United States Court of Appeals

For the Eighth Circuit

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No. 14-1591

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Demario B. Griffin

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 14, 2015

 Filed: July 10, 2015

[Unpublished]

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Before BYE, BEAM, and SMITH, Circuit Judges.

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PER CURIAM.

DeMario Griffin appeals the district court's denial of his petition for habeas 1

relief challenging his conviction for being a felon in possession of ammunition and

The Honorable Dean Whipple, United States District Judge for the Western 1

District of Missouri.
his sentence under the Armed Career Criminal Act (ACCA). Griffin argues that he

received ineffective assistance of counsel because his defense attorney did not move

to suppress the testimony of a law enforcement officer at Griffin's trial. Additionally,

Griffin contends that his previous convictions for a drug crime and for domestic

assault do not qualify as predicate crimes for ACCA purposes. We affirm. 

I. Background

On Saturday, May 13, 2006, Griffin's girlfriend, Kenya Rice, called 911 to

report a domestic disturbance. When officers arrived at her residence, Rice told

officers that Griffin fled after he had physically abused her and threatened her with

a pistol. The officers asked if they could search the residence, and Rice consented.

The officers did not recover the pistol but found two fully loaded magazines for a .45

caliber pistol and two boxes of .45 caliber ammunition. 

Police arrested Griffin later thatsame day. Detective MartinTaraski ofthe Blue

Springs, Missouri Police Department interviewed Griffin at the police station in the

breathalyzer holding area. At trial, Detective Taraski testified that he conducted the

interview in that holding area because of its convenient proximity to the jail holding

area where Griffin was being held. Detective Taraski informed Griffin of his

Miranda rights. According to Detective Taraski's testimony, he gave Griffin a

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Miranda waiver form, Griffin read and understood the form, and Griffin signed it.

According to Detective Taraski, upon questioning, Griffin admitted that he owned the

ammunition found in Rice's apartment. Detective Taraski then informed Griffin that

it wasillegal for felons to possess such ammunition. Griffin responded that he did not

know that he could not possess the ammunition. 

Griffin was later released and was never charged by the state with a domesticviolence offense. Notwithstanding, federal authorities indicted Griffin for being a

Miranda v. Arizona, 384 U.S. 436 (1966). 2

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felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Griffin

pleaded not guilty. Griffin disputed that he ever admitted to owning or otherwise

possessing the ammunition. Instead, both Griffin and Rice maintained that the

ammunition was Rice's property. On advice of his counsel, Griffin waived his right

to a trial by jury and proceeded to a bench trial. 

At trial, Griffin's defense counsel sought to discredit Detective Taraski's

testimony regarding Griffin's incriminating confession through cross-examination.

On cross, Detective Taraski admitted that there was no available audio or video

recording of Griffin's confession. Detective Taraski explained that no recording was

done because he interviewed Griffin in the breathalyzer holding area. Detective

Taraski did not know how to operate the audio and video recording systems in that

room. The breathalyzer holding area did not have audio and video recording that

could be operated from the holding area. Instead, the recording system for that room

sent a feed that stored its footage offsite on a digital recording device at Blue Springs

City Hall. Detective Taraski testified that unless specific footage is requested in a

certain amount of time, the file is overwritten by later footage. Thus, even if Griffin's

confession had been recorded, it would have been overwritten by subsequently

recorded footage during the months before federal charges were filed.

The district court found Griffin guilty of being a felon in possession of

ammunition. The court relied heavily on Officer Taraski's testimony, stating that

the main evidence I'm convicting this defendant and finding beyond a

reasonable doubt that he was in possession as a prior convicted felon of

ammunition is the fact that after being given the Miranda warning, he

told the officers, first of all, that he owned the ammunition, which is

stronger than possession; and then, when being advised by the officer

that he couldn't even possess it, then he stated that he wasn't aware he

couldn't possess it.

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The court further discussed Griffin's attempt to discredit Detective Taraski's

testimony. As the court saw it, "the officer said the reason they didn't mess with it was

because this case was filed in state court as a domestic-abuse case and there wasn't

any consideration at that point that they were going to be charging this defendant with

being a felon in possession of ammunition." Accordingly, the court accepted

Detective Taraski's explanation of why a recording of Griffin's incriminating

confession was not preserved. 

At sentencing, the court considered whether Griffin qualified as an armed

career criminal under the ACCA. See 18 U.S.C. § 924(e). The government argued that

Griffin's three convictions for first-degree domestic assault, second-degree domestic

assault, and possession of a controlled substance with intent to distribute fulfilled the

ACCA's requirement for three predicate "violent felon[ies]" or "serious drug

offense[s]." Id. Griffin's sole argument in opposition was that the first-degree

domestic assault and second-degree domestic assault should not count astwo separate

predicate crimes because he was convicted of both crimes in the same criminal

proceeding. The court was not persuaded. The court noted the temporal distinction

between the first-degree and second-degree domestic assault incidents. The court

found that "the assault in the first degree . . . occurred on April 29th, 2002, [and] the

second one occurred on August 24th, 2002." Further, the court found "in between

those two, [Griffin] had another assault case in Buchanan County . . . on May 30th,

2002, so there's an intervening conviction between the first assault and the second

assault." Accordingly, the court rejected Griffin's argument and found that the three

aforementioned convictions were "appropriate prior convictions" under the ACCA

to classifyGriffin as an armed career criminal. This enhancement raised Griffin's total

offense level from 24 to 34; consequently, Griffin's Guidelines range was 262 to 327

months' imprisonment. The court ultimately sentenced Griffin to 327 months'

imprisonment. 

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After failing to secure relief from his conviction and sentence on direct appeal,

see United States v. Griffin, 394 F. App'x 349 (8th Cir. 2010) (per curiam)

(unpublished), Griffin sought habeas relief pursuant to 28 U.S.C. § 2255. Griffin

argued that his conviction should be vacated because he received ineffective

assistance of counsel and his sentence should be vacated because his prior

convictions for second-degree domestic assault and a drug offense did not qualify as

predicate crimes under the ACCA. The district court rejected these arguments and

denied habeas relief. 

II. Discussion

Griffin argues on appeal that his conviction should be vacated because he

received ineffective assistance of counsel. Specifically, Griffin contends that his

defense counsel was constitutionally deficient because he failed to move to suppress

the testimony of the government's key witness, Detective Taraski. Griffin also argues

that the district court erred by enhancing his sentence under the ACCA because his

second-degree domestic assault and possession with intent to distribute crimes are not

predicate offenses. "'We review the legal issuesraised by the district court's denial of

[a petitioner's] § 2255 motion de novo, but any underlying fact-findings are reviewed

for clear error.'" Williams v. United States, 452 F.3d 1009, 1012 (8th Cir. 2006)

(quoting United States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005)).

A. Ineffective Assistance of Counsel

First, Griffin argues that he received ineffective assistance of counsel because

his counsel failed to move to suppress the testimony of Detective Taraski.

"'Ineffective assistance of counsel claims raise mixed questions of law and fact, and

we accordingly review those claims de novo.'" Id. (quoting Davis, 406 F.3d at 508).

"When reviewing a claim of ineffective assistance of counsel, we follow the two-part

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

(1984)[.]" Bear v. United States, 777 F.3d 1008, 1011 (8th Cir. 2015). Under

Strickland, Griffin bears the burden to "show that his attorney's performance was

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objectively unreasonable or . . . fell below professional norms. [Griffin] then must

demonstrate that because of his attorney's deficient performance, he was prejudiced;

i.e., there is a reasonable probability that but for counsel's errors the result of the

earlier proceedings would have been different." Id.(citing Roundtree v. United States,

751 F.3d 923, 925 (8th Cir. 2014));see also Strickland, 466 U.S. at 687. "To establish

a claim of ineffective assistance of counsel, a movant must meet both parts of the

two-part test . . . ." Anderson v. United States, 393 F.3d 749, 753 (8th Cir. 2005)

(emphasis added). 

Griffin's claimofineffective assistance of counsel fails because he cannot carry

his burden on the first Strickland element—that his counsel's strategic decision not

to move to suppress Detective Taraski's testimonyfell belowprofessional norms. This

first element carries a high burden, requiring Griffin to show that his counsel made

errors "so egregious as to have deprived [Griffin] of his Sixth Amendment right to

counsel." Id. at 754. Further, we "'must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.'" RodelaAugilar v. United States, 596 F.3d 457, 461 (8th Cir. 2010) (quoting Strickland, 466

U.S. at 689). "Whether as a matter of hindsight we agree" with a counsel's decisions

"is not the test in applying the deferential presumption mandated by Strickland." Id.

at 464 (citing Wing v. Sargent, 940 F.2d 1189, 1191–92 (8th Cir. 1991)).

Griffin maintains that Detective Taraski did not read him his Miranda rights

prior to his interview and that he asked to speak to an attorney several times; thus, he

argues that his counsel's failure to move to suppress Detective Taraski's testimony

regarding Griffin's confession should have been suppressed. We cannot so conclude. 

Griffin's counsel made a strategic decision based on reasonable judgment.

Griffin's counsel explained that "[b]ecause the case was judge tried, no suppression

motion wasfiled to exclude the testimony of Detective Taraski prior to trial. Counsel

was of the opinion that the judge would accurately be able to determine the credibility

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of the testimony and whether it was credible at trial." Also, counsel was aware that

Griffin had signed a Miranda waiver form that the government ultimately introduced

into evidence at Griffin's trial. While not successful, counsel's election to forego a

suppression motion was part of a considered strategy to attack the credibility of the

officer on cross-examination. In pursuit of this strategy, Griffin's counsel effectively

elicited several damaging confessions from Detective Taraski on cross-examination,

including that there was no recording of Griffin's confession and that there were other

interview rooms available at the time of Griffin's interview that had recording

equipment that arguably would have preserved footage of any alleged confession and

Miranda warning. Such "strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation." Strickland, 466 U.S. at 690–91. Accordingly, we cannot find that

Griffin's counsel's strategic decision denied Griffin his Sixth Amendment right to

effective assistance of counsel. 

B. Application of the ACCA3

As a preliminary matter, the government argues that this court should not

3

consider the ACCA issues brought through Griffin's habeas petition because we have

already decided the issues on direct appeal. Griffin, 394 F. App'x at 351–52. In that

case, this court stated the following:

As for Griffin's sentence, to the extent he preserved his challengesto the

armed-career-criminal enhancement, we find no error. Griffin's

qualifying convictions include his Missouri convictions for first-degree

felony domestic assault, second-degree felony domestic assault, and

possession with intent to distribute a controlled substance, the last of

which occurred when Griffin was age seventeen but had been certified

as an adult.

Id. at 351–52 (citations omitted). The government interprets this language as closing

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Griffin next argues that the district court erred by applying the ACCA to

enhance his sentence. He first argues that his conviction for second-degree domestic

assault in Missouri is not a predicate "violent felony." 18 U.S.C. § 924(e)(2)(B).

Additionally, he argues that his conviction for possession of a controlled substance

with the intent to distribute in Missouri is not a predicate "serious drug offense." Id.

§ 924(e)(2)(A). "We review de novo the district court's determination of whether

[Griffin]'s criminal record qualified himas an ArmedCareer Criminal." United States

v. Willoughby, 653 F.3d 738, 741 (8th Cir. 2011) (citing United States v. Gordon, 557

F.3d 623, 624 (8th Cir. 2009)). 

1. Second-Degree Domestic Assault

The ACCA enhances the sentences of defendants "convicted of being a felon

in possession of a weapon or ammunition who has 'three previous convictions by any

court . . . for a violent felony or a serious drug offense, or both.'" United States v.

Deroo, 304 F.3d 824, 828 (8th Cir. 2002) (quoting 18 U.S.C. § 924(e)(1)). Griffin

the door to Griffin's current appeal on the ACCA issues because we have already

decided the issue on direct appeal. See English v. United States, 998 F.2d 609, 613

(8th Cir. 1993) ("In the absence of an intervening change in the law, or newly

discovered evidence, we will not reconsider any claim that was resolved on direct

appeal in a [§] 2255 habeas proceeding." (citation omitted)). 

Upon closer review, this court has not decided the legal issues being argued by

Griffin in his habeas petition. On direct appeal, Griffin argued that the district court

erred by counting his first-degree and second-degree domestic assaults as two

separate predicate crimes and that his drug offense should not count as a predicate

crime because he was only 17 years old at the time he committed it. This court

specifically certified the following, different issuesraised in Griffin's habeas petition:

"whether the District Court properly concluded that Mr. Griffin's December 31, 2002

conviction for domestic assault in the second degree . . . is a crime of violence for

purposes of the ACCA" and "whether Appellant's prior state drug conviction

qualified as a serious drug offense for purpose of the [ACCA]." We reject the

government's argument and proceed to consider the merits of Griffin's appeal.

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argues that the government cannot reach the required threshold of predicate offenses

because his conviction ofsecond-degree domestic assault in Missouri, in violation of

Mo. Rev. Stat. § 565.073, is not a violent felony. 

Crimes are classified as violent felonies based on their elements. In Griffin's

case, his second-degree domestic assault conviction was classified as a violent felony

because it "has as an element the use, attempted use, or threatened use of physical

force against the person of another." 18 U.S.C. 924(e)(2)(B)(I). Certain statutes, as

the Missouri statute here, "criminalize[] multiple kinds of behavior," United States

v. Wilson, 568 F.3d 670, 672 (8th Cir. 2009), some of which qualify as a violent

felony, and others that do not. See Descamps v. United States, 133 S. Ct. 2276,

2283–85 (2013). "When a statute criminalizes both qualifying and non-qualifying

conduct, courts apply a modified categorical approach and may consider the charging

document, plea agreement, plea-colloquy transcript, or 'some comparable judicial

record of this information' to determine under which portion of the statute the

conviction arose." United States v. Bynum, 669 F.3d 880, 885 (8th Cir. 2012)

(quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).

Section 565.073.1 of the Missouri Revised Statutes criminalizesthe following

types of actions:

(1) Attempt[ing] to cause or knowingly caus[ing] physical injury to such

family or household member by any means, including but not limited to,

by use of a deadly weapon or dangerous instrument, or by choking or

strangulation; or

(2) Recklessly caus[ing] serious physical injury to such family or household

member; or

(3) Recklessly caus[ing] physical injury to such family or household member

by means of any deadly weapon.

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Viewing the statute of conviction alone, one cannot readily discern under which

subdivision Griffin was convicted. While subdivision (1) "has as an element the use,

attempted use, or threatened use of physical force," 18 U.S.C. § 924(e)(2)(B)(i),

subdivisions (2) and (3) criminalize only reckless conduct. Thus, while subdivision

(1) is clearly a "violent felony" for ACCA purposes, reckless conduct proscribed in 4

subdivisions(2) and (3) arguably would not qualify. See United States v. Ossana, 638

F.3d 895, 903 (8th Cir. 2011) (holding that an Arizona conviction of aggravated

assault based on "merely reckless use of a vehicle" was not a "crime of violence");

see also United States v. Hennecke, 590 F.3d 619, 621 n.2 (8th Cir. 2010) ("[W]e

construe the statutory term'violent felony' and the Guidelines term'crime of violence'

as interchangeable." (citation omitted)). 

Thus we will apply the modified categorical approach to determine which

subsection was used to convict Griffin. See United States v. Montgomery, 701 F.3d

1218, 1223 (8th Cir. 2012) (using the modified categorical approach when dealing

with § 565.073). The Missouri indictment—to which Griffin eventually pleaded

guilty—reveals that Griffin "attempted to cause physical injury to [his victim] by

pushing her, and such conduct was a substantial step toward the commission of the

crime of attempting to cause physical injury." The indictment makes clear that Griffin

was convicted under § 565.073.1(1) for attempting to cause physical injury. We find

this qualifies as a "violent felony" because Griffin was convicted of a crime that "has

as an element the use, attempted use, or threatened use of physical force." 18 U.S.C.

§ 924(e)(2)(B)(i). 

See United States v. Jones, 574 F.3d 546, 552 (8th Cir. 2009) (holding that a

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conviction for second-degree domestic assault under § 565.073.1(1) constitutes a

violent felony).

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2. Possession of a Controlled Substance with the Intent to Distribute

Like "violent felon[ies]," there is more than one way a crime can be classified

as a "serious drug offense." Id. § 924(e)(2)(A). In Griffin's case, his conviction for

possession of a controlled substance with the intent to distribute, in violation of Mo.

Rev. Stat. § 195.211, was classified as such because it is "an offense under State law,

involving manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance . . . for which a maximum term of imprisonment of

ten years or more is prescribed by law." Id. § 924(e)(2)(A)(ii) (emphasis added).

Griffin concedes his conviction under § 195.211 was for a Class B felony, which 5

under Missouri law is punishable by a maximum "term of years . . . not to exceed

fifteen years." Mo. Rev. Stat. § 558.011.1(2). 

Griffin argues, however, that this should not end the inquiry because of the

specific sentencing circumstances unique to his case. Specifically, Griffin pleaded

guilty through a plea agreement that only called for five years' imprisonment; thus,

according to Griffin, the maximum punishment for his specific crime was five years.

We reject Griffin's argument. In United States v. Rodriguez, the defendant argued that

his convictions in the state of Washington for delivery of a controlled substance were

not serious drug offenses for ACCA purposes. 553 U.S. 377, 380–81 (2008). The

Washington statute stated that the penalty for the defendant's drug offense could not

exceed five years, "but another provision specified that [a]ny person convicted of a

second or subsequent offense could be imprisoned for a term up to twice the term

otherwise authorized. Thus, by virtue of this latter, recidivist, provision respondent

faced a maximum penalty of imprisonment for 10 years." Id. at 381 (alteration in

original) (quotations and citations omitted). The Supreme Court held that the

Section 195.211 distinguishes between Class C felonies, in which a defendant 5

possesses five grams or less of marijuana, and Class B felonies, in which a defendant

possesses any other controlled substance or more than five grams of marijuana.

Griffin's concession that he was convicted of a Class B felony makes any inquiry into

the statute's divisibility between Class B and C felonies unnecessary. 

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recidivism enhancement of ten years qualified the crime as a serious drug offense for

ACCA purposes. Id. at 383. In Rodriguez, the defendant received a sentence of only

48 months' imprisonment but that did not change the maximumtermof imprisonment

as prescribed by law. Id. Similarly, we find that Griffin was convicted of a crime for

which Missouri's statutes prescribed a maximum sentence of ten years or more.

Whether Griffin himself was sentenced to ten years or more is not determinative. On

this ground alone, we reject Griffin's argument. 

III. Conclusion

For the reasons stated herein, we affirm the district court's denial of Griffin's

request for habeas relief. 

BYE, Circuit Judge, concurring.

I agree remand for an evidentiary hearing is unnecessary in this matter. 

However, I write separately with regard to section II.A.

The Court finds Griffin's counsel made a reasonable strategic decision to forgo

a suppression motion in part because the case proceeded to a bench trial and the judge

would be able to accurately determine the credibility of Detective Taraski at trial. It

is well-established that a § 2255 petitioner can "establish lack of diligence on the part

of the attorney" if he or she can show a motion to suppress "what is essentially the

only evidence against [the] defendant" would have been successful. United States v.

Johnson, 707 F.2d 317, 320 (8th Cir. 1983) (citing United States v. Easter, 539 F.2d

663 (8th Cir. 1976)); see also United States v. Luke, 686 F.3d 600, 605 (8th Cir.

2012). This rule applies equally to bench trials as it does to jury trials. Even though

Griffin elected to proceed to a bench trial, he still asked his counsel to file a motion

to suppress. Griffin's counsel failed to file the motion, and because Griffin exercised

his right not to testify in his own defense, the trial court never received Griffin's

account of the Detective Taraski interrogation.

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Although I find troubling Griffin's account of his trial representation, I agree

in this instance a motion to suppress would have been unsuccessful because trial

counsel knew Griffin signed a Miranda waiver, which indicated Griffin understood

the enumerated rights and expressed his intention to waive his Fifth Amendment

privilege. Griffin does not assert the Miranda waiver was invalid, and I agree the

signed Miranda waiver would havemade a motion to suppress unsuccessful. Because

the motion to suppress would not have succeeded, I agree Griffin has failed to

demonstrate ineffective assistance of counsel. See Johnson, 707 F.2d at 320

(requiring a § 2255 petitioner to show the motion to suppress would have succeeded).

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