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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT JAMES GRIFFIN,

Petitioner,

v. Case No. 3:10cv259/WS/CJK

KENNETH S. TUCKER,1

Respondent.

___________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the

state court record. (Doc. 11). Petitioner replied. (Doc. 15). 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, the undersigned concludes that no evidentiary hearing isrequired

for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254

Cases in the United States District Courts. The undersigned further concludes that

the pleadings and attachments before the Court show that petitioner is not entitled to

federal habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On January 28, 2004, a grand jury sitting in Escambia County, Florida returned

an indictment charging petitioner with first degree murder for the unlawful

Kenneth S. Tucker succeeded Walter McNeil and Edwin Buss as Secretary of the Florida 1

Department of Corrections, and is automatically substituted as the respondent. Fed.R.Civ.P. 25(d).

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premeditated killing of Abigail Moorer. (Doc. 11, Ex. C, pp. 2-3). Petitioner was 2

found guilty by jury verdict of second degree murder, a lesser included offense. (Id.,

p. 87). Petitioner was adjudicated guilty and sentenced on May 25, 2006, to forty

years imprisonment. (Id., pp. 155-62). Petitioner appealed, raising one issue:

“Whether The Lower Court Erred By Allowing The State To Present Evidence Of A

Prior Incident Of Domestic Violence Between Appellant And The Victim.” (Ex. E). 

The Florida First District Court of Appeal (“First DCA”) per curiamaffirmed without

written opinion on November 13, 2007. Griffin v. State, 968 So.2d 560 (Fla. 1st DCA

2007) (Table) (copy at Ex. G).

On April 15, 2008, petitioner filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850. (Ex. H). The state court summarily

denied the motion on July 16, 2008. (Ex. I). Petitioner did not appeal. (Doc. 1, p. 3).

On February 10, 2009, petitioner filed in the trial court a “Motion for Leave to

File Successive Motion for Postconviction Relief”. (Ex. S, pp. 1-3). The court

dismissed the motion on February 24, 2009, explaining: “Without knowledge of the

grounds Defendant intends to allege, the Court declinesto either grant or deny ‘leave’

to file a successive motion. Defendant may file any motion he believes to be

appropriate, and the Court will render its decision as to whether the motion is

properly deemed successive at that time.” (Id., pp. 4-5). 

On March 23, 2009, petitioner filed a state habeas petition in the First DCA,

alleging ineffective assistance of appellate counsel. (Ex. K). On September 29, 2009,

the First DCA issued a per curiam opinion stating, “The petition alleging ineffective

assistance of appellate counsel is denied on the merits.” Griffin v. State, 23 So.3d 140

Hereafter, all references to exhibits are to those provided at Doc. 11, unless otherwise noted. 2

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(Fla. 1st DCA 2009) (Table) (copy at Ex. Q).

Petitioner filed a second Rule 3.850 motion on October 17, 2009. (Ex. S, pp.

6-49). The motion was dismissed with prejudice as successive. (Id., pp. 50-52). 

The First DCA per curiamaffirmed without written opinion on May 12, 2010. Griffin

v. State, 36 So.3d 659 (Fla. 1st DCA 2010) (Table) (copy at Ex. T). The mandate

issued June 8, 2010. (Ex. U). 

Petitioner filed his federal habeas petition in thisCourt on July 19, 2010. (Doc.

1). The petition presents two grounds for relief: (1) the trial court erred, in violation

of petitioner’s Fifth Amendment rights, when it admitted petitioner’s videotaped

statements, and (2) appellate counsel was ineffective for failing to raise on direct

appeal the trial court’s error in admitting petitioner’s statements obtained in violation

of the Fifth Amendment and Miranda . (Id.). Respondent asserts that Ground One 3

is procedurally defaulted, and that Ground Two is without merit. (Doc. 11).

LEGAL STANDARDS

Section 2254 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. 

Section 2254(d) provides, in relevant part:

(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–

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 694 (1966). 3

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(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) (2011).

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). The 4

appropriate test was described by Justice O’Connor as follows:

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

fromthisCourt’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

Id., 529 U.S. at 412-13 (O’Connor, J., concurring). 

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

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

proceeding, the federal court must first ascertain the “clearly established Federal

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

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 4

Stevens for the Court (joined byJustices 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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Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538

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

established” only when a Supreme Court holding at the time of the state court

decision embodies the legal principle at issue. 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).

After identifying the governing legal principle(s), the federal court determines

whether the state court adjudication is contrary to the clearly established Supreme

Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases. 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (“Avoiding

th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases – indeed, it does

not even require awareness of our cases, so long as neither the reasoning nor the

result of the state-court decision contradicts them.”). If the state court decision is

contrary to clearly established federal law, the federal habeas court must

independently consider the merits of the petitioner’s claim. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

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

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

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

legal principle(s) was “objectively unreasonable” in light of the record before the

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

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124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 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). An objectively unreasonable application of federal law occurs 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.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). 

A state court, however, 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 v. Mirzayance, 556 U.S. 111, 122, 129

S. Ct. 1411, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision, the “unreasonable application” standard focuses on the state court’s ultimate

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or

theories supported or could have supported the state court’s decision, and then ask

whether it is possible that fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal

district court may rely on grounds other than those articulated by the state court in

determining that habeas relief was not warranted, so long as the district court did not

err in concluding that the state court’s rejection of the petitioner’s claims was neither

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an unreasonable application of a Supreme Court holding nor an unreasonable

determination of the facts). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeasrelief for a claimadjudicated on the

merits in state court where that adjudication “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)(2). As with the “unreasonable

application” clause, the federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

court proceeding.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that

a federal court can disagree with a state court’s factual finding and, when guided by

AEDPA, “conclude the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence”). Neither the Supreme Court nor the

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Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court

decision was not premised on the trial court’s unreasonable fact finding, and that the

petitioner failed to demonstrate “by clear and convincing evidence that the record

reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

Only if the federal habeas court finds that the petitioner satisfied AEDPA and

§ 2254(d), does the court take the final step of conducting an independent review of

the merits of the petitioner’s claims. See Panetti, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, 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). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all available state court remedies for challenging his conviction, 28 U.S.C.

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 5

Section 2254 provides, in pertinent part: 5

(b)(1) 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 unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the

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alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S.

270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner

“must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round ofthe State’s established appellate review process.” 

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);

Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and

which can no longer be litigated under state procedural rules is considered

procedurally defaulted, i.e., procedurally barred fromfederalreview. O’Sullivan, 526

U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th

Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(holding that federal habeas courts should enforce applicable state procedural bars

even as to claims that were never presented to the state courts). A claim is also

considered procedurally defaulted if it was presented in state court and rejected on the

independent and adequate state ground of procedural bar or default. Coleman v.

Thompson, 501 U.S. 722, 734-35 and n. 1, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991);

Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims that have been held

State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented. 

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to be procedurally defaulted under state law cannot be addressed by federal courts.”);

accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876

F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731,

112 L.Ed.2d 812 (1991). In the first instance, the federal court must determine

whether any future attempt to exhaust state remedies would be futile under the state’s

procedural default doctrine. Bailey, 172 F.3d at 1303. In the second instance, the

federal court must determine whether the state’s procedural default ruling rested on

adequate state grounds independent of the federal question. See Harris v. Reed, 489

U.S. 255, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989). 

A petitioner seeking to overcome a procedural default must show cause and

prejudice, or a fundamental miscarriage of justice. Tower, 7 F.3d at 210. “For cause

to exist, an external impediment, whether it be governmental interference or the

reasonable unavailability of the factual basis for the claim, must have prevented

petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct.

1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct.

2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the

petitioner to show that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115

S. Ct. 85, 130 L. Ed. 2d 808 (1995). “To establish the requisite probability, the

petitioner must show that it is more likely than not that no reasonable juror would

have convicted him.” Schlup, 513 U.S. at 327. 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

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– that was not presented at trial.

Id.

DISCUSSION

Ground One Violation of Petitioner’s Fifth Amendment Rights under the

United States Constitution. The Trial Court Erred in Allowing

the Defendant’s Video-taped Statements at Trial in Violation of

His Fifth Amendment Rights to Remain Silent and Against SelfIncrimination.

Petitioner’s first ground for relief claims that the trial court violated petitioner’s

Fifth Amendment rights (the right to remain silent and to have legal counsel present

during questioning) when the court denied petitioner’s pre-trial motion to suppress

petitioner’s videotaped confession. (Doc. 1, pp. 4-4F). Respondent asserts a

procedural default defense, arguing that petitioner has not presented this claim to the

state courts and is now barred by state procedural rules from returning to state court

to litigate the claim. (Doc. 11, pp. 12-15). Petitioner responds that he satisfied the

exhaustion requirement by filing a state habeas petition alleging that appellate

counsel was ineffective for failing to raise on direct appeal the trial court’s erroneous

denial of his motion to suppress. (Doc. 1, p. 4; Doc. 15, pp. 2-3). Petitioner further

argues that he “cannot be faulted in this federal habeas corpus for his appellate

attorney’s failure to raise the instant claim on direct appeal,” because petitioner was

bound by appellate counsel’s filings. (Doc. 15, p. 2).

A federal habeas petitioner does not satisfy the exhaustion requirement merely

by presenting the state court with all the facts necessary to support his claim, or by

presenting a somewhat similar claim. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d

1317, 1343-44 (11th Cir. 2004). “The petitioner must present his claims to the state

courts such that they are permitted the ‘opportunity to apply controlling legal

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principles to the facts bearing upon (his) constitutional claim.’” Id. at 1344 (quoting

Picard, 404 U.S. at 277, 92 S. Ct. at 513). Petitioner’s substantive Fifth Amendment

claim is not the same as petitioner’s Sixth Amendment ineffective assistance of

appellate counsel claim based on the substantive claim. The two are separate and

distinct for purposes of satisfying the exhaustion requirement. Pietri v. Fla. Dep’t of

Corr., 641 F.3d 1276, 1289 (11th Cir. 2011) (holding that federal habeas petitioner’s

substantive judicial bias claim was not the same claim as his ineffective assistance of

appellate counsel claim based on counsel’s failure to raise the substantive claim; the

two claims were “separate and distinct” for purposes of the federal habeas exhaustion

requirement) (citing Lefroy v. Sec’y for Fla. Dep’t of Corr., 421 F.3d 1237, 1260 n.24

(11th Cir. 2005) (noting that substantive claim was “separate and distinct” from

ineffective assistance claim based on the substantive claim)); Walker v. Jones, 10

F.3d 1569, 1572 (11th Cir. 1994) (holding that ineffective assistance claim based on

counsel’s failure to object to jury instruction was not the same as substantive due

process claim challenging the trial court’s giving of that instruction); see also, e.g.,

Humphrey v. Fla. Dep’t of Corr., 450 F. App’x 877 (11th Cir. 2012) (holding that

federal habeas petitioner claiming that his equal protection and due process rights

were violated when his wife was compelled to testify against him at his state court

trial was procedurally defaulted, where petitioner did not raise the claims in state

court but instead argued in his state postconviction proceeding that his trial counsel

was ineffective for failing to object to his wife’s testimony).

The claim petitioner raises here as Ground One – that his Fifth Amendment

rights were violated when the trial court denied petitioner’s motion to suppress and

admitted petitioner’s videotaped confession – was not raised in petitioner’s direct

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appeal, postconviction motion, orstate habeas petition. Petitioner cannot now return

to state court to litigate his substantive Fifth Amendment claim. See Mills v. Florida,

684 So.2d 801, 804 n. 3 (Fla. 1996). Petitioner’s Fifth Amendment claim is

procedurally defaulted for purposes of federal habeas review. 

Petitioner’s argument that he should not be penalized for his appellate

counsel’s failure to present the claim on direct appeal can be liberally construed as

arguing that appellate counsel’s ineffectiveness constitutes “cause” for petitioner’s

procedural default. “A petitioner can establish cause by showing that a procedural

default was caused by constitutionally ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).” Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008) (internal quotation

marks and citation omitted); Coleman v. Thompson, 501 U.S. at 755, 111 S.Ct. at

2567 (“We reiterate that counsel’s ineffectiveness will constitute cause only if it is

an independent constitutional violation.”). In Strickland, the Supreme Court set out

a two-part inquiry for ineffective assistance claims. Strickland v. Washington, 466

U.S. at 687, 104 S.Ct. 2052. A petitioner must show that (1) his counsel’s

performance was constitutionally deficient, and (2) the deficient performance

prejudiced him. See id. “First, petitioner must show that ‘counsel’s representation

fell below an objective standard ofreasonableness. Second, petitioner must show that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Darden v. Wainwright, 477

U.S. 168, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S.

at 668, 694). 

Appellate counsel is not ineffective for winnowing out weaker arguments on

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appeal and focusing on those more likely to prevail, Jones v. Barnes, 463 U.S. 745,

751-752, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987 (1983), because the 

“winnowing out of weaker arguments” to be raised on appeal “is the hallmark of

effective advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667

(1986). Further, appellate counsel cannot be deemed ineffective for failing to raise

issues “reasonably considered to be withoutmerit.” United States v. Nyhuis, 211 F.3d

1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291

(11th Cir. 1984)); United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An

attorney’s failure to raise a meritless argument . . . cannot form the basis of a

successful ineffective assistance of counsel claimbecause the result ofthe proceeding

would not have been different had the attorney raised the issue.”). The argument

omitted from the appeal must have been significant enough to have affected the

outcome of the appeal. Nyhuis, 211 F.3d at 1344 (citing Miller v. Dugger, 858 F.2d

1536, 1538 (11th Cir. 1988)).

In this case, petitioner’s trial counsel filed a pre-trial motion to suppress

petitioner’s statementsto Investigator Kilgore, arguing that the statements were made

after petitioner requested an attorney. (Ex. C, pp. 57-61). The trial court denied the

motion after a hearing. (Id. at pp. 185-97). At trial, prior to the State calling

Investigator Kilgore to testify, defense counsel objected (outside the presence of the

jury) to “Mr. Kilgore speaking of Mr. Griffin’s confession.” (Ex. D, p. 125). The

State announced that it did not intend to introduce any of the evidence that was the

subject of the motion to suppress (those portions of the interview between Kilgore

and petitioner that occurred after petitioner allegedly requested an attorney):

I had told [trial defense counsel] that what I’m going to do – in

spite of the Court’s ruling, I’mgoing to stop – I’mgoing to have Kilgore

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testify up to the point where Mr. Griffin said they had a fight. I’m going

to have him stop at that point. I’m not going to have him go further

where he said he then asked for a lawyer. If [trial defense counsel]

wants to get into that, you know, under the rule of completeness, he can,

but I’m not going to do it.

(Ex. D, p. 126). Defense counsel remarked:

Because of the Court’s ruling, I feel I do have to go forward and actually

talk to him about the confession.

. . . .

[B]ased on the State telling me that this morning, of course, you know,

I haven’t had time to actually change our strategy. In other words, our

strategy – our entire case was based on this confession coming in. If the

confession hadn’t come in, I don’t’ know that Mr. Griffin might not

have had a different strategy entirely. I had to prepare the case, put on

the case, as if the confession was coming in.

(Id., pp. 125-27). The State did not introduce petitioner’s videotaped statements, or

any of the evidence that was the subject of the motion to suppress. (Id., pp. 128-32). 

On cross-examination defense counsel questioned Investigator Kilgore about his

interrogation of petitioner, and introduced the entire videotaped interrogation. (Id.,

pp. 148-53). Petitioner’s appellate counsel did not appeal the trial court’s ruling on

petitioner’s motion to suppress, but did challenge a different evidentiary ruling. 

Petitioner has not shown that no reasonable appellate attorney would have

chosen not to raise the Fifth Amendment claim on appeal. Although the trial court

denied petitioner’s motion to suppress, the State did not introduce at trial any of the

evidence that was the subject of the motion. A reasonable attorney could have

concluded that absent petitioner’s introduction of the evidence he previously sought

to suppress, any alleged error in denying the motion to suppress would have been

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harmless, and that petitioner invited any non-harmless error by introducing the

statements himself. See Cox v. State, 819 So.2d 705, 715 (Fla. 2002) (“[A] party may

not invite error and then be heard to complain of that error on appeal.”) (quoting Pope

v. State, 441 So.2d 1073, 1076 (Fla. 1983)); see also Johnson v. United States, 318

U.S. 189, 201, 63 S. Ct. 549, 87 L. Ed. 704 (1943) (“We cannot permit an accused to

elect to pursue one course at the trial and then, when that has proved to be

unprofitable, to insist on appeal that the course which he rejected at the trial be

reopened to him. However unwise the first choice may have been, the range of

waiver is wide. Since the protection which could have been obtained was plainly

waived, the accused cannot now be heard to charge the court with depriving him of

a fair trial. The court only followed the course which he himself helped to chart and

in which he acquiesced until the case was argued on appeal.”) (quoting United States

v. Manton, 107 F.2d 834, 848 (2d Cir. 1939)). Because appellate counsel could have

reasonably concluded that challenging the denial of petitioner’s motion to suppress

was a very weak, if not meritless argument, counsel’s performance was not

constitutionally deficient. See Shere v. Sec’y, Fla. Dep’t of Corr., 537 F.3d 1304,

1311 (11th Cir. 2008) (agreeing that “appellate counsel is not ineffective for failing

to raise a meritless issue on appeal”); Ladd v. Jones, 864 F.2d 108, 110 (11th Cir.

1989) (“[S]ince these claims were meritless, it was clearly not ineffective for counsel

not to pursue them.”). Petitioner also fails to establish that there is a reasonable

probability his conviction would have been reversed on appeal had appellate counsel

raised the Fifth Amendment claim. See also, e.g., Crumbley v. Crosby, No.

8:04cv427, 2007 WL 781768, at *19 (M.D. Fla. 2007) (state court did not

unreasonably apply Strickland when it rejected petitioner’s claim that appellate

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counsel wasineffective for failing to assert on direct appeal that petitioner was denied

his right to confrontation when the victim failed to appear to testify; no statement by

the victim was admitted at trial other that those which petitioner himself submitted

into evidence in support of his defense).

Petitioner’s failure to establish that his appellate counsel was ineffective

precludes a finding that appellate counsel’s ineffectiveness constitutes “cause” for 

petitioner’s procedural default. Petitioner’s unexcused procedural default barsfederal

habeas review of petitioner’s Fifth Amendment claim.

Ground Two Violation of Petitioner’s Fifth, Sixth, and Fourteenth Amendment

Rights under the United States Constitution. Appellate Counsel

was Ineffective for Failing to Raise on Direct Appeal the Trial

Court’s Error in Admitting the Defendant’s Statements Obtained

in Violation of His Miranda Rights.

In addition to asserting that appellate counsel’s ineffectiveness caused

petitioner’s procedural default, petitioner raises an independent substantive claim of

ineffective assistance of appellate counsel for counsel’s failure to raise the Fifth

Amendment issue on appeal. (Doc. 1. pp. 4, 4G-4L). Petitioner raised this

ineffective assistance of appellate counsel claimin his state habeas petition. The First

DCA denied relief on the merits. 

This Court’s previous conclusion that appellate counsel was not ineffective for

failing to appeal the trial court’s denial of the motion to suppress and admission of

petitioner’s videotaped statements precludesfederal habeasrelief on thisindependent

claim of ineffective assistance. The First DCA’s rejection of petitioner’s ineffective

assistance claim was not contrary to Strickland, was not based on an unreasonable

application of Strickland, and was not based on an unreasonable determination of the

facts. Petitioner is not entitled to federal habeas relief.

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CERTIFICATE OF APPEALABILITY

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

District Courts provides: “[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).” 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 petitioner in this case fails to make a 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 the meaning

of this term) (citation omitted). Therefore, the court should deny a certificate of

appealability in its final order.

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

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

issue.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is ORDERED:

The clerk shall change the docket to reflect that Kenneth S. Tucker has been

substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1), challenging the

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conviction and sentence in State of Florida v. Robert James Griffin in the Circuit

Court for Escambia County, Florida, Case No. 04-CF-116 be DENIED, and the clerk

be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 12th day of June, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE 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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