Griffin v. Secretary, Department of Corrections et al

Filing 11

OPINION AND ORDER. Griffin's petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Griffin and to close this case. It is further ORDERED that Griffin is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/21/2016. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD LEE GRIFFIN,
Petitioner,
v.

Case No. 8:13-cv-2025-T-36TBM

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Petitioner Richard Lee Griffin, a state of Florida inmate proceeding pro se, initiated
this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). He
challenges his convictions entered by the Circuit Court for the Tenth Judicial Circuit, Polk
County, in 2011. Respondent filed a response (Dkt. 6), in which it raises no challenge to
the petition’s timeliness. Griffin filed a reply (Dkt. 8). Upon review, the petition must be
denied.
PROCEDURAL HISTORY
Griffin was charged with three counts of sexual activity with a child 12 years of age
or older but less than 18 years of age while he was in a position of familial or custodial
authority over the victim. (Dkt. 7, Ex. A1.) A jury convicted Griffin of counts one and two,
and found him not guilty of count three. (Dkt. 7, Ex. A2.) Griffin was sentenced to thirty
years in prison on count one. (Dkt. 7, Ex. A3.) On count two, he received a consecutive
term of fifteen years in prison, followed by fifteen years of probation. (Id.) The state

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appellate court per curiam affirmed Griffin’s judgments and sentences. (Dkt. 7, Ex. B3.)
Griffin subsequently filed a motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850 and memorandum of law in support. (Dkt. 7, Exs. C1, C2.) The
state court summarily denied numerous claims and allowed Griffin an opportunity to amend
two claims that it dismissed as insufficiently pleaded. (Dkt. 7, Ex. C3.) Griffin filed an
amended postconviction motion and memorandum of law. (Dkt. 7, Exs. C4, C5.) The court
denied one of Griffin’s claims and directed the State to respond to the last remaining claim.
(Dkt. 7, Ex. C6.) After the State filed its response, the state court entered a final order
denying Griffin’s postconviction motion. (Dkt. 7, Exs. C7, C8.) The state appellate court
per curiam affirmed the rejection of Griffin’s claims. (Dkt. 7, Ex. E1.) Griffin also filed a
state habeas petition alleging ineffective assistance of appellate counsel. (Dkt. 7, Ex. F1.)
The state appellate court denied his petition. (Dkt. 7, Ex. F3.)
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert.
denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court
review of a state court adjudication, states:
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
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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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal
habeas court to grant a state prisoner's application for a writ of habeas
corpus with respect to claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the following two conditions is
satisfied–the state-court adjudication resulted in a decision that (1) “was
contrary to . . . clearly established Federal Law, as determined by the
Supreme Court of the United States” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined by the
Supreme Court of the United States.” 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. 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.
“The focus . . . is on whether the state court’s application of clearly established federal law
is objectively unreasonable . . . an unreasonable application is different from an incorrect
one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head,
272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the
correctness per se, of the state court decision that [the federal court is] to decide.”). The
phrase “clearly established Federal law” encompasses only the holdings of the United
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States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529
U.S. at 412.
The purpose of federal review is not to re-try the case. “The [AEDPA] modified a
federal habeas court’s role in reviewing state prisoner applications in order to prevent
federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Cone, 535 U.S. at 693. In other words, “AEDPA prevents
defendants–and federal courts–from using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779
(2010). See also Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011) (“This
is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt’ . . . ”) (citations
omitted).
In per curiam decisions without written opinions, the state appellate court affirmed
Griffin’s judgments and sentences, and the rejection of Griffin’s postconviction motion.
Additionally, the state appellate court denied Griffin’s state habeas petition without
comment. These decisions warrant deference under § 2254(d)(1) because “the summary
nature of a state court's decision does not lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245
(2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562
U.S. at 99 (“When a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state court.
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Pinholster, 131 S. Ct. at 1398.
Griffin bears the burden of overcoming by clear and convincing evidence a state
court factual determination. “[A] determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
EXHAUSTION OF STATE REMEDIES; PROCEDURAL DEFAULT
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion.

28 U.S.C.

§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first properly raised the issue in the
state courts.”) (citations omitted). A state prisoner “‘must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process,’ including review by the state’s court of last
resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59
(11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
claims to the state courts in order to give the State the opportunity to pass on and correct
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alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at
1358. The prohibition against raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual contention that supports relief.
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404
U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court “by citing in
conjunction with the claim the federal source of law on which he relies or a case deciding
such a claim on federal grounds, or simply by labeling the claim ‘federal.’” Baldwin v.
Reese, 541 U.S. 27, 32 (2004).
The doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
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they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 167-70 (1982).
The petitioner must show at least a reasonable probability of a different outcome.
Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.

A

fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate
both deficient performance by counsel and resulting prejudice. Demonstrating deficient
performance “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
687. Deficient performance is established if, “in light of all the circumstances, the identified
acts or omissions [of counsel] were outside the wide range of professionally competent
assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
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professional judgment.” Id. Additionally, “a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.” Id.
Griffin must demonstrate that counsel’s alleged errors prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Id. at 691-92. To show prejudice, a petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
Counsel’s strategic choices “made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690-91. A petitioner
cannot meet his burden merely by showing that counsel’s choices were unsuccessful:
The test has nothing to do with what the best lawyers would have done. Nor
is the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial . . . . We are not interested
in grading lawyers’ performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only
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what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794
(1987)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
very difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S.
at 105 (citations omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must
overcome the “‘doubly deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the
Strickland test’s two prongs, the other prong need not be considered. 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an insufficient showing on one.”);
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) (“When applying Strickland, we
are free to dispose of ineffectiveness claims on either of its two grounds.”).
DISCUSSION
Grounds One Through Three: Trial Court Error
Griffin asserts trial court error in Grounds One, Two, and Three, but does not raise
a federal claim in any of these grounds. Thus, the arguments asserted in Grounds One,
Two, and Three are not cognizable in this federal habeas proceeding. Branan v. Booth,
861 F.2d 1507, 1508 (11th Cir. 1988). Even liberally construing these grounds to allege
federal violations, such claims would be unexhausted because Griffin failed to raise any
federal issues when he brought these allegations of trial court error on direct appeal. (Dkt.
7, Ex. B1, pp. 14, 16-24.) Griffin cannot return to state court to file a successive, untimely
direct appeal. See Fla. R. App. P. 9.140. Thus, any federal claims in Grounds One, Two,
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and Three are procedurally defaulted. See Smith, 256 F.3d at 1138. Griffin does not
establish the applicability of the cause and prejudice or the fundamental miscarriage of
justice exception to overcome the default. See id. Accordingly, these claims are barred
from federal habeas review. Alternatively, even assuming Griffin presented exhausted
federal claims in Grounds One, Two, and Three,1 they are without merit.
Ground One
Griffin argues that the trial court erred in denying his motion for judgment of acquittal
because the State failed to prove that he was in a position of familial or custodial authority
over the victim, who was the daughter of Griffin’s girlfriend. Upon moving for a judgment
of acquittal, defense counsel argued that the State did not show Griffin was in a position
of familial or custodial authority. (Dkt. 7, Ex. A4, pp. 546-48.) In response, the State cited
Oliver v. State, 977 So.2d 673 (Fla. 5th DCA 2008), for the proposition that a familial
relationship is one in which there is a recognizable bond of trust of the victim with the
defendant similar to the bond that develops between a child and a grandfather, uncle, or
guardian. (Id., p. 549.) The trial court denied Griffin’s motion for judgment of acquittal.
(Id., p. 550.)
The Due Process Clause of the Fourteenth Amendment prohibits a criminal
conviction “except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court
established the standard of review in a federal habeas corpus proceeding in which a
petitioner challenges the sufficiency of the evidence:

1
Respondent does not identify the procedural default of these grounds and states that Griffin has
exhausted state remedies with respect to the claims raised in his federal habeas petition.

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We hold that in a challenge to a state criminal conviction brought under 28
U.S.C. § 2254 – if the settled procedural prerequisites for such a claim have
otherwise been satisfied – the applicant is entitled to habeas corpus relief if
it is found that upon the record evidence adduced at the trial no rational trier
of fact could have found proof of guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324 (1979). “[T]his inquiry does not require a court to
‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. at 318-19 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)).
“[T]he Jackson standard of review is ‘[e]qually applicable to direct or circumstantial
evidence.’” Martin v. Alabama, 730 F.2d 721, 725 (11th Cir. 1984) (quoting United States
v. Wuagneux, 683 F.2d 1343, 1358 (11th Cir. 1982)). Sufficiency of the evidence claims
are governed by the substantive elements of a criminal offense as defined by state law.
Jackson, 443 U.S. at 324 n.16.

If the record contains facts supporting conflicting

inferences, the jury is presumed to have resolved those conflicts in favor of the State and
against the defendant. Id. at 326.
Testimony presented at trial reflects that Griffin had a relationship with the victim’s
mother for about eleven years, although there may have been some breaks in the
relationship. (Dkt. 7, Ex. A4, pp. 348-49, 460.) The victim’s mother testified that Griffin,
who worked as a truck driver, stayed with her when he was not on the road. (Id., p. 349.)
There was testimony that at some point the victim, who was deaf, spent her weeks at a
school for the deaf in St. Augustine but came home for the weekends. (Id., pp. 364-65.)
There was also testimony that the victim, who was sixteen when the offenses occurred,
went to live with her grandmother when she was fourteen. However, Detective Robbins,
who interviewed Griffin after the offenses, testified that Griffin stated he was living with the
victim and her mother at the time.

(Id., pp. 347-48, 460.)
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Additionally, the victim

sometimes traveled with Griffin when he was working. (Id., p. 350.)
Moreover, testimony from the victim and her mother shows that the victim
considered Griffin to be her father and referred to him as her dad. (Id., pp. 195, 349-50.)
Evidence of statements at the time of the offenses reflects a similar description of Griffin
and the victim’s relationship. The trial transcript reflects that a patrol officer discovered
Griffin and the victim in Griffin’s car at Saddle Creek Park at about 2:30 a.m. on April 2,
2009. Griffin was interviewed by police later that day. The officer who located the victim
in Griffin’s car also testified that the victim referred to Griffin as her dad. (Id., p. 168.)2
Griffin told Robbins, the interviewing officer, that he was a father figure to the victim. (Id.,
p. 460.)
The jury was instructed as follows:
Special instruction.
A familial relationship is one in which there is a recognizable bond of
trust of the victim with the defendant similar to the bond that develops
between child and a grandfather, uncle, or guardian.
Consanguinity and affinity are strong indicia of a familial relationship
but are not necessary.
(Dkt. 7, Ex. A4, p. 663.)3

Given the testimony concerning Griffin and the victim’s

relationship and the law provided to the jury, Griffin fails to show that no rational trier of fact
could have found proof of guilt beyond a reasonable doubt based upon the evidence
presented at trial. Griffin demonstrates no entitlement to relief on Ground One.
Ground Three

2

The officer testified that the victim communicated in writing. (Dkt. 7, Ex. A4, p. 168.)

3
The applicable standard jury instruction does not define the term “familial or custodial authority.” See
Fla. Std. Jury Inst. (Crim.) 11.6.

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Griffin asserts that the trial court erred by providing an “incomplete, misleading or
confusing” special jury instruction regarding familial or custodial authority. To the extent
this claim is interpreted as alleging a federal due process violation, it must fail. As
addressed in Ground One, the court gave a special jury instruction on the meaning of
familial authority. This instruction was derived from Florida decisions:
In State v. Rawls, 649 So.2d 1350, 1353 (Fla. 1994), the supreme court
defined the concept of “familial relationship” in the context of the sexual
battery of children. Although the court in that case addressed the concept for
the sole purpose of determining whether similar fact evidence was admissible
to corroborate the testimony of a minor victim of sexual battery, the definition
is nonetheless helpful in deciding whether sufficient evidence of familial or
custodial authority has been presented to uphold a conviction under section
794.011(8)(b). In Rawls, the court concluded that the determination of a
“familial relationship” must be done on a case-by-case basis. Id. at 1353.
The court explained:
Consanguinity and affinity are strong indicia of a familial
relationship but are not necessary. Also, the defendant and
victim need not reside in the same home. The relationship
must be one in which there is a recognizable bond of trust with
the defendant, similar to the bond that develops between a
child and her grandfather, uncle, or guardian. Where an
individual legitimately exercises parental-type authority over a
child or maintains custody of a child on a regular basis, a
familial relationship may exist for purposes of the admissibility
of collateral crimes evidence....
Oliver v. State, 977 So.2d 673, 676 (Fla. 5th DCA 2008).
A claim that a jury instruction was incorrect under state law cannot provide federal
habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (“[T]he fact that the instruction
was allegedly incorrect under state law is not a basis for habeas relief.”) Rather, “[t]he only
question . . . is ‘whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)). In addition, “[i]t is well established that the instruction ‘may not be judged in
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artificial isolation,’ but must be considered in the context of the instructions as a whole and
the trial record.” Id. (quoting Cupp, 414 U.S. at 147). See also Jones v. Kemp, 794 F.2d
1536, 1540 (11th Cir. 1986) (“State court jury instructions ordinarily comprise issues of
state law and are not subject to federal habeas corpus review absent fundamental
unfairness.”). Griffin does not establish that the instruction on familial authority, which was
consistent with Florida law, was erroneous or so infected his trial as to amount to a federal
due process violation. He is not entitled to relief on Ground Three.
Ground Two
Griffin argues that the trial court violated due process when it refused to instruct the
jury on attempt with respect to count one. In support, he states that the court gave the
attempt instruction on count two, and both counts were derived from the same set of facts
during a single criminal episode.
Griffin cannot show entitlement to relief. Count one alleged that Griffin committed
the offense “by penetrating or uniting the mouth of [the victim] with the sexual organ of”
Griffin. (Dkt. 7, Ex. A1, p. 35.) Count two alleged that Griffin committed the offense “by
uniting the vagina of [the victim] with the sexual organ of” Griffin. (Id.) In accordance with
the standard jury instruction, Griffin’s jury was instructed that “union means contact.” (Dkt.
7, Ex. A4, p. 661.) See Fla. Std. Jury Inst. (Crim.) 11.6.
The defense requested a jury instruction on attempted sexual battery on both
counts. The relevant standard jury instruction provides that attempt is a category two, or
permissive, lesser-included offense. See Fla. Std. Jury Inst. (Crim.) 11.6. In Florida, a trial
court is not required to give an instruction on attempt unless supported by the evidence.
See Fla. R. Crim. P. 3.510(a) (“The judge shall not instruct the jury if there is no evidence
Page 14 of 46

to support the attempt and the only evidence proves a completed offense.”). Furthermore,
a trial court has wide discretion in instructing the jury. Chesnoff v. State, 840 So.2d 423,
426 (Fla. 5th DCA 2003).
The trial court granted counsel’s request for an attempt instruction with respect to
count two, but denied it with respect to count one. The court found that an attempt
instruction was not appropriate for count one because there was no evidence of attempt.
(Dkt. 7, Ex. A4, p. 600.) As addressed in Ground Three, Griffin cannot obtain relief by
demonstrating an error under state law; he must show that an erroneous instruction
infected his trial such that it was fundamentally unfair. See McGuire, 502 U.S. at 71-72.
The victim testified that Griffin put his penis in her mouth and ejaculated in her
mouth. (Dkt. 7, Ex. A4, pp. 201-02, 409-10.) Robbins testified that Griffin said his penis
went into the victim’s mouth, and that it was possible he ejaculated into her mouth. (Id., p.
462, 514.)

On cross-examination, Robbins further testified that when he asked Griffin

about whether the victim gave Griffin a “blow job,” Griffin indicated that the victim
“attempted,” “started,” and “sort of” did so, and “she was sucking it and all that but she
didn’t really.” (Id., pp. 507, 512, 513.)
The victim also testified that she spit out of the car window after Griffin ejaculated
into her mouth. (Id., p. 410.) Testing of bodily fluid found on the side of the car did not
reveal semen. (Id., pp. 297-98.) In support of his claim, Griffin argues that the absence
of semen shows he only attempted the offense. But the charge did not require a completed
sexual act; it only required that his penis penetrated or had union with the victim’s mouth.4

4
The jury specifically found that “the sexual organ of Richard L. Griffin penetrated the mouth of [the
victim].” (Dkt. 7, Ex. A2, p. 82.)

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Based on the evidence adduced at trial, Griffin does not establish that the trial court’s
refusal to give an attempt instruction on count one was erroneous, or that it rendered his
entire trial unfair so as to violate due process. See McGuire, 502 U.S. at 71-72. He is not
entitled to relief on Ground Two.
Ground Four: Trial Court Error and Ineffective Assistance Of Appellate Counsel
Griffin contends that the trial court violated his due process rights and committed
fundamental constitutional error by imposing a harsher sentence based on his failure to
show remorse and admit guilt for his crime. He claims that the court based his sentence
“on the observation that: ‘He is still not willing to say today, I’m sorry for what I did . . . he
cannot get out of his mouth, I hurt this child and I’m sorry.’” (Dkt. 1, p. 7.) Griffin does not
raise a federal claim in his federal habeas petition; rather, he attempts to “federalize” the
claim in his reply by stating that the court violated his “Fifth Amendment Right to [sic] selfincrimination, an affront to a persons right to assert his innocence regardless of a
disputable guilty verdict.” (Dkt. 8, p. 3.)
Even construing Griffin’s claim of trial court error as a claim that the court violated
his rights under the Fifth Amendment, it is procedurally defaulted. Although Griffin’s federal
habeas petition clearly asserts a claim of trial court error, the Court notes that Griffin
presented the factual basis of this claim to the state courts in a claim of ineffective
assistance of appellate counsel. The trial court error claim is unexhausted, as Griffin did
not raise it on direct appeal. (Dkt. 7, Ex. B1.)5 Because state procedures do not provide
5

Respondent does not acknowledge the claim of trial court error; rather, it construes Griffin’s federal
habeas claim as raising the exhausted claim of ineffective assistance of appellate counsel. Thus, although
Respondent states in the response that “Petitioner has exhausted his state remedies with regard to all grounds
raised in the instant habeas petition,” this acknowledgment of exhaustion applies to the ineffective assistance
of appellate counsel claim. (Dkt. 6, p. 15.)

Page 16 of 46

for second direct appeals, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138.
Griffin does not show the applicability of either the cause and prejudice or fundamental
miscarriage of justice exception to overcome the default. See id. Alternatively, as
addressed below, Griffin’s claim of trial court error is without merit.
As noted, Griffin exhausted a claim of ineffective assistance of appellate counsel for
not arguing on direct appeal that the trial court erred in considering his lack of remorse
during sentencing. The record reflects that, at the outset of the sentencing hearing,
counsel argued to the court as follows:
And I think that Mr. Griffin has indicated and has shown remorse. I
think that even his - - his presence today and his body language continues
to show that. That’s one of the things I wanted him to talk about. Which is
to indicate to The Court, on his own, that he is remorseful, so that you’re not
hearing it from me, that you’re hearing it from him . . .
But based on the situation, an isolated incident this one particular night
or early morning hours, and things that he has said even through trial even
when he has been - - even in the letters he has said over and over again, I’m
so sorry, I’m so sorry. So not just sitting here today or standing here today
in front of you saying, okay yeah, now I’m sorry. Even before it got to this
point - - of it - - of going to trial, even before testimony came out, in letters to
[his girlfriend], he is telling [his girlfriend] and [the victim] that he is sorry for
what happened. That he is sorry, not I’m sorry I got caught. I’m sorry you
did this to me. I’m sorry what I did was wrong. I mean, that was very clear
in the letters that the State introduced.
(Dkt. 7, Ex. A5, pp. 106-07.)
The letters to which defense counsel referred were letters Griffin wrote his girlfriend
while he was in pre-trial custody. The trial transcript reflects that in at least one of the
letters, Griffin apologized to his girlfriend for hurting her. (Dkt. 7, Ex. A4, pp. 319-21.)
However, the State introduced the letters at trial on the grounds that they reflected Griffin’s

Page 17 of 46

consciousness of guilt.6
At the sentencing hearing, when defense counsel asked Griffin if he wanted to
address the court, he said, “Sure,” and then stated:
Hi. I just want - - I just want to say I’m sorry for what I’ve put everybody
through. I know it’s been hard on everybody and - - and I’m ashamed of
what’s - - what’s - - what has occurred. I’ve lost everything that I’ve worked
hard to get, over some stupid decisions. In the meantime, my mother is out
on the streets dying of cancer and I’m stuck in jail for my actions. I’m just
asking for a chance to get - - get my life back together and spend some time
with my mother before she passes away. Because she’s not going to be
around much longer. So I’m just asking for - - for mercy. And know that I’m
truly sorry for what all has happened.
(Dkt. 7, Ex. A5, p. 108.) Prior to pronouncing sentence, the court stated:
I will, also, put on the record, that - - I mean I can go through the facts of this
case. There’s a car coming out of Sa[dd]le Creek Park at not two in the
morning. He is naked, but for something draped over his private parts. The
child is in the backseat trying to get dressed. This child - - she was 15[7] at
the time. She is sitting in the backseat. She discloses that there is fluid on
a door and low [sic] and behold there is fluid, not seminal, but it is fluid on the
door. She, also, discloses that - - that we have the two incidences of sexual
contact. And then he writes mom letters from prison. Leave town, no
[victim], no trial. Those aren’t I’m sorry letters. Those are letters of
tampering with a witness if you want to know my opinion.
...
Okay. I’ve read the PSI, I’ve listened to every bit of that trial. If you had come
to me with a plea agreement of nine years and five years probation, you
know I don’t get into plea negotiations. But when you have a trial and I hear
things about letters and I hear those letters are truly offensive. They were
not I’m sorry. They were I’m sorry, I’m caught. He’s still not willing to say
today, I’m sorry for what I did to [the victim]. He cannot get out of his mouth,
I hurt this child and I’m sorry.

6

Griffin argues further in Ground Six that the State introduced the letters to show he wanted his
girlfriend to make the victim unavailable for a trial.
7

The court later corrected itself, noting that the victim was sixteen years old at the time.

Page 18 of 46

...
[W]hat I’m trying to get on the record is that I’m - - this is my sentence
because I have no idea whether there were plea negotiations. I don’t really
care, but I want to make it clear that I’m appalled at this. My sentence is not
going to be 60 years. My sentence is going to be 30 years, followed by 15
years on Count Two, which is 45 years, followed by 15 years of Probation,
Sexual Offender - - Sexual Predator Probation.
(Id., pp. 113-15.)
In his state habeas petition, Griffin argued that appellate counsel was ineffective for
not arguing that, under applicable Florida law, the sentencing court improperly considered
lack of remorse. (Dkt. 7, Ex. F1.) Claims that appellate counsel provided ineffective
assistance are analyzed under the two-part test set forth in Strickland. Smith v. Robbins,
528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To
establish a claim, Griffin must show that appellate counsel’s performance was objectively
unreasonable, and that there is a reasonable probability that, but for this performance,
Griffin would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
Appellate counsel cannot be deemed ineffective for failing to raise issues
“reasonably considered to be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344
(11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
Furthermore, appellate counsel is not required to raise every non-frivolous issue on appeal.
Heath, 941 F.2d at 1130-31. Rather, “effective advocates ‘winnow out’ weaker arguments”
even when such arguments may have merit. Id. at 1131. Appellate counsel may choose
to focus on the strongest claims while excluding claims that might have a lower chance of
success or detract from stronger arguments. See Jones v. Barnes, 463 U.S. 745, 751-54
(1983).
Page 19 of 46

Because counsel made no objection to the court’s alleged consideration of Griffin’s
lack of remorse, Griffin was required to demonstrate fundamental error in order to bring the
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.
We must therefore consider whether the trial court’s comments at sentencing were so
erroneous as to be equivalent to a denial of due process.”) (citations and quotation marks
omitted).

See also Yisrael v. State, 65 So.3d 1177, 1177 (Fla. 1st DCA 2011)

(“Fundamental error occurs where a trial court considers constitutionally impermissible
factors when imposing a sentence.”). In Florida, a sentencing court may not consider or
use against a defendant his assertion of innocence and refusal to admit guilt. Bracero v.
State, 10 So.3d 664, 665-66 (Fla. 2d DCA 2009).
In Griffin’s state habeas petition, he argued that appellate counsel should have
raised this claim of trial court error under Florida law. In reviewing his claim, therefore, the
state appellate court has already determined that, under applicable Florida law, the
allegation of trial court error would have failed. 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 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,
Page 20 of 46

119 F.3d 1538, 1549 (11th Cir. 1997)).
Additionally, even if Griffin’s ineffective assistance of counsel argument could have
been interpreted as alleging that counsel was ineffective for not bringing the specific Fifth
Amendment claim Griffin now asserts in the federal habeas petition, he fails to show
entitlement to relief. The Eleventh Circuit Court of Appeals has stated:
During sentencing, a court “may not weigh the exercise of [Fifth Amendment]
rights against the defendant.” United States v. Rodriguez, 959 F.2d 193, 197
(11th Cir. 1992) (per curiam). But a court may take into account a
defendant’s freely offered statements indicating a lack of remorse. See id.
(“The sentencing court is justified in considering the defendant’s conduct
prior to, during, and after the trial to determine if the defendant has shown
any remorse through his actions or statements.”) cf. United States v.
Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011), cert. denied, – U.S. –, 132
S.Ct. 1066, 181 L.Ed.2d 781 (2012); United States v. Hill, 643 F.3d 807, 88283 (11th Cir. 2011), cert. denied, – U.S. –, 132 S.Ct. 1988, 182 L.Ed.3d 833
(2012); United States v. Mateos, 623 F.3d 1350, 1367 (11th Cir. 2010). Just
as a jury weighs a defendant’s testimony once he waives his Fifth
Amendment privilege at trial, a judge may consider a defendant’s freely
offered allocution regarding remorse during sentencing.
United States v. Stanley, 739 F.3d 633, 652 (11th Cir. 2014).
Griffin fails to establish that the sentencing court impermissibly weighed the exercise
of his Fifth Amendment privilege against him. Griffin told the court he was sorry for “what
[he has] put everybody through” and “what all has happened.” Additionally, defense
counsel made specific argument about Griffin’s remorse in support of her argument for a
sentence at the lower end of the sentencing guidelines. Griffin does not establish that the
court was not permitted to take into account Griffin’s statement in considering his request
for leniency in sentencing.
Moreover, while the record of the sentencing hearing reflects that the court
considered the evidence introduced at trial in imposing sentence, there is no indication that
Page 21 of 46

any belief by the court that Griffin lacked remorse affected the sentence imposed. Griffin
fails to establish that the sentencing court violated Griffin’s Fifth Amendment privilege
against self-incrimination by impermissibly considering his lack of remorse in imposing
sentence. Therefore, Griffin fails to establish that counsel was ineffective for not raising
this assertion of trial court error on direct appeal.

And for the same reasons,

notwithstanding the default of his claim of trial court error, Griffin fails to demonstrate
entitlement to relief on the basis that the trial court violated his Fifth Amendment rights in
sentencing him.8
Griffin does not show that the state appellate court’s rejection of his claim of
ineffective assistance of appellate counsel was an unreasonable application of clearly
established federal law or was based on an unreasonable determination of the facts. Nor
does he establish trial court error. Ground Four warrants no relief.
Grounds Five Through Twelve: Ineffective Assistance Of Trial Counsel
Ground Five
Griffin argues that counsel was ineffective for failing to file a pre-trial motion to
suppress his statements to police on the basis that they were obtained in violation of his
Fifth Amendment privilege against self-incrimination. In support, Griffin contends that he
was initially detained in a police car for five hours, from 2:30 a.m. to 7:30 a.m., “without
anything to drink, access to any restroom, or permitted to smoke a cigarette.” (Dkt. 1, p.
11.) He also states that he was interviewed at the police station about eight hours after his

8

Griffin clarified his claim in the reply to allege a violation of his Fifth Amendment privilege against
self-incrimination. To the extent Griffin initially raised a more general due process claim, he has not elaborated
on such a claim or provided any authority in support of such an allegation. He fails to show entitlement to relief
on any of the grounds raised.

Page 22 of 46

initial detention. Furthermore, Griffin states, Detective Robbins recorded the interview
without Griffin’s knowledge.
The record reflects that about 2:30 a.m. on April 2, 2009, a patrol officer located
Griffin and the victim inside Griffin’s car at Saddle Creek Park. (Dkt. 7, Ex. A4, pp. 164-67.)
Griffin at some point was placed in the back of a police car; Robbins, who arrived at about
5:30 a.m., testified that Griffin was in the back of a police car when he first made contact
with Griffin at about 7:30 a.m. (Id., pp. 453-56.) Robbins did not believe Griffin was
handcuffed at this time. (Id., pp. 472, 533.) Robbins read Griffin his Miranda9 rights, and
asked if Griffin understood each right. (Id., p. 456-57.) During this time period, Griffin was
permitted to get out of the car, stretch, smoke a cigarette, and go to the bathroom. (Id., p.
457, 473, 537-38.)
Griffin was transported to Robbins’ office; this location was also described as a
police station at the Bartow Air Base. (Id., pp. 457, 511.) Robbins believed that Griffin was
given a glass of water upon arrival at the station. (Id., p. 534-35.) Robbins began
interviewing him about 10:45 a.m. (Id., p. 464.) Another officer, Detective Tanner, was
also present. (Id., p. 471.) Griffin said that he remembered the rights Robbins read him
earlier, and signed a Miranda waiver form. (Id., pp. 457-58.)
During the interview at the police station, Griffin made incriminating statements to
Detective Robbins. Robbins did not tell Griffin that Robbins recorded the statement on a
device in his shirt pocket. (Id., pp. 476-77.) At the conclusion of the interview, Robbins
informed Griffin that he was under arrest. (Id., p. 531.)

9

Miranda v. Arizona, 384 U.S. 436 (1966).

Page 23 of 46

The state court rejected the allegation of ineffective assistance of counsel when
Griffin raised it in his postconviction motion:
In claim 1, Defendant argues that trial counsel should have moved to
suppress his statements to the police because he was kept in a police vehicle
for eight hours and then secretly taped. Defendant has not set forth facts
that tend to show that a Motion to Suppress would have been viable.
Defendant was detained in a police vehicle for several hours, then allowed
to use the restroom and smoke, then transported to the police station, and
questioned. Defendant was read his Miranda rights prior to questioning. It
was also established that the Defendant was not threatened or promised
anything to get him to speak to the officer. Additionally, the Court finds that
the Defendant does not have a reasonable expectation of privacy in a police
station and that he may be tape recorded without knowledge. The Court
finds that had a Motion to Suppress been filed, it likely would not have been
granted. Claim 1 is DENIED.
(Dkt. 7, Ex. C3) (court’s record citations omitted) (emphasis in original).
“[A] defendant in a criminal case is deprived of due process of law if his conviction
is founded, in whole or in part, upon an involuntary confession.” Jackson v. Denno, 378
U.S. 368, 376 (1964). “The applicable standard for determining whether a confession is
voluntary is whether, taking into consideration the totality of the circumstances, the
statement is the product of the accused’s free and rational choice.” Leon v. Wainwright,
734 F.2d 770, 772 (11th Cir. 1984) (internal quotation marks omitted).
In determining whether the waiver of the privilege against self-incrimination is
voluntary:
First, the relinquishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception. Second, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the totality of the
circumstances surrounding the interrogation reveal both an uncoerced choice
and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.
Page 24 of 46

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quotation marks and citation omitted).
Griffin does not allege that he did not understand the rights he was abandoning by
speaking with the police. He raises no challenge to the validity of the Miranda warnings
given to him or of the written waiver form he signed. Rather, Griffin appears to claim that
his statement was involuntary because it was not the product of a free and deliberate
choice.
Factors relevant to determining the voluntariness of a statement may include “the
length of detention . . . and the use of physical punishment such as the deprivation of food
or sleep.” Waldrop v. Jones, 77 F.3d 1308, 1316 (11th Cir. 1996) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973)). However, Griffin does not show that his statement
was involuntary based upon the conditions or length of his detention.

As Griffin

acknowledges, he was permitted to exit the police car to use the restroom, move about,
and smoke a cigarette while detained at the scene. Robbins also believed that Griffin was
given water upon arriving at the police station. See United States v. Ransfer, 749 F.3d
914, 935 (11th Cir. 2014) (rejecting claim that statements were not voluntary because
appellants were held for more than twenty-four hours and subject to coercion and noting
that a statement has been held voluntary even though the suspect was detained for
questioning for five days).
Moreover, when Robbins interviewed him at the police station, Griffin indicated that
he remembered the Miranda warnings given to him and signed a waiver form. (Dkt. 7, Ex.
A4, p. 457-58.) Griffin told Robbins that he was telling the truth, that he did not feel
threatened or coerced into making his statement, and that he was speaking of his own free
will. (Id., pp. 465-66.) Under the totality of the circumstances, Griffin fails to show that his
Page 25 of 46

confession was not voluntary as a result of the conditions or length of his detention.
Consequently, he does not demonstrate that counsel was ineffective for not moving to
suppress his statement as involuntary due to the circumstances of his detention.
Griffin makes a vague argument that his statement was involuntary and obtained in
violation of his Fifth Amendment rights because he was unaware that it was recorded.
However, Griffin cites no authority in support of his claim and does not clearly articulate a
valid basis upon which counsel could have brought a motion to suppress his statements.
The Court notes that no part of Miranda requires that an in-custody individual be told his
statement may be recorded. As addressed above, Griffin told Robbins that he was
providing his statement freely and voluntarily.
To the extent Griffin argued he had an expectation of privacy in his statement, the
postconviction court found that any motion to suppress would have been denied because
Griffin had no reasonable expectation of privacy inside the police station and therefore
could be taped without his knowledge. Griffin cited only Florida law in support of his claim;
this Court must defer to the state court’s interpretation of its own laws and its determination
that under Florida law, a motion to suppress Griffin’s statement based on law
enforcement’s recording it without his knowledge would have failed. See Bradshaw, 546
U.S. at 76; Herring, 397 F.3d at 1354-55.10
10

The Court notes that at least one of the cases cited by Griffin in state court in addressing his claim
of secretive taping of his statement cites the Fourth Amendment. Williams v. State, 982 So.2d 1190, 1194 (Fla.
4th DCA 2008). Electronic interception of conversations without a warrant may violate the Fourth
Amendment’s protection against unreasonable searches and seizures. “[B]ecause society recognizes as
reasonable an expectation of privacy for confidential conversations between individuals, the government
needs a warrant to intercept or record such conversations.” Gennusa v. Canova, 748 F.3d 1103, 1110 (11th
Cir. 2014).
Although Griffin was not formally arrested until the end of the interview, he was in police custody. A
detainee’s expectations of privacy “‘necessarily [are] of a diminished scope.’” Maryland v. King, __ U.S. __,
133 S.Ct. 1958, 1978 (2013) (quoting Bell v. Wolfish, 441 U.S. 520, 557 (1979)). While an individual’s location

Page 26 of 46

In sum, Griffin does not demonstrate that counsel was ineffective for not moving to
suppress his statement due to law enforcement’s recording it without his knowledge. Griffin
fails to show that the state court’s rejection of his claim was contrary to, or an unreasonable
application of, clearly established federal law, or was based on an unreasonable
determination of the facts. Ground Five warrants no relief.
Ground Six
Griffin asserts that counsel was ineffective for failing to move to suppress letters
Griffin wrote to his girlfriend, and for failing to contemporaneously object to their admission
for purposes of showing consciousness of guilt. Griffin claims that the letters were
introduced at trial to show that he initiated an attempt to have his girlfriend take the victim
to another state to make her unavailable to testify at trial. He argues, however, that he only
wrote these letters in response to letters his girlfriend sent him showing that she proposed
such actions. Therefore, he asserts, counsel also should have moved to introduce the
letters written by his girlfriend “to contradict the state’s theory.” (Dkt. 1, p. 13.) The state
court denied this claim:
In claim 2, Defendant argues that trial counsel should have moved to
suppress the letters written by Defendant to [his girlfriend] as they were in
response to [his girlfriend]’s letters. Defendant claims that the letters would
have established that the victim and [his girlfriend] supported Defendant and
that they were going to attempt to avoid testifying in the case against
Defendant.

is relevant, the key inquiry “‘is whether the government’s activities in electronically listening to and recording
the conversations violated privacy upon which [the participants] justifiably relied.’” Gennusa, 748 F.3d at 1114
(quoting United States v. Shields, 675 F.2d 1152, 1158 (11th Cir. 1982)). Griffin was taken into custody at
the scene, was given Miranda warnings, was transported by police to the police station, said he remembered
the warnings and signed a Miranda waiver form, and agreed to talk to two officers at the police station. Griffin
does not establish he had any reasonable expectation of privacy during the police interview. Griffin does not
demonstrate any Fourth Amendment basis upon which counsel could have moved to suppress his statements,
and thus fails to establish ineffective assistance of counsel for not raising such a claim.

Page 27 of 46

The Court finds that even if the letters written by Defendant were in
response to [his girlfriend]’s letters, Defendant’s letters would still be
admissible as evidence of consciousness of guilt based on what is contained
in the letters. Defendant also claims that if [his girlfriend]’s letters had been
admitted or used in a Motion to Suppress hearing, they would have shown
that Defendant’s letters did not establish consciousness of guilt. Defendant
has failed to state how [his girlfriend]’s letters would be admissible. Also, [his
girlfriend] testified that there was some talk of her leaving for Minnesota and
not being available to testify. Tr. 363; 371-386. Based on the above, the
Court finds that a Motion to Suppress would not have been granted in this
case. The Court held that the letters were relevant after a lengthy
discussion. Tr. 317-343. Claim 2 is DENIED.
(Dkt. 7, Ex. C3) (emphasis in original).
Preliminarily, although counsel did not file a motion to suppress the letters, she did
argue that they should be excluded and that it was Griffin’s girlfriend who discussed
potentially leaving the state. The court addressed the letters’ admissibility at a break during
trial.11 The trial court indicated that the letters contained an admission of guilt and further
stated: “I think every one of these is consciousness of guilt. . . . they, en masse, are
certainly consciousness of guilt. Keep it secret, destroy this letter, don’t let the State know
it, don’t tell the State anything. If you and [the victim] don’t talk, there’s no case. . . .” (Dkt.
7, Ex. A4, p. 326.)
During argument about the letters’ admissibility, counsel asserted that Griffin’s
girlfriend discussed these issues with counsel and made statements suggesting she and

11
The court indicated that one of the letters from Griffin stated, “Destroy these letters so the state won’t
get them.” (Dkt. 7, Ex. A4, p. 324.) Another letter stated, “Remember, all the state can do is threaten you.
They can’t make you do anything. Without you and [the victim] talking, the state doesn’t have anything.” (Id.,
pp. 324-25.) The trial court further noted that the letters stated,“I know I done wrong. I’m begging you to
reconsider going to trial.” (Id., pp. 338-40.) During Griffin’s girlfriend’s testimony, other quotations from the
letters were read. They include: “Please forgive me. I know it was wrong, but I can’t do anything about it now”;
“Please help me. Don’t let the state know about this letter, okay, I don’t want to get in trouble”; and “I will admit
I was wrong that night, but I can’t take that night back. I will regret that for the rest of my life. I wasn’t thinking
that night and I know it looked real bad.” (Id., pp. 377, 378, 383-84.)

Page 28 of 46

the victim were going to leave Florida. (Id., pp. 325, 327, 329.) Counsel argued the letters
were “not Richard Griffin telling you what to do” and that the letters only confirmed the
information Griffin’s girlfriend told counsel, who relayed it to Griffin. (Id., pp. 327, 331.)
Moreover, counsel objected to having any portion of the letters admitted into evidence
because they could be incorrectly interpreted as Griffin telling his girlfriend what to do with
respect to the case. (Id., p. 334.) The court excluded one letter but allowed the remaining
letters to be introduced, stating that, “taken as a whole, I think that they’re consciousness
of guilt.” (Id., pp. 342-43.) Contrary to Griffin’s argument, counsel contemporaneously
renewed her objection to the letters’ introduction during the testimony of his girlfriend. (Id.,
p. 353.)
Counsel’s objections to the letters’ introduction was unsuccessful. Griffin does not
show that filing a motion to suppress or moving to introduce the alleged letters from his
girlfriend would have yielded a different result. The postconviction court determined that
even if Griffin’s letters were written in response to letters from his girlfriend, his letters still
would have been admissible to show his consciousness of guilt. In Florida, “[e]vidence of
a defendant's acts or statements calculated to defeat or avoid his prosecution is admissible
against him as showing consciousness of guilt.” Brown v. State, 391 So.2d 729, 730 (Fla.
3d DCA 1980). The postconviction court concluded that a motion to suppress would have
failed, because Griffin’s letters were admissible on this basis. This Court must defer to the
state court’s determination. See Bradshaw, 546 U.S. at 76; McGuire, 502 U.S. at 67-68
(“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”). See also Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir.
1998) (“We will not grant federal habeas corpus relief based on an evidentiary ruling unless
Page 29 of 46

the ruling affects the fundamental fairness of the trial.”).
Finally, to the extent Griffin’s claim relies on the letters allegedly written by his
girlfriend, it is too speculative to support his argument. Griffin asserts that these letters
were in his possession. (Dkt. 1, p. 13.) However, Griffin has not produced any letters
written by his girlfriend to support his claim. There is no mention of letters written by his
girlfriend during the parties’ argument before the trial court. (Dkt. 7, Ex. A4, pp. 316-43.)
Counsel said his girlfriend did not “write him back,” (Id., p. 325), and did not disagree when
the court sought to confirm that “this is one-way correspondence from him to her.” (Id., p.
327). Accordingly, Griffin’s unsubstantiated assertion cannot provide relief. See Tejada
v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported
allegations cannot support an ineffective assistance of counsel claim). Griffin fails to
establish ineffective assistance of counsel on the bases alleged.
Griffin does not show that the state court unreasonably applied clearly established
federal law or unreasonably determined the facts in denying his claim. Consequently,
Ground Six warrants no relief.
Ground Seven
Griffin claims that counsel was ineffective for failing to ensure that he was present
during the entirety of jury selection. He claims that the jury venire was questioned before
he entered the courtroom. Therefore, he asserts, he “had no input into whether he felt he
was getting a jury who would try his case fairly, as he was not present during most of the
voir dire that took place between counsel(s) and the prospective jurors.” (Dkt. 1, p. 14.)
When Griffin raised this claim in his postconviction motion, the state court denied it,
stating, “the Court finds that the Defendant was present during jury selection as he was
Page 30 of 46

introduced as a party to the jury. Tr. 48. The panel had not been interviewed outside of
the Defendant’s presence. Tr. 38-48.” (Dkt. 7, Ex. C3.)
These are factual findings that are presumed correct. See 28 U.S.C. § 2254(e)(1).
Griffin does not overcome this presumption of correctness. Moreover, these findings are
supported by the record. The trial transcript reflects that immediately after the jury venire
entered the courtroom, the court gave opening instructions to the prospective jurors. (Dkt.
7, Ex. A4, pp. 37-44.) The court then called thirteen prospective jurors to be seated in the
jury box for voir dire, read the charging document, and provided more introductory
instructions. (Id., pp. 44-47.) At this point, one prospective juror indicated that she
believed she knew a former student named Richard Griffin. The court said, “Is it - - did you
look across the court? Do you see someone you know? That’s Mr. Griffin. . . . If it is Mr.
Griffin you taught, that is Mr. Griffin over there.” (Id., p. 48.) Very shortly afterward, the
court stated, “The Defendant is Mr. Richard Lee Griffin. Mr. Griffin, would you please rise.”
(Id.)
Thus, the record reflects that Griffin was present in the courtroom at the beginning
of jury selection. There is no indication from the transcript that he entered the courtroom
only after the jury venire entered. The transcript of jury selection provides no indication that
Griffin later left the courtroom while the proceedings were ongoing. And when the jury was
selected, Griffin answered, “Yes, ma’am,” when the court asked whether the jury was
acceptable to him. (Id., p. 125.)
Griffin has not shown ineffective assistance of counsel on the basis alleged. He
does not establish that the state court’s ruling was an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts. Griffin
Page 31 of 46

is not entitled to relief on Ground Seven.
Ground Eight
Griffin claims that counsel was ineffective for not objecting to the court’s failure to
administer an oath to the jury venire requiring them to answer voir dire questions
truthfully.12 More specifically, in the memorandum of law in support of his amended
postconviction motion, he alleged prejudice in that: 1) Juror Miller, a speech and language
pathologist, “may have some unearthed prejudice and/or sympathy” for the victim; 2) Juror
Hughes, a high school teacher, “would naturally possess an inborn kinship for a teenage
victim near the same age as the students he oversees”; 3) Juror Craven, who worked for
the Polk County Schools, was “never asked if she ever had any contact with [the] victim
during her tenure”; and 4) Juror Herber had a daughter who “teaches children with learning
disabilities (special education) in Polk County Schools.” (Dkt. 7, Ex. C5, pp. 2-3.)
The state court denied this claim:
In amended claim 3b, Defendant argues that the Court failed to swear
in the prospective jurors. Because of the Court’s omission, the prospective
jurors were not required to answer truthfully. In his memorandum of law,
Defendant raises several concerns that he had with prospective jurors.
Despite the Defendant’s concerns with the prospective jurors listed, they
were not questioned on the subjects mentioned. Ms. Miller was never asked
about her prejudice or sympathy for hearing impaired victims. Mr. Hughes
was never asked about his kinship with teenagers because of his position as
a teacher. Ms. Craven was never asked if she had any contact with the
victim as an employee of the Polk County School System. Ms. Herber was
never asked if she had any bias towards children with learning disabilities
based on her daughter’s employment. Therefore, the credibility or
truthfulness of these four prospective jurors as to the issues advanced by the
Defendant is not an issue in this case. Defendant has failed to establish
prejudice. Claim 3b is DENIED.

12

Florida Rule of Criminal Procedure 3.300(a) sets forth the form of oath for prospective jurors.

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(Dkt. 7, Ex. C6) (court’s record citations omitted).
The record does not show that the venire panel was sworn before answering
questions. (Dkt. 1, Ex. A4, pp. 38-47.) The postconviction court determined that because
the individuals who were chosen for the jury did not provide any responses about the topics
Griffin identified, they could not have answered untruthfully with regard to these matters.
Griffin makes no specific argument, and presents no evidence, that any juror selected for
his case was biased or provided untruthful answers during voir dire.13 Instead, he makes
speculative assertions based upon the experience or profession of these jurors or their
family members. Such speculation cannot sustain Griffin’s ineffective assistance of counsel
claim. See Tejada, 941 F.2d at 1559.
In addition, the jury venire indicated that they did not have bias for or against either
party, and that they understood the requirement to make a fair and impartial decision. (Dkt.
7, Ex. A4, p. 52.) The jury venire stated that they would not have feelings of sympathy for
a deaf witness. (Id., pp. 92-93.) To the extent Griffin argues that counsel did not ask Miller
or Craven proper questions to uncover any bias, he is not entitled to relief. The victim
testified with the assistance of sign language interpreters. In addition to the above answers
given by the jury panel, Miller indicated that although she knew some American Sign
Language, she would rely on the interpreter’s interpretation. (Id., pp. 82-83.) And while
Griffin argues that counsel did not ask Craven about possible interaction with the victim at
her job, none of the prospective jurors indicated that he or she knew the victim when asked
13

In addition, Griffin cannot show prejudice because he fails to establish that any biased juror sat on
the jury. See United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993) (in order to challenge a juror
for cause, a party “must demonstrate that the juror in question exhibited actual bias by showing either an
express admission of bias or facts demonstrating such a close connection to the present case that bias must
be presumed.”).

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by the court. (Id., p. 50.) Griffin offers no evidence that any answers provided by the jury
venire as a whole, or these two jurors in particular, were untruthful. Accordingly, he fails
to establish prejudice as a result of counsel’s performance.
Griffin also claims counsel’s failure to object had “jurisdictional implications” because
“under Rule 3.191(c), Fla.R.Crim.P., (the Speedy Trial Rule), it is determined that a ‘trial’
in Florida does not ‘commence’ until the venire is sworn on their voir dire prior to
examination.” (Dkt. 1, p. 15.) This aspect of the claim is presumed to be denied, even
though the state court did not expressly discuss it in its denial of Griffin’s ineffective
assistance of counsel claim. See Richter, 562 U.S. at 99 (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”).
Furthermore, this assertion rests upon an interpretation of state law to which this
Court must defer.14 See Will v. Sec’y, Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir.
2008) (“Although an ineffective-assistance-of-counsel claim is a federal constitutional claim,
which we consider in light of the clearly established rules of Strickland, when ‘the validity
of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must
defer to the state’s construction of its own law.’”) (citing Alvord v. Wainwright, 725 F.2d
1282, 1291 (11th Cir. 1984)). And, as Griffin’s argument acknowledges, the definition of
commencement of trial on which he relies is relevant to determining whether a trial has
commenced within the speedy trial time period. Moore v. State, 368 So.2d 1291, 1292

14
The argument raised by Griffin concerns the calculation of speedy trial time periods under Florida’s
procedural rules, not the Sixth Amendment right to a speedy trial.

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(Fla. 1979) (citing Stuart v. State, 360 So.2d 406 (Fla. 1978)). There is no indication that
Griffin exercised his right to a speedy trial in this case. In addition, Griffin cites no authority
providing that a lack of oath on the record affected the trial court’s jurisdiction. Griffin fails
to show counsel provided ineffective assistance by not objecting to the lack of an oath by
the jury venire.
Griffin does not show that the state court unreasonably applied clearly established
federal law or unreasonably determined the facts in rejecting his claim. Ground Eight
warrants no relief.
Ground Nine
Griffin claims that counsel was ineffective for failing to ensure a “gender-neutral”
jury. He asserts, and the record indicates, that the jury of five women and one man was
selected from thirteen prospective jurors, eleven of whom were women. Griffin states that
he could not receive a fair trial before a jury comprised primarily of women because he was
a man charged with engaging in sexual activity with a female minor. The state court denied
Griffin’s claim of ineffective assistance of counsel:
As to Defendant’s claim that there were not enough males seated on
the jury panel, the rule is that although petit juries must be drawn from a
source fairly representative of the community, there is no requirement that
the juries chosen must mirror the community and reflect the various
distinctive groups in the population. State v. Riechmann, 777 So.2d 342, 353
(Fla. 2000). Claim[ ] . . . 3c [is] denied.
(Dkt. 7, Ex. C3.)
To the extent Griffin argues in support of his ineffective assistance claim that there
were simply not enough potential male jurors from which to choose a fair and impartial jury
to hear his case, he does not show entitlement to relief because he does not identify a
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basis upon which counsel could have objected. He does not show that the state court
failed to comply with the requirement stated by the Florida Supreme Court in Riechmann,
777 So.2d at 353, n. 14, that the jury panel be drawn from a source fairly representative of
the community. See also Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (“[P]etit juries must
be drawn from a source fairly representative of the community. . .”); United States v.
Henderson, 409 F.3d 1293, 1305 (11th Cir. 2005) (a defendant’s Sixth Amendment right
to a fair trial includes “the presence of a fair cross-section of the community on venire
panels, or lists from which grand and petit juries are drawn.”).
Applicable Florida law provides that a jury venire is to be randomly drawn from a list
of prospective jurors in the county. §§ 40.011, 40.221, 40.225, Fla. Stat. (2010). Griffin
points to no evidence that this procedure was not followed. It appears that the court called
thirteen prospective jurors to the jury box while other prospective jurors remained
elsewhere in the courtroom, but Griffin does not argue or demonstrate that these thirteen
individuals were chosen in an impermissible manner. Therefore, Griffin does not establish
a basis upon which counsel could have objected to the composition of the jury venire or the
jury.
Griffin also asserts that counsel was ineffective because she “knew or should have
known that [Griffin] could not get a fair determination of these issues before a jury that was
comprised of mostly female jurors, but she made no effort to even the bar by using her
preemptory strikes to eliminate at least some of the initial female jurors to get to the
remaining prospective jurors in the audience, where it would have improved her ability to
seat a more gender friendly jury panel.” (Dkt. 1, p. 16.) This specific assertion was not
raised in Griffin’s postconviction motion. (Dkt. 7, Ex. C1, pp. 6-8; Ex. C2, pp. 7-11.) Thus,
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it was not properly presented to the state courts and is procedurally defaulted.15
Even considering this allegation, it affords Griffin no relief. “[T]he Equal Protection
Clause prohibits discrimination in jury selection on the basis of gender, or on the
assumption that an individual will be biased in a particular case for no reason other than
the fact that the person happens to be a woman or happens to be a man.” J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 146 (1994); see also Abshire v. State, 642 So.2d 542
(Fla. 1994). Griffin claims that counsel should have stricken prospective jurors simply
because they were women, contrary to J.E.B. Counsel was not ineffective for not doing so.
Griffin asserts that “the prejudice became apparent where the panel selected
consisted of jurors who worked with children, e.g. teachers, social workers, and
handicapped/impaired children (the victim in this case was deaf).” (Dkt. 1, p. 16.) Griffin’s
claim of prejudice was not properly presented to the state court in his claim of ineffective
assistance with respect to the jury composition, and is procedurally defaulted. (Dkt. 7, Ex.
C1, pp. 6-8; Ex. C2, pp. 7-11.)16

Even if considered in support of his allegation that

counsel should have ensured a better balance of men and women on the jury venire and
the jury, however, it is without merit. Griffin is confusing the jurors’ gender and their
employment positions. Further, as he makes only a generalized, conclusory statement with
regard to prejudice, the claim is too speculative to warrant relief. See Tejada, 941 F.2d at

15

When a petitioner raises an ineffective assistance of counsel claim in state court, but alleges
different supporting facts for the same claim in his federal habeas petition, he fails to fairly present the federal
claim to the state court. Anderson v. Harless, 459 U.S. 4, 6 (1982); Weeks v. Jones, 26 F.3d 1030, 1044-46
(11th Cir. 1994). Griffin cannot return to state court to file an untimely, successive postconviction motion. See
Fla. R. Crim. P. 3.850(b), (h). This results in a procedural default of this aspect of Griffin’s claim. See Smith,
256 F.3d at 1138. He does not establish the applicability of either exception to overcome the default. See id.
16
See Anderson, 459 U.S. at 6; Weeks, 26 F.3d at 1044-46. Griffin does not establish an exception
to overcome the procedural default of the claim.

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1559. Griffin presents no evidence that any juror was actually biased. Nor does he show
any reasonable probability that the outcome of the proceedings would have been different
had counsel objected to the number of men on the jury venire or jury.
In sum, Griffin does not meet either prong of Strickland. He does not show that the
state court’s rejection of his claim was contrary to or an unreasonable application of clearly
established federal law, or was based on an unreasonable determination of the facts.
Griffin is not entitled to relief on Ground Nine.
Ground Ten
After the State rested, counsel moved for a judgment of acquittal. She argued that
the State failed to prove Griffin was in a position of familial or custodial authority over the
victim. (Dkt. 7, Ex. A4, pp. 546-49.) Counsel conceded she did not have case law to
support her position under the circumstances of Griffin’s case. (Id., p. 549.) In response
to the motion, the State cited Oliver, 977 So.2d 673, which describes a familial relationship
as one involving a recognizable bond of trust between a victim and defendant. The court
denied the motion for judgment of acquittal. (Id., p. 550.) Griffin states that counsel was
ineffective for failing to research and prepare a legally sufficient motion for judgment of
acquittal that would have raised a meritorious issue.
The state court rejected this claim when Griffin raised it in his postconviction motion:
In claim 4, Defendant argues that trial counsel was ineffective for
failing to present case law during her motion for judgment of acquittal.
Defendant argues that trial counsel should have presented case law that
establishes he did not have a familial relationship with the victim. The case
law cited in Defendant’s motion does not support his argument. The case
law cited by Defendant in his memorandum stands for the proposition that a
court must make the determination on a case by case basis. In this case, the
Court found that the State had established that the Defendant was in a
familial relationship with the victim. [Griffin’s girlfriend] and the victim testified
Page 38 of 46

that Defendant was referred to as dad and that he was like a father to the
victim. Defendant, in his taped statement to the police, stated that he was
like a father to her. Claim 4 is DENIED.
(Dkt. 7, Ex. C3) (court’s record citations omitted) (emphasis in original).
Griffin contends that counsel’s “lack of diligence in researching and preparing” the
motion was deficient performance. (Dkt. 1, p. 17.) However, in his federal habeas petition,
Griffin cites no authority to support the contention that he was not in a position of familial
or custodial authority over the victim.17 He fails to identify what additional argument counsel
should have presented in support of the motion. Thus, Griffin fails to show deficient
performance or resulting prejudice.
Griffin also alleges that prejudice as a result of counsel’s ineffective assistance
during the hearing on the motion for judgment of acquittal was shown with respect to
counsel’s alleged improper questioning of the victim on count three. During argument on
the motion for judgment of acquittal, the court indicated that it had been prepared to grant
an acquittal on count three until the victim’s cross-examination, during which the victim
“said enough that I’m denying your motion for JOA.” (Dkt. 7, Ex. A4, p. 552.) Although this
portion of the claim was not expressly addressed in the postconviction order, it is presumed
to be denied. See Richter, 562 U.S. at 99. Moreover, Griffin shows no prejudice as result
of counsel’s cross-examination of the victim with respect to count three, as the jury found

17

In his postconviction motion, Griffin only made reference to Oliver, 977 So.2d 673, upon which the
State relied in opposing the motion for judgment of acquittal. (Dkt. 7, Ex. C1, pp. 8-10.) In the memorandum
of law filed in support of his postconviction motion, Griffin cited McLean v. State, 934 So. 2d 1248, 1256 n.6
(Fla. 2006); Hallberg v. State, 649 So.2d 1355 (Fla. 1994); State v. Rawls, 649 So.2d 1350, 1353 (Fla. 1994);
Hamilton v. State, 979 So.2d 420, 422 (Fla. 2d DCA 2008); Parker v. State, 993 So.2d 987 (Fla. 2d DCA
2007); and Boykin v. State, 725 So.2d 1203 (Fla. 2d DCA 1999). (Dkt. 7, Ex. C2, pp. 11-13.) The state court
noted that these decisions do not support Griffin’s assertion that he was not in a position of familial or custodial
authority over the victim under the circumstances of this case.

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him not guilty on this count.
Accordingly, Griffin does not show that the state court’s rejection of his claim was
an unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts. Ground Ten warrants no relief.
Ground Eleven
The victim gave birth to a baby prior to trial. DNA tests confirmed that Griffin was
not the baby’s father. Griffin argues that counsel was ineffective for failing to prepare and
argue in favor of admitting evidence regarding the victim’s pregnancy and alleged
promiscuity. Specifically, Griffin contends that counsel “did nothing to argue for this
evidence to be admitted, specifically under Florida Statutes § 90.4025 (evidence code) that
would allow evidence of paternity of a child born to a victim of sexual battery, who is under
18 as being admissible in a criminal prosecution.” (Dkt. 1, p. 18.) He claims that such
evidence “would have exculpated Petitioner[’]s position” because “the jury was left to
believe that the alleged victim was chaste thereby lending more credibility to her testimony.”
(Id.)
Before trial, the court considered counsel’s request to introduce evidence of the
baby’s paternity. Counsel asserted that this was relevant to the victim’s credibility and
potential motive in testifying. (Dkt. 7, Ex. A4, pp. 30-33, 36.) Counsel further argued that
Griffin was entitled under the Confrontation Clause to question the victim about this
information in presenting his defense. (Id.) In ruling against Griffin, the trial court made
clear that it considered evidence of the baby’s paternity to be inadmissible at trial because
it was irrelevant to the charges and barred by Florida’s rape shield law to the extent it
merely suggested the victim engaged in sexual activity with someone other than Griffin.
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(Dkt. 7, Ex. A4, pp. 25, 31-37.)
The postconviction court rejected Griffin’s claim of ineffective assistance of trial
counsel:
In claim 5, Defendant argues that trial counsel should have argued,
and preserved for appeal, the Court’s ruling that Defendant could not show
that the victim was promiscuous or that she had given birth to a child that
was not Defendant’s. The record indicates that trial counsel did argue that
such facts should be admissible during a hearing on a Motion in Limine held
before jury selection. The Court ruled against counsel and the issue was
preserved for appeal. Trial counsel cannot be said to be deficient in her
performance and Defendant cannot establish prejudice. Claim 5 is DENIED.
(Dkt. 7, Ex. C3) (court’s record citation omitted) (emphasis in original).
As addressed, counsel argued that the evidence of paternity was admissible for the
same reasons Griffin now sets forth. While counsel did not specifically cite § 90.4025, Fla.
Stat., she presented extensive argument in support of admitting this evidence. But the trial
court rejected all of the arguments advanced by counsel. Griffin does not establish that
counsel was deficient in not citing this statute, or that there is a reasonable probability the
outcome of the proceedings would have been different had she done so. Finally, Griffin’s
claim that he was prejudiced in that the jury believed the victim was “chaste” and therefore
credible is entirely speculative, and unsupported by any evidence.18 Such an argument
cannot sustain a claim of ineffective assistance of counsel. See Tejada, 941 F.2d at 1559.
Griffin does not establish either prong of Strickland. Therefore, he does not show
that the state court’s rejection of this claim was an unreasonable application of clearly

18

This aspect of the claim was not properly presented to the state court and is procedurally defaulted.
(Dkt. 7, Ex. C1, pp. 10-11; Ex. C2, pp. 13-15.) See Anderson, 459 U.S. at 6; Weeks, 26 F.3d at 1044-46.
Griffin does not establish the applicability of an exception to overcome the procedural default of the claim.
See Smith, 256 F.3d at 1138. Notwithstanding, it provides no relief.

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established federal law, or based on an unreasonable determination of the facts. Griffin
is not entitled to relief on Ground Eleven.
Ground Twelve
Griffin claims that counsel was ineffective for misadvising him not to testify at trial.
He claims that his testimony would have “rebutted” alleged inconsistencies in the victim’s
testimony because he would have “explained to the jury that the acts described by the
alleged victim did not happen.” (Dkt. 1, p. 19.) Griffin further asserts that he wished to
testify but that counsel advised him not to “because he lacked the acumen to fend off the
accusatory questioning by the State Prosecutor, regardless of the fact that the Petitioner
had no prior record and had never before been accused of a crime involving sexual
immorality.” (Id.) He claims that counsel should have “allowed” him to testify and should
have asked him questions that would have revealed that he had no prior criminal record.
(Id.) Furthermore, Griffin claimed in his amended postconviction motion that, had he
testified, he would have explained “his statements to police at the stationhouse as ‘tell them
what they want to hear’ where all Griffin was concerned with was getting out of there so he
could get to work.” (Dkt. 7, Ex. C4, pp. 5, 6.)19
In rejecting this claim, the state court stated that, “After review of the State’s
arguments, citations, and attachments to its Response, adopted and incorporated herein,
the Court agrees.” The State’s response provides:

19

Griffin, a truck driver, was scheduled to leave for a trip the same day he was detained and
interviewed by police. In arguing that his statement was involuntary, counsel emphasized in closing
arguments that the police did not tell Griffin until the end of the interview he was going to jail, and at least
suggested that Griffin’s focus in the interview was simply being able to leave for work. (Dkt. 7, Ex. A4, p. 645.)
Robbins’ testimony reflects that, during the interview, Griffin was concerned with being late for work, and that
at some point he expressed worry about losing his job. (Id., pp. 481, 529.)

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This Honorable Court has ordered response as to Defendant’s sixth
claim of error, that trial counsel . . . rendered ineffective assistance by
advising Defendant not to testify in his own behalf at the trial of this cause.
. . . The Record affirmatively refutes this claim, as set forth in Gonzalez v.
State, 990 So.2d 1017, 1031 (Fla. 2008) and Oisorio v. State, 676 So.2d
1363, 1364 (Fla. 1996). This claim should be denied.
In Gonzalez, 990 So.2d at 1031, that defendant claimed that trial
counsel rendered ineffective assistance within the meaning of Strickland v.
Washington, 466 U.S. 668 (1984) by interfering with his right to testify. The
Florida Supreme Court held that where the trial judge on the record engages
a defendant in a colloquy that establishes that defendant “knowingly,
voluntarily, and intelligently waived his right to testify, and that it was his
personal decision,” then a claim of interference with the right to testify may
be denied. 990 So.2d at 1031. Gonzalez understood that he had the right
to testify regardless of his counsel’s advice, that it was his personal decision,
no promises were made to him, and he was not forced to testify. Id. The
supreme court held that even Gonzalez’ history of below-average intelligence
and brain damage did not “equate to a lack of voluntariness,” and denied the
collateral motion. Id. at 1032.
In Oisorio, 676 So.2d at 1364, the landmark Florida case for this type
of claim, a convicted drug trafficker made similar protests that his right to
testify was interfered with. There, the high court held that consistent with
Strickland, a defendant raising such a claim must demonstrate that trial
counsel rendered deficient performance in advising the client not to testify,
and that outcome-determinative prejudice resulted. 676 So.2d at 1364.
Cases such as Gonzalez construe Strickland prejudice for purposes of
awarding an evidentiary hearing to take place where the record does not
show that defendant voluntarily chose not to testify.
In this case, the record shows that the Trial Court, Tenth Circuit
Judge, the Honorable Beth Harlan, engaged the Defendant in the colloquy
that Gonzalez recommends. . . . The Trial Court advised Defendant that
The Court:

You understand that you’re giving up your - - you
not only are exercising an important
Constitutional right, but you’re also giving up a
right. Do you understand that?

[Defendant]: [Nodding head.]
...
The Court:

I am going to charge the jury that they are not to
take anything from your failure to testify - - that
they are not to assume anything, that it’s the
state’s burden to prove that you’re guilty beyond
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a reasonable doubt, and that they are not to
assume anything because of your failure to
testify. You understand that?
[Defendant]: Yes, your honor.
The Court:

But you’re also giving up that right to sit in that
box and tell your story. You understand that?

[Defendant]: Yes, ma’am.
The Court:

And are you comfortable with that decision?

[Defendant]: Yes, ma’am.
The Court:

I try to avoid asking if you and your attorney
agree because in my opinion, that gets into the
attorney-client privilege, but you and your
attorney have discussed it and you, [Defendant],
feel comfortable in your decision not to testify?

[Defendant]: Yes, ma’am.
Trial Transcript at 559-60. Here, the Trial Court’s colloquy establishes that
Defendant “knowingly, voluntarily, and intelligently waived his right to testify,
and that it was his personal decision,” and his claim therefore should be
denied. Gonzalez, 990 So.2d at 1031.
(Dkt. 7, Ex. C7) (alterations in original).
The record supports the state court’s determination that Griffin knowingly chose not
to testify upon consulting with counsel. (Dkt. 7, Ex. A4, pp. 559-60.) To the extent that
Griffin alleges counsel did not permit or allow him to testify, therefore, the state court record
clearly supports the rejection of his claim.
Furthermore, Griffin fails to establish entitlement to relief on his argument that
counsel performed deficiently in advising him not to testify. Testifying would have exposed
Griffin to cross-examination, during which the State could have impeached his testimony
with his incriminating statements to the police and further highlighted these statements
Page 44 of 46

before the jury. Additionally, counsel was able to present numerous points in closing
argument even without Griffin’s testimony. She argued that the victim was not credible and
that her testimony contained incorrect information and inconsistencies and showed she was
confused about what acts constituted sex; that there was a lack of physical evidence to
support the charges; that Griffin’s letters contained no admission of sexual acts; that
Griffin’s statement to police should be discounted because it was not voluntary; and that
the State failed to show Griffin was in a position of familial or custodial authority over the
victim. (Id., pp. 616-53.)
Moreover, given the significant evidence of guilt presented through testimony of the
victim and Detective Robbins, Griffin fails to establish a reasonable probability that his
proposed testimony would have changed the outcome of trial. Accordingly, Griffin fails to
meet either prong of Strickland. Therefore, he fails to show that the state court’s decision
was contrary to or an unreasonable application of clearly established federal law, or was
based on an unreasonable determination of the facts. Ground Twelve warrants no relief.
Any claims not specifically addressed in this Order have been determined to be
without merit. It is therefore ORDERED that Griffin’s petition for writ of habeas corpus (Dkt.
1) is DENIED. The Clerk is directed to enter judgment against Griffin and to close this
case.
It is further ORDERED that Griffin is not entitled to a certificate of appealability. A
petitioner does not have absolute entitlement to appeal a district court’s denial of his
habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of
appealability (COA). Id. “A [COA] may issue . . . only if the applicant has made a

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substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make
such a showing, Griffin “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) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n. 4 (1983)). Griffin has not made this showing. Finally, because Griffin is not
entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on September 21, 2016.

Copy to:
Richard Lee Griffin
Counsel of Record

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