Griffiin v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JONAS TRAMELL GRIFFIN,

Petitioner,

v. Case No: 2:21-cv-774-JES-KCD

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

/

OPINION AND ORDER

Jonas Tramell Griffin (“Griffin” or “Petitioner”), a prisoner

in the custody of the Florida Department of Corrections, petitions

this Court for a writ of habeas corpus under 28 U.S.C. § 2254.

(Doc. 1; Doc. 8-1). The Secretary of the Florida Department of

Corrections (“Respondent”) filed a response in opposition to the

petition. (Doc. 11). Griffin filed a reply (Doc. 16), and the

petition is ripe for review.

After carefully reviewing the pleadings and the state-court

record, the Court concludes that Griffin is not entitled to federal

habeas corpus relief on any ground raised in this petition.

Further, because the Court was able to resolve each ground on the

basis of the record, an evidentiary hearing is not warranted. See

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

I. Background and Procedural History

On July 30, 2015, a jury found Griffin guilty of robbery with

a firearm (count one); aggravated battery with a firearm (count

two); fleeing or attempting to elude with wanton disregard (count

three); and aggravated assault with a firearm (count four). (Doc.

11-2 at 1154–56, 1162–65). The trial court sentenced Griffin as

a habitual felony offender to life in prison on count one; thirty

years in prison on count two; thirty years in prison on count

three; and ten years in prison on count four. Counts one through

three each carried a mandatory ten-year minimum term. (Id. at 1256–

57, 1260–72). Griffin’s sentences and convictions were affirmed

per curiam by Florida’s Second District Court of Appeal (“Second

DCA”) without a written opinion. (Id. at 1325).

Thereafter, Griffin filed a motion for postconviction relief

under Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule

3.850 Motion”). (Doc. 11-2 at 1395–96). The postconviction court

denied the Rule 3.850 Motion without an evidentiary hearing. (Id.

at 1539–1633). The Second DCA affirmed per curiam without a

written opinion. (Id. at 1731).

Griffin timely filed this federal habeas petition on October

20, 2021. (Doc. 1).

II. Legal Standards

A. The Antiterrorism Effective Death Penalty Act (AEDPA)

Under the AEDPA, federal habeas relief may not be granted

with respect to a claim adjudicated on the merits in state court

unless the adjudication of the claim:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d)(1)–(2). In this context, clearly established

federal law consists of the governing legal principles, and not

the dicta, set forth in the decisions of the United States Supreme

Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70,

74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is contrary to clearly established federal law if

the state court either: (1) applied a rule that contradicts the

governing law set forth by Supreme Court case law; or (2) reached

a different result from the Supreme Court when faced with

materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an unreasonable application

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state

court either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson v. Moore, 234 F.3d 526, 531

(11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The standard to obtain relief under 28 U.S.C. §2254(d) is

both mandatory and difficult to meet. To demonstrate entitlement

to federal habeas relief, the petitioner must show that the state

court’s ruling was “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” White, 572 U.S. at 420

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

Moreover, when reviewing a claim under section 2254(d), a federal

court must presume that any “determination of a factual issue made

by a State court” is correct, and the petitioner bears “the burden

of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e).

A state court’s summary rejection of a claim, even without

explanation, qualifies as an adjudication on the merits—warranting

deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

2008). Generally, in the case of a silent affirmance, a federal

habeas court will “look through” the unreasoned opinion and presume

that the affirmance rests upon the specific reasons given by the

last court to provide a reasoned opinion. See Ylst v. Nunnemaker,

501 U.S. 797, 806 (1991); Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). However, the presumption that the appellate court relied

on the same reasoning as the lower court can be rebutted “by

evidence of, for instance, an alternative ground that was argued

[by the state] or that is clear in the record” showing an

alternative likely basis for the silent affirmance. Sellers, 138

S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a

two-part test for determining whether a convicted person is

entitled to relief on the ground that his counsel rendered

ineffective assistance. 466 U.S. 668, 687–88 (1984). A

petitioner must establish that counsel’s performance was deficient

and fell below an objective standard of reasonableness and that

the deficient performance prejudiced the defense. Id. This is a

“doubly deferential” standard of review that gives both the state

court and the petitioner’s attorney the benefit of the doubt.

Burt v. Titlow, 571 U.S. 12, 15 (2013).

The focus of inquiry under Strickland’s performance prong is

“reasonableness under prevailing professional norms.” Id. at 688.

In reviewing counsel’s performance, a court must presume that

“counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689 (citation omitted). A court

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,” applying a highly deferential level of

judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)

(quoting Strickland, 466 U.S. at 690). Proving Strickland

prejudice “requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result

is reliable.” 466 U.S. at 687.

C. Exhaustion and Procedural Default

The AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of available relief under state law. 28 U.S.C.

§ 2254(b)(1). 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 upon and correct

alleged violations of its prisoners’ federal rights[.]” Duncan v.

Henry, 513 U.S. 364, 365 (1995). The petitioner must apprise the

state court of the federal constitutional issue, not just the

underlying facts of the claim or a similar state law claim.

Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). Under the

similar doctrine of procedural default, “a federal court will not

review the merits of claims, including constitutional claims, that

a state court declined to hear because the prisoner failed to abide

by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9

(2012).

A petitioner can avoid the application of the exhaustion or

procedural default rules by establishing objective cause for

failing to properly raise the claim in state court and actual

prejudice from the alleged constitutional violation. Spencer v.

Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179–80 (11th Cir. 2010).

To show cause, 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). To show prejudice, a petitioner must

demonstrate a reasonable probability the outcome of the proceeding

would have differed. Crawford v. Head, 311 F.3d 1288, 1327–28

(11th Cir. 2002).

A second exception, known as the “fundamental miscarriage of

justice,” only occurs in an extraordinary case, where a

“constitutional violation has probably resulted in the conviction

of one who is actually innocent[.]” Murray v. Carrier, 477 U.S.

478, 479–80 (1986).

III. Discussion

This case involves the June 18, 2014, robbery of a Family

Dollar store in Cape Coral Florida. Around 8:55 p.m. a witness,

who had just left the store observed two masked men enter the store

with a gun. (Doc. 11-2 at 678–79). She called 9-1-1. (Id. at

680, 683–91). When the men left the store, she saw them go to the

back of the building and drive away in a car. (Id. at 710–11).

She followed them in her own car until the police began chasing

the suspects. (Id. at 711–13).

While inside the store, the robbers held a gun to the

manager’s head and demanded that he open a safe. (Doc. 11-2 at

718, 721–22). The robbers told him they would kill him if he did

not comply. (Id.) One of the men struck the manager in the head

with a gun. (Id. at 724). Both the manager and assistant manager

testified that the robber with the gun had tattoo sleeves. (Id.

at 725–26, 773). The robbery was captured on the store’s security

camera and played for the jury during the victims’ testimony.

Several police officers testified that the suspects led them

on a high-speed car chase that ended when the suspects crashed

their car into another vehicle. After a subsequent foot chase,

the men were detained. The store manager and assistant manager

were taken to the scene of the crash where they identified Griffin

as one of the robbers, primarily because of his tattoo sleeves.

The police recovered a gun, masks, gloves, and a bag of money from

the vehicle and vicinity of the chase. (Doc. 11-2 at 778–961).

Griffin raises three claims of state court error and five

grounds alleging ineffective assistance of trial counsel Robert

Kimber Martin (“Counsel”). Except for ground one, which is

unexhausted, each ground was denied by the trial or postconviction

court with a written order and affirmed by the Second DCA without

a written opinion. The appellate court’s summary rejection of the

claims raised below—even without explanation—qualifies as an

adjudication on the merits, which warrants deference. Therefore,

for the claims raised in trial (or postconviction) court, this

Court will “look through” the Second DCA’s silent affirmance and

consider the lower court’s rationale for denying the claim. See

Sellers, 138 S. Ct. at 1192.

A. Ground One

In his first claim, Griffin asserts that the trial court erred

by denying Counsel’s motion for a judgment of acquittal. (Doc. 1

at 6). He argues that the evidence in this case was circumstantial

and that his conviction “was not supported by competent substantial

1

evidence.” (Id.) Respondent argues that Ground One is

unexhausted because Griffin did not raise the constitutional

nature of this claim at trial or in his brief on appeal. (Doc.

11 at 17).

Although Griffin raised a similar claim on direct appeal,

this Court finds that he did not exhaust the constitutional aspect

of Ground One. In his appellate brief, Griffin argued that

“‘[w]here the only proof of guilt is circumstantial, no matter how

strongly the evidence may suggest guilt, a conviction cannot be

sustained unless the evidence is inconsistent with any reasonable

hypothesis of innocence.’” (Doc. 11-2 at 1300 (quoting State v.

Law, 559 So. 2d 187, 188 (Fla. 1989))). Griffin argued that under

Law, Counsel’s motion for a judgment of acquittal should have been

granted because there was no testimony regarding the suspects’

description to the police prior to the show-up. (Id.)

Accordingly, Griffin’s argument on direct appeal was that the

evidence identifying him as the robber was circumstantial and could

not sustain his conviction under Florida law.

1

In the motion for a judgment of acquittal, Counsel argued

that no witness identified Petitioner as the robber from the events

at the store—only at the show-up identifications. (Doc. 11-2 at

994). The trial court denied the motion for the reasons set forth

in her order denying Petitioner’s pre-trial motion to suppress,

and because sufficient physical evidence connected Petitioner to

the robbery. (Id. at 995).

Griffin concedes that the constitutional aspect of Ground One

is unexhausted. (Doc. 16 at 5). But he blames appellate counsel

for failing to properly raise the claim on direct appeal. (Doc.

16 at 5; Doc. 8-1 at 16). However, the underlying ineffective-

assistance claim was not exhausted in state court, and he cannot

raise it here for the first time. See Edwards v. Carpenter, 529

U.S. 446, 452 (2000) (“A claim of ineffective assistance . . .

must be presented to the state courts as an independent claim

before it may be used to establish cause for a procedural

default.”) (alteration adopted) (internal quotation marks

omitted); Kimbrough v. Sec’y, Fla. Dep’t of Corr., 809 F. App’x

684, 693 (11th Cir. 2020) (trial counsel’s alleged ineffectiveness

could not supply “cause” for procedural default of his federal

habeas claim absent a demonstration that the ineffective-

assistance claim itself was excused by cause and prejudice).

Moreover, even considering the merits of Ground One, Griffin

does not explain how the trial court erred under section 2254(d)

when it denied his motion for a judgment of acquittal. The

“reasonable hypothesis of innocence” legal standard relied upon by

Griffin in his brief on direct appeal is peculiar to Florida law,2

2

In Florida, a “special standard of review of the sufficiency

of the evidence applies where a conviction is wholly based on

circumstantial evidence,” or “predicated chiefly upon

and claims based upon a state court’s interpretation of state law

are not cognizable on federal habeas review. See Holsey v.

Thompson, 462 F. App’x 915, 917 (11th Cir. 2012) (recognizing that

a challenge to the sufficiency of the evidence based on Georgia

law was not cognizable on habeas review). The federal sufficiency

of the evidence standard does not require that cases turning on

circumstantial evidence exclude every reasonable hypothesis of

innocence. Rather, under the federal standard, “the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in original).

Here, the state court denied Counsel’s motion for a judgment

of acquittal in part because of “the abundant physical evidence

that links the defendant to the crime in question.” (Doc. 11-2

at 995). Namely, Griffin was identified as the robber by two

circumstantial evidence.” Thorp v. State, 777 So. 2d 385, 389

(Fla. 2000) (quotation omitted). “Where the only proof of guilt

is circumstantial, no matter how strongly the evidence may suggest

guilt, a conviction cannot be sustained unless the evidence is

inconsistent with any reasonable hypothesis of innocence.” Id.

(quotation omitted); Lowe v. State, 90 Fla. 255, 105 So. 829, 830

(1925) (requiring that the evidence be “irreconcilable with any

reasonable theory of [the defendant’s] innocence and exclude to a

moral certainty every hypothesis but that of his guilt”).

witnesses. (Ex. 10 at 314–15, 320, 321, 362). He led the police

on a high speed chase—in a car observed by a third witness as

leaving the scene of the robbery—until the car struck another

vehicle and the occupants fled. (Id. at 370). Masks and money

from the robbery were found near the car and Griffin had gloves in

his pocket that matched the description of the gloves worn by one

of the robbers. Even had Griffin exhausted the federal aspect of

this claim, the evidence at trial was sufficient for a rational

trier of fact to conclude that Griffin robbed the Family Dollar

store on June 18, 2014. Therefore, even if exhausted, Ground One

would be denied on the merits. 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.”).

B. Ground Two

Griffin argues that the trial court’s failure to grant his

motion to suppress David Hood’s and Janice Bowen’s out-of-court

identifications of him as the robber violated his due process

rights. (Doc. at 8). Griffin raised this issue both in a pre-

trial motion to suppress and in his brief on direct appeal, in

which he cited to Neil v. Biggers, 409 U.S. 188 (1972) as providing

the factors to be considered when determining the likelihood of

misidentification. (Doc. 11-2 at 15, 1302).3 The Court concludes

that Ground Two was exhausted in state court. However, Griffin

is not entitled to federal habeas relief.

Prior to trial, Griffin moved to suppress the “show-up”

identifications of Griffin by three witnesses on the grounds that

“the ‘showup’ was conducted in a manner that unduly and

unnecessarily drew the witnesses’ attention to him and was,

therefore, prejudiciously suggestive of the result desired by law

enforcement.” (Doc. 11-2 at 15). After holding a hearing on the

motion, the trial court granted the motion to suppress in part and

denied it in part. The court found that witness Kelli Vandever

had an opportunity to observe both robbers as they entered the

store, but both perpetrators wore masks, and Ms. Vandever was

unable to see their mouths and around their eyes. (Id. at 409).

She identified Griffin at the show up without hesitation, but only

by body type and clothing. (Id.) The trial court suppressed Ms.

Vandever’s identification, noting:

The defendant was presented to Ms. Vandever by law

enforcement, standing next to a patrol vehicle,

3

Under Biggers, the factors to consider when evaluating the

likelihood of misidentification include: (1) the opportunity for

the witness to view the criminal at the time of the crime; (2) the

witness’s degree of attention; (3) the accuracy of the witness’s

prior description of the criminal; (4) the level of certainty of

the witness at the confrontation; and (5) the time between the

crime and the showup. 409 U.S. at 199.

wearing handcuffs, and she was asked if she could

recognize him. Ms. Vandever decided, based

primarily on the defendant’s shoes and white tee

shirt, that he looked like one of the men she

observed committing the robbery. At the scene of

the robbery, she was unable to observe the

perpetrators’ faces, and the clothing that Ms.

Vandever observed the perpetrators wearing is

commonplace. Under the totality of the

circumstances, the court finds that there is a

substantial likelihood of irreparable

misidentification by Ms. Vandever of the defendant

in this case. Therefore, the court GRANTS the

motion to suppress Ms. Vandever’s out-of-court

identification of the defendant as one of the

perpetrators.

(Id. at 408–09). The court also granted the defendant’s request

to preclude the state from eliciting testimony from Ms. Vandever

that the clothing worn by the perpetrators she saw enter the Family

Dollar store was similar to that worn by Griffin at the showup.

(Id. at 409). However, the trial court did not suppress the out-

of-court identifications made by store manager David Hood and

assistant manager Janis Bowen. Addressing each factor under

Biggers, the trial court explained:

As to Janis Bowen and David Hood, and the Neil v.

Biggers factors, the court finds as follows: (1)

Both Ms. Bowen and Mr. Hood had an excellent

opportunity to view the perpetrators during the

robbery. The witnesses were within a few feet, if

not inches, away from the perpetrators inside a

well-lit store. Although the perpetrators were

wearing masks, the witnesses were able to see the

perpetrators’ eyes and skin color, as well as their

clothing and build. Significantly, with regard to

the perpetrator who these witnesses later

identified as the defendant, the witnesses were

able to observe what they described as tattoos on

his arms.[FN 4]

[FN4] The perpetrator wearing a short sleeved

white tee shirt depicted in State’s Exhibit 5

(the store video) and Exhibits 501, 51, 52,

and 57 (photographs taken from the store’s

video surveillance camera), has tattoo-like

designs visible on both arms. Photographs of

the defendant, admitted as state’s exhibits

1516, show the defendant in the hospital after

his arrest for robbery on June 18, 2014, with

mesh arm sleeves that look like tattoos,

similar to those of the perpetrator in the

short sleeved white tee shirt depicted in [the

state’s exhibits].

(2) Both witnesses paid close attention to the

perpetrators, especially the perpetrator in the

short sleeved white tee shirt. That perpetrator

demanded that the safe be opened and struck Mr.

Hood several times in the back of the head with a

pistol. Ms. Bowen testified that because that

perpetrator (the one later identified as the

defendant) had his face covered, she was looking at

his arms, and that’s how she identified him at the

store, and, later, at the showup. Mr. Hood

testified that he interacted the most with the

perpetrator who pistol whipped him and he could see

that perpetrator’s “tribal tattoos” and his eyes,

which he remembers as wide and “bulgier” than

average. (3) If either Ms. Bowen or Mr. Hood

provided a description of the perpetrators to law

enforcement prior to the show-up, this evidence was

not presented by the State at the hearing on the

motion. However, in this case the State introduced

into evidence a color video recording of the

incident which shows both perpetrators at the time

of the alleged crimes. (4) Both Mr. Hood and Ms.

Bowen were certain that the defendant was the

perpetrator in the short-sleeved white tee shirt.

At first, Ms. Bowen was uncertain, but she asked to

see the defendant’s arms. Upon seeing his arms, she

said, “that’s him.” While Mr. Hood was unable to

identify the other perpetrator at a similar show-

up, Mr. Hood said he was “100% sure” the defendant

was the man who pistol-whipped him. (5) Only a

brief amount of time elapsed between the robbery

and the show-up. The robbery occurred around 8:55

p.m., and the vehicle crash involving the defendant

occurred around 9:00 p.m. Shortly thereafter, Ms.

Bowen and Mr. Hood were separately brought to the

scene of the vehicle accident to identify the

defendant.

Under the totality of the circumstances, the court

does not find that there is a substantial

likelihood of irreparable misidentification of the

defendant by either Ms. Bowen or Mr. Hood in this

case. Therefore, the court DENIES the motion to

suppress their out-of-court identifications.

(Doc. 11-2 at 409-10)

On direct appeal, Griffin argued that the identifications by

Bowen and Hood were unreliable because “[Griffin’s] face was

covered up and [was] only identified by Bowen at the show-up at

the crash scene by tattoos on his arms while [Griffin] was

handcuffed in his car, and by Hood besides the arm tattoos also by

the shape of his eyes and build.” (Id. at 1303). The Second DCA

affirmed without a written opinion. (Id. at 1324). The Court

presumes that the Second DCA adopted the same factual conclusions

and legal reasoning as the trial court’s order. Sellers, 138 S.

Ct. at 1192.

The trial court’s conclusions are supported by the record.

Mr. Hood, the manager of the Family Dollar who opened a safe for

the robbers and who was struck in the head by one of them, testified

at the hearing on Griffin’s motion to suppress that the police

brought him to the showup only minutes after the robbery. He

testified that he did not recognize the other suspect, but that he

recognized Griffin “100%.” (Doc. 11-2 at 70–71). Mr. Hood

recognized Griffin’s “tribal tattoos,” eyes, and physical build.

(Id. at 71, 73, 76). Ms. Bowen testified that she observed one

of the robbers strike Mr. Hood with the gun in an attempt to have

him open the safe faster. (Id. at 84–85). She recognized that

robber at the showup by his tattoos. (Id. at 89, 91–92). She

told the trial court that “[b]ecause [the robbers] had their face

covered . . . I was looking at his arms, and that’s how I identified

him.” (Id. at 92).

The rejection of this claim was neither contrary to Biggers

or any other clearly established law and was not based upon an

unreasonable determination of the facts. And while Griffin

disagrees with the state courts’ conclusions, he does not show

that the rulings were “so lacking in justification that there was

an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 562

U.S. at 103. Griffin is not entitled to federal habeas relief on

Ground Two.

C. Ground Three

In Ground Three, Griffin contends, without explanation, that

trial counsel was ineffective for “raising an incomplete motion to

suppress identification where there were more than one ground for

suppressing the evidence.” (Doc. 1 at 9). In his supporting

memorandum, Griffin asserts that trial counsel failed to include

two meritorious claims as additional bases for the motion to

suppress. (Doc. 8-1 at 30). However, once again, he does not

identify either basis that Counsel could have raised. In his

reply brief, Griffin explains that the claims he raises in Ground

Three are the same as those raised in Grounds Four and Five of

this petition. (Doc. 16 at 12). Accordingly, the Court need not

further address Ground Three.

D. Ground Four

Griffin claims that trial counsel was ineffective for failing

to argue, as part of his motion to suppress, that a constitutional

violation occurred when the Cape Coral Police Department moved him

from the location of his arrest to the location of the crash for

the showup identifications. (Doc. 1 at 11; Doc. 8-1 at 31). He

asserts that he raised this claim in his Rule 3.850 Motion, but

“the state court failed to address the merits of the claim, failing

to demonstrate this claim lacked merit.” (Doc. 8-1 at 32). He

also asserts that the state court failed to correctly apply state

law when evaluating the claim and that the record rebuts the

postconviction court’s finding that the issue “was considered by

counsel and rejected because he did not believe a good faith basis

for it existed.” (Id.)4

In his Rule 3.850 Motion, Griffin argued that Counsel should

have asserted that the police “violated the Stop and Frisk Law in

moving the defendant from the place of arrest without any type of

legitimate reason that would justify the move.” (Doc. 11-2 at

1342). He claimed that he “was removed from the scene [of his

arrest] and transported to where the accident he was involved in

took place.” (Id. at 1343). He said that he “was seized on mere

suspicion that he was the assailant in a robbery, there was no

probable cause to seize him, place handcuffs on him” and move him

for “the sole purpose of [being] identified by the eyewitness[es]

and the two victims.” (Id. at 1344–45).

4

In several of his claims, Petitioner complains that the

state courts erred under Florida law. However, a state court, not

a federal court on habeas review, is the final arbiter of state

law. See Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)

(“state courts are the final arbiters of state law, and federal

habeas courts should not second-guess them on such matters.” );

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly

held that a state court’s interpretation of state law ... binds a

federal court sitting in habeas corpus.”). Therefore, unless

necessary to explain its resolution of an ineffective-assistance

claim, this Court will not discuss or reevaluate the state courts’

interpretation or application of state law in Ground Four, or any

other ground raised in this petition.

The postconviction court, noting that this claim had already

been considered in a post-conviction hearing on Griffin’s motion

to discharge counsel, denied it as follows:

The record reflects that this issue was considered

and denied by the trial court at a September 24,

2015 Nelson hearing, held after Defendant had been

convicted at trial on the first four counts of the

instant case, but before he had been sentenced. At

that hearing, the trial court announced that it

“intended[ed] to address all of Mr. Griffin’s

complaints with regard to Mr. Martin in all four

cases.” The first issue to be addressed was that

“counsel filed a motion to suppress . . . and

Defendant believes that there was something

critical left out of the motion that was filed.”

Mr. Martin, defense counsel, stated at that hearing

that the motion to suppress “as it was filed did

not leave anything out that was useful or

important.” He explained that:

Mr. Griffin and I before its filing had had

discussions about suppressing various things,

but those discussions included things that did

not to me appear to offer a good faith basis

for suppression including particularly his

belief that there were no reasonable grounds

to stop -- to follow nor to stop the vehicle

he was in, nor to seize the vehicle, nor to

search it ...

Counsel agreed that he and Defendant had not seen

eye-to-eye on the issue, and that he had “not

file[d] a motion to suppress on those grounds,” but

explained that the motion he had filed “was the only

one that I thought there were grounds for and that

concerned . . . the manner and means of his

identification at the so-called show up.” The Court

found “Mr. Martin credible, and . . . [that

Defendant was] disappointed or unhappy with the

results of his first trial.” The Court stated that

“there is absolutely no evidence, none whatsoever,

of ineffective assistance of counsel by Mr. Martin

before trial or during trial in 16812 [the instant

case]. And to be very clear, there is no evidence

of ineffective assistance of counsel in the pretrial

posture with regard to the remaining charge in 16812

or any of the charges in the other 3 cases.”

Specifically, the Court found that:

Mr. Martin’s assessment that there was no

ground to support the search or to challenge

the search warrant in regard to the vehicle

was an appropriate and accurate, I think, and

reasonable assessment. That motion would not

have been successful. Mr. Martin did, in fact

move to suppress all identification, and the

Court addressed that motion and entered a

ruling granting in part the motion to suppress

identification and denying on other grounds

not based on lack of advocacy by Mr. Martin

but rather what I thought the facts and the

law showed, but Mr. Martin -- left no stone

unturned with regards to the motion to

suppress identification.

As the issue Defendant currently asserts as a

possible basis for a motion to suppress was

considered by counsel and rejected because counsel

did not believe a good faith basis for it existed,

Defendant has failed to demonstrate any entitlement

to relief. Ground l(a), therefore, is DENIED.

(Doc. 11-2 at 1542–43 (citations to the record omitted and slight

alterations for clarity)). The Second DCA affirmed without a

written opinion. (Id. at 1731).

Contrary to Griffin’s assertion otherwise, it is clear that

the postconviction court, by considering the record and the

evidence adduced at the Nelson hearing, did address the merits of

this claim. A review of the record supports the state courts’

adjudication of Ground Four.

After being found guilty at trial, but before sentencing,

Griffin wrote a letter to the trial court complaining that Counsel

had not performed adequately at trial. (Doc. 11-2 at 1167–73).

The trial court ordered a hearing to inquire as to Griffin’s

5

reasons for requesting Counsel’s discharge. (Id. at 1175).

Griffin provided the trial court with a list of complaints

regarding Counsel’s representation including the following:

Counsel filed a motion to suppress

identification that was different from the

draft that was given to the Defendant, and the

Defendant believes there was something

critical “left out” of the motion filed.

Defendant believes that counsel should have

moved to suppress all identification of the

Defendant.

(Id. at 1225). At the Nelson hearing, Counsel testified that his

pre-trial motion to suppress did not leave out anything important

and that he did not have a good faith basis to include additional

reasons for suppression of the witnesses’ identifications. (Id.

at 1200). This is not a situation where Counsel failed to file a

motion to suppress based upon a mistaken understanding of the law.

5

Under Nelson v. State, 274 So. 2d 256 (Fla 4th DCA 1973), a

trial court must conduct a hearing when a defendant makes a request

to discharge appointed counsel, the request is based on a claim of

incompetence, and the alleged ineffectiveness arises from

counsel’s current representation. See also Laramee v. State, 90

So.3d 341, 344 (Fla. 5th DCA 2012).

Rather, after discussing the issue with Griffin for two hours,

Counsel decided against expanding the motion to suppress to

explicitly include an argument that Griffin should not have been

returned to the scene of the crash for the showup identifications.

This is the epitome of a strategic decision, and Counsel is not

incompetent for performing in a particular way “as long as the

approach taken ‘might be considered sound trial strategy.’”

Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000)

(quoting Darden v. Wainwright, 477 U.S. 168, 186–87 (1986)).

Nor has Griffin demonstrated Strickland prejudice. At the

Nelson hearing, the court specifically determined that Counsel had

“in fact, move[d] to suppress all identification” and that

suppression of the identifications would not have been granted on

grounds other than those raised. (Doc. 11-2 at 1211). As such,

the state court has already said what would have happened had

Counsel expanded the motion to suppress—the motion would have been

denied. And while Griffin argued in his Rule 3.850 Motion that,

even if this argument was rejected by the trial court, it would

have been preserved for appellate review, “the Strickland standard

focuses on the effect of the deficient performance on the

reliability of the outcome in the proceeding in which the deficient

performance occurred rather than on whether counsel’s deficient

performance in the trial court affected the defendant’s appellate

rights.” State v. Bouchard, 922 So. 2d 424, 429–30 (Fla. 2d DCA

2006); Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006)

(stating that, where petitioner claims counsel should have

objected at trial, “we are to gauge prejudice against the outcome

of the trial: whether there is a reasonable probability of a

different result at trial, not on appeal”). Ground Four does not

satisfy either Strickland prong and is denied on the merits.

E. Ground Five

Griffin contends that Counsel was constitutionally

ineffective for failing to argue in the motion to suppress that

“mere suspicion” did not give the Cape Coral Police autorization

to pursue, stop, and arrest him. (Doc. 1 at 13). He asserts that

he raised this claim in his Rule 3.850 Motion, where he argued

that the witness to the robbery (Ms. Vandever), who followed the

robbers in her vehicle and communicated with 9-1-1 as they drove

from the scene, did not specifically tell the 9-1-1 dispatcher

that she observed the people in the vehicle she was following enter

the vehicle. (Doc. 11-2 at 1346–47). He also argued that Ms.

Vandever did not provide identifying details about the vehicle or

the suspects’ clothing. He asserts that nothing connecting the

suspects with a specific type of vehicle had been furnished to the

police. (Id.) The postconviction court denied the claim, because

Counsel had explained to the trial court (at the Nelson hearing)

“that he and [Griffin] had discussed various grounds for the

motions to suppress before he filed the motion asserting the issue

of identification, and that his reasons for not including any other

grounds were because he did not believe a good faith basis

existed.” (Id. at 1543). The Second DCA affirmed without a

written opinion. (Id. at 1731).

Griffin argues that the state courts’ rejection of this claim

was contrary to section 2254(d) for two reasons. First, he argues

that the postconviction court improperly applied Florida law when

it evaluated this claim. (Doc. 8-1 at 36–37). Next, he argues

that there was no reasonable suspicion for an investigatory stop

because the police did not observe any suspicions or illegal

conduct. (Id. at 38–39). Neither reason provides grounds for

federal habeas relief.

Under Florida law, a stop is justified when an officer

observes facts giving rise to a reasonable and well-founded

suspicion that criminal activity has occurred or is about to occur.

See Davis v. State, 973 So. 2d 1277, 1279 (Fla. 2d DCA 2008). In

turn, whether an officer’s well-founded suspicion is reasonable is

determined by the totality of the circumstances that existed at

the time of the investigatory stop and is based solely on facts

known to the officer before the stop. See Travers v. State, 739

So. 2d 1262, 1263 (Fla. 2d DCA 1999); McCloud v. State, 491 So. 2d

1164, 1165 (Fla. 2d DCA 1986). Griffin appears to argue that

reasonable suspicion is developed only if the police personally

observed the suspicious behavior. However, Florida courts have

held that even anonymous tips can “provide reasonable suspicion

under a totality-of-the-circumstances analysis” in certain cases,

such as when an officer makes “subsequent observations of a suspect

who matches the description given.” Baptiste v. State, 995 So.

2d 285, 296–97 (Fla. 2008).

Here, the record shows that Ms. Vandever observed two masked

men enter the Family Dollar Store with a gun and called 9-1-1 as

the robbery occurred. (Doc. 11-2 at 30, 33, 35, 678–80). She

described the robbers and the clothing they were wearing to the

dispatcher. (Id. at 684). After the robbers left the store, she

told the dispatcher that they went around the building to the back.

(Id. at 686). She then said that the suspects were leaving in a

vehicle. (Id. at 687). Ms. Vandever followed them and told the

operator that the suspects turned left on the first road south of

the store. (Id.) She said that the suspects were “hauling

tails,” and then told the dispatcher that the police were chasing

them. (Id.) At that point, Ms. Vandever returned to the store.

Ms. Vandever reported events to the 9-1-1 dispatcher as they

happened and informed law enforcement (through the dispatcher)

that they were chasing the vehicle she saw leave the scene of the

robbery. The suspects then fled from the police. Competent

counsel could have concluded that the police had reasonable

suspicion for the stop and decided against challenging it in a

motion to suppress. See Sanchez v. State, 199 So. 3d 472, 476

(Fla 4th DCA 2016) (recognizing that “suspicious conduct, coupled

with a vague BOLO, can create a reasonable suspicion”); Virgo v.

State, 931 So. 2d 1010 (Fla 4th DCA 2006) (finding the defendant’s

conduct suspicious where, after noticing officers following him,

he drove down a dead-end street, immediately stopped the vehicle,

and darted from the car). Thus, Counsel’s performance was not

deficient for failing to challenge the stop, and Griffin is not

entitled to federal habeas relief on Ground Five.

F. Ground Six

Griffin asserts that Counsel was constitutionally ineffective

for failing to take depositions of the victims, eyewitnesses, and

law enforcement, “thereby depriving [Griffin] of assisting with

trial strategy and articulation of certain lines of questioning

that may have assisted in having a coherent theory of defense.”

(Doc. 1 at 15). Griffin raised this claim in his Rule 3.850

Motion, and the postconviction court denied it as follows:

The record reflects that the issue of depositions

was also raised at the September 24, 2015 hearing,

at which Defense counsel stated that

Again, an assertion was made [by Defendant

pretrial that] there was no probable cause to

stop the vehicle because there had been no

descriptions of it and its flight. And none

of these appeared to me to hold much promise

as deposition material, but nonetheless on

July 28th, I had a nearly 2-hour visit with

him in which he read a number of proposed

questions . . . and I told him what ones of

those I did . . . and did not think were

promising [as] deposition material. So both

in the consideration of his letter and in the

two-hour jail visit, I did hear his concerns

and hear from him what he thought was

important to follow up by way of a deposition.

Counsel also announced that he had “ordered such

transcripts as I thought ... [had been] necessary,”

and that he had not been aware, even at the time of

the hearing, “of any depositions that I would have

wished I could have had at the trial. The

witnesses in [Petitioner’s case] admitted not

having seen the Defendant’s face, and that was

primarily what I needed to hear from them.”

The Court asked counsel if there had been any

significant inconsistent statements made during the

trial testimonies of the witnesses that counsel had

not had a deposition transcript for, to which

counsel replied: “No. No. It was remarkably

consistent.” The Court thereafter found “that Mr.

Martin adequately prepared for depositions of

witnesses. . . . It’s not required, and it was a

reasonable judgment call not to order transcripts

of all the depositions in this case.”

As the record reflects that counsel had discussed

the depositions with Defendant, listened to

Defendant’s concerns and suggestions, and did not

think that deposing witnesses regarding the stop

held much promise, Defendant has failed to

demonstrate any entitlement to relief.

(Doc. 11-2 at 1544 (citations to the record omitted and minor

alterations made for clarity)). The Second DCA affirmed without

a written opinion. (Id. at 1731).

Griffin now argues that the postconviction court erred under

state law by relying on “Counsel’s unsworn arguments and statements

about factual matters [that] do not constitute evidence.” (Doc.

8-1 at 43 (emphases in original)). As an initial matter, any

argument that the postconviction court violated a state

evidentiary rule in a postconviction proceeding is not cognizable

on federal habeas review and will not be further addressed. See

Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (“[A]n

alleged defect in a collateral proceeding does not state a basis

for habeas relief.”).

Next, as discussed supra, Counsel—after considering the issue

and discussing the matter with Griffin—did not believe that an

argument alleging that “there was no probable cause to stop the

vehicle because there had been no description of it and its flight”

held “much promise as deposition material.” (Doc. 11-2 at 1203).

Counsel’s decision not to depose additional witnesses was a matter

of trial strategy and virtually unassailable on federal habeas

review. See Strickland, 466 U.S. at 690 (recognizing that

“strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually

unchallengeable”); Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.

1995) (“Which witnesses, if any, to call, and when to call them is

the epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.”).

Finally, “Strickland places the burden on the defendant, not

the State, to show a ‘reasonable probability’ that the result would

have been different” had Counsel performed as Griffin now argues

he should have. Wong v. Belmontes, 558 U.S. 15, 27 (2009) (quoting

Strickland, 466 U.S. at 694). Griffin merely speculates that

deposition testimony from the victims, eyewitness, and law

enforcement may have supported a motion to suppress the stop of

his automobile. However, he has not offered any new evidence or

sworn testimony from any un-deposed witness to support his

speculation. That omission, standing alone, defeats this claim.

See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)

(“Johnson offers only speculation that the missing witnesses would

have been helpful. This kind of speculation is ‘insufficient to

carry the burden of a habeas corpus petitioner.’”) (quoting Aldrich

v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)); see also United

States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence

about the testimony of a putative witness must generally be

presented in the form of actual testimony or by the witness or on

affidavit. A defendant cannot simply state that the testimony

would have been favorable; self-serving speculation will not

sustain an ineffective assistance claim.”); Ferrell v. State, 29

So.3d 959, 969–70 (Fla. 2010) (when failure to depose witnesses is

alleged in the context of an ineffective assistance of counsel

claim the defendant must show how this failure harmed him by

explaining “a specific evidentiary matter to which the failure to

depose witnesses would relate.”) (quoting Davis v. State, 928 So.2d

1089, 1117 (Fla. 2005)). Ground Six fails under both Strickland

prongs, and Griffin is not entitled to federal habeas relief in

Ground Six.

G. Ground Seven

Griffin asserts that Counsel was constitutionally ineffective

for failing to object to law enforcement’s in-court

identifications of him. (Doc. 1 at 16). He argues that the

identifications were improper because the “officers did not have

any evidence that the man they apprehended in the chase after the

car crash was the same person who had actually robbed the Family

Dollar Store.” (Doc. 8-1 at 45).

At Griffin’s Nelson hearing, the trial court found that

Counsel had no basis to object to any of the identifications that

were made at trial. (Doc. 11-2 at 1213). Based on that finding,

the postconviction court found that Griffin had not demonstrated

entitlement to relief on this claim. (Id. at 1545). Given that

the trial court specifically told Griffin that Counsel had no basis

to object to the officers’ identifications, any objection would

have been overruled, and Griffin cannot show prejudice. See

Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1354 (11th

Cir. 2019) (“It is not ineffective assistance of counsel to fail

to make an objection that is not due to be sustained.”).

Furthermore, a careful review of Griffin’s trial transcript

supports the state courts’ rejection of this claim. None of the

officers involved in Griffin’s apprehension identified him as the

person who robbed the Family Dollar store. Rather, they

identified him as the person who ran from the police on foot after

leading them on a high-speed car chase and crashing into another

vehicle. Officer McCreary testified that he became involved in

the vehicle pursuit soon after the robbery. (Doc. 11-2 at 858).

The suspects’ vehicle was driving at a high speed with no

headlights. (Id. at 860). It eventually crashed into another

car. (Id.) The prosecutor questioned Officer McCreary about what

happened next:

Q. Officer McCreary, upon observing this

crash, what were your next actions when

you saw the vehicle come to rest?

A. As the vehicle came to rest, two gentlemen

exited the vehicle and took off running on

foot. I pulled up through the

intersection in front of the vehicle,

pulled my vehicle into the field. There’s

a field there where there’s an abandoned

fire station. And at that point in time,

I exited the vehicle, started giving

announcement for two occupants, the two

people that ran from the vehicle to stop,

deployed my K-9.

Q. And were you able to ascertain who came

from the driver’s side of the vehicle and

who came from the passenger side of the

vehicle based on their points of travel

from the vehicle?

A. Well, they passed me, so I was able to see

the driver when they passed me. As I was

facing westbound on Skyline and they went

eastbound, I was able to see the driver,

and then when they fled from the vehicle,

I saw the driver, yes.

Q. And is that driver here today?

A. Yes, ma’am.

Q. Could you please point to him and identify

him by an article of clothing?

A. It’s the gentleman sitting there with the

suit on and the – like a brown tie and blue

shirt.

(Id. at 861–62). Officer Haberman, who was riding with Officer

McCreary during the car chase, testified that he saw Griffin’s car

crash and approached the car. The state questioned the officer

as follows:

Q. So upon your approach of this crashed

vehicle . . . what are your next actions?

A. We come up to the intersection, we – the

vehicle had already crashed and come –

come to a final rest, and so we drove

around the crash. We saw two black males

exit the vehicle and run southbound into

a field, away from the vehicle.

Officer McCreary was driving the Tahoe, so

we jumped the curb and started driving

into the field. And one of the black

males then kind of, as he was running

southbound, made a U-turn as – you could

say U-turn, and started running

northbound. At that point I exited,

exited the vehicle from the passenger seat

and began a foot pursuit after the male

that made the U-turn and started running

northbound.

Q. And that individual that you were

pursuing, is he here today?

A. Yes.

Q. Could you please point to him and identify

him by an article of clothing?

A. He’s sitting right there with the blue

shirt.

(Id. at 877). Officer Kortright identified Griffin only as the

person presented to witness Bowen for her identification. (Id.

at 872). Likewise, Officer Carson also identified Griffin as the

person presented to one of the victims for potential identification

after the chase. (Id. at 853). All of the identification

testimony was based on the officers’ personal observations, and

Counsel had no grounds on which to object. See Fla. Stat. § 90.604

(“[A] witness may not testify to a matter unless evidence is

introduced which is sufficient to support a finding that the

witness has personal knowledge of the matter.”). The fact that

the officers could not (and did not) identify Griffin as a robber

does not render inadmissible their identification of him as the

person they stopped after the chase and car crash. Counsel had

no grounds on which to object, and Griffin is not entitled to

habeas relief on Ground Seven.

H. Ground Eight

Griffin asserts that Counsel’s performance was

constitutionally deficient because he filed only a “boilerplate”

motion for judgment of acquittal. (Doc. 1 at 18). At trial,

Counsel moved for a JOA as follows:

If the court please, we would move for a

judgment of acquittal at this time on the

grounds that no witness in the store has been

able to identify Mr. Griffin from the events

of the store, and that such identification, as

it was done as a show-up, depends upon the

reliability of their observations, limited as

they were, within the store, and the -- and

the circumstance being believed that Mr.

Griffin was the same individual who was within

the store, based upon the circumstances of the

police chase, of which the court has heard the

details. And that’s what we rest the motion

on.

(Doc. 11-2 at 994–95). The trial court denied the motion, noting

that, for the reasons given in the order denying Griffin’s motion

to suppress and “also the abundant physical evidence that links

[Griffin] to the crime in question,” there was competent

substantial evidence to support a finding of guilt. (Id. at 995).

Griffin raised this Ground in his Rule 3.850 Motion, and the

postconviction court noted that, “[w]hen there is no showing that

a motion for judgment of acquittal had a likelihood of success, a

movant has not presented a facially sufficient claim of ineffective

assistance of counsel.” (Doc. 11-2 at 1548 (quoting Neal v. State,

854 So. 2d 666, 670 (Fla. 2d DCA 2003) (internal quotation marks

omitted))). The postconviction court determined that much of this

ground was a re-hash of other grounds already raised and rejected,

but denied Griffin’s argument that he was insufficiently

identified as the robber as follows:

To the extent that Defendant believes that

counsel should have argued a more robust

motion for judgment of acquittal based on

identification, the record reflects that at

the Nelson hearing held after trial, but

before sentencing, the Court addressed the

identification issue, stating “I mean

significantly, Mr. Griffin, you were found

wearing tattoo sleeves that exactly matched

the tattoo sleeves of the person on the video;

and the two people that identified you that I

allowed to identify you at trial, they

identified you primarily based on your arms

and the tattoo sleeves.” Because the State

presented witnesses who identified Defendant

based on his tattoo sleeves, which matched the

tattoo sleeves of the person caught on the

video, it is highly unlikely that had such a

JOA been made that it would have been granted.

(Id. (citations to the record omitted)).

Now Griffin appears to assert, among other things, that the

witnesses identified the robber by his tattoos, suggesting that he

had actual tattoos, whereas Griffin was actually apprehended

wearing fabric tattoo sleeves. (Doc. 8-1 at 55). Therefore, he

asserts that the state courts’ rejection of this claim was based

upon an unreasonable determination of the facts. (Doc. 16 at 37–

38).

The trial transcript does not support this argument. Mr.

Hood testified that he recognized Griffin as the robber because

his arms “had designs up and down them. It looked tribal, so I

made the assumption it was either color tattoos or a sleeve of

some sort.” (Doc. 11-2 at 726). Ms. Bowen described the tattoos

on Griffin’s arms as “it was like a sleeve like.” (Id. at 773).

To the extent Griffin argues that no testimony was presented to

prove that the sleeves in the video were an exact match to the

sleeves he was wearing when apprehended, the video showing the

robbery and the tattoo sleeves taken from Griffin were admitted

into evidence. The jury was allowed to determine whether they

were a match. No testimony was required.

And even if Counsel had grounds to file a “better” motion for

judgment of acquittal—a finding not made by this Court—Griffin

cannot demonstrate prejudice from his failure to do so. Under

Florida law, a motion for a judgment of acquittal is designed to

challenge the legal sufficiency of the state’s evidence. State

v. Williams, 742 So. 2d 509, 510 (Fla. 1st DCA 1999). In moving

for a judgment of acquittal, a defendant admits not only the facts

offered in the evidence, but also every reasonable conclusion

favorable to the state that the fact-finder might fairly infer

from the evidence. Williams, 742 So.2d at 510 (citing Lynch v.

State, 293 So. 2d 44, 45 (Fla. 1974)). If the state presents

competent evidence to establish each element of the crime, a motion

for a judgment of acquittal should be denied. Id. at 510. In

addition, “[t]he credibility and probative force of conflicting

testimony should not be determined on a motion for judgment of

acquittal.” Lynch, 293 So. 2d at 45. In other words, a trial

court may not grant the motion for a judgment of acquittal unless

the evidence, when viewed in a light most favorable to the state,

fails to establish a prima facie case of guilt. Id.

Given the identification of Griffin as the robber by two

witnesses, Griffin’s flight from the police, the video of the crime

as it transpired, and the recovery of guns and a mask found in

Griffin’s car, the evidence was sufficient to withstand a motion

for a judgment of acquittal, even had Counsel made a more “robust”

motion. The Court sees no error in the state courts’ rejection

of this claim, much less error that is so clear that there is no

possibility for fairminded disagreement. Harrington, 562 U.S. at

103; see also discussion supra Ground One. Griffin is not entitled

to federal habeas corpus relief on Ground Eight.

I. Ground Nine

Griffin asserts that the Second DCA failed to issue a written

opinion “in this case,” which was necessary to disclose conflict

in the law. (Doc. 1 at 20). He asserts that, because there is

no written opinion, this Court does not owe section 2254 deference

to the state courts’ decisions. (Doc. 8-1 at 56).

To the extent Ground Nine is directed at the Second DCA’s

silent affirmance on direct appeal, the Supreme Court has held

that section 2254(d) applies even when a state court’s order is

unaccompanied by an opinion explaining the reasons relief has been

denied. Harrington, 562 U.S. at 98(“Where a state court’s

decision is unaccompanied by an explanation, the habeas

petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief.”). And if

Ground Nine is directed at the silent affirmance of the

postconviction court’s denial of Griffin’s Rule 3.850 Motion, the

Supreme Court directs a “look through” presumption to identify the

grounds for the affirmance. Sellers, 138 S. Ct. at 1197. Griffin

is not entitled to relief on Ground Nine.

IV. Conclusion

Based on the foregoing, Griffin is not entitled to relief on

the habeas claims presented here.

Accordingly, it is ordered that:

1. The amended 28 U.S.C. § 2254 petition filed by Jonas

Trammell Griffin is DENIED. Ground One is dismissed as

unexhausted and alternatively, denied on the merits.

The remaining claims are denied on the merits.

2. The Clerk is DIRECTED to enter judgment in favor of

Respondent and against Griffin, deny any pending motions

as moot, terminate any deadlines, and close this case.

Certificate of Appealability6

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court or circuit

justice or judge must first issue a certificate of appealability

(COA). “A [COA] may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make this substantial showing, a

6 Pursuant to Rule 11(a) of the Rules Governing Section 2254

Cases in the United States District Courts, the “district court

must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.”

petitioner “must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000),

or that “the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). When, as here, the district court has rejected a claim

on procedural grounds, the petitioner must show that “jurists of

reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484.

Upon consideration of the record, the Court declines to issue

a COA. Because Petitioner is not entitled to a COA, he is not

entitled to appeal in forma pauperis.

DONE AND ORDERED in Fort Myers, Florida this 25th day of

September 2023.

0 x

off le hy dE, Ah Look

JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies: All Parties of Record