United States District Court, M.D. Florida, Tampa Division
DAVID W. GRIFFIN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
THE COURT are Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(cv Dkt. 1), Memorandum in Support (cv Dkt. 2), the United
States' Response (cv Dkt. 5), and Petitioner's reply
(cv Dkt. 9). Upon review, Griffin's § 2255 motion is
2015, Griffin was indicted and charged with one count of mail
fraud, nine counts of bankruptcy fraud, one count of
aggravated identity theft, and two counts of making a false
statement under oath. (cr Dkt. 1). Pursuant to a written plea
agreement, he pleaded guilty to one count of bankruptcy fraud
(Count V) and one count of making a false statement under
oath (Count XII). (cr Dkts. 37, 47, 51). He stipulated to the
factual basis in the plea agreement:
[Griffin] devised a foreclosure rescue scheme to defraud
homeowners seeking assistance with their mortgage notes and
foreclosure actions, the creditors holding those notes, the
[Federal Housing Administration] who insures the mortgage
notes, or Fannie Mae who guaranteed the mortgage notes, and
to obtain money and property from the homeowners by means of
materially false pretenses, representations, promises, and
omissions. . . .
The victim homeowners conveyed their properties to . . .
entities controlled by [Griffin]. The homeowners paid rent to
[him] and relied on [his] false promises to stop foreclosure,
obtain the mortgage note and sell their houses back to them.
[He] prevented creditors from lawfully foreclosing on the
homeowner victims' former properties, by filing or
causing to be filed, fraudulent bankruptcies on behalf of the
victims without their knowledge or consent. These bogus
bankruptcy petitions invoked the automatic stay provision of
federal bankruptcy law which brought an immediate halt to
any foreclosure against the homeowners' property. . . .
[Griffin] also made a false oath or account concerning a
material matter to the Office of United States Trustee about
[a] bankruptcy petition. . . . [He] testified under oath
pursuant to a Rule 2004 Examination notice. On several
occasions, [he] was asked about the bankruptcy filed on
behalf of [one of his entities]. [He] denied knowing anything
about this bankruptcy filing, when, in fact, [he] prepared
the bankruptcy petition and had [one of his] employee[s] sign
and file the petition.
(cr Dkt. 37 at 15-18).
further “acknowledge[d] understanding the nature and
elements of the offense(s) with which [he] has been charged
and to which [he] is pleading guilty.” (Id. at
3). In exchange for his guilty plea, the United States agreed
to dismiss the remaining counts, recommend a two-level
reduction for acceptance of responsibility, and not oppose
Griffin's request for a sentence at the low-end of the
guidelines range. (Id. at 4-5; cv Dkt. 2 at 2).
the change of plea hearing, Griffin denied being threatened
or forced to plead guilty or being promised anything outside
the plea agreement, confirmed that he spoke with counsel
before deciding to plead guilty, and expressed satisfaction
with counsel's representation. (cr Dkt. 77 at 9, 19-20).
He further acknowledged that the recommendations included in
the plea agreement were not binding on the sentencing court.
(Id. at 9).
counsel filed a written motion for a sentencing variance,
specifically a term of probation, that was ultimately denied.
(cr Dkts. 53, 64, 69 at 35). At sentencing, the government
moved for a downward departure based on acceptance of
responsibility, which was granted (cr Dkts. 62-63, 69 at 4).
The guidelines range was 10 to 16 months. (cr Dkt. 69 at 4;
cr Dkt. S-59 at 1). Citing the § 3553(a) factors, the
court sentenced Griffin to 36 months imprisonment followed by
3 years supervised release. (Id. at 29-32). He did
not appeal. (cv Dkt. 1 at 1).
Griffin's timely § 2255 motion, he raises three
ineffective assistance of counsel claims, relating to the
plea agreement (ground one), sentencing (ground two), and
counsel's failure “to fully set forth the factual
background of [Griffin's] case.” (cv Dkt. 1 at 4,
5, 6). In support, he relies on his argument and facts in
Memorandum In Support. (Id.). The United States
filed a response in opposition, which includes an affidavit
from his counsel. (cv Dkt. 5). Griffin filed a reply, to
which he attached his affidavit that does not appear to be
sworn to. (cv Dkt. 9).
establish ineffective assistance of counsel, Griffin must
demonstrate that (1) counsel's performance was
constitutionally deficient, and (2) he was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687
(1984). “Judicial scrutiny of counsel's performance
must be highly deferential. . . . A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Id. at 689. And “a court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
Id. (citation and internal quotation marks omitted).
Strickland test also applies to challenges of guilty
pleas. See Scott v. United States, 325 Fed.Appx.
822, 824 (11th Cir. 2009). The Eleventh Circuit explains:
In this context, the first prong of Strickland
requires the defendant to show his plea was not voluntary
because he received advice from counsel that was not within
the range of competence demanded of attorneys in criminal
cases. The second prong focuses on whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process, meaning the defendant must show a
reasonable probability that, but for counsel's errors, he
would have entered a different plea.
Id. (internal quotation marks and citations
omitted); see also Lafler v. Cooper, 566 U.S. 156
to Griffin's claims of ineffective assistance of counsel,
“counsel owes a lesser duty to a client who pleads
guilty than to one who decides to go to trial, ” and
“need only provide his client with an understanding of
the law in relation to the facts, so that the accused may
make an informed and conscious choice between accepting the
prosecution's offer and going to trial.”
Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th
Cir. 1984). Counsel must make an “independent
examination of the facts, circumstances, pleadings and laws
involved, [and] offer his informed opinion as to the best
course to be followed in protecting the interests of the
client.” Id. Collateral relief is only
available if a petitioner “prove[s] serious
derelictions on the part of counsel sufficient to show that
his plea was not, after all, a knowing and intelligent
act.” Lopez v. Reid, No.
214CV584FTM38MRM, 2017 WL 2869405, at *2 (M.D. Fla. July 5,
2017) (quoting McMann v. Richardson, 397 U.S. 759,
Griffin does not demonstrate that his counsel's
performance was constitutionally deficient or that he was
prejudiced as a result of any deficiency, his ineffective
assistance of counsel claims fail. Moreover, any claims
relating to his sentence independent of his ineffective
assistance counsel claims are not cognizable in a § 2255
proceeding, “as they fail to allege a constitutional
violation.” Marion v. United States, No.
16-15971-G, 2017 WL 8233896, at *7 (11th Cir. Oct. 24, 2017);
see also Spencer v. United States, 773 F.3d 1132,
1139 (11th Cir. 2014) (concluding that on a § 2255
motion a prisoner may only challenge a sentencing error
“when he can prove that he is either actually innocent
of his crime or that a prior conviction used to enhance his
sentence has been vacated”). And those claims are
procedurally defaulted because Griffin did not raise them on
direct appeal. See McKay v. United States, 657 F.3d
1190, 1196 (11th Cir. 2011) (“Under the procedural
default rule, a defendant generally must advance an available
challenge to a criminal conviction or sentence on direct
appeal or else the defendant is barred from presenting that
claim in a § 2255 proceeding.”).
respect to his claims of ineffective assistance which he
implicitly contend undermined the knowing and voluntary
nature of his guilty plea, his Rule 11 change of plea hearing
demonstrates that his guilty plea was knowing and voluntary.
While under oath, he agreed to the factual basis in the plea
agreement (Dkt. 77 at 20-24), confirmed he had not been
threatened or coerced to plead guilty, and that he had
discussed his decision with counsel before entering his plea
(id. at 9, 19-20). He confirmed that he understood
the potential penalties (id. at 13-14), that the
recommendations in the plea agreement were not binding on the
court (id. at 9), that the sentencing guidelines
were advisory and the court could impose a sentence greater
or less than the guidelines range (id. at 16), and
that he waived his constitutional rights by pleading,
including his right to a jury trial (id. at 19).
One - Ineffective Assistance Relating to the Plea
Ground One, Griffin “asserts that counsel misled him in
negotiation of the plea agreement and exhorting him to accept
such a plea agreement.” (cr Dkt. 2 at 3). He argues
that although he “maintained that he had no intent to
commit any criminal offense or defraud any individual,
” counsel “represent[ed] that [he] would likely
receive a probationary sentence and at the very maximum . . .
a sentence not exceeding one year.” (Id. at
3-4). In short, he argues that “[c]ounsel had an
obligation . . . to fully explain the entirety of the range
of possibilities and otherwise had such explanation been
fully conveyed, [he] would not have entered into the plea
agreement.” (Id. at 6).
avers that Griffin thought the plea agreement was in his best
interest and he never intended to go to trial. (cr Dkt. 5-1
at 3). Counsel further avers he never told Griffin he would
be sentenced to 12 months, that he informed him of the
statutory maximum and that “a downward variance would
be sought.” (Id. at 3-4). Regardless of these
seemingly competing assertions, Griffin's Rule 11
colloquy demonstrates that he entered a knowing and voluntary
guilty plea with a full appreciation of the potential
penalties he faced, independent of what counsel may have told
him, and therefore belies the assertions he now makes.
Moreover, his argument contradicts his contention that
counsel's advice undermined the knowing and voluntary
nature of his guilty plea.
acknowledges that counsel recommended that he accept the plea
agreement in light of the likelihood of conviction at trial,
which could trigger a two-year mandatory minimum for
aggravated identity theft. (cv Dkt. 2 at 4; cv Dkt. 9 at 4).
That advice does not rise to “psychological
coercion.” (cv Dkt. 9 at 6); see United States v.
Taylor, 254 F.Supp.3d 145, 159 (D.D.C. 2017) (finding no
ineffective assistance of counsel where petitioner
“does not contest the accuracy of his counsel's
advice, and correctly informing a defendant that he may face
a greater sentence after conviction at trial is not coercion,
and in fact, failure to do so may qualify as ineffective
assistance of counsel” (citations omitted)).
during his change of plea hearing, Griffin denied being
threatened or forced to plead guilty, confirmed that he spoke
with counsel before deciding to plead guilty, and expressed
satisfaction with counsel's representation. (cr. Dkt. 77
at 7, 9, 19-20); see also Patel v. United States,
252 Fed.Appx. 970, 975 (11th Cir. 2007) (“There is a
strong presumption that statements made during the plea
colloquy are true.”); United States v.
Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984)
(“When a defendant pleads guilty relying upon his
counsel's best professional judgment, he cannot later
argue that his plea was due to coercion by counsel.”).
And although Griffin now argues he “first became aware
of [the possibility of a sentence exceeding the sentencing
guidelines] at the sentencing hearing, ” he
acknowledges that counsel had explained the statutory
maximum. (cv Dkt. 2 at 4-5). Moreover, the court explained
that “[t]he sentencing guidelines are advisory[,
meaning] the Judge may give you a sentence that is more or
less than what your advisory guideline range calls for,
” and that the parties' recommendations were not
binding. (cr Dkt. 77 at 9, 16).
counsel's performance was not deficient in predicting,
even mistakenly, what sentence would be imposed, or whether
the sentence would be within or outside the advisory
guidelines range, where, as here, the Rule 11 colloquy
demonstrates that Griffin was informed of the possible
sentence. See Langford v. United States, No.
CIV.A09-00251WS-M, 2009 WL 6467043, at *9 (S.D. Ala. Oct. 23,
2009), report and recommendation adopted, No. CIV.
09-0251-WS, 2010 WL 1949480 (S.D. Ala. May 12, 2010)
(citations omitted) (“[A] claim of ineffective
assistance of counsel is not supported by a misjudgment in
sentence length.”); see also United States v.
Pease, 240 F.3d 938, 941 (11th Cir. 2001) (affirming the
denial of the defendant's motion to withdraw his guilty
plea where, although defense counsel incorrectly predicted
the length of the sentence, the defendant was informed of the
possible sentence during the plea colloquy); Johnson v.
Massey, 516 F.2d 1001, 1002 (5th Cir. 1975) (“[A]
good faith but erroneous prediction of a sentence by a
defendant's counsel does not render the guilty plea
also contends that counsel was ineffective in failing to
argue that a sentence at the low-end of the guidelines would
comport with the § 3553(a) factors. (Dkt. 2 at 5). But
counsel did precisely that. First, he filed a written motion
for a variance below the guidelines, and argued for that at
sentencing. (cr Dkt. 69 at 4). And in arguing for probation,
he expressly referenced the § 3553(a) factors and
pointed out Griffin's lack of a serious criminal record,
the substance of the crime, his family circumstances, early
cooperation, and acceptance of responsibility. (Id.
Griffin contends that counsel was ineffective in failing to
object to the United States' “implication and
argument for a sentence that exceeded the low end of the
guidelines” through its sentencing memorandum,
presentation of witnesses, and victim impact statements, in
contravention of the plea agreement. (cv Dkt. 2 at 5-6). This
contention is without merit and belied by the sentencing
plea agreement provided:
At the time of sentencing, and in the event that no adverse
information is received suggesting such a recommendation to
be unwarranted, the United States will not oppose
[Griffin's] request to the Court that [he] receive a
sentence at the low end of the applicable guideline range, as
calculated by the Court. [He] understands that this
recommendation or request is not binding on the ...