IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

§

VS. § NO. 4:04-CR-190-A

§ (NO. 4:06-CV-167-A)

CHANDLER GRIFFIN §

MEMORANDUM OPINION

and

ORDER

After having considered the motion defendant, Chandler

Griffin, ("Griffin") filed April 2, 2006, pursuant to 28 U.S.C.

§ 2255, the government's response thereto, and the record in No.

4:04-CR-190-A, the court has concluded that Griffin's motion

should be denied for the reasons set forth below.

I.

Standard of Review

After conviction and exhaustion, or waiver, of any right to

appeal, courts are entitled to presume that a defendant stands

fairly and finally convicted. United States v. Frady, 456 U.S.

152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant

can challenge his conviction or sentence after it is presumed

final only on issues of constitutional or jurisdictional

magnitude, and may not raise an issue for the first time on

collateral review without showing both "cause" for his procedural

default and "actual prejudice" resulting from the errors. Shaid,

937 F.2d at 232. Section 2255 does not offer recourse to all who

suffer trial errors. It is reserved for transgressions of

 

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constitutional rights and other narrow injuries that could not

have been raised on direct appeal and would, if condoned, result

in a complete miscarriage of justice. United States v. Capua,

656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other

words, a writ of habeas corpus will not be allowed to do service

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974);

Sunal v. Large, 332 U.S. 174, 178 (1947). 

II.

Background

On December 8, 2004, the government filed a two-count

information against Griffin. Count One charged him with

possession of child pornography through interstate and foreign

commerce in violation of 18 U.S.C. § 2252A. Count Two was a

forfeiture allegation, seeking forfeiture of a computer and a

videotape. On January 4, 2005, the magistrate judge fixed

conditions of release for Griffin, which included a condition

that Griffin would not possess any pornographic, sexually

stimulating, or sexually oriented material. 

On January 7, 2005, Griffin appeared before the court,

waived the return of an indictment as to the counts of the

information, and pleaded guilty to Count One and true to Count

Two. The plea of guilty was pursuant to a plea agreement, which

provided that the government would not bring any additional

charges against Griffin based on the conduct underlying and

related to Griffin's plea of guilty. The stipulation of facts on

which the plea of guilty was predicated described the

 

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pornographic material that Griffin possessed as including 167

visual depictions and 37 movies of what generally would be

referred to as hard-core child pornography, including images that

were sadistic in character and that depicted violence involving

children.

The presentence report, which was published February 14,

2005, showed a criminal history category of I and a total offense

level of 22, resulting in a guideline range of imprisonment of 41

to 51 months. The total offense level calculations included a

three-level reduction for acceptance of responsibility. On April

18, 2005, the probation officer published a second addendum to

the presentence report that informed the court of a discovery by

pretrial service officers during an unscheduled home visit to

Griffin's home that Griffin had a laptop computer in his home

that he had failed to disclose to pretrial services on which

child pornography images were stored. Earlier, Griffin had

informed the supervising pretrial officer that there was no other

computer in his home. The government had successfully moved to

revoke Griffin's conditions of release because of his violation

of the condition prohibiting him from having possession of

pornographic, sexually stimulating, or other sexually oriented

material. In the second addendum, the probation officer

expressed the conclusion that Griffin's criminal conduct while on

pretrial release caused him no longer to be eligible for a

reduction in his offense level based on acceptance of

responsibility. Thus, his total offense level became 25, which

 

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would have resulted in a guideline imprisonment range of 57 to 71

months were it not for the statutory maximum sentence of 60

months that could be imposed for the offense of conviction.

Upon learning of Griffin's violation of his conditions of

release, the court questioned whether the plea agreement pursuant

to which Griffin had pleaded guilty on January 7, 2005, should be

accepted. During a telephone conference conducted by the court

on April 19, 2005, with counsel for the government and counsel

for Griffin on the line, the court made known the court's

tentative view that the plea agreement should be rejected because

of a concern that the plea agreement would prevent the government

from prosecuting Griffin for the criminal conduct in which he had

engaged while free on conditions of release and because, in any

event, the plea agreement would prevent the court from imposing a

sentence that would serve as adequate punishment for the criminal

conduct for which he had pleaded guilty (bearing in mind the

statutory maximum of 60 months applicable to the offense of

conviction).

At the conclusion of a hearing conducted April 22, 2005, the

court decided that the plea agreement should be rejected. After

rejecting the agreement, the court informed Griffin of his right

to withdraw his plea of guilty. His counsel, Douglas C. Greene,

("Greene") informed the court that Griffin did not wish to

withdraw his plea of guilty. Counsel for the government then

made known that the government intended to pursue charges against

Griffin based on his criminal conduct while free on conditions of

 

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release, and would be seeking an enhanced sentence in the new

case. The court then gave Griffin another opportunity to

withdraw his plea of guilty, taking into account what the

attorney for the government had just said. After a brief

conference between Greene and Griffin, Griffin informed the court

that he wished to withdraw his plea of guilty. The court allowed

the plea of guilty to be withdrawn, and ordered that the

conviction resulting from the plea be set aside.

On May 25, 2005, a three-count indictment, which superseded

the earlier-filed information, was filed. Count One charged

Griffin with receipt of child pornography through interstate and

foreign commerce in violation of 18 U.S.C. § 2252A. Count Two

was the same offense charged by Count One of the December 8,

2004, information, possession of child pornography through

interstate and foreign commerce in violation of 18 U.S.C.

§ 2252A. Count Three was a forfeiture count identical to Count

Two of the superseded information. On June 23, 2005, Griffin

appeared before the court and entered pleas of guilty, without

the benefit of a plea agreement, to Counts One and Two of the

superseding indictment and true as to Count Three.

The probation officer published a revised presentence report

on August 11, 2005. The guideline calculations by the probation

officer showed a criminal history category of I, a total offense

level of 25, and a guideline range of imprisonment of 57 to 71

months. The probation officer did not include a reduction in the

offense level for acceptance of responsibility, explaining that:

 

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Regarding the possession of child pornography while on

pretrial supervision, the defendant acknowledged he had

access to a laptop computer which contained child

pornography. According to the defendant, he had

downloaded the images prior to his initial arrest, and

he never deleted the pictures, nor did he tell his

pretrial services officer about the computer and its

contents. The defendant stated he viewed the

pornographic images after he was originally released on

bond and placed on pretrial supervision.

. . . .

Normally, based on the fact he pleaded guilty and

truthfully admitted his guilt in the offense of

conviction, as well as truthfully admitted to relevant

conduct, the defendant would be eligible for a

reduction in the guideline calculations pursuant to

USSG § 3E1.1(a),. [sic] However, the defendant

possessed [] child pornography while on pretrial

supervision, which was a violation of his conditions of

pretrial release, as well as a law violation. Based on

his continued criminal conduct while on bond, the

defendant is not eligible for a reduction for

acceptance of responsibility.

Revised Presentence Report at 8, ¶¶ 32 and 34. Griffin objected

to the probation officer's conclusion that he should be denied

acceptance of responsibility. Included in his objection was the

following language:

The primary cause for this lack of acceptance reduction

is that the defendant at some point, prior to pleading

guilty but while on pretrial release was in possession

of his mother's laptop computer which contained some

pornographic images on the hard drive of that computer. 

. . . .

In our current case, Griffin seemed to have

clearly demonstrated that he has refrained from any

criminal behavior since the commencement of this case. 

The mere fact that he possessed a laptop which

contained pornographic materials which had been

downloaded prior to Griffin's arrest and not accessed

 

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The statutory maximum sentence of imprisonment for the offense

charged by Count One is 15 years and for the offense charged by Count

Two is 5 years.

7

since that time is an insufficient basis upon which to

deny the defendant his acceptance reduction.

Def.'s Objections to the Presentence Report at third page

(Objection #5). 

The probation officer stated in paragraph 89 of the revised

presentence report that an upward departure would be warranted

based on Griffin's continued illegal behavior in possessing and

viewing child pornography after he had already been caught and

prosecuted with child pornography. Griffin objected to that part

of the presentence report as well. However, Griffin's objection

did not take issue with the fact recited by the probation officer

in paragraph 89 that he had viewed child pornography after he had

already been caught and prosecuted with child pornography. See

id. at second page (Objection #4). 

Griffin was sentenced at a hearing held October 7, 2005. 

The court overruled Griffin's objections to the revised

presentence report. Griffin was sentenced to serve a term of

imprisonment of 110 months as to Count One of the indictment and

of 60 months as to Count Two of the indictment, to run

concurrently with each other, for an aggregate term of

imprisonment of 110 months.1 The very nature of the child

pornography criminal conduct was the primary factor that led to

the imposition of a sentence higher than the guideline range. 

See Tr. of Oct. 7, 2005, sentencing hearing at 13-14. In

 

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addition, the court took into account that after the defendant

had pleaded guilty to the information he continued to possess and

view child pornography.

On October 14, 2005, the court signed the judgment of

conviction and sentence formalizing Griffin's sentence to serve a

term of imprisonment aggregating 110 months. Griffin, through

Greene, filed a notice of appeal. Greene then filed a motion to

withdraw. Two days later, Larry E. Jarrett, who is representing

Griffin in this § 2255 proceeding, entered a notice of appearance

of counsel for Griffin. On February 13, 2006, the Fifth Circuit

granted Griffin's unopposed motion to dismiss his appeal without

prejudice. 

III.

Ground of the Motion and Information

Provided by Greene Related to the Facts

on Which the Motion is Based

The only issue presented by Griffin's motion is: "Whether

untruthful statements made by Griffin, because of advice he

received from counsel, adversely affected the sentence awarded by

the Court." Mot. at 3. Griffin summed up the factual basis for

his motion as follows:

Griffin will demonstrate that because of his

former attorney's advice to, in essence, commit a fraud

upon the Court, he was sentenced to a period of

incarceration substantially higher than he would have

otherwise received. Griffin will further testify that

his attorney advised him to lie to the probation

officer concerning whether Griffin had viewed

pornography that was contained on a laptop in his house

after being ordered by the court that he was

constrained from such activity. Griffin's attorney

believed that if Griffin lied, Griffin would receive a

three level reduction in the guidelines. Not only did

 

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his attorney advise Griffin to lie, he also briefed

Griffin's family members about the lie, and apologized

to the family after the expected result did not

materialize.

Id. at 4. 

By order signed March 6, 2006, the court ordered, inter

alia, that Greene file an affidavit or declaration responding to

the allegations made by Griffin against, or otherwise about, him

in the motion and the attachments to it. The document Greene

filed in response to the order contained a denial by Greene that

he ever told Griffin to lie to anyone. Greene's declaration

contained the following factual recitations directly related to

the issue of whether he told Griffin to lie to the probation

officer:

A few weeks after Griffin's guilty plea to the

indictment, a second pre-sentence interview was

scheduled. Present at that interview was [sic] USPO

Terri Lassiter, Griffin and myself. This interview was

conducted at the federal jail in Fort Worth called the

Federal Medical Center.

When we arrived at the jail, I was casually

sitting with the above mentioned USPO waiting for

Griffin to be brought down from his cell. While

chatting, the aforementioned USPO commented that she

thought what was needed in order for her to recommend a

three point reduction for acceptance of responsibility

was that Griffin admit that he possessed the laptop and

that he had viewed the laptop and its contents,

subsequent to being placed on pre-trial release.

When Griffin came into the visitors main visiting

area, prior to his entering the interview room, I went

outside the interview room and mentioned to him the

information the probation officer had discussed with me

in regards to what she thought would allow him to get a

three point reduction for acceptance of responsibility. 

We discussed this outside of the presence of the USPO. 

I informed Griffin that the court had already concluded

 

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that he possessed a laptop on which there was child

pornography. I also informed him that the pretrial

officer had already testified that Griffin told him

that the laptop contained some images of child

pornography. We also discussed the fact that the court

had already ruled and concluded that Griffin's

possession of the laptop which contained child

pornography, regardless of whether or not there was any

proof that the images were viewed while on pre-trial

release, was enough to conclude that he violated his

conditions of his release. I advised Griffin to take

into account those factors in deciding how to answer

probations [sic] question regarding his acceptance of

responsibility. We then proceeded into the interview

room.

At some point during that interview the USPO

inquired of Griffin whether he had viewed the images on

the laptop. My recollection is that Griffin admitted

that he was aware they were on the laptop and that he

had viewed those files at some point while on pre-trial

release. It is my belief that Griffin was equivocating

between viewing the files, but not the actual images

contained within the file, in an attempt to gain a

reduction for acceptance of responsibility. There

appeared to be no proof that Griffin actually viewed

the pornographic images while on pre-trial release and

to the best of my recollection, Griffin never agreed

that he did actually view those images. If his

comments were construed to have that meaning, that was

not the meaning Griffin had intended to convey.

Moreover, had probation not insinuated to him that he

would receive a [sic] acceptance reduction, he never

would have tried to equivocate between viewing the

files and the actual images.

Resp. to Ct. Order, Decl. at 3rd-4th pages.

IV.

Analysis

The unusually worded "Issue Presented" stated by Griffin in

his motion appears to be but a way of expressing the contention

that he had ineffective assistance of counsel and that, as a

result, he received a sentence greater than he would have

 

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received had he had effective assistance of counsel. In order to

prevail on an ineffective assistance of counsel ground,

petitioner must show (1) that his counsel's performance fell

below an objective standard of reasonableness and (2) that there

is a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). 

Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. To establish

the first prong, petitioner must overcome a strong presumption

that his counsel's conduct falls within the wide range of

reasonable professional assistance. Id. at 689. It is not

enough to show that some, or even most, defense lawyers would

have handled the case differently. Green v. Lynaugh, 868 F.2d

176, 178 (5th Cir.), cert. denied, 493 U.S. 831 (1989). For the

second prong, petitioner must show that his counsel’s errors were

so serious as to “deprive him of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. If the

petitioner cannot show that the ineffectiveness of counsel

deprived him of a substantive or procedural right to which the

law entitles him, he must show that the result of the proceeding

was fundamentally unfair or unreliable. Williams v. Taylor, 529

U.S. 362, 392-93 (2000). Here, the record is clearly adequate to

fairly dispose of the claim of ineffective assistance. Hence,

 

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2

An ethical lawyer, as an officer of the court, would never

encourage a client to give false information to the court or any of

its personnel. See Nix v. Whiteside, 475 U.S. 157, 174 (1986). 

12

further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d

1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984).

The court does not need to decide whether Greene's conduct

falls within the wide range of reasonable professional assistance

because the court has concluded that, even if Greene did exactly

what Griffin claims he did, the sentencing outcome would have

been the same. However, the court does note its serious concern

with Greene's conduct. If the court accepts Greene's description

of the conversation he had with Griffin immediately before

Griffin was interviewed by the probation officer, the court,

nevertheless, would have a concern that Greene did not conduct

himself appropriately. As Greene describes the conversation, he

in effect told Griffin to tell the probation officer whatever

Griffin thought the probation officer would need to hear to give

him an offense level reduction for acceptance of responsibility. 

While the court has not done independent research on the subject,

the court is inclined to think that attorney conduct of that kind

would border on, if not constitute, unethical conduct. Of

course, if Greene, as Griffin claims, directly told Griffin to

lie to the probation officer, there would be no question but that

Greene's conduct was unethical, and professionally unacceptable.2

For the purpose of this opinion, the court is assuming,

arguendo, that Greene's conduct was outside the wide range of

reasonable professional assistance and that, therefore, the first

 

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prong of the Strickland test has been met. Because of that

assumption, there is no need for a hearing to determine whether

the allegations of fact made by Griffin concerning what Greene

told him to tell the probation officer are true. 

 If the facts were as Griffin claims them to be, another

issue that would be presented is whether a defendant should be

given relief under § 2255 from the consequences of fraudulent

conduct of the defendant and his attorney directed against the

court. Again, the court has not found necessary to research this

subject, but the court is inclined to think that § 2255 relief

never should be available to a defendant if the conduct of which

he complains is fraudulent conduct against the court in which the

defendant voluntarily participated. 

A review of the record of everything that happened in

Griffin's criminal case through his sentencing on October 7,

2005, causes the court to conclude that the fact that Griffin

told the probation officer that he viewed the pornographic images

on the laptop computer while free on conditions of release did

not lead the court to impose a sentence greater than the court

would have imposed if Griffin had told the probation officer

nothing on that subject or if he had told the probation officer

that he had not viewed the images. Mere possession by Griffin of

the laptop computer containing the pornographic images was a

violation of one of his conditions of release. There is no area

of disagreement as to whether Griffin committed that violation. 

That violation alone was sufficient to cause the court to deny

 

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The court had learned before the revised presentence report was

prepared that while Griffin was free on conditions of release he from

time to time took the laptop computer into his bedroom, where he

would stay alone for several hours. Tr. of Apr. 11, 2005, proceeding

at 9. 

14

Griffin a reduction in his offense level for acceptance of

responsibility. This court customarily denies acceptance of

responsibility to any defendant who has violated a condition of

release, and the court certainly would have denied acceptance of

responsibility to Griffin based on the mere fact that he

possessed the laptop computer containing pornographic images.

Nor would the degree of departure above the top of the

advisory guideline range have been any less if the court had not

been informed that Griffin told the probation officer that he had

viewed the pornographic images on the laptop computer while free

on conditions of release. The court is satisfied that the

statement made by Griffin to the probation officer that he viewed

the pornographic images did not cause the court to impose a

sentence that was greater than it would have been if he had not

made that statement. The other information the court had was

more than sufficient to cause the court to conclude that a

sentence of imprisonment in the aggregate of 110 months was a

reasonable and appropriate sentence to impose on Griffin.3 

After a thorough review of the record, the court has

concluded that, even if the court were to accept as true all

facts Griffin alleges in his motion, none of the conduct Griffin

attributes to Greene caused the outcome of Griffin's case to be

different than it otherwise would have been.

 

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V.

Order

Therefore,

The court ORDERS that Griffin's motion be, and is hereby,

denied.

SIGNED April 12 , 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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