United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
January 19, 2017, under the mailbox rule, Petitioner Anthony
Rogelio Griego, proceeding pro se, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
1. Pursuant to leave of court, an amended petition was filed
on March 16, 2017. ECF No. 7. The Respondent was ordered to
file an answer, motion, or other response to the petition.
ECF No. 8. On December 20, 2017, Respondent filed a motion to
dismiss the § 2254 petition as untimely. ECF No. 20
(with exhibits). That motion was denied on June 14, 2018, and
Respondent was directed to file an answer. ECF No. 31. On
September 11, 2018, Respondent filed a motion to dismiss
contending that two of Petitioner's claims were
unexhausted, thus creating a mixed petition. ECF No. 38.
Petitioner filed a reply to the motion to dismiss on November
15, 2018. ECF No. 41. On January 3, 2019, the second motion
to dismiss was denied and Respondent was directed to file an
answer to the amended § 2254 petition. ECF No. 44.
Respondent filed an answer on February 27, 2019, with record
exhibits. ECF No. 47. Petitioner filed a reply and appendix
to reply on June 14, 2019. ECF Nos. 57, 59.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration of all the issues
raised, the undersigned has determined that no evidentiary
hearing is required for disposition of this case.
See Rule 8(a), R. Gov. § 2254 Cases in U.S.
Dist. Cts. On June 19, 2019, Petitioner filed a motion to
conduct discovery, for financial assistance to hire an
expert, for appointment of counsel, and to supplement the
record with material not presented in the state court. ECF
No. 58. Petitioner previously filed a similar motion on May
23, 2018, which was denied. ECF Nos. 30, 33. Petitioner's
current motion, ECF No. 58, should also be denied.
reasons set forth herein, the pleadings and attachments
before the Court show that Petitioner is not entitled to
federal habeas relief and grounds One through Nine of the
amended § 2254 petition should be denied. Ground Ten
should be dismissed for lack of jurisdiction.
and Procedural History
was charged by Amended Information filed on November 6, 2007,
with Count One, DUI Manslaughter of Gerran Clayton Copeland
in Santa Rosa County, Florida, on August 19, 2007, in
violation of sections 316.193(1) and 316.193(3)(a), (b),
(c)(3)a, Florida Statutes. Ex. B1 at 25.He was also
charged with Count Two, leaving the scene of a crash
involving a death in violation of section 316.027(1)(b),
Florida Statutes, and Count Three, resisting an officer
without violence. Id. After a plea of guilty as
charged to the offenses, Defendant was sentenced on April 23,
2008, to 13 years in prison for Count One, 8 years in prison
for Count Two, consecutive to the sentence in Count One, and
270 days in jail for Count Three, concurrent to the sentence
in Count One. Ex. B1 at 31, 42-48.
appealed to the state First District Court of Appeal and his
counsel filed an Anders brief. Ex. B4 at 7.
Petitioner was given leave to file a pro se brief. Ex. B4B.
Another initial brief by different counsel was filed pursuant
to Anders. Ex. B4C. The appellate court affirmed per
curiam without written opinion on February 25, 2010. Ex. B5.
The mandate was issued on March 23, 2010. Ex. B6. See
Griego v. State, 29 So.3d 1121 (Fla. 1st DCA 2010)
24, 2010, Petitioner, with counsel, filed a motion for
modification of sentence. Ex. D1 at 4-18. No. formal order
disposing of the motion appears in the record. However,
circuit court notes indicate Petitioner was given a hearing
on a motion for modification of sentence on June 29, 2011,
and the motion was denied on that date. Ex. D1 at 42.
February 16, 2012, Petitioner filed a petition for writ of
habeas corpus in the First District Court of Appeal alleging
ineffective assistance of appellate counsel. Ex. C1. The
petition was denied on the merits on March 8, 2012. Ex. C2.
See Griego v. State, 81 So.3d 615 (Fla. 1st DCA
filed a Motion for Postconviction Relief pursuant to Florida
Rule of Criminal Procedure 3.850 on March 22, 2012, under the
mailbox rule, in which he alleged fourteen grounds for
relief. Ex. D1 at 47-77. An order was entered on May 16,
2012, striking the pro se motion for postconviction relief
with leave to amend to encompass all the post-conviction
matters Petitioners sought to raise. Ex. D1 at 80. Petitioner
filed an Amended Motion for Postconviction Relief on June 29,
2012, Ex. D1 at 84-119, and a “Final Amendment to
Defendant's Previously Filed ‘Amended' Motion
for Postconviction Relief with Incorporated Memorandum of
Law, ” alleging fourteen grounds, on May 9,
2013. Ex. D1 at 160-97.
postconviction court entered an order on February 17, 2014,
setting an evidentiary hearing on all of Petitioner's
claims except ground two, which challenged the adequacy of
the plea colloquy. Ex. D2 at 226-29. Counsel was appointed,
Ex. D2 at 227, and an evidentiary hearing was held on January
27, 2015. Ex. D4. The post-conviction motion was denied, D2
at 254-400, and a timely appeal followed. On November 9,
2016, the First District Court of Appeal affirmed per curiam
without a written opinion. Ex. D9. Rehearing was denied
January 5, 2017. Ex. D11. The mandate was issued January 23,
2017. Ex. D12. See Griego v. State, 207 So.3d 224
(Fla. 1st DCA 2016) (table).
January 17, 2017, Petitioner filed a pro se motion to correct
illegal sentence pursuant to Florida Rule of Criminal
Procedure 3.800(a) alleging three grounds. Ex. F1 at 1-5. An
amended motion to correct sentence with similar claims was
filed on March 14, 2017. Ex. F1 at 52-59. The trial court
granted in part and denied in part the amended motion,
removing a special condition that permanently revoked
Petitioner's driver's license as to Count 2. Ex. F1
at 67-70. Petitioner appealed to the state First District
Court of Appeal, which affirmed per curiam without opinion on
July 12, 2017. Ex. F4. The mandate was issued on August 31,
2017. Ex. F7. See Griego v. State, 228 So.3d 555
(Fla. 1st DCA 2017) (table).
March 6, 2017, Petitioner filed a pro se amended second or
successive motion for post-conviction relief alleging four
grounds. Ex. G1 at 31-60. The post-conviction court
denied the claims on May 9, 2017. Ex. G1 at 102-60.
Petitioner filed a belated motion for rehearing, which was
dismissed, but the appellate court granted a belated appeal.
Ex. G7. Petitioner appealed the denial of the second or
successive Rule 3.850 motion. Ex. G9. The appellate court
affirmed per curiam without opinion on November 21, 2018, and
the mandate was issued on December 19, 2018. Exs. G11, G12.
See Griego v. State, 258 So.3d 389 (Fla. 1st DCA
August 1, 2017, Petitioner filed a second Petition for Writ
of Habeas Corpus in the state First District Court of Appeal.
Ex. H1. The appeal was denied “on the merits” on
August 24, 2017. Ex. H2. See Griego v. State, 232
So.3d 982 (Fla. 1st DCA 2017) (table). Petitioner's
petition to invoke all writs/habeas corpus filed in the
Florida Supreme Court was dismissed for lack of jurisdiction
on October 30, 2017. Exs. I1, I2.
filed his Amended Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 raising ten grounds. ECF No. 7.
to 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
courts may grant habeas corpus relief for persons in state
custody only under certain specified circumstances. Section
2254(d) provides in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that 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). See also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); Gill v.
Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).
the ‘contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law
or if the state court decides a case differently than this
Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000) (O'Connor, J., concurring).
“Under the ‘unreasonable application' clause,
a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case.” Id.
at 413 (O'Connor, J., concurring).
Supreme Court has explained that “even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). The Court stated:
As amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal-court relitigation of claims already
rejected in state proceedings. . . . It preserves authority
to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with this Court's precedents. It goes
no further. Section 2254(d) reflects the view that habeas
corpus is a “guard against extreme malfunctions in the
state criminal justice systems, ” not a substitute for
ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring in judgment). As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
Id. at 102-03 (citation omitted). The federal court
employs a “ ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.'
” Pinholster, 563 U.S. at 181 (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); 28 U.S.C. § 2254(b). The Petitioner must have
apprised the state court of the federal constitutional claim,
not just the underlying facts of the claim or a
“somewhat similar state-law claim.” Snowden
v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)
(quoting Anderson v. Harless, 459 U.S. 4, 5-6
(1982)). In order for remedies to be exhausted, “the
petitioner must have given the state courts a
‘meaningful opportunity' to address his federal
claim.” Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quoting
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
2005)). Petitioner must “fairly present” his
claim in each appropriate state court in order to alert the
state courts to the federal nature of the claim. Duncan
v. Henry, 513 U.S. 364, 365 (1995); Picard v.
Connor, 404 U.S. 270, 275 (1971); O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). The State must have
been provided the “ ‘opportunity to pass upon and
correct' alleged violations of its prisoners' federal
rights.” Henry, 513 U.S. at 365 (quoting
Picard, 404 U.S. at 275 (citation omitted)).
“This rule of comity reduces friction between the state
and federal court systems by avoiding the
‘unseem[liness]' of a federal district court's
overturning a state court conviction without the state courts
having had an opportunity to correct the constitutional
violation in the first instance.”
O'Sullivan, 526 U.S. at 845; see also
Picard, 404 U.S. at 275 (“If the exhaustion
doctrine is to prevent ‘unnecessary conflict between
courts equally bound to guard and protect rights secured by
the Constitution,' it is not sufficient merely that the
federal habeas applicant has been through the state
courts.” (citation omitted)).
regard to claims of ineffectiveness of trial counsel, the
Petitioner must have presented those claims in state court
“ ‘such that a reasonable reader would understand
each claim's particular legal basis and factual
foundation.' ” Ogle v. Johnson, 488 F.3d
1364, 1368 (11th Cir. 2007) (citing McNair, 416 F.3d
order to obtain review where a claim is unexhausted and,
thus, procedurally defaulted, the Petitioner must show cause
for the default and prejudice resulting therefrom or a
fundamental miscarriage of justice. Tower v.
Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to
demonstrate cause, Petitioner must show that an
“external impediment, whether it be governmental
interference or the reasonable unavailability of the factual
basis for the claim, must have prevented petitioner from
raising the claim.” Alderman v. Zant, 22 F.3d
1541, 1551 (1994) (citing Murray v. Carrier, 477
U.S. 478, 488 (1986)); see also McCleskey v. Zant,
499 U.S. 467, 497 (1991) (emphasizing that the external
impediment must have prevented the petitioner from raising
the claim). A federal court may grant a habeas petition on a
procedurally defaulted claim without a showing of cause or
prejudice if necessary to correct a fundamental miscarriage
of justice. Henderson v. Campbell, 353 F.3d 880, 892
(11th Cir. 2003). In order to satisfy the miscarriage of
justice exception, the Petitioner must show that a
constitutional violation has occurred that “probably
resulted in a conviction of one who is actually
innocent”-that it is more likely than not that no
reasonable juror would have convicted him-which is a stronger
showing than is necessary to establish prejudice. See
Schlup v. Delo, 513 U.S. 298, 327 (1995). This standard
“thus ensures that petitioner's case is truly
‘extraordinary.' ” Id. (citing
McCleskey, 499 U.S. at 494). Such a case is
“extremely rare.” Schlup, 513 U.S. at
Court's review “is limited to the record that was
before the state court that adjudicated the claim on the
merits.” Pinholster, 563 U.S. at 181. The
state court's factual findings are entitled to a
presumption of correctness and to rebut that presumption, the
Petitioner must show by clear and convincing evidence that
the state court determinations are not fairly supported by
the record. See 28 U.S.C. § 2254(e)(1).
However, “it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions” and “[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). See also Swarthout v. Cooke, 562 U.S.
216, 222 (2011) (“[W]e have long recognized that
‘a “mere error of state law” is not a
denial of due process.' ” (quoting Engle v.
Isaac, 456 U.S. 107, 121, n.21 (1982))).
under § 2254(d), federal courts have “no license
to redetermine credibility of witnesses whose demeanor has
been observed by the state trial court, but not by
them.” Marshall v. Lonberger, 459 U.S. 422,
434 (1983). “Determining the credibility of witnesses
is the province and function of the state courts, not a
federal court engaging in habeas review.” Consalvo
v. Sec'y, Dep't of Corr., 664 F.3d 842, 845
(11th Cir. 2011). Credibility and demeanor of a witness are
considered to be questions of fact entitled to a presumption
of correctness under the AEDPA and the Petitioner has the
burden to overcome the presumption by clear and convincing
claims of ineffective assistance of counsel, the United
States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To demonstrate deficient performance, a “defendant must
show that counsel's performance fell below an objective
standard of reasonableness.” Id. at 688.
Counsel is “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Burt v.
Titlow, 134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690). Federal courts are to
afford “both the state court and the defense attorney
the benefit of the doubt.” Id. at 13. The
reasonableness of counsel's conduct must be viewed as of
the time of counsel's conduct. See Maryland
v. Kulbicki, 136 S.Ct. 2, 4 (2015) (citing
Strickland, 466 U.S. At 690).
demonstrate prejudice under Strickland, a defendant
“must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.” 466
U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. For this Court's purposes,
“[t]he question ‘is not whether a federal court
believes the state court's determination' under the
Strickland standard ‘was incorrect but whether
that determination was unreasonable-a substantially higher
threshold.' ” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “And, because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Mirzayance, 556 U.S. at 123. It is a “doubly
deferential judicial review that applies to a
Strickland claim evaluated under the §
2254(d)(1) standard.” Id. Both deficiency and
prejudice must be shown to demonstrate a violation of the
Sixth Amendment. Thus, the court need not address both prongs
if the petitioner fails to prove one of the prongs.
Strickland, 466 U.S. at 697.
1: Ineffective Assistance of Appellate Counsel
contends that appellate counsel rendered ineffective
assistance by failing to raise as fundamental error a claim
that Petitioner was denied a fair sentencing hearing. ECF No.
7 at 5. He argues that the sentencing court, in imposing
sentence after Petitioner's plea, improperly relied on
his profession of innocence of the offense of leaving the
scene of the crash made during the sentencing hearing.
Id. Respondent contends the claim is unexhausted
and, thus, procedurally defaulted because Petitioner did not
raise any specific federal constitutional ground for his
ineffective assistance of appellate counsel claim in state
court. ECF No. 47 at 11.
filed a petition for writ of habeas corpus in the state First
District Court of Appeal alleging that appellate counsel
rendered ineffective assistance by not raising a fundamental
error due process claim that the court considered
“constitutionally impermissible factors” at
sentencing. Ex. C1 at 7-8. Respondent is correct that
Petitioner cited only state law cases in support of his
petition for writ of habeas corpus. The Eleventh Circuit has
“It is not sufficient merely that the federal habeas
petitioner has been through the state courts . . . nor is it
sufficient that all the facts necessary to support the claim
were before the state courts or that a somewhat similar
state-law claim was made.” Kelley [v. Sec'y for
Dept. of Corr., 377 F.3d 1317, 1343-44] (citing
Picard, 404 U.S. at 275-76 and Anderson v.
Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3
(1982)). Rather, in order to ensure that state courts have
the first opportunity to hear all claims, federal courts
“have required a state prisoner to present the state
courts with the same claim he urges upon the federal
courts.” Picard, 404 U.S. at 275, 92 S.Ct. at
512 (citations omitted). While we do not require a verbatim
restatement of the claims brought in state court, we do
require that a petitioner presented his claims to the state
court “such that a reasonable reader would understand
each claim's particular legal basis and specific factual
foundation.” Kelley, 377 F.3d at 1344-45
(citing Picard, 404 U.S. at 277, 92 S.Ct. at 513).
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
petition in the state appellate court, Petitioner cited
numerous state cases in support of his contention.
See Ex. C1 at 7-10. Petitioner did not cite the
Sixth Amendment or the Fourteenth Amendment as a basis for
relief in state court and none of the cases cited rely on the
federal Constitution or any federal case law. In fact, in one
of the cases cited by a case discussed in the petition, the
Florida court relied on Art. I, § 9, of the Florida
Constitution in finding a violation of due process. See
Holton v. State, 573 So.2d 284, 291 (Fla. 1990), cited
in Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA
2009). Because Petitioner did not allege any federal
constitutional violation, or any federal statutory or
constitutional support, for his claim in state court that
appellate counsel rendered ineffective assistance, the claim
is unexhausted and procedurally defaulted because he may not
now return to state court to exhaust the federal
of the procedural default, the claim is without merit and
should be denied. The state appellate court adjudicated
this claim on the merits. See Griego v. State, 81
So.3d 615 (Fla. 1st DCA 2012) (mem). That adjudication was
not contrary to any federal law or an unreasonable
application of federal law. “Claims of ineffective
assistance of appellate counsel are governed by the same
standards applied to trial counsel under
Strickland.” Philmore v. McNeil, 575
F.3d 1251, 1264 (11th Cir. 2009). In considering the
reasonableness of counsel's decision not to raise a
particular issue, the Court considers all the circumstances
and gives great deference to counsel's judgment.
Id. at 1265. Appellate counsel does not perform
deficiently for failing to raise every non-frivolous ground
for appeal. Smith v. Robbins, 528 U.S. 259, 288
(2000). To determine if prejudice has been shown, the court
must “first review the merits of the omitted
claim.” Philmore, 575 F.3d at 1264-65.
Petitioner must show that there is a reasonable probability
of success on appeal. Id. at 1265.
case, Petitioner argues that appellate counsel should have
argued fundamental error, but he has not demonstrated that
such a claim would have had a reasonable probability of
success on appeal. Because counsel made no objection to the
trial court's alleged consideration of his claim of
innocence to the charge of leaving the scene of the crash,
Petitioner was required to demonstrate fundamental error in
order to assert that claim on appeal. See Hannum v.
State, 13 So.3d 132, 135 (Fla. 2d DCA 2009)
(“[F]or an error to be so fundamental that it can be
raised for the first time on appeal, the error must be basic
to the judicial decision under review and equivalent to a
denial of due process.”) (citations and quotation marks
Florida law, “[f]undamental error occurs where a trial
court considers constitutionally impermissible factors when
imposing a sentence.” See also Yisrael v.
State, 65 So.3d 1177, 1177 (Fla. 1st DCA 2011). In
Florida, at the time of Petitioner's sentences, a
sentencing court could not consider or use against a
defendant his assertion of innocence and refusal to admit
guilt. Ritter v. State, 885 So.2d 413, 414 (Fla. 1st
DCA 2004). The stated reasons for the general rule
prohibiting a court from considering lack of remorse or
protestation of innocence was to ensure the defendant is not
unfairly punished for pleading not guilty and exercising his
right to trial. Corbitt v. State, 220 So.3d 446,
450-51 (5th DCA 2016). Where a defendant freely and
voluntarily enters a plea and admitted under oath his
involvement in the crimes, consideration of lack of remorse
or failure to take responsibility has been held not to be
error. Id. at 450-51. Petitioner entered a guilty
plea to the charges in this case.
Petitioner's state habeas petition, the state appellate
court denied the claim on the merits. Thus, in rejecting this
claim of ineffective assistance of appellate counsel on the
merits, the state appellate court necessarily determined that
the allegation of sentencing error was not shown to be
reversible fundamental error. Thus, even if appellate counsel
had raised the claim on direct appeal, Petitioner cannot show
that it would have had a reasonable chance of success.
Court must defer to the state court's interpretation of
its own law: “a state court's interpretation of
state law . . . binds a federal court sitting in habeas
corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005). See also Herring v. Sec'y, Dep't of
Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005)
(“The Florida Supreme Court already has told us how the
issues would have been resolved under Florida state law had
[petitioner's counsel] done what [petitioner] argues he
should have done . . . . It is a ‘fundamental principle
that state courts are the final arbiters of state law, and
federal habeas courts should not second-guess them on such
matters.' ”) (quoting Agan v. Vaughn, 119
F.3d 1538, 1549 (11th Cir. 1997)).
the state court's adjudication of this claim was not
objectively unreasonable because the record demonstrates that
the trial court did not rely on Petitioner's lack of
remorse or failure to take responsibility in giving him a
harsher sentence. On February 11, 2008, Petitioner entered a
plea of guilty to leaving the scene of the crash involving
death and failing to render aid or forthwith report the crash
to police. Ex. B2 at 7 (transcript pagination). Petitioner
confirmed at the plea hearing that he would not thereafter be
able to say he did not commit the crime. Id. At the
sentencing hearing on April 23, 2008, Petitioner stated:
The officers' statements contradict theirselves and the
store clerk statement contradicts himself. I wasn't a
mile down the road or even two miles down the road. No. one
had to come looking for me, and I never tried to run. The
best thing I could have done was go to that store. It was the
only thing that I could have done.
I didn't call 911, because I didn't realize what I
had hit. Even in the police reports it plainly shows I
didn't know. It didn't occur to me that it could have
been a human being because of the time of night it was. Yes,
my behavior that night was unacceptable; but when I was told
that it was a young boy that I hit, I went into shock. I
panicked, I freaked. I was in disbelief.
I was told that you [victim's family] wanted me to plead
guilty, so that's what I did in hopes that I will bring
comfort to you and your family. Mr. and Mrs. Copeland,
I'm sorry for making the mistake that I did. I'm
sorry for causing you pain. Please understand and please know
I never meant to leave your son Gerran behind. Please forgive
. . . . If I had known that it was a person that I hit that
night, my actions would have been different. I would have
dialed 911 immediately. I would have went back. I would have
tried to revive him. I would have did whatever I could to
help him. I was not trying to run from anything. My heart and
God would not allow it.
Ex. B3 at 225-27. The prosecutor argued that based on his
guilty pleas, Petitioner faced 46 years in prison on the
three counts. Ex. B3 at 231-32. She noted that the minimum
sentence calculated on the sentencing scoresheet was just
over 12 years for the three counts. Id. at 232. The
prosecutor urged the court to impose more than the minimum
sentence, stating, “I was disappointed to hear that Mr.
Griego is not admitting that he knew he left Gerran [the
victim] on the side of the road. The evidence suggests
otherwise.” Id. at 234. She went on to explain
that the evidence would show Petitioner was intoxicated when
he drove over the lane of travel and struck the victim on his
bicycle. The prosecutor argued that Petitioner drove to a
convenience store not call 911 but to call a coworker. The
clerk noticed the damage to Petitioner's work van,
including a smashed windshield, front end damage, and
deployed air bags, one of which had the victim's blood on
it. Id. at 235, 240. The prosecutor stated that
Petitioner told the store clerk that he ran off the road and
hit someone, but laughed and amended it to “I hit
something.” Id. at 236. The prosecutor noted
that when the police came, Petitioner resisted them and did
not cooperate, charges to which he pleaded guilty.
Id. at 243-44. The prosecutor commented that
“the fact that he continues to deny that he knew that
he left Gerran today is disturbing and further reason why he
should not receive a minimum guideline sentence.”
Id. at 244.
court sentenced Petitioner to 13 years for Count One, 8 years
consecutive for Count Two, followed by ten years probation,
and 270 days for Count Three, concurrent to the sentence in
Count One. Id. at 259-61. The judge's reasoning
for the sentences was stated in pertinent part as follows:
The penalty that's imposed by the Court should be
commensurate with the severity of the offense and the
circumstances that surround the offense. A trial court judge
may make a downward departure from the recommended guidelines
only when the circumstances or factors reasonably justify or
mitigate a guideline sentence.
I've considered the facts that were presented today, and
you also testified under oath. Your attorney had you put
under oath. Therefore I would consider those of evidence. I
do not find the evidence presented provides a reasonable
basis or justification to mitigate the guideline sentence,
therefore any downward departure is denied.
You've had some prior past experience with criminal
convictions including substance abuse. Some people may call
this a tragic accident. It is not an accident. You chose to
drive drunk, you chose to get behind the wheel of that car,
you went over the fog line, and you struck and killed a
17-year-old young man. I call him a young man because he
seemed to be a fine person from everything I've heard
From what I understand from the presentence report that young
man's body was hurled over 200 feet from the point of
impact, and you left the scene of the accident, and left that
young man to die in the dark. Now, I don't know whether
he was dead at the time of impact or not, but his body was
left on the side of the road. And had it not been for an
alert convenience store clerk that saw the damage to your car
and called for emergency assistance - - something you did not
do although you had the opportunity to do it - - you
attempted to use the phone in the convenience store, and you
then took change to go outside and make a phone call. And
unless I'm wrong most of these phones will allow you to
call 911 without any type of coins.
Also I do not believe you went outside to make any calls for
911. You didn't say it, but I don't believe it was
happening anyway, because I'm sure you would have
reported something to the store clerk rather ...