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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JEFFREY GRIGGS,

Petitioner,

v. Case No. 3:10cv340/LAC/MD

EDWIN G. BUSS,

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to Title

28 U.S.C. § 2254 (doc. 1). Respondent has filed a response (doc. 18) to which

petitioner has replied (doc. 21). The matter is referred to the undersigned magistrate

judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc.

R. 72.2(B). After careful consideration of all issues raised by petitioner, it is the

opinion of the undersigned that no evidentiary hearing is required for the disposition

of this matter, Rule 8(a) of the Rules Governing Section 2254 Cases. It is further the

opinion of the undersigned that the pleadings and attachments before the court

show that petitioner is not entitled to relief, and that the petition is without merit and

should be denied.

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BACKGROUND AND PROCEDURAL HISTORY1

On January 7, 2005, petitioner, Jeffrey Griggs, was charged by information in

the Circuit Court of Walton County, Florida with two counts of sexual battery on a

victim less than twelve years old, in violation of Fla. Stat. § 794.011(2)(a). (Ex. P, p.

7).

The case was tried to a jury in August, 2005. The victim, J.D.A., testified that

when she was eight or nine years old, Mr. Griggs, her step-father, had assaulted her

orally and anally on at least two occasions in late 2004. She wrote a page in a diary

briefly describing the incidents and gave it to her mother. She further testified that

Mr. Griggs had a scar on his leg near his “private” (doc. 18, ex. E, p. 32).2

 A cousin

testified that Mr. Griggs had similarly assaulted her when she spent the night with

J.D.A. A jury found Mr. Griggs guilty on both counts and he was sentenced to two

concurrent terms of life imprisonment (ex. G, p. 5). The conviction and sentences

were affirmed on direct appeal without opinion (ex. J), and Mr. Griggs filed a timely

motion for post-conviction relief pursuant to Rule 3.850, Fla. R. Crim. P. The trial

court held an evidentiary hearing at which Mr. Griggs was represented by appointed

counsel. At the conclusion of the hearing the court announced its findings of fact

and conclusions of law on the record (doc. 22, ex. AA, pp. 59-61), which it later

adopted in a written order (doc. 22, ex. BB, pp. 205-206). Mr. Griggs’ appeal of the

order denying his motion for post-conviction relief was unsuccessful (ex. S), and he

now seeks federal habeas relief. 

1

 The facts stated herein are those presented at trial and viewed in the light most favorable

to the prosecution. Where there are conflicting inferences and disputes exist, this Court must

presume that the jury resolved such conflicts in favor of the prosecution, and must defer to that

resolution. Martin v. State of Alabama, 730 F.2d 721,724 (11th Cir. 1984). Although this court is not

called on to address directly the sufficiency of the evidence, the evidence presented to the jury plays

a major part in the court’s analysis.

2

 Hereafter all references to exhibits will be to doc. 18 unless otherwise noted.

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STANDARD OF REVIEW 

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. In

relevant part, § 2254 provides:

(d) 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 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) (2006).

The United States Supreme Court explained the framework for § 2254 review

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3 Section

2254(d)(2) must be divided into two separate inquiries: 

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.

3

 Unless otherwise noted, references to Williams are to the majority holding, written by

Justice Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer)

in parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and Justice O’Connor for the Court

(joined by Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II

(529 U.S. at 403–13). The opinion of Justice Stevens in Part II was joined by Justices Souter,

Ginsburg, and Breyer.

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Id., 529 U.S. at 412–13 (O’Connor, J., concurring). The federal habeas court

“determining whether [it] should overturn the state courts’ [sic] rejection of the claim

at issue” should “review the highest state court decision disposing of the claim.” 

Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see 

Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009).

Following the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a formal state

court proceeding, the federal court should first ascertain the “clearly established

Federal law,” namely, “the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when the Supreme Court’s holding embodies the legal principle;

dicta in opinions is not controlling. Thaler v. Haynes, __ U.S. __, 130 S. Ct. 1171,

1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608 F.3d 1313,

1315 (11th Cir. 2010). Furthermore, a federal court of appeals decision, “even a

holding directly on point,” cannot clearly establish federal law for § 2254 purposes. 

Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1866

(2010)).

After identifying the governing legal principle, the court determines whether

the state court adjudication is “contrary to” clearly established Supreme Court case

law, either because the state court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases,” or because it “confronts a set of facts that is

materially indistinguishable from a decision of [the] Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438, 161 L. Ed. 2d 334

(2005); see § 2254(d)(1). The state court does not need to cite to Supreme Court

cases or even be aware of them, “so long as neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct.

362, 365, 154 L. Ed. 2d 263 (2002). If the state court decision is contrary to clearly

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established federal law, the federal habeas court must independently consider the

merits of the petitioner’s claim.

If the state court decision is not contrary to clearly established federal law, the

federal habeas court must then determine whether the state court “unreasonably

applied” the governing legal principles set forth in the Supreme Court’s cases. §

2254(d)(1); Williams, 529 U.S. at 412–13, 120 S. Ct. at 1523. The federal court defers

to the state court’s reasoning unless the state court’s application of the legal

principle was “objectively unreasonable” in light of the record the court had before

it. Williams, 529 U.S. at 409, 120 S. Ct. at 1521; see Cullen v. Pinholster, __ U.S. __,

131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (Apr. 4, 2011) (holding new evidence

introduced in federal habeas court has no bearing on § 2254(d)(1) review, rejecting

dicta in Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d

683 (2004) (per curiam)); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851

n.4, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state

court in determining whether its decision was contrary to federal law). A state

court’s application of federal law is objectively unreasonable when the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably

applies that rule to the facts of the petitioner’s case” or “unreasonably extends, or

unreasonably declines to extend, a legal principle from Supreme Court case law to

a new context.” Brown, 544 U.S. at 141, 125 S. Ct. at 1439. However, a state court

may “decline to apply a specific legal rule that has not been squarely established by

[the Supreme Court]” without running afoul of the “unreasonable application”

clause. Knowles, 129 S. Ct. at 1419. Notably, even a state court’s incorrect

application of law will not warrant federal habeas relief unless it is also objectively

unreasonable. See Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L.

Ed. 2d 624 (2011).

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the

merits in state court where that adjudication “resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

application” clause, the Supreme Court applies the “objectively unreasonable” test

to the state court’s factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324, 123

S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). The petitioner must advance

clear and convincing evidence that the state court’s factual determination was

“objectively unreasonable” to rebut the presumption that the determination was

correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); see § 2254(e)(1).

The Eleventh Circuit Court of Appeals in Gill clarified the federal habeas

court’s role in reviewing a state court’s decision by squarely addressing the

“unreasonable application of law” and the “unreasonable determination of facts”

tests. Mr. Gill’s petition alleged he was denied his Sixth Amendment right to

counsel.4 The Eleventh Circuit granted a limited Certificate of Appealability to

determine the precise issue of the validity of “summary affirmance by a state

appellate court of a trial court’s decision based on potentially flawed reasoning.” Id.

at 1286.5

The court acknowledged the well-settled principle that summary affirmances,

such as the Second DCA’s, are presumed adjudicated on the merits and warrant

4

 Mr. Gill twice moved the trial court in pretrial hearings to allow him to waive his Sixth

Amendment right to counsel. Gill, 633 F.3d at 1275-1284; see U.S. Const. amend. VI. The trial court

denied the first motion, finding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill,

633 F.3d at 1278; see Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, L. Ed. 2d 562 (1975)

(accused must “knowingly and intelligently” waive representation). It also denied the second motion,

but it allowed Mr. Gill to act as co-counsel for himself only for determining trial strategy. Gill, 633 F.3d

at 1284. He was convicted, and the Florida Second District Court of Appeals (“Second DCA”) affirmed

without opinion the trial court’s denial of post-conviction relief. Id. at 1284-85. Mr. Gill then filed a

petition in federal district court, which petition the court denied with prejudice. Id. at 1284-85. 

5

 The court reviewed Gill’s claims that the federal habeas court erred in two respects. First,

Gill argued the habeas court erred by “failing to review on the merits the ‘legally and factually

unsupported rationale’ articulated by the state trial court.” 633 F.3d at 1288. Second, Gill argued the

habeas court’s decision was per se erroneous because it “relied on a finding that the state court did

not make.” Id. Gill averred the trial court denied relief by finding that Gill’s waiver was not knowing

and intelligent, while the federal district court denied relief by finding that Gill “never clearly and

unequivocally” waived his right to counsel. Id.

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deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85 and Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir. 2002)). “A judicial decision and a judicial opinion are

not the same thing,” and the Supreme Court has confirmed that determining whether

the state court unreasonably applied the law or unreasonably determined the facts

requires only a decision, not an opinion. Id. at 1291 (citing Harrington, 131 S. Ct. at

784). Yet, the Supreme Court has never squarely addressed whether under the

“unreasonable application” test a federal habeas court “looks exclusively to the

objective reasonableness of the state court’s ultimate conclusion or must also

consider the method by which the state court arrives at its conclusion.” Id. at 1289

(quoting Neal v. Puckett, 286 F.3d 230, 244-45 (5th Cir. 2002) (summarizing the

emerging circuit split)). The Eleventh Circuit court concluded that district courts

must apply the plain language of § 2254(d) and answer the “precise question” raised

in a claim based on the state court’s ultimate legal conclusion, and should not

“evaluate or rely upon the correctness of the state court’s process of reasoning.” 

Id at 1291 (agreeing with the Fifth Circuit court in Neal, supra). In short, the court

stated, “the statutory language focuses on the result, not on the reasoning that led

to the result.” Id.6

In light of Gill, the “unreasonable determination of facts” standard plays a

limited role in habeas review because the district court considers the

reasonableness of the trial court’s fact finding only to the extent that the state

court’s ultimate conclusion relied on it. Id. at 1292. A federal habeas court can

consider the full record before it to answer “the only question that matters[:]”

whether the state court’s decision was objectively unreasonable. Lockyer, 538 U.S.

at 64, 123 S. Ct. at 1168; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

6

 Applying this analysis, the court rejected Gill’s claim that the district court erred by relying

on different grounds than the trial court because Gill’s basic premise—the Second DCA’s summary

affirmance relied on the trial court’s statements from the bench—was not dispositive. Id. at 1288.

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Under §2254, a habeas court must determine what arguments or

theories supported or . . . could have supported [ ] the state court’s

decision; and then it must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s

conclusion.” Id. at 786 (internal quotations omitted).

The federal habeas court will take the final step of conducting an independent

review of the merits of the petitioner’s claims only if it finds that the petitioner

satisfied AEDPA and § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54, 127

S. Ct. 2842, 2858-59, 168 L. Ed. 2d 662 (2007); Jones v. Walker, 496 F.3d 1216, 1228

(same). The writ will not issue unless the petitioner shows that he is in custody “in

violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

§ 2254(a). When performing its review under § 2254(d), the federal court must

resolve all claims for relief regardless of whether habeas relief is granted or denied. 

Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see Puiatti v. McNeil, 626

F.3d 1283, 1307 (11th Cir. 2010). The federal court must also bear in mind that state

court factual determinations are presumed to be correct, and the petitioner bears the

burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); see also Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (AEDPA

provides for a “highly deferential standard of review” for factual determinations

made by a state court); Jackson, 112 F.3d at 824-25 (noting petitioner has heavier

burden to overcome the presumption of factual correctness). “If this standard is

difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786. 

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel.

Petitioner contends in some of his claims for relief in this court that he was

denied his constitutional right to the effective assistance of counsel. The

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Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

To prevail on a claim of ineffective assistance of counsel, the petitioner must prove: 

(1) “counsel’s representation fell below an objective standard of reasonableness;”

and (2) “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see

also Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098

(2010). Reasonableness of representation does not implicate what is possible,

prudent, or even appropriate, but only what is “constitutionally compelled.” 

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing Burger v. Kemp,

483 U.S. 776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987)).

In evaluating counsel’s performance, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable,

professional assistance. Chandler, 218 F.3d at 1314. Courts must make “every effort

. . . to eliminate the distorting effects of hindsight” and must evaluate the

reasonableness of counsel’s performance “from counsel’s perspective at the time.” 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at

1314 (the Strickland standard compels courts to “avoid second-guessing counsel’s

performance”). The Eleventh Circuit has summarized the standard and the burden:

Even if many reasonable lawyers would not have done as defense

counsel did at trial, no relief can be granted on ineffectiveness grounds

unless it is shown that no reasonable lawyer, in the circumstances,

would have done so. This burden, which is petitioner’s to bear, is and

is supposed to be a heavy one. And, “[w]e are not interested in grading

lawyers’ performances; we are interested in whether the adversarial

process at trial . . . worked adequately.” See White v. Singletary, 972

F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

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Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also, e.g., Waters v. Thomas, 46

F.3d 1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done

more); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“. . . the Constitution

requires a good deal less than maximum performance.”).

In order to meet the prejudice prong of the Strickland standard, petitioner

must allege more than that the unreasonable conduct might have had “some

conceivable effect on the outcome of the proceeding.” 466 U.S. at 693, 104 S. Ct. at

2067; see Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). 

Petitioner must show a reasonable probability exists that the outcome would have

been different. Marquard, 429 F.3d at 1305 (petitioner’s burden under the prejudice

prong is high); Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In applying Strickland,

the court may dispose of an ineffective assistance claim if petitioner fails to carry his

burden on either of the two prongs. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If 

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.”).

The Strickland standard exists to prevent petitioners from abusing the posttrial process by escaping rules of waiver or presenting new issues; it should be

“applied with scrupulous care” to protect the integrity of the adversary process. 

Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the Court

emphasized:

The standards created by Strickland and § 2254(d) are both “highly

deferential,” and when the two apply in tandem, review is “doubly” so.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. at 788 (citations omitted); Knowles,129 S. Ct. at 1420 (2009) (Strickland claims

evaluated under § 2254(d)(1) require “doubly deferential” judicial review).

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Finally, when a district court considers a habeas petition, the state court’s

findings of historical facts in the course of evaluating an ineffectiveness claim are

subject to the presumption of correctness, while the performance and prejudice

components are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.

Ct. at 2070; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “The pivotal

question is whether the state court's application of the Strickland standard was

unreasonable. This [inquiry] is different from asking whether defense counsel's

performance fell below Strickland's standard.” Jones v. Sec’y, Dep’t of Corr., __ F.3d

__, 2011 WL 2540573 (11th Cir. Jun. 28, 2011) (quoting Harrington, 131 S. Ct. at 785

(2011)). Habeas claims of ineffective assistance of counsel require “doubly

deferential” judicial review under §2254(d) and Strickland, and petitioners only rarely

prevail on this ground. See Rogers, 13 F.3d at 386.

Exhaustion and Default

Respondent contends petitioner did not present at least one of his current

claims to the state court for review and is defaulted from doing so now, and this

court should not consider the claims. A petitioner defaults on an issue unless the

petitioner first exhausts available state court remedies so the state has the

“‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865

(1995) (per curiam); see 28 U.S.C. § 2254(b)(1)(A) (applicant must exhaust available

state court remedies); § 2254(b)(3) (state may rely on exhaustion requirement unless

it expressly waives the right). But see § 2254(b)(2) (application may be denied on the

merits even when applicant fails to exhaust state remedies). To satisfy the

exhaustion requirement, the petitioner must “fairly present” his claim in each

appropriate state court, alerting that court to the federal nature of the claim. Duncan,

513 U.S. at 365-66, 115 S. Ct. at 888; see O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999) (same). This affords the state courts

“one full opportunity to resolve any constitutional issues by invoking one complete

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round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at

845, 119 S. Ct. at 1732.

“Fair presentation” requires that, in each claim for relief, the petitioner include

a reference to a specific federal constitutional guarantee and a statement of the facts

that entitle the petitioner to relief. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509,

513, 30 L. Ed. 2d 438 (1971). To satisfy the exhaustion requirement, the petitioner

must present the same facts and claims in state court about which he petitions the

federal court. Id. Appeals to a broad, general constitutional guarantee also fail to

present the “substance” of such a claim to the state court. See Anderson v. Harless,

459 U.S. 4, 7, 103 S. Ct. 276, 278, 74 L. Ed. 2d 3 (1982) (petitioner cited federal

authority only by referring to a state court decision in which “the defendant . . .

asserted a broad federal due process right to jury instructions that properly explain

state law” (internal quotation marks omitted)). A state prisoner’s claim is not fairly

presented if the state court “must read beyond a petition or a brief (or a similar

document) that does not alert it to the presence of a federal claim in order to find

material . . ..” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d

64 (2004). However, when a petitioner squarely raises a federal constitutional claim

in state court, the “failure of a state court to mention a federal claim does not mean

the claim was not presented to it.” Dye v. Hofbauer, 546 U.S. 1, 3, 126 S. Ct. 5, 6-7,

163 L. Ed. 2d 1 (2005). And, simply labeling the claim “federal” may be sufficient to

fairly present the claim. Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351 (dicta).

The Eleventh Circuit requires specific reference to the United States

Constitution and favors citations to federal cases. Zeigler v. Crosby, 345 F.3d 1300,

1307-08 and n.5 (11th Cir. 2003) (“Cursory and conclusional sentences

(unaccompanied by citations to federal law) . . . did not present to the Florida courts

the federal claim asserted to us.”). This stricter standard requires the petitioner to

differentiate a claim under the United States Constitution from one under a state

constitution. Id. at n.5; McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005)

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(“a habeas applicant [must] do more than scatter some makeshift needles in the

haystack of the state court record”) (internal citations omitted)). If state and federal

constitutional law overlap in their applicability to the petitioner’s claim, he must raise

his issue in terms of the federal right in state court to obtain federal review of the

issue. Duncan, 513 U.S. at 366, 115 S. Ct. at 888; see also Anderson, 459 U.S. at 7

and n.3, 103 S. Ct. at 278 and n.3 (petitioner’s citation to a state-court decision

predicated solely on state law is probably insufficient to fairly apprise a reviewing

court of a potential federal claim merely because the defendant in the cited state

case advanced a federal claim). 

A claim is procedurally defaulted and barred from federal review in two

instances: (1) if it was raised in state court and rejected on the independent and

adequate state ground of procedural bar or default; or (2) if it was not properly raised

in state court and can no longer be litigated under state procedural rules. Coleman

v. Thompson, 501 U.S. 722, 734-35 and n.1, 111 S. Ct. 2546, 2557 and n.1, 115 L. Ed.

2d 640 (1991); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); see also Judd

v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (state court’s rejection of petitioner’s

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). Unless the federal court determines the state

court “clearly and expressly” relied on independent and adequate state grounds, the

federal court may address the petition.7 Coleman, 501 U.S. at 735, 111 S. Ct. at 2557. 

However, when any future attempt to exhaust state remedies would be futile under

the state’s procedural default doctrine, the default is per se adequate state grounds

independent of the federal question. Id. at 735 n.1, 2557 n.1; Harris v. Reed, 489 U.S.

255, 263 n.9, 109 S. Ct. 1038, 1043 n.9, 103 L. Ed. 2d 308 (1989) (federal habeas court

need not require a federal claim be presented to a state court if the state court would

hold the claim procedurally barred).

7

 The “adequate and independent state grounds” rule applies equally to procedural and

substantive state-law grounds. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820

(2002). 

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The adequacy of a state procedural bar to the assertion of a federal question

is itself a federal question. Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 885, 151 L. Ed.

2d 820 (2002). To foreclose federal review, the state procedural bar must be firmly

established and regularly followed, that is, not applied in an arbitrary or

unprecedented fashion. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 857,

112 L. Ed. 2d 935 (1991). A state procedural bar is firmly established and regularly

followed when the state has put litigants on notice of the rule, and the state has a

legitimate interest in the rule’s enforcement. Maples v. Allen, 586 F.3d 879, 888 (11th

Cir. 2009) (citing Lee v. Kemna, 534 U.S. at 385-88, 122 S. Ct. at 890-92)).

To overcome a procedural default so that the federal habeas court may reach

the merits of a claim, the petitioner must show either “cause for the default and

actual prejudice resulting therefrom,” or a fundamental miscarriage of justice. 

Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v.

Head, 209 F.3d 1257, 1261 (11th Cir. 2000). Cause exists when an external

impediment, such as governmental interference or the reasonable unavailability of

the factual basis for the claim, prevented petitioner from raising the claim. 

McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991). 

To meet the miscarriage of justice exception, the petitioner must show that “a

constitutional violation has probably resulted in the conviction of one who is

actually innocent” because “it is more likely than not that no reasonable juror would

have convicted him.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L.

Ed. 2d 808 (1995). Further:

[A] substantial claim that constitutional error has caused the conviction

of an innocent person is extremely rare. To be credible, such a claim

requires [a] petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial.

Id. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

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Deference to state court findings of fact

Under the AEDPA, the state court does not have to explicitly state its findings

of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72 (11th Cir. 2008). State court

findings of fact can be implied from the opinion and the record when they are

necessary to the Rule 3.850 court’s rejection of a petitioner’s claim. Id. These

implicit findings are entitled to deference. Id. As explained in the Standard of

Review, supra, the state court is not required to cite or be aware of the relevant

Supreme Court precedent as long as its conclusion is not contradictory. Early, 537

U.S. at 8, 123 S. Ct. at 365. A summary adjudication with a brief, or total lack of,

statement of reasons is still an adjudication on the merits. Harrington, 131 S. Ct. at

780, 784; see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an ‘adjudication

on the merits’ is best defined as any state court decision that does not rest solely

on a state procedural bar.”).

PETITIONER’S GROUNDS FOR RELIEF

Mr. Griggs raises seven grounds for federal habeas relief. The respondent

correctly contends that five of the seven were not properly exhausted in the state

courts, cannot be raised in the state courts now, and are not entitled to review in this

court. Those five grounds will be addressed first.

UNEXHAUSTED CLAIMS

Grounds 1. and 2. Court error - Denial of judgment of acquittal and failure to

give curative instruction.

For his first two grounds for relief Mr. Griggs contends that the trial court

erred when it denied his motion for judgment of acquittal and further erred when it

failed to give a curative instruction after an objection was sustained. Neither of

these grounds presents a federal claim. Appointed counsel in Mr. Griggs’ direct

appeal files an Anders8

 brief, stating that she was unable to make a good faith

8

 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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argument that reversible error occurred in the trial court (ex. H). Mr. Griggs filed a

pro se brief contending that the trial court should have granted his motion for

acquittal because there was only circumstantial evidence against him. He argued

only Florida law and made no claim that the alleged error was a federal constitutional

violation (ex. I, pp. 5-10). In his other relevant ground for relief on direct appeal Mr.

Griggs argued that the trial court erred in not giving a curative instruction when the

state argued in a way that appeared to shift the burden of proof on the issue of

motive. As with the first ground, Mr. Griggs argued only Florida law and did not

present a federal claim to the state court for resolution. It is too late for Mr. Griggs

to return to the state courts to cure the default and the claims are therefore defaulted

in this court. Mr. Griggs is not entitled to federal habeas relief, and the writ should

not issue.

Grounds 3. and 4. Ineffective assistance of counsel - failure to file a motion to

disqualify trial judge and failure to impeach victim with

inconsistent statements.

In his 3.850 motion Mr. Griggs contended that his counsel was ineffective

when he failed to file a motion to disqualify the trial judge. He argued that the state’s

medical witness was the trial judge’s child’s pediatrician, and that the witness and

the trial judge had been high school classmates and hated each other. Mr. Griggs

also asserted that his counsel was ineffective in failing to impeach the victim’s

testimony with prior inconsistent statements (ex. O, pp. 3-5). The Rule 3.850 court

denied relief as to both these claims (doc. 22, ex. AA, pp. 59-61; ex. BB, pp. 205-206). 

However, Mr. Griggs did not include these grounds in his appeal of the denial of the

motion for post-conviction relief, so the claim was not presented to the state

appellate court for review and was therefore not exhausted. It is too late for Mr.

Griggs to return to the state courts to cure the default and the claims are therefore

defaulted in this court. Mr. Griggs is not entitled to federal habeas relief, and the writ

should not issue.

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Ground 6. Ineffective assistance of counsel - failure to investigate and introduce

exculpatory evidence.

Mr. Griggs’ next contention is that counsel was ineffective because he did not

present “exculpatory” evidence concerning the size of his penis which, he argues,

was too large to penetrate the victim’s anus, a fact that should have been made

known to the jury (ex. O, pp. 10-11). The Rule 3.850 court denied relief on this

ground without making any fact finding. The matter is not entitled to review here,

however, because the claim was not included in the appeal of the order denying the

motion for post-conviction relief. It therefore was not properly exhausted in the state

courts and is not entitled to review here. Mr. Griggs is not entitled to federal habeas

relief, and the writ should not issue.

EXHAUSTED CLAIMS

The respondent concedes that Counts 5 and 7 were properly presented to the

state courts and were properly exhausted.

Ground 5. Ineffective assistance of counsel - failure to present photographic

evidence.

In his motion for post-conviction relief Mr. Griggs contended that he did not

have a scar or other mark on his genitalia or on the leg near his genitalia as the

victim testified, that he informed his lawyer of this fact prior to trial, but that counsel

did take any photographs to rebut the victim’s testimony (ex. O, pp. 8-9). 

State Court Decision

At the 3.850 evidentiary hearing counsel testified that he learned of this factual

issue on the first day of trial and that he could not get a camera that would make an

adequate photograph. Instead, Mr. Griggs testified at trial that he had not committed

any of the acts that he was charged with, that he had a felony conviction for

possession of a stolen item, and that he did not have any scar on or near his

genitals. Counsel then asked:

Q. If this jury were interested in seeing your upper thighs, would

you be willing to show them?

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A. Yes, sir.

(Ex. F, p.166). Nothing further was offered, and there is nothing in the trial transcript

to suggest that the jury asked to see Mr. Griggs’ legs. The Rule 3.850 court denied

relief on this ground as follows:

As to the photo evidence, the Court finds that he was - - [defense

counsel] Mr. Platteborze was within an objective standard of

reasonableness and was not deficient. He did say that the photo could

be relevant. The defendant was given the opportunity to do a showing

to the jury. Mr. Platteborze (sic) did not avail himself of that. 

(Doc. 22, ex. AA, p. 60; ex. BB, p. 203). Respondent concedes that this ground was

properly exhausted in the state courts, but argues that it is “utterly devoid of merit.” 

 (Doc. 18, p. 12). 

Federal Review of State Court Decision

The trial court’s ruling is not helpful. The announced reason for denying the

claim - no deficient performance and no prejudice - was a conclusion of law, not a

finding of fact. To the extent there was any fact finding, it was to the effect that

counsel admitted that the photos could have been relevant and that while Mr. Griggs

was given the opportunity to make a showing, no showing was made. It is unclear

whether the Rule 3.850 court was attributing the failure to make a showing to

defense counsel or to Mr. Griggs.

Regardless, Mr. Griggs cannot succeed on this ground. The scar was

described by the victim and as a scar and by Mr. Griggs’ ex-wife as a stretch mark. 

However, that testimony played only a small part in the presentation of the state’s

case and realistically was not material even if it was relevant because it went only

to the issue of identity. The victim knew Mr. Griggs well as he was her step-father. 

She described the sexual assaults in great detail, told of the circumstances in which

they occurred, described how she asked her cousin for a diary, how she waited for

several months before recording anything in the diary, how she finally told her

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cousin what happened and then showed the diary to her mother. Identity was never

an issue. Moreover, defense counsel testified that he did not learn of the issue until

the first day of trial and could not find a camera that would focus sufficiently to show

there was no mark. Finally, counsel’s decision to have the defendant testify was

clearly an alternative strategy. The choice of whether the make a showing to the jury

was also a strategic one. In reading the record it is impossible to say what the jury’s

reaction to the offer may have been. If they had indicated by facial expression, by

gesture or otherwise that they wanted to see Mr. Griggs’ legs, the showing would

have been made. If they sat stone-faced, or indicated negatively, defense counsel

had to use his judgment on whether to go further and make the showing. Counsel’s

decision to proceed in the manner he did was not necessarily a good choice, but

neither was it necessarily a bad one. In the context of a sexual battery case, it is

unlikely that the jury wanted to see was Mr. Griggs’ legs or genitalia. Either way,

counsel did not have a lot of options, and this court cannot say that his performance

was deficient. Neither can it say that the decision was prejudicial to the defendant. 

If the mark on Mr. Griggs’ leg was a stretch mark (assuming there was a mark), such

a mark is not generally thought of as being obvious or pronounced. Thus, whether

Mr. Griggs had a scar or mark was of little consequence in the overall context of the

evidence. The state court’s ruling did not result “in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law,” 28

U.S.C. § 2254(d) (1); Williams, supra. Petitioner is not entitled to federal habeas

relief, and the writ should not issue. 

 7. Ineffective assistance of counsel - failure to introduce exculpatory

evidence concerning the victim’s underwear.

Finally, Mr. Griggs contends that his counsel was ineffective because he did

not prove, as he could have, that his DNA did not appear on any of the victim’s

underwear. At trial the victim testified that when she was sexually assaulted by Mr.

Griggs she hid the underwear she was wearing at the time, which was stained, “in

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purses and behind things.” (Ex. E, p. 39). The state then moved to introduce

photographs of some underwear and purses into evidence. Defense counsel

objected on relevance grounds, arguing that the victim had also testified that she

became ill as the result of the sexual assaults and the stains may have resulted from

illness. The court asked the state if there was any medical evidence to “tie this up?” 

(Id. at 41). The state conceded that there was not. Defense counsel also argued that

even if the photographs were relevant, the prejudice outweighed any probative value

of the photographs (id.). The court sustained the objection and the photographs

were not introduced in evidence or shown to the jury. 

Counsel’s error, according to Mr. Griggs’ motion for post-conviction relief,

was in not introducing a Florida Department of Law Enforcement (FDLE) report

showing that nothing in the victim’s underwear matched Mr. Griggs’ DNA and that

there was no blood (ex. O, pp. 11, 47). Mr. Griggs also testified at the Rule 3.850

hearing that because of the size of his penis there would have been blood in the

victim’s underwear. On cross-examination he agreed that “some time” had passed

between the assaults and the victim’s report of it, such that the underwear was

examined by the FDLE “after” the assaults (doc. 22, ex. AA, pp. 33-34).

Relevant to this issue, defense counsel testified as follows:

Q Was [the FDLE] evidence admitted at trial?

A It was not.

Q And so I guess my question is: Having kept the evidence out,, is

there any reason you’d want to go back and bring it in?

A Well, there’s an alternative theory I suppose. I do not believe that

the victim, [J.D.A], ever testified that she was wearing the panties

prior to an assault and that the panties were taken off shortly

after the assault and the panties would, therefore, have biological

evidence proving that Mr. Griggs had performed one or more of

these acts. The D.N.A. results that came back from the F.D.L.E.

did not identify any blood or semen on the panties that could

have been linked to Mr. Griggs.

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There was some blood identified in one or more of the

panties. And F.D.L.E. suggested that to identify the biological

donor of that blood, a buccal swab or other biological swab of

[J.D.A] would be necessary. Since the panties were not directly

related to any specific incident of abuse and in direct

examination, through objections, I stopped the State from

introducing any other description of the panties other than that

they were soiled and that that was a result of a stomach problem

that she encountered or had been experiencing at or prior to the

commencement of this, I didn’t feel introducing the other

biological evidence or, more technically, the lack of evidence

implicating Mr. Griggs would be beneficial.

Q So you made a trial strategy decision?

A Yes, sir.

(Id. at 47-48).

State Court Decision

The Rule 3.850 court found that defense counsel was “within the objective

standard of reasonableness; that there has been no demonstration that he was

deficient in his performance as trial counsel; and that even if he was deficient and

you had to get to the second prong, which this Court certainly doesn’t have to , there

was no prejudice to the defendant here.” (Doc. 22, ex. AA, pp. 60-61). The court

made no factual findings to support its legal conclusions.

Federal Review of State Court Decision

The real issue here is whether defense counsel should have used the FDLE

reports to show lack of evidence. There were three items of evidence relevant to this

discussion with which counsel had to be concerned: (1) the photographs of the

victim’s underwear and purses, (2) an FDLE report dated January 31, 2005 showing

the presence of blood in the underwear (ex. O, pp. 44-45), and (3) an FDLE report

dated May 16, 2005 showing that Mr. Griggs’ DNA was not found in the underwear

(id. at 47). 

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The victim testified that at some indeterminate time she had stains in her

underwear. If the photographs were admitted, the jury would see some unidentified

stains, which would have bolstered the victim’s testimony. Counsel could have used

the FDLE report, or more likely an FDLE expert, to show that Mr. Griggs’ DNA was

not present in the underwear. However, the state could prove by cross-examination

that there was blood in the victim’s underwear. That evidence would have been

harmful to the defense. Here Mr. Griggs argues that his penis was so large the

assault would have caused bleeding. In making that argument he ignores the FDLE

report of January 31, 2005 which clearly showed that blood was present. It was not

Mr. Griggs’ blood, but it was blood nonetheless. This evidence would have

completely demolished Mr. Griggs’ theory that the size of his penis would have

caused injury and that no injury had been shown. And counsel certainly understood

that if the jury learned that there was blood in the victim’s underwear the jurors 

could reasonably draw their own unfavorable conclusions. Keeping the blood

evidence out was crucial. Finally, defense counsel used the results of his efforts to

his advantage, arguing to the jury that there was no medical evidence, something the

state, not the defense, was required to produce if there were any (ex. F, pp. 194-95).

Defense counsel had to make choices. He succeeded in keeping the

photographs out of evidence. He also kept the blood finding out of evidence. As he

stated, this was part of his trial strategy. And although his explanation is not

altogether clear, there was a very good strategic reason for doing so. His choice

was not an easy one, and it may not even have been the best one, but it was

reasonable under the circumstances. Therefore, state court’s ruling did not result

“in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law,” 28 U.S.C. § 2254(d) (1); Williams, supra. Petitioner

is not entitled to federal habeas relief, and the writ should not issue.

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CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” If a certificate is

issued, “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” If there is an objection to this recommendation by either party, that

party may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Jeffrey Griggs

in the Circuit Court of Walton County, Florida, case no. 04-1168, be DENIED

and the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 19th day of July 2011.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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