court also found
appropriate a discussion of Petitioner's previous
convictions as they formed the basis for his guideline
sentence. Id. With regard to arrests without
convictions, the court found they too could be considered
during sentencing, so long as the arrests were considered to
be just that, and the defendant was given the opportunity to
explain or offer evidence concerning prior arrests.
Id. (citation omitted). The trial court stated it
gave Petitioner the opportunity to address the matter of his
previous arrests and charges during the sentencing
proceeding, and defense counsel took the opportunity and
addressed the arrests and charges that were either dropped or
never filed. Id. See Ex. E at 22-23. As
such, the court found counsel "cannot be held
ineffective for failing to object," as it would have
been a meritless argument under the circumstances. Ex. H at
trial court made other findings in its ruling on the post
conviction motions. Ex. H at 226. It found the prosecutor
never called Petitioner a woman beater or a menace to
society. Id. The court recognized the prosecutor did
say Petitioner's way of life is to deal drugs, but the
court concluded that this was a legitimate argument based on
the evidence in the record showing Petitioner's extensive
criminal history involving drugs. Id. The court