Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Griffin v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

July 18, 2018

JAMES H. GRIFFIN, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          James H. Griffin Counsel of Record

          ORDER

          BRIAN J. DAVIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner 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.[1] 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).[2] Petitioner submitted his "Amended Reply" (Reply) (Doc. 23). See Order (Doc. 7).

         II. CLAIMS OF PETITION

         Strangely, 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.[3] The thirteen grounds are: (1) the ineffective assistance of counsel for failure to object to prosecutor's violation of the Williams[4] 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 plea.[5]

         III. EVIDENTIARY HEARING

         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).

         In this 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)).

         IV. STANDARD OF REVIEW

         The 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)).

         Federal 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. § 2254(d).
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, 2018).

         "We 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).

         Recently, 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 1197.

         Being 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.

         Although 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).

         V. INEFFECTIVE ASSISTANCE OF COUNSEL

         Petitioner 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).

         With 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 defendant.'").

         This 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 incredible.
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).

         VI. TIMELINESS

         The Petition is timely filed. See Response at 15-17.

         VII. EXHAUSTION/PROCEDURAL DEFAULT

         Respondents 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.

         The 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 the same)).

         To 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).

         With 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 his Reply.

         Upon 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.

         VIII. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Grounds One and Ten

         Petitioner 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.

         Petitioner 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. Id.

         The 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.

         The 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. Id.

         The 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 225.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.