Opinion
5:18-CR-00096-FL 5:21-CV-00140-FL
03-14-2022
Raymond Alan Griffin, Petitioner, v. United States of America, Respondent.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge.
Petitioner Raymond Alan Griffin says that his federal bank robbery conviction is tainted by two kinds of constitutional violations. He says that both his trial and appellate counsel violated his Sixth Amendment rights by providing him ineffective assistance of counsel. And he also believes that the United States violated his Fifth Amendment Due Process rights by withholding exculpatory evidence.
The United States responded to Griffin's filing by asking the court to dismiss it. According to the Government, Griffin's allegations do not state an ineffective assistance of counsel claim. It also says he has procedurally defaulted on his prosecutorial misconduct claim by not raising it on direct appeal.
After reviewing the docket and the parties' arguments, the undersigned concludes that the Government has the better argument. Griffin has not established that his trial and appellate counsel's performance fell below an objective standard of reasonableness or that he was prejudiced by their conduct. And he has not shown that he raised his prosecutorial misconduct argument on appeal or that one of the exceptions to the procedural default doctrine applies here. So the undersigned recommends that the court deny Griffin's Motion to Vacate, D.E. 159, and grant the Government's Motion to Dismiss, D.E. 166.
The district court referred this matter to the undersigned United States Magistrate Judge for the entry of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1).
I. Background
In 2018, a federal grand jury indicted Griffin on one count of bank robbery. D.E. 1. At his initial appearance, Griffin informed the court that he wanted to proceed pro se. D.E. 14. The court granted his request, but also appointed the Office of the Federal Public Defender as standby counsel. Id.
Several weeks later, Griffin wrote to an Assistant United States Attorney and requested certain items he believed should have been turned over in discovery. Letter from Raymond Griffin to Donald Pender (June 14, 2018), D.E. 37. The government's response addressed the status of each piece of the requested evidence. Letter from Donald Pender to Raymond Alan Griffin (July 12, 2018), D.E. 42. Several of the items Griffin requested did not exist. Id. And the government had already turned over the other items, except for those that Griffin was not entitled to at that point, such as grand jury transcripts. Id.
Griffin then asked the court to suppress certain evidence because his arrest resulted from an illegal search and seizure, to dismiss the charge against him because of vindictive prosecution and because false testimony was given before the grand jury, and to require the United States to turn over certain items Griffin believes constituted Brady material. Omnibus Mot., D.E. 39. In its response, the government referenced its July 12, 2018, letter, D.E. 42, and noted that Griffin continued to request materials to which he is not entitled. Gov.'s Resp. 7, D.E. 40. The court agreed with the government and denied Griffin's combined motion. D.E. 43.
In October 2018, Griffin appeared with stand-by counsel for his arraignment. D.E. 47. Counsel explained to the court that Griffin expressed his intent to proceed pro se at the initial appearance and that the magistrate appointed stand-by counsel. Arraignment Tr. 2:24-3:24. The court told Griffin that it could dismiss standby counsel and that Griffin would be “flying solo” and cautioned him that representing himself could have “serious and profound consequences.” Id. at 4:15-16, 4:25-5:1. The court reset the hearing after Griffin said, “I don't feel like talking now. I just-I don't want to be here right now. I don't want to talk about this.” Id. at 5:10-12. Following this hearing, defense counsel entered a notice of appearance. D.E. 49. Griffin pled not guilty to bank robbery the next month. D.E. 53.
After a two-day trial in January 2019, a jury found Griffin guilty of bank robbery. The evidence at trial showed that a slim, black male entered an FDIC-insured Wells Fargo bank and demanded money. He jumped over the teller counter, demanded money from the employees, took $2,119 from the cash drawer, and fled. According to witnesses at the bank, the robber wore light colored pants, a red and white patterned shirt, boots, a mask, something covering his head, a black glove, and he carried a white Food Lion plastic bag. The bank's video surveillance system captured the incident.
Minutes after the robbery, law enforcement found a man matching the suspect's description coming out of a Port-A-Jon with a backpack at a nearby construction site. Stuffed inside the Port-A-Jon's toilet were clothes matching those the robber wore during the robbery. And officers found a Food Lion bag in the Port-A-Jon. They also found two black bandanas inside the man's backpack and $2,159.29 in cash inside his pockets.
Following his conviction, Griffin's attorneys asked for, and were granted, permission to withdraw as his attorneys. Mot. to Withdraw, D.E. 76; Jan 17, 2019 Order, D.E. 77. Griffin then asked for, and was granted, permission to represent himself. Letter from Raymond Griffin to Court (Jan. 28, 2019), D.E. 81; Feb. 20, 2019 Order, D.E. 86.
Ahead of his sentencing, Griffin moved for extra time to object to the presentence investigation report. Mot. for Extension, D.E. 95. But despite being allowed more time to do so, Mar. 15, 2019 Order, D.E. 100, Griffin never filed any objections. Griffin did, however, file several other between the time the court granted his motion and his sentencing. See Notice of Interlocutory Appeal, D.E. 111; Motion for Reconsideration, D.E. 101; Motion for a New Trial, D.E. 103; Motion for Discovery and Transcripts, D.E. 104; Motion to Dismiss for Lack of Jurisdiction, D.E. 106; Motion to Produce Evidence of Jury Unanimity, D.E. 107; Letter, D.E. 117.
After being sentenced to 240 months in prison, Griffin, represented by appointed counsel, appealed. His attorney argued that the district court erred when it denied his motion to suppress without holding an evidentiary hearing. He also argued that the government did not establish beyond a reasonable doubt that Griffin was the person who committed the robbery nor did the government present sufficient evidence to satisfy the intimidation element of bank robbery. The Fourth Circuit rejected Griffin's arguments and affirmed his judgment. And the Supreme Court denied his petition for a writ of certiorari. Having exhausted his direct appeals, he moved to vacate his conviction and sentence in March 2021. In response, the Government moved to dismiss Griffin's motion.
II. Analysis
Griffin challenges the conduct of almost all the attorneys involved in his case. He set out a vast array of errors allegedly made by his trial and appellate counsel. And he accuses the government's attorneys of withholding evidence. But none of the issues he raised entitle him to relief. He has not shown that his attorneys' conduct fell below an objective standard of reasonableness or that he was prejudiced by their decisions. Nor has he shown that there is a reason to overlook his failure to raise a prosecutorial misconduct claim on direct appeal. So Griffin has not stated a claim for relief and the district court should dismiss his petition.
A. Legal Standard
Griffin maintains that he has a right to have his sentence vacated under 28 U.S.C. § 2255. He argues that statute entitles him to relief because his conviction and sentence resulted from unconstitutional conduct by his attorneys and the United States. To prevail, Griffin must show that he is entitled to relief by a preponderance of the evidence. See, e.g., Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).
But the United States argues that Griffin cannot prevail because he has failed to state a claim for relief. It asks the court to dismiss his motion under Rule 12(b)(6). To survive such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. So while a court must accept all the factual allegations in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. The court may also consider documents in the public record, Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion, “the files and records of the case[,]” 28 U.S.C. § 2255(b).
The Federal Rules of Civil Procedure apply to the court's consideration of a § 2255 motion to the extent that they do not conflict with any other statutory provisions or the procedural rules specifically applicable to § 2255 motions. See Rules Governing § 2255 Proceedings, Rule 12.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or merely a formulaic recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-'that the pleader is entitled to relief.'” Id. If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
B. Ineffective Assistance of Counsel
Griffin claims that his sentence violates the Constitution because his appointed counsel's performance was so inadequate that he was denied the right to counsel under the Sixth Amendment. He asserts several ways that his counsel allegedly erred: representing him despite having a conflict of interest, failing to address certain points on cross-examination, failing to call a clothing expert, not requesting a DNA sample, not asking for a “recently stolen” jury instruction, and making unflattering comments about him during opening statements. Griffin also argues he received constitutionally inadequate assistance on appeal because his counsel failed to argue “effectively,” declined to make certain arguments, and refused to file an Anders brief.
The Government seeks dismissal of Griffin's ineffective assistance claim on two grounds. First it says that Griffin has failed to allege that counsel's representation was objectively unreasonable. And second, it argues that he has not explained how any of the purported deficiencies impacted the outcome of his case.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” U.S. Const. amend VI. This right applies at all stages of a criminal proceeding, including sentencing and on appeal. Mempa v. Rhay, 389 U.S. 128, 134 (1967) (sentencing); Evitts v. Lucey, 469 U.S. 387, 396-97 (1985) (direct appeal). An attorney may violate a defendant's right to assistance of counsel if he fails to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish a claim of ineffective assistance of counsel. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693. As for the reasonableness prong, courts must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Thus, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. To show prejudice, a 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.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
1. Performance by Trial Counsel
Griffin takes aim at various strategic decisions made by his appointed counsel both before and during trial. He complains about their allegedly unethical conduct, their failure to pursue matters with expert witnesses, their refusal to cross-examine witnesses about prior inconsistent statements, and their comments during opening statements that disparaged his character. The court will address each of these topics, but none of them satisfy the Strickland standard for ineffective assistance of counsel.
a) Conflict of Interest
Griffin begins by arguing that one of his trial attorneys labored under a conflict of interest because she previously served as a law clerk for the trial judge. As the Fourth Circuit has noted, “the Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest[.]” Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990). So if his trial attorney's appearance before the judge she previously worked for constituted a conflict and he was prejudiced by that conflict, he would be entitled to relief.
But courts that have considered this issue have not been receptive to Griffins' argument. Time and again courts have concluded that neither federal law nor the Code of Conduct for United States Judges prohibit former law clerks from appearing before the judges they served. Murrell v. First Horizon Home Loan Corp. (In re Murrell), Bankr. No. 13-32400, Adv. No. 133207, 2014 WL 1675753, at *5 (Bankr. W.D. N.C. Apr. 28, 2014); Carter v. United States, No. 3:04CV353-I-MU, 2006 WL 3469634, at *7 (W.D. N.C. Nov. 30, 2006) (“Former law clerks are not prohibited from appearing before the judge for whom they clerked.”); United States v. Bosch, 951 F.2d 1546, 1548-49 (9th Cir. 1991); Patzner v. Burkett, 779 F.2d 1363, 1372 (8th Cir. 1985); Wolfson v. Palmieri, 396 F.2d 121, 123 (2d Cir. 1968). And nothing in the North Carolina Rules of Professional Conduct, which govern attorney conduct in this court, Local Criminal Rule 57.1(j), prohibits this practice either. So there is no ethical prohibition on attorneys appearing before judges for whom they previously clerked.
Griffin provides no reason to depart from this general rule. He has not pointed to any authority supporting his position. Nor has he explained why this court should prohibit attorneys from appearing before the judges they clerked for. Given the lack of support for Griffin's position that his attorney had a conflict of interest, the district court should dismiss this claim for relief.
b) Failure to Use Prior Inconsistent Statements
Griffin's next set of arguments attacks the content and strategy of his counsel's crossexamination. He challenges his attorney's decision to not question witnesses about prior inconsistent statements that they allegedly made to law enforcement. This is a difficult argument for Griffin because courts are highly deferential to the strategic choices made by defense counsel about how best to defend a case. Strickland, 466 U.S. at 689. When reviewing strategic decisions, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. Decisions about how to cross examine a witness fall within the types of choices subject to this presumption of reasonableness. See Rayborn v. United States, 489 Fed.Appx. 871, 878 (6th Cir. 2012) (“[W]hether to call a witness and how to conduct a witness' testimony are classic questions of trial strategy that merit Strickland deference.”). So “even if there is reason to think that counsel's conduct ‘was far from exemplary,' a court still may not grant relief if ‘[t]he record does not reveal' that counsel took an approach that no competent lawyer would have chosen.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (quoting Burtv. Titlow, 571 U.S. 12, 23-24 (2013)).
A review of the trial transcript and the record here demonstrates two main shortcomings with Griffin's argument. To begin with, in many cases the record does not contain the prior inconsistent statement Griffin says it does. Either the witness's testimony is consistent with their prior statements or there is no statement at all on the point at issue.
But more importantly, Griffin has not shown that he was prejudiced by his counsel's approach to cross-examination. The evidence presented at trial paints a compelling picture of the bank robbery, with Griffin as the perpetrator. Testimony from multiple witnesses supported key issues in the case establishing Griffin's guilt. So even if Griffin's flyspecking of his attorney's questions turned up an issue with one witness's testimony, it would not have been enough to make it reasonable to believe the outcome of the trial would be different.
The court now turns to Griffin's arguments regarding specific witnesses.
(1) Veronica Gonzalez
Veronica Gonzalez worked at the bank on the day it was robbed. Griffin says that “she was able to change her description initially provided to police” that the bank robber was “a short and thin person.” Mot. to Vacate at 17. Griffin believes his attorney should have “confronted” her “about being coached to change her original description” by a prosecutor. Id.
The police report drafted after the robbery discusses Gonzalez's description of the bank robber. With respect to his height and weight, she said he was “approximately 5'6”-5'7, 150 lbs[.]” D.E. 39-1 at 24 ¶ 6, 42. Her testimony at trial tracked her initial description. On the stand she said that she “estimated he was about five-seven, around that range.” Trial Tr. Vol 1. at 35:17-18. She also testified that the robber “was slim built.” Trial Tr. Vol 1. at 35:17-18. Since her trial testimony was consistent with her initial description, defense counsel could not have challenged her with a prior inconsistent statement. The district court should dismiss this argument.
(2) Linda Makara
Griffin next faults his attorney for not confronting Linda Makara, another bank employee, about two allegedly inconsistent statements. First, he says she changed her description of the bank robber after a prosecutor informed her that Griffin was taller than the suspect. But nothing in the record supports this claim. When interviewed by police after the robbery, she described the robber as a “light skinned black male with a bandana over his face[.]” D.E. 39-1 at 41. She also said he “was wearing a red and white striped shirt, khaki pants and [a] dark blue bandana over his face.” Id. Her statement did not mention the bank robber's height. Since Makara did not make an inconsistent statement, defense counsel could not have challenged with one. The district court should dismiss this argument.
Griffin next argues that defense counsel should have used a prior inconsistent statement to show that Makara waited until November 2018 to disclose that two days after the robbery her bank drawer was found to be short $40. But the record includes no statement by Makara that contradicts her trial testimony. And at trial Makara readily admitted that her drawer was short of funds the day after the robbery. Trial Tr. Vol. 1 at 64:13-15. So given that there was no prior inconsistent statement to confront Makara with, defense counsel's failure to do so does not constitute ineffective assistance of counsel. The district court should dismiss this claim.
(3) Catherine Mills
Griffin argues that counsel erred by failing to use prior inconsistent statements against Catherine Mills, another bank employee. He says that although Mills testified to counting the draw on the day of the robbery, records contradict her statement.
Griffin is correct that Mills said she and another person tallied the amount of money present after the robbery to determine how much had been taken. Tr. Vol. 1, 52:3-9. But Griffin is incorrect that there are documents that contradict her testimony. The police report reflects that “bank personnel” counted the cash to determine how much was missing. D.E. 39-1 at 56.
Once again, since there was no prior inconsistent statement to use during crossexamination, defense counsel's performance was not objectively unreasonable. The district court should dismiss this claim.
(4) Will Barker
Will Barker was among those at a construction site near the bank on the day of the robbery. Tr. at 94:7-25. As part of his trial testimony, Barker said that after noticing an unusual amount of law enforcement activity in the area, he “saw a gentleman get out of a Port-A-Jon wearing a backpack[.]” Id. at 96:6-8.
Griffin claims his attorneys should have questioned Barker about a prior statement in which Barker said he was not present or had “his head down while working with a customer” when the person left the Port-A-Jon. Griffin has not pointed the court to a document in the record containing this information. And an independent review of the docket has not turned up any such document. So given that there was no prior inconsistent statement to confront Barker with, defense counsel's failure to do so does not constitute ineffective assistance of counsel. The district court should dismiss this claim.
(5) Joshua Martin
Griffin also faults defense counsel for their questioning of Joshua Martin. At trial, Martin testified that on the day of the robbery, he was a field manager for a company that performed carpentry work. Trial Tr. Vol 1 at 75:13-24. While on his lunch break, he “noticed an individual walking trough [sic] the woods or coming out of the woods at one point and walking past my vehicle and entering a Port-A-Jon.” Id. at 77:10-12. A few minutes later Martin saw the person “exit the Port-A-Jon through [his] rearview mirror.” Id. at 83:4-9. Then Martin observed the person “enter[] the jobsite [he] was currently working on.” Id. at 77:12-14. Martin testified that while he did not recall the clothes this person was hearing, he did “remember a backpack.” Id. at 83:10-19. Sometime later, law enforcement appeared at the jobsite and arrested the man Martin had seen enter the Port-A-Jon and then the jobsite. Id. at 85:22-25. While the arrest was ongoing, Martin took a photograph of the person law enforcement arrested, which was introduced into evidence. Id. at 87:23-25; 89:25-90:6.
Along with generally reviewing Martin's testimony, defense counsel focused on two issues during cross-examination. First, defense counsel asked Martin about a social media post he made on the day of the arrest and got him to concede that one of his statements in the post was factually incorrect. Id. at 92:10-93:3. Martin also conceded to defense counsel that he had not been watching the Port-A-Jon the entire morning. Id. at 93:14-16.
According to Griffin, defense counsel should also have cross-examined Martin about a “prior inconsistent statement from August 29, 2017 showing that he never mentioned seeing anyone with a bookbag or identify [sic] me after participating in a lineup.”
Martin's statement to the police makes no mention of a backpack, so defense counsel could have brought this up during his cross-examination. But given that Griffin is wearing a backpack in a photograph taken during his arrest, there would have been little to no value in doing so. See Def. Trial Ex. 1.
Defense counsel instead chose to challenge Martin's credibility by pointing out that he got the facts of the case wrong in a social media post made shortly after he saw them. Counsel also tried to diminish the weight of Martin's testimony by pointing out that he might have missed someone else coming or going from the Port-A-Jon.
It was reasonable for defense counsel to choose these topics as the ones to use to challenge Martin's credibility, and the court must defer to counsel's choice. That Griffin may have preferred defense counsel select other topics does not establish that defense counsel's performance fell below an objective standard of reasonableness. What's more, Griffin has failed to explain how he was prejudiced by his counsel's tactical choices on this point. So the district court should dismiss this claim.
Griffin's claim about Martin's involvement in a lineup fares no better. There is no indication that Martin ever tried to identify Griffin in a lineup, so there was nothing to question him about on that front. The district court should dismiss this claim.
c) Failure to Call Clothing Expert
Griffin's next argument faults his trial attorneys for not calling a “clothing expert” to testify at trial. He maintains that the jury was misled into believing that the two black bandanas found in his backpack and the beige khakis he was photographed wearing connected him to the bank robbery. He says that his counsel should have called “a clothing expert to testify to [his] black bandanas being false evidence[.]” Resp. Br. at 7. He says an expert would have “testified to the patterns not [being] identical.” Id.
Griffin offers nothing more than his speculation to support his claim that an expert would have provided favorable testimony. And he does not explain what methods the expert would have used to reach these conclusions. Without some explanation of how a clothing expert would have helped his defense, he cannot overcome the strong presumption that defense counsel's decision not to retain an expert was reasonable. See Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (“[S]trategic decisions-including whether to hire an expert-are entitled to a ‘strong presumption' of reasonableness.”). The district court should dismiss this claim.
d) Failure to Request DNA Sample
Griffin argues his counsel was ineffective for failing to request a DNA sample from the discarded clothing found inside the Port-A-Jon's toilet water. But there are two reasons why defense counsel's refusal to do this did not offend the Sixth Amendment. To begin with, DNA testing likely would not have turned up any useful information. At trial, the crime scene investigator admitted that she did not collect any DNA from the clothes found in the Port-A-Jon tank. Tr. vol. 1, 163:20-23. When asked to explain why, she said that the bowels of the public toilet contained “too many [DNA] donors[.]” Id. Since the results of any DNA testing were likely to be inconclusive, it was not unreasonable for defense counsel to forgo that testing.
Plus, the transcript shows that defense counsel's strategy was to use the lack of DNA testing to their advantage. During closing argument, defense counsel argued that the United States' failure to conduct DNA testing on the clothes was a weakness in its case against Griffin. Tr. vol 2, 23:8-12. This strategic decision about how to best defend Griffin's case is entitled to deference, and thus does not provide a basis for relief. The district court should dismiss this claim.
e) Failure to Request “Recently Stolen” Jury Instruction
Griffin argues his trial counsel erred by not requesting a “recently stolen” jury instruction. If the court gave this instruction, it would have directed the jury that proof of possession of recently stolen property allows them to infer that the defendant stole the property. United States v. Long, 538 F.2d 580, 580 (4th Cir. 1976). This instruction would have harmed, not helped, Griffin's case. So defense counsel's failure to request it was not unreasonable. The district court should dismiss this claim.
f) Unflattering Characterization in Opening Statements
Finally, Griffin takes issue with defense counsel implying during opening statements that he was a homeless prostitute that lived in the woods. As part of his opening argument, defense counsel explained to the jury that Griffin “stayed in the woods” and that “[h]e was homeless.” Trial Tr. Vol 1. at 15:21-22. And he added that Griffin “did things that he was ashamed of. Some may even call it the oldest profession.” Id. at 16:2-4. Griffin argues this false statement destroyed his character before the jury.
The court need not decide whether it was wise for counsel to make these statements. Because when viewed in the context of the totality of the evidence presented at trial, Griffin has not shown a reasonable probability that but for this statement, the jury's verdict would have been different. See Thompson v. Haley, 255 F.3d 1292, 1304 (11th Cir. 2001) (concluding that though defense counsel's prejudicial comments in closing were unreasonable, in view of the entire record, defendant did not show reasonable probability that the comments impacted the outcome of his case); Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998) (concluding that given overwhelming evidence of guilt, counsel's argument that the defendant intended to kill one person but not the other was not prejudicial); Middleton v. Evatt, 855 F.Supp. 837, 847 (D.S.C. 1994) (concluding counsel's statement in closing that petitioner is “dumb” was not prejudicial when viewed in context of the record); Clozza v. Murray, 913 F.2d 1092, 1099 (4th Cir. 1990) (concluding counsel's remarks conveying disgust towards defendant reflected his trial strategy and maintaining credibility with the jury). So the district court should dismiss this claim.
2. Performance by Appellate Counsel
Griffin also accuses his appellate counsel of performing ineffectively. He says that appellate counsel should have been more effective in arguing the claims brought on appeal. And he believes that appellate counsel improperly failed to raise several meritorious claims. He also claims his counsel erred because he didn't file an Anders brief. But none of these arguments meet Strickland's test for providing ineffective assistance of counsel. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000).
a) Failure to Argue Effectively
Appellate counsel raised two arguments on appeal. He first argued that the trial court erred by not holding a hearing before denying Griffin's motion to dismiss. And then he argued that the district court should have granted Griffin's motion for judgment after acquittal because the United States failed to establish all the necessary elements of the offense he was convicted of. Griffin says appellate counsel did not “effectively” argue these issues.
With respect to the Fourth Amendment claim, Griffin wanted his appellate counsel to challenge the factual basis for the Terry stop that led to his arrest and the discovery of incriminating evidence. Under Terry v. Ohio, an officer may briefly detain a person for investigative purposes if the officer has reasonable suspicion based on “articulable facts” that criminal activity is afoot. 392 U.S. 1, 30 (1968). Reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
Here, law enforcement had reasonable suspicion based on articulable facts that justified the Terry stop, making this argument unlikely to succeed. Griffin, who matched the robbery suspect's physical description, was found at a construction site a short distance from the bank just minutes after the robbery. See Officer Willauer Report, D.E. 39-1 at 34-35. He kept looking over his shoulder at law enforcement, pretended to do work on the construction site where he had no business, and tried to speak with individuals on the site who appeared confused by his presence on their site. Id. Considering these circumstances, challenging the factual basis of the Terry stop would not have been a strong argument.
With respect to his claim about his motion for a judgment of acquittal, Griffin says appellate counsel should have included additional facts he believes undermines the Government's case. But the “process of ‘winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.'” Smith v. Murry, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). So counsel's use of certain facts and not others to support his arguments did not fall outside the bounds of competent assistance. Griffin has not shown that his appellate counsel's presentation of the arguments was unreasonable or that his failure to make Griffin's alternative arguments would have led to a different result in the case.
b) Refusal to Make Certain Arguments
Besides being dissatisfied with the arguments appellate counsel actually made the to the court, Griffin also says his attorney should have pursued four more arguments on appeal. He believes that he had a meritorious argument about the trial court denying his pretrial motion for additional discovery. He also thought that he could have prevailed on an argument that the trial court denied him his Sixth Amendment right to proceed pro se. Griffin also wanted to argue on appeal that the trial court abused it discretion before and at sentencing. Finally, Griffin thought an argument that he was denied access to a law library while in custody would have provided him an avenue to obtain a new trial.
As with the selection of facts, courts are solicitous of counsel's decision about which arguments to present on appeal. Appellate counsel “need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). And once a decision has been made about which issues to pursue, counsel is entitled to a “presumption that he decided which issues were most likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993). So an ineffective assistance of appellate counsel claim requires “showing that a particular nonfrivolous issue was clearly stronger than issues that counsel did present.” Smith, 528 U.S. at 288 .
(1) Failure to Raise Denial of Motion for Additional Discovery
Griffin contends that his counsel should have argued that the trial court erred in denying his motion for additional discovery, D.E. 39, in which he claimed the United States was withholding exculpatory evidence. In denying Griffin's motion, the district court found that he “requested documents which he either has already been given access to, is not entitled access to, or which does not exist” and the government had “sufficiently addressed each of defendant's requests for specific discovery in its” response. Order at 4, D.E. 43. To effectively challenge this ruling, Griffin would need to present some evidence that the United States had lied to the court about the documents it possessed. Griffin has presented no such evidence beyond his own conjecture. So this argument would not have been stronger than those that were argued. Thus, the district court should dismiss it.
(2) Failure to Raise Denial of Right to Proceed Pro Se
In Griffin's view, appellate counsel should have argued that the district court intimidated him into giving up his Sixth Amendment right to proceed pro se at trial. He takes issue with the district court warning him at sentencing that if he represented himself he may spend a long time in prison. But the court must advise defendants about the risks and realities of proceeding pro se. See Patterson v. Davis, No. 3:15-CV-0322-B-BK, 2016 WL 7429463, at *2 (N.D. Tex. Nov. 7, 2017) (rejecting petitioner's argument that he was coerced to abandon his right to proceed pro se because of trial court's “derogatory comments” since “the trial court's warnings about selfrepresentation, while blunt, were required and justified.”).
The court ultimately reset Griffin's arraignment hearing after the exchange about Griffin's pro se status and his statement that “I don't feel like talking now. I just-I don't want to be here right now. I don't want to talk about this.” Arraignment Tr. 5:10-12. But the court's comments about the potential sentence Griffin faced were part of a discussion of the “serious and profound consequences” that accompany a decision to proceed pro se at a criminal trial. See Id. at 4:24-5:1. Given the context of the court's remarks, Griffin's preferred argument is not demonstrably stronger than the ones his counsel chose to raise. Thus the district court should dismiss this claim.
(3) Failure to Argue Deprivation of Access to a Law Library
Griffin argues his appellate counsel should have argued that Griffin was deprived of access to a law library. Though a prisoner does have a right of access to the courts, the fact that “an institution's library is inadequate or that access to that library is restricted” does not necessarily mean the prisoner has been deprived of his right of access to the courts. Strickler v. Waters, 989 F.2d 1375, 1385 (4th Cir. 1993). And “where the plaintiff has been accorded his right of access to the courts, [the court is] simply without authority to adjudicate an abstract complaint about the law library's adequacy or his access to the library.” Id. The inmate must show he has suffered an actual injury. Id. Theoretical or conclusory claims are not sufficient. Hause v. Vaught, 993 F.2d 1079, 1084 (4th Cir. 1993) (concluding inmate's claim that he could not plead his claims properly or adequately prepare his motion was insufficient to show actual injury).
Rather than electing to have an attorney with easy access to legal materials represent him, Griffin decided to represent himself at various stages of his case. When defendants elect to proceed pro se, especially while incarcerated, they assume the risk that, among other things, they will not have the benefit of wide access to legal materials as a lawyer would have. And Griffin has only stated that his lack of access to a law library “significantly impacted” his pro se motions. This conclusory and vague allegation cannot show actual harm. So this claim would not have been stronger than the ones argued on appeal.
(4) Failure to Argue that Griffin was Entitled to More Time Before Sentencing
Griffin says that his counsel should have argued that the trial court abused its discretion by refusing to grant Griffin more time to prepare for sentencing. This argument not supported by the record. Instead, the record shows that Griffin had ample time to prepare, but spent that time preparing and submitting nearly 20 other documents to the court (but not a motion to continue his sentencing).
District courts have broad discretion in granting or denying continuances. United States v. Johnson, 683 Fed.Appx. 241, 251 (4th Cir. 2017). And “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay'” would violate Griffin's Sixth Amendment rights. Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
At sentencing, Griffin stated he didn't have time to prepare for the hearing or to file his objections and that he was being rushed. Sentencing Tr. 3:24-4:4, D.E. 142. But Griffin had ample time to prepare for sentencing-the jury returned its verdict in early January 2019, and his sentencing took place in May 2019. And despite filing at least 18 motions or other requests during that four-month period, he never moved to continue his sentencing. Since Griffin did not even ask for a continuance before the hearing, despite being able to do so, the court did not abuse its discretion by not giving him more time to prepare for sentencing.
See Pro Se Mot. for Extension of Time, D.E. 78; Pro Se Mot. for New Trial, D.E. 80; Letter, D.E. 81; Def.'s Mot. for Acquittal, D.E. 83; Pro Se Am. Mot. for New Trial, D.E. 85; Def.'s Copy Req., D.E. 91; Def.'s Mot. for Extension of Time to File PSR Obj., D.E. 95; Def.'s Mot. to Dismiss, D.E. 96; Doc., D.E. 97; Proposed Ex Parte Doc., D.E. 102; Notice of Interlocutory Appeal, D.E. 111; Mot. for Recons., D.E. 101; Def.'s Mot. for New Trial, D.E. 103; Def.'s Mot., D.E. 104; Def.'s Mot. to Dismiss, D.E. 106; Def.'s Mot. to Produce, D.E. 107; Proposed Ex Parte Doc., D.E. 109; Letter, D.E. 117.
Given that Griffin used his time to prepare and file 18 other documents rather than prepare for his upcoming sentencing or ask for an extension, for appellate counsel to argue that the court abused its discretion by not giving him more time would arguably been frivolous and certainly would not have been stronger than the arguments actually raised. So this argument should be dismissed as well.
(5) Failure to Challenge Use of Prior Conviction in Determining Career Offender Status
Griffin believes his counsel should have argued that the trial court abused its discretion by using Griffin's prior conviction as the basis for career offender status. Griffin moved for extra time to object to his presentence investigation report. Pet'r's Mot. for Extension, D.E. 95. This motion was granted. Order, D.E. 95. But Griffin never filed any objections. Nor did he move for another extension. Since he didn't object to his career offender status before or at sentencing, he waived this argument for appeal. Give that he waived this argument, it could not provide a better basis for relief than the arguments made by appellate counsel. This argument should be dismissed.
c) Refusal to File Anders Brief
Finally, Griffin argues his counsel was ineffective because he refused to file an Anders brief. Counsel files an Anders brief when he believes there are no nonfrivolous grounds for appeal. Anders v. California, 386 U.S. 738, 744 (1967). Griffin's counsel argued several non-frivolous issues on appeal. So an Anders brief would have been improper. This claim fails.
C. Prosecutorial Misconduct
Griffin argues that prosecutors withheld several different kinds of exculpatory evidence. But the issue of potential prosecutorial misconduct did not come up during his direct appeal. The Government argues that since he did not raise the issue on appeal, he is barred from doing so now.
Sometimes, a defendant must pursue a claim on direct appeal before relying on that claim as part of a collateral challenge. Prosecutorial misconduct claims are among those that can be procedurally defaulted if they are not part of a defendant's direct appeal. See Pruett v. Thompson, 996 F.2d 1560, 1565 (4th Cir. 1993).
Since Griffin's direct appeal did not address the Government's alleged misconduct, he must show that this case falls within one of the exceptions to the procedural default doctrine. He can do so in one of two ways. First he could rely on the “cause and actual prejudice” exception. United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). Cause for procedural default “turn[s] on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” Id. at 493 (4th Cir. 1999). He can also avoid the procedural bar if he can “demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack[.]” Mikalajunas, 186 F.3d at 493. To do this, Griffin “must show actual innocence by clear and convincing evidence.” Id.
Griffin argues that his failure to raise the issue on direct appeal should be excused since it resulted from the constitutionally-inadequate representation provided by his appellate counsel. But given the conclusion that appellate counsel's performance met the Sixth Amendment's requirements, this argument fails. Thus his prosecutorial misconduct claim is procedurally barred, and the district court should dismiss it.
III. Conclusion
As explained above, Griffin has not stated a plausible claim for relief. The undersigned thus recommends that his motion to vacate, D.E. 159, be denied and the government's motion to dismiss, D.E. 166, be granted.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk selves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.