           Case: 18-13193   Date Filed: 09/06/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-13193
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:16-cv-01042-BJD-PDB


JAMES H. GRIFFIN,

                                                     Petitioner - Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                     Respondents - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 6, 2019)

Before WILSON, BRANCH, and HULL, Circuit Judges.

PER CURIAM:
                 Case: 18-13193       Date Filed: 09/06/2019        Page: 2 of 7


       Florida prisoner James Griffin seeks a writ of habeas corpus based on his

claim that his counsel was ineffective for failing to seek a downward departure

based on sentencing manipulation by the police. For the reasons that follow, we

affirm the district court’s denial of habeas relief.

       In 2011, Griffin pleaded guilty to three counts of the sale or delivery of

cocaine, Fla. Stat. § 893.13(1)(a)(1). According to the factual proffer, undercover

officers approached Griffin and asked if he had any crack cocaine. He answered

that he had to cook some up, asked them for a ride, and then sold them $60 of

crack cocaine. The next day, one of the officers called Griffin and bought $100 of

crack cocaine from him. A week later, Griffin called the officer and sold him $50

of crack cocaine. All three transactions were video- and audio-recorded.

       Based on these three convictions and Griffin’s history that included

convictions and arrests for drug dealing, robbery, and domestic batteries, his

lowest permissible sentence was 35.55 months, and the statutory maximum was 45

years. 1 After Griffin rejected the State’s offer of a 10-year sentence, the State filed

notice of its intent to classify Griffin as a habitual felony offender. 2 At Griffin’s

sentencing hearing, the State requested a sentence of 20 to 30 years’ imprisonment



1
 Sale of cocaine is a second-degree felony, Fla. Stat. §§ 893.13(1)(a)(1), 893.03(2)(a)(4), that
carries a statutory maximum sentence of 15 years. Id. § 775.082(3)(d).
2
 As a habitual felony offender, Fla. Stat. § 775.084(1)(a), Griffin would stand to receive a
sentence of up to 30 years on each count, for a total of 90 years. Id. § 775.084(4)(a)(2).
                                                 2
               Case: 18-13193     Date Filed: 09/06/2019       Page: 3 of 7


in light of Griffin’s extensive criminal history. Griffin’s counsel argued for a 36-

month sentence, in light of the State’s earlier offer, the small amount of cocaine

involved, and Griffin’s acceptance of responsibility.

      The court imposed a total sentence of 20 years’ imprisonment: 15 years each

on Counts One and Two, to run concurrently, and 5 years on Count Three, to run

consecutively. However, the court did not sentence Griffin as a habitual felony

offender. It explained that although Griffin had been in trouble with the law his

entire adult life, he had never served a sentence longer than 30 months. The court

expressed its hope that a long sentence would protect the public and help Griffin to

realize that he needed to give up the life of a drug dealer.

      After unsuccessfully pursuing state postconviction relief, Fla. R. Crim. P.

3.850, Griffin filed pro se this petition for a writ of habeas corpus, 28 U.S.C.

§ 2254, raising 13 issues. The district court denied his petition in full. Our Court

granted Griffin a certificate of appealability only on the following issue:

      Whether the district court erred in denying Griffin’s 28 U.S.C. § 2254
      petition where Griffin’s counsel failed to request that the sentencing
      court downwardly depart based on sentencing manipulation because
      the undercover officers had sufficient audio and visual evidence to
      prosecute Griffin after the first of three drug purchases.

      We review the district court’s denial of a § 2254 petition de novo. Reed v.

Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010). Our evaluation of

the state court proceedings, however, is circumscribed by the Antiterrorism and


                                           3
               Case: 18-13193     Date Filed: 09/06/2019     Page: 4 of 7


Effective Death Penalty Act of 1996 (“AEDPA”). We may grant habeas relief only

if the state court’s decision was (1) “contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States,” or (2) “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). Thus, our review of the state court’s decision is deferential. Reed, 593

F.3d at 1239. Indeed, it is so “highly deferential” that it gives the state court’s

decision the “benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010)

(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v.

Visciotti, 537 U.S. 19, 24 (2002)).

      To prevail upon a § 2254 claim of ineffective assistance of counsel, Griffin

needed to establish both that his counsel’s performance was deficient, and that the

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). Because the state court here focused mainly on the prejudice

prong, we will do likewise. Prejudice occurs when there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “The likelihood of a different

result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.

86, 112 (2011). To merit habeas relief under AEDPA, Griffin must establish that




                                            4
               Case: 18-13193     Date Filed: 09/06/2019   Page: 5 of 7


the state court’s decision about prejudice was contrary to, or an unreasonable

application of, Strickland. See id. at 101.

      Florida courts have held that the kind of sentence manipulation Griffin here

alleges may be a permissible basis for a downward departure from the lowest

permissible sentence. State v. Steadman, 827 So. 2d 1022, 1025 (Fla. 3d Dist. Ct.

App. 2002). To establish prejudice from counsel’s failure to request a downward

departure, however, a defendant must show that there was a reasonable probability

that the sentencing court would have granted the downward departure. See Meara

v. State, 154 So. 3d 368, 370 (Fla. 4th Dist. Ct. App. 2014). Here, the state court

found, in denying Griffin’s Rule 3.850 motion, that “there was no evidence in the

record to support such a downward departure. Specifically, no evidence was

presented regarding the officers’ intent behind the three drug purchases.” Thus, it

concluded that there was no reasonable probability that the court would have

imposed the downward-departure sentence.

      Griffin has not established that the state court’s conclusion was an

unreasonable application of Strickland. A downward departure for sentence

manipulation may be appropriate only when “law enforcement allows a defendant

to continue criminal activities for no reason other than to enhance his or her

sentence.” Steadman, 827 So. 2d at 1025. Although Griffin asserts in his briefing

that such was the case and asks us to give him the benefit of the doubt, AEDPA


                                              5
              Case: 18-13193     Date Filed: 09/06/2019   Page: 6 of 7


demands that we instead give the state court the benefit of the doubt. Lett, 559 U.S.

at 773. Our “review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011). The silent record here does not support Griffin’s contention that

the law enforcement officers allowed him to continue his criminal activities only to

further enhance his sentence.

      Although we have construed the arguments in his pro se briefs liberally, see

White v. Butterworth, 70 F.3d 573, 574 (11th Cir. 1995), we conclude that Griffin

has not overcome AEDPA’s high bar of deference to the state courts. Even if there

were some evidence to support Griffin’s contention that no legitimate law-

enforcement reasons justified the police conduct here, we see no reasonable

probability that the sentencing court would have been inclined to impose a

sentence below the lowest permissible of 35.55 months. Such a departure remained

entirely within the discretion of the sentencing court. See Steadman, 827 So. 2d at

1025. Here, the sentencing court commented that it was “very disturbed” by

Griffin’s extensive, recidivist history of drug dealing that a previous 30-month

sentence had failed to deter. Thus, the sentencing court explained that it was “long

past time” that Griffin receive a long sentence that would “wake [him] up” to the

consequences of a life of crime. In view of this inclination of the sentencing court,

we find it barely conceivable that the court would have given a sentence of less


                                          6
              Case: 18-13193     Date Filed: 09/06/2019    Page: 7 of 7


than 35.55 months. Because Griffin has not shown that “[t]he likelihood of a

different result [was] substantial, not just conceivable,” Richter, 562 U.S. at 112,

the state court’s denial of Griffin’s speculative claim was not an unreasonable

application of Strickland.

      The denial of Griffin’s § 2254 petition is

      AFFIRMED.




                                          7
