Griffin v. McNeil

• Decision Date: 15 October 2009
• Docket Number: Case No. 08-22817-CIV.
• Citation: 667 F.Supp.2d 1340
• Parties: Michael Allen GRIFFIN, Petitioner, v. Walter A. McNEIL, Respondent.
• Court: U.S. District Court — Southern District of Florida

667 F.Supp.2d 1340

Michael Allen GRIFFIN, Petitioner, v. Walter A. McNEIL, Respondent.

Case No. 08-22817-CIV.

United States District Court, S.D. Florida.

October 15, 2009.

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Linda McDermott, Esq., McClain & McDermott PA, Manors, FL, for Plaintiff.

Sandra Sue Jaggard, Attorney General Office, Miami, FL, for Defendant.

SECOND AMENDED ORDER DENYING PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Petitioner's Amended Petition for Writ of Habeas Corpus by a Person in State Custody (dkt. # 17).

UPON CONSIDERATION of the Motion, the Response, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following order.

I. BACKGROUND

A. Factual History

On April 27, 1993, Michael Allen Griffin ("Griffin"), Samuel Velez ("Velez") and Nicholas Tarallo ("Tarallo") decided to commit a burglary.¹ They left Tarallo's apartment in Griffin's father's Cadillac and drove to the location of a white Chrysler LeBaron where they switched cars. Griffin had previously stolen the Chrysler, and he used the vehicle during burglaries. Once in the Chrysler, the three proceeded to search for an appropriate target. After driving around, the trio approached an apartment building in Broward County. Nothing happened at this location, and as they left, Griffin suggested they go to the Holiday Inn Newport where Griffin had completed successful burglaries in the past. Upon arriving at the Holiday Inn, Griffin and Velez exited the car, entered a hotel room, and stole a cellular phone and purse. The three then left the Holiday Inn. Tarallo drove while Griffin and Velez divided the stolen property.

While leaving the Holiday Inn and returning to the Cadillac, the three observed a police car. Griffin panicked and told Tarallo to turn, speed up, and turn several more times. During these maneuvers, another police car, driven by Officers Martin and Crespo, spotted the Chrysler, noticed the three men acting suspiciously, and began to follow. At this point, Tarallo tried to pull over but Griffin stated that he would not go back to jail and ordered Tarallo to continue to evade the police. Finally, Tarallo was able to pull over and attempted to exit the vehicle. As he got out, Griffin began shooting at the police, killing Officer Martin. After an exchange of gunfire, Tarallo and Velez exited the vehicle and surrendered to Officer Crespo. Griffin fled in the Chrysler and was eventually apprehended.

B. Procedural History

Griffin was charged with first-degree murder of a law enforcement officer (Officer Martin), the attempted first-degree murder of a law enforcement officer (Officer Crespo), the burglary of the Holiday Inn room, two counts of grand theft (one involving the Chrysler LeBaron and one involving the items stolen from the hotel room), and one count of unlawful possession of a firearm by a convicted felon.² (App. X, Vol. 1 at 1-4). After a jury trial, Griffin was convicted on all counts. (App. X, Vol. 3 at 489-91).

After the sentencing phase, the jury recommended death by a vote of ten to two. (App. X, Vol. 3 at 497-513). In his sentencing order, the trial judge found the following aggravating factors: (1) previous conviction of a felony involving violence (the attempted murder of Officer Crespo) (2) the capital felony was committed while the defendant was engaged in the commission of a burglary; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the murder was cold, calculating, and premeditated. § 921.141(5)(b), (d), (e), (i), Fla. Stat. (1991). (App. X, Vol. 3 at 502-09). In mitigation, the court found that Griffin was twenty years old at the time of the murder, had shown remorse, had a traumatic childhood, and had a learning disability. (App. X, Vol. 3 at 509-11). The judge determined that the aggravators outweighed the mitigators and followed the jury recommendation by sentencing Griffin to death. (App. X, Vol. 3 at 497-513). On July 7, 1994, the Florida Supreme Court affirmed Griffin's sentence on direct appeal. Griffin v. State of Florida, 639 So.2d 966 (Fla.1994). Griffin sought certiorari review in the United States Supreme Court, which was denied on March 6, 1995. Griffin v. Florida, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

On March 19, 1997, Griffin filed a motion for post-conviction relief under Florida Rules of Criminal Procedure 3.850 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida (the "state court"). (App. Y, Vol. 5 at 21-54). The motion stated that it was incomplete but that its purpose was to toll the time to file a petition in federal court under 28 U.S.C. § 2254. (Id. at 22). On October 29, 1998, Griffin filed an amended motion for post-conviction relief, which also stated that the motion was incomplete. (App. Y, Vol. 6 at 257-353). On December 10, 1999, Griffin filed another amended motion for post-conviction relief, which raised thirty one claims. (App. Y, Vol. 1 at 32-167). On May 5, 2000, the state court entered an order denying all but two of the claims. (App. Y, Vol. 1 at 251-55). On January 10, 2001, the state court dismissed the two remaining claims. (App. Y, Vol. 2 at 257-62). On September 25, 2003, the Florida Supreme Court affirmed the denial of Griffin's motion for post-conviction relief. Griffin v. State of Florida, 866 So.2d 1 (Fla.2003). The mandate issued on March 1, 2004. (App. JJ). Griffin sought certiorari review in the United States Supreme Court, which was denied on November 1, 2004. Griffin v. Florida, 543 U.S. 962, 125 S.Ct. 413, 160 L.Ed.2d 328 (2004).

While Griffin's appeal from the denial of his first motion for post-conviction relief was still pending, Griffin retained counsel who replaced the counsel that the state had appointed to represent him. (App. HH). On June 20, 2003, Griffin's former state appointed counsel filed a second motion for post-conviction relief in the state court. (App. Z, Vol. 1 at 79-103). On June 3, 2004, the court found that it lacked jurisdiction over the second motion and that Griffin's former counsel was not in a position to file the motion because he no longer represented Griffin. (App. Z, Vol. 4 at 35-36). The court granted the dismissal nunc pro tunc to October 17, 2003, the date on which the court orally granted the State's Motion to Dismiss. (Id.) On June 24, 2004, Griffin filed a pro se notice of appeal of the denial of the second motion for post-conviction relief. (App. MM). On January 20, 2005, the Florida Supreme Court issued an order affirming the dismissal of the successive motion, but gave Griffin leave to refile his second motion for post-conviction refile. Griffin v. State, 894 So.2d 970 (Fla.2005) (quoted in dkt. # 21, at 4). The January 20, 2005, Order also stated that Griffin's refiling would be nunc pro tunc to June 20, 2003, the original filing date of his second motion for post-conviction relief. Id. Griffin refiled his second motion for post-conviction relief on February 21, 2005, which contained two grounds for relief. (App. Z, Vol. 1 at 39-40).

On March 7, 2005, Griffin filed a motion to substitute his counsel for new counsel he had retained. The same day, he filed a third motion for post-conviction relief which raised three grounds for relief. (App. Z, Vol. 1 at 104-30). Two of the grounds were identical to the two counts in the second refiled motion. Griffin characterized this motion as a refiling of the dismissed second motion for post-conviction relief. (Id. at 106). The State moved to strike the motion on grounds that it was an improper attempt to amend the refiled second motion for postconviction relief. (App. Z, Vol. 2 at 138-51). The court struck count three and granted Griffin time to file a motion to amend.³ (App. Z, Vol. 3 at 407-09).

Griffin filed a motion to amend, which the State contested. (App. Z, Vol. 2 at 242-46). At a hearing on April 15, 2005, Griffin did not appear. (App. Z, Vol. 3 at 382). The court reset the matter for April 29, 2005, and instructed the clerk to provide notice to Griffin. (Id. at 382-83). At the next hearing, Griffin again did not appear. On May 13, 2005, the court held a hearing, denying Griffin leave to amend and denying the refiled motion for post-conviction relief. (App. Z, Vol. 3 at 386). Griffin did not appear at this hearing. (Id.) On the same day, the court entered a written order explaining the grounds for its denials of Griffin's motions. (App. Z, Vol. 2 at 276-80). On July 19, 2006, the court vacated the May 13, 2005, order, finding that Griffin had not received proper notice of the hearings. (App. Z, Vol. 3 at 475-82). On July 20, 2006, the court entered a new order denying the refiled motion for post-conviction relief. (App. Z, Vol. 3 at 442). On July 20, 2006, the court also entered a separate order denying Griffin's motion to amend. (App. Z, Vol. 3 at 440). On August 2, 2006, Griffin filed a motion for rehearing of the order denying his motion to amend. (App. Z, Vol. 3 at 447). The motion for rehearing was denied on August 7, 2006, and rendered on August 9, 2006.⁴ (App. Z, Vol. 3 at 447). On September 1, 2006, Griffin filed a notice of appeal of the denial of his motion for post-conviction relief and motion to amend. (App. Z., Vol. 3 at 460-61).

On May 8, 2006, Griffin filed a petition for belated appeal of the May 13, 2005, denial of Griffin's motion for leave to amend and denial of the refiled motion for post-conviction relief. (App. P). The Florida Supreme Court granted the petition for belated appeal on December 28, 2006, and treated the September 1, 2006, notice of appeal as part of the belated appeal. (App. NN). On June 2, 2008, the Florida Supreme Court...