JOHN ANTOON, II, District Judge.
THIS CAUSE is before the Court on a Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 by Jerry Griffen ("Petitioner" or "Griffen"), a prisoner of the Florida Department of Corrections (Doc. 1, filed March 28, 2016). In compliance with this Court's Order (Doc. 4), Respondents filed a Response to the Petition (Doc. 7). Griffen filed a Reply (Doc. 13), and the Petition is ripe for review. For the reasons set forth below, each of Griffen's claims will be denied.
On October 8, 2007, the State of Florida charged Griffen by information with robbery by force, violence, assault or putting in fear, in violation of Florida Statute §§ 812.13(2)(a) and 775.087(2) (count one); kidnaping with intent to commit a felony, in violation of Florida Statute §§ 787.01(1)(a)(2), 775.087(1) and 775.087(2) (count two); grand theft of an automobile, in violation of Florida Statute § 812.014(2)(c)(6) (count three); and possession of cocaine, in violation of Florida Statute § 893.13(6)(a) (count four) (Ex. A-1 at 78-80). Petitioner and two co-defendants were accused of following victim Edward McAdams ("McAdams") into a restroom at the Central Florida Fairgrounds, beating him with a gun, and stealing McAdams' truck and gun collection (Ex. A-1 at 6-8). McAdams, a gun vendor, had a booth at a gun show at the fairgrounds (Ex. A-1 at 6).
On October 9, 2007, a jury convicted Griffen of robbery with a firearm, kidnaping, and aggravated battery with a firearm (Ex. A-1 at 85-92). The trial court sentenced Griffen to a total of thirty years in prison (Id. at 117-23). Florida's Fifth District Court of Appeal ("Fifth DCA") affirmed Griffen's convictions and sentences on February 3, 2009 (Ex. E); Griffen v. State, 1 So.3d 190 (Fla. 5th DCA 2009).
On April 24, 2009, Griffen filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure; thereafter, he filed several supplemental and amended motions (collectively, "Rule 3.850 Motion") (Ex. G at 53, 70, 191, 324, 362, 556). After holding an evidentiary hearing, the post-conviction court denied relief on all claims (Id. at 641, 587). Florida's Fifth DCA affirmed (Ex. K); Griffen v. State, 186 So.3d 1040 (Fla. 5th DCA 2016).
Griffen signed the instant petition on March 7, 2017 (Doc. 1).
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits — warranting deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a silent affirmance, a federal habeas court will "look through" the unreasoned opinion and presume that the affirmance rests upon the specific reasons given by the last court to provide a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Wilson v. Sellers, 138 S.Ct. 1188 (2018). However, the presumption that the appellate court relied on the same reasoning as the lower court can be rebutted "by evidence of, for instance, an alternative ground that was argued [by the state] or that is clear in the record" showing an alternative likely basis for the silent affirmance. Wilson, 138 S. Ct. at 1196.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.").
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Indeed, the petitioner must "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
Prejudice "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, 466 U.S. at 687. That is, "[t]he 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." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Griffen raises seven grounds for relief in his petition. He claims that: (1) newly discovered evidence proves that he is actually innocent of the charges against him (Doc. 1 at 6). He also claims that trial counsel Stephen Plotnick ("Counsel") was constitutionally ineffective for failing to: (2) object to the prosecution's closing argument; (3) object to the trial court's instruction for the jury to rely on their collective memories; (4) adequately set forth the grounds for his motion for judgment of acquittal; (5) file a pre-trial motion to dismiss the charges against him; (6) investigate, interview, and call Damon Hollis to testify at trial; and (7) properly investigate the pre-trial discovery and file a motion to publish Griffen's entire police interview to the jury (Id. at 6-17).
Each ground will be addressed separately.
Griffen contends that newly discovered evidence proves he is actually innocent of the crimes for which he was convicted (Doc. 1 at 6). Specifically, Griffen asserts that, after his conviction, co-defendant Darius Bartee (who was charged as a juvenile) submitted an affidavit stating that he and Cedric Garrett (who is now deceased) were the actual robbers and that Griffen merely gave them a ride to the Central Florida Fairground where the robbery occurred (Id.).
Griffen raised this claim in his Rule 3.850 Motion, and after holding an evidentiary hearing, the post-conviction court denied it:
(Ex. G at 603) (internal citations to the record omitted). Florida's Fifth DCA affirmed without a written opinion (Ex. J). A review of the record supports the state courts' conclusion that Griffen is not entitled to federal habeas relief on this claim.
First, "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Herrera v. Collins, 506 U.S. 390, 398 (1993). Rather, a claim of actual innocence is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, 506 U.S. at 404. Griffen does not raise an independent constitutional claim in Ground One. Accordingly, he has not presented a claim that is cognizable on federal habeas review.
Next, even assuming arguendo that Griffen presents a cognizable actual innocence claim, the Fifth DCA's rejection was not contrary to or based upon an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). The post-conviction court cited no federal law in its decision, and Griffen has not directed this Court to any clearly established federal law suggesting that a co-defendant's after-the-fact exculpatory statement automatically entitles a habeas petitioner to relief. Moreover, the state courts discounted Bartee's affidavit after finding his credibility to be questionable at the evidentiary hearing. This is a finding of fact that Griffen must rebut by clear and convincing evidence. See Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999) (questions of credibility and demeanor of a witness are questions of fact); 28 U.S.C. § 2254(e)(1) (a determination of a factual issue made by a State court shall be presumed correct unless rebutted by clear and convincing evidence); Gore v. Sec'y, Dep't of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007) (recognizing that a reviewing court's deference to credibility determinations is heightened on habeas review).
Griffen offers nothing to rebut the post-conviction court's factual determination that Bartee's affidavit and testimony were not credible. To the contrary, this Court finds that the state court's conclusion was reasonable. At the evidentiary hearing on this claim, Bartee — a twice convicted felon — vacillated on how long he had known Griffen (Ex. G at 644-45, 652) and admitted that he lied under oath at his own trial and sentencing proceeding (Id. at 659-60, 663). Moreover, Bartee testified that Cedric Garret, the person now blamed as having actually acted in concert with him to commit the robbery (and who was never charged) was now dead (Id. at 646). Finally, Griffen's own trial testimony contradicted Bartee's statement.
Griffen asserts that Counsel was ineffective for failing to object to the prosecutor's closing arguments (Doc. 1 at 8-9). He claims that the prosecutor "made several comments about facts that were not admitted into evidence and comments that inappropriately bolstered the credibility of the witness" (Id.). Griffen raised this claim in his Rule 3.850 Motion, and the post-conviction court denied it inter alia on the ground that any objection would have been improper because "the prosecutor neither misstated nor misled the jury concerning the applicable law and the facts of the case; instead he essentially informed the jury the State had the burden of proving the elements of each charge and highlighted the irreconcilable differences between the State and the defense" (Ex. G at 589-90). Florida's Fifth DCA affirmed (Ex. J).
Griffen urges that the prosecutor improperly "bolstered the credibility of his witness" by stating that "I would submit to you his testimony was extremely credible." (Doc. 1 at 8). Griffen appears to refer to the prosecutor's summation of the victim's testimony and his argument that the victim was likely to remember the details of the carjacking because it was extremely traumatic for him (T. at 164-65).
Likewise, reasonable competent counsel could have concluded that the prosecutor's statements that: (1) Griffen's prints were on the car because he had driven it; (2) the gun found in Griffen's car belonged to Griffen; and (3) Griffen was a criminal were unobjectionable. In Ruiz v. State, the Florida Supreme Court stated that "the role of counsel in closing argument is to assist the jury in analyzing [the] evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence[.]" 743 So.2d 1, 4 (Fla. 1999). The Ruiz court explained that "[t]he assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence." Id. (citing United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978)). The Florida Supreme Court has further explained that "[t]he proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence." Robinson v. State, 610 So.2d 1288, 1290 (Fla. 1992) (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985)). The statements that Griffen now complains about were merely the prosecutor's contention as to conclusions the jury could draw from the evidence. Counsel was not ineffective for failing to make a meritless objection. Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002).
Finally, the Court has reviewed the prosecutor's entire closing argument and concludes that the post-conviction court reasonably determined that nothing argued by the prosecution was so prejudicial that "a verdict of guilty could not have been obtained without the assistance of the alleged error." (Ex. G at 589) (citing Boyd v. State, 45 So.3d 557, 560 (Fla. 4th DCA 2010)).
Griffen asserts that Counsel was ineffective for failing to object to the trial court's instruction that the jury should rely on their collective recollections after they asked a question during deliberation (Doc. 1 at 10). Specifically, the jury sent a note to the judge during deliberations asking for details regarding certain locations discussed at trial (T. at 225). The Court read the jury's questions to Griffen:
(T. at 225). Both the prosecutor and Counsel agreed with the judge's decision to tell the jury that "we cannot give you new or additional information or evidence" and that the jury should rely on its "collective memory" as to its questions (Id. at 224, 226). Griffen raised this claim in his Rule 3.850 Motion, and the post-conviction court denied it on Strickland's performance prong:
(Ex. G at 593) (citations omitted). Florida's Fifth DCA affirmed (Ex. J).
Griffen does not explain how the state courts' rejection of Ground Three was contrary to Strickland or based upon an unreasonable determination of the facts. The jury asked a question regarding the relative locations of several addresses and requested a sketch of the area surrounding the carjacking. Florida law is clear that a jury's question regarding an issue of fact does not give "rise to a duty to inform the jury that it may request a read-back of any relevant testimony." Frasilus v. State, 46 So.3d 1028 (Fla. 5th DCA 2010).
Reasonable competent counsel could have concluded that the jury's request for locations and a map was a fact question and that he had no grounds on which to object to the court's instruction. Moreover, even had Counsel objected, Griffen does not explain how a read-back of trial testimony regarding the relevant location of pertinent addresses would have changed the outcome of his trial. Griffen has demonstrated neither deficient performance nor resulting prejudice, and the state courts' rejection of Ground Three was neither contrary to Strickland nor based upon an unreasonable determination of the facts. Ground Three is denied. 28 U.S.C. § 2254(d).
Griffen asserts that Counsel made an inadequate motion for a judgment of acquittal (Doc. 1 at 12). He asserts that, at the close of the State's case, Counsel moved for a judgment of acquittal on all counts on the ground that McAdams was unable to identify Griffen in photographs soon after the robbery (Id.).
Griffen raised this issue in his Rule 3.850 Motion where he urged that "had Counsel properly moved for judgment of acquittal and argued that the alleged victim failed to identify the Defendant prior to his in-court identification, this Honorable Court would have granted the motion and discharged the Defendant from all custody" (Ex. G at 334). He also argued in the Rule 3.850 Motion that, contrary to testimony from Detective Stanaland, McAdams testified at trial that he did, in fact, identify Griffen in a photographic array (Id.). The post-conviction court denied the claim on the basis that Griffen "offers no factual basis for this claim other than the inconsistent trial testimony from McAdams and Stanaland concerning McAdams' ability to identify [Griffen] prior to trial." (Id. at 593). The Court also noted that a "judgment of acquittal is not warranted simply because the evidence is contradictory" and that "even if counsel had argued as [Griffen] claims he should have, the motions would have been denied." (Id.). Florida's Fifth DCA affirmed. (Ex. J).
It is unclear what Griffen believes Counsel should have done differently when he made his motion for a judgment of acquittal. Counsel argued to the court that McAdams had not positively identified Griffen before trial,
In the instant case, there was conflicting testimony as to whether McAdams had identified Griffen as one of his attackers prior to trial. Where there is contradictory testimony on a critical issue, "the weight of the evidence and the witnesses' credibility are questions solely for the jury," and "the force of such conflicting testimony should not be determined on a motion for judgment of acquittal." State v. Shearod, 992 So.2d 900, 903 (Fla. 2d DCA 2008) (quoting Fitzpatrick v. State, 900 So.2d 495, 508 (Fla. 2005)). Counsel had no grounds to make a "better" motion for judgment of acquittal. Moreover, because a motion for judgment of acquittal would have been denied even had Counsel presented a more strenuous argument regarding the conflicting testimony, Griffen has not demonstrated Strickland prejudice. United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (failure to raise meritless issues cannot prejudice a client).
The state court's rejection of Ground Four was neither contrary to Strickland nor based upon an unreasonable determination of the facts. Ground Four is denied. 28 U.S.C. § 2254(d).
Griffen asserts that Counsel was ineffective for failing to file a pre-trial motion to dismiss (Doc. 1 at 14). He asserts that that McAdams was unable to identify Griffen in a photo-array soon after the robbery and that "[t]here was no other evidence linking the petitioner to the offense." (Id.). Griffen raised this issue in his Rule 3.850 Motion, and the post-conviction court denied the claim on the ground that Griffen's identity as one of the robbers "was a material disputed fact and Rule 3.190 does not apply." (Ex. G. at 595). Florida's Fifth DCA affirmed (Ex. J).
A defendant may file a pretrial motion to dismiss the information against him when "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." Fla. R. Cr. P. 3.190(c)(4). However, a motion to dismiss under Rule 3.190(c)(4) must be denied by the trial court if the State files a traverse that "with specificity" denies under oath a material fact alleged in the motion. See Fla. R. Civ. P. 3.190(d); Boler v. State, 678 So.2d 319 (Fla. 1996). Therefore, if Counsel had filed a pre-trial motion to dismiss the case on the basis that McAdams did not make a positive identification, the state would have been allowed to file a traverse "specifically denying any critical material facts alleged in the motion to dismiss, or asserting additional material facts that establish a prima facie case." State v. Taylor, 16 So.3d 997, 999 (Fla. 5th DCA 2009).
In Detective Stanaland's arrest affidavit, he stated that he believed probable cause existed to charge Griffen with armed carjacking based on: Griffen's spontaneous statements to police that he had only driven the robbers to the fairground (after which the robbers told him they did a "lick" — street slang for robbery); the discovery of a discarded handgun along the track to Griffen's location after he fled from police; a handgun found in Griffen's car; Griffen's admission that he assisted with the removal of McAdams' property and placed it in his car with knowledge that a robbery had been committed; and Griffen's knowing departure from the scene of the robbery with one of the robbers in his car for the purpose of getting rid of McAdams' property (Ex. G at 21-23). In addition, Griffen's driver's license was found in the vehicle, along with McAdams' property (Id.). Given the existence of evidence showing Griffen's involvement in the armed robbery, the state would have been able to assert additional material facts establishing a prima facie case against Griffen, and the trial court would have been precluded from granting a Rule 3.190(c)(4) motion to dismiss. Counsel was not required to make a motion certain to be denied. Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990). Because a motion for judgment of acquittal would have been denied, Griffen has not demonstrated Strickland prejudice. Winfield, 960 F.2d at 974.
The state court's rejection of Ground Five was neither contrary to Strickland nor based upon an unreasonable determination of the facts. Ground Five is denied. 28 U.S.C. § 2254(d).
Griffen contends that Counsel was ineffective for failing to call co-defendant Damon Hollis as a witness at his trial (Doc. 1 at 15).
This claim fails to satisfy Strickland's prejudice prong. At best, Griffen speculates that Hollis would have testified as he now asserts and that his testimony would have resulted in an acquittal. However, he has not provided evidence to support his assertions. Specifically, he has not produced a sworn statement of the witnesses' putative testimony. Consequently, the claim is too speculative to warrant relief. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) ("Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is `insufficient to carry the burden of a habeas corpus petitioner.'") (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)); see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony or by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.").
Because Griffen has not demonstrated Strickland prejudice, the state court reasonably denied Ground Six, and the claim is denied. 28 U.S.C. § 2254(d).
Griffen asserts that Counsel was ineffective for failing to object to the state's use of his statement to the police that was not published in its entirety (Doc. 1 at 17). Specifically, Griffen complains that Counsel failed to review the discovery prior to trial, and as a result, he did not realize that Griffen's statement to law enforcement was recorded until the middle of trial (Id.). Therefore, Counsel was unable to file a motion in limine to publish the entire statement (Id.).
Although similarly titled, this is not the same claim raised in Griffen's Rule 3.850 Motion. In his Rule 3.850 Motion, Griffen urged that "[w]hen the State sought to introduce the redacted version of the Defendant's interview with police detectives, Counsel should have objected under the Rule of Completeness." (Ex. G at 342). The post-conviction court denied the claim on the ground that Counsel
Griffen's instant argument that Counsel should have discovered the missing transcripts and filed a pretrial motion in limine is equally unavailing.
Because the discovery provided to Counsel by the state did not contain the audio recording, Counsel's performance was not deficient for failing to find the recording and file a motion in limine to publish the entire statement. Moreover, Counsel actually made the request that Griffen now faults him for failing to make (albeit not pre-trial), and it was denied (T. at 77). The court told Counsel, "you simply can't put into evidence and play a tape of something that basically will be your client's story." (Id.). However, the court overruled the state's hearsay objection to Counsel asking questions about the interview, noting:
(Id. at 78-79). Because the state court has already said what would have happened if Counsel had filed a motion in limine to play the entire audio recording of the police interview (the request would have been denied),
Any of Griffen's allegations not specifically addressed herein have been found to be without merit. Because the petition is resolved on the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability ("COA"). "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, Griffen must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Griffen has not made the requisite showing in these circumstances.
Because Griffen is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby
1. The 28 U.S.C. § 2254 petition for habeas corpus relief filed by Jerry Griffen is
2. Griffen is
3. The
(T. at 62).
