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Griego v. Inch

United States District Court, N.D. Florida, Pensacola Division

July 1, 2019

ANTHONY ROGELIO GRIEGO, Petitioner,
v.
MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On 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.

         The 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.

         For the 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.

         Background and Procedural History

         Defendant 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.[1]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.

         Petitioner appealed to the state First District Court of Appeal and his counsel filed an Anders brief.[2] 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) (table).

         On May 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.

         On 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.[3] 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 2012) (mem).

         Petitioner 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.[4] Ex. D1 at 160-97.

         The 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.[5] 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).

         On 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.[6] 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).

         On March 6, 2017, Petitioner filed a pro se amended second or successive motion for post-conviction relief alleging four grounds.[7] 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.[8] 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 2018) (table).

         On 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.

         Petitioner filed his Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 raising ten grounds. ECF No. 7.

         Analysis

         Pursuant 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; or
(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).

         “Under 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).

         The 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)).

         “Before 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)).

         In 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 at 1302).

         In 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 324.

         This 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))).

         Further, 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 evidence. Id.

         For 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).

         To 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.

         Ground 1: Ineffective Assistance of Appellate Counsel

         Petitioner 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.

         Petitioner 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 explained:

“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. 2005).

         In his 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 claim.[9]

         Regardless of the procedural default, the claim is without merit and should be denied.[10] 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.

         In this 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 omitted).

         Under 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).[11] 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.

         In 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.

         This 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)).

         Further, 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 me.
. . . . 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.

         The 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 today.
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 ...

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