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Griffin v. United States

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

December 30, 2019

DAVID W. GRIFFIN, Petitioner,



         BEFORE 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 DENIED.


         In 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).

         Griffin 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).

         During 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).

         Griffin's 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).[1]

         In 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.[2] (cv Dkt. 5). Griffin filed a reply, to which he attached his affidavit that does not appear to be sworn to. (cv Dkt. 9).[3]


         To 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).

         The 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 (2012).

         Significant 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, 774 (1970)).


         Since 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.”).[4]

         With 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).

         Ground One - Ineffective Assistance Relating to the Plea Agreement

         In 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).

         Counsel 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.

         Griffin 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.”[5] (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)).

         Indeed, 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).

         Finally, 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 involuntary.”).

         Griffin 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. at 4-7).

         Finally, 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 transcript.

         The 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 ...

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