                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1591
                         ___________________________

                                 Demario B. Griffin

                         lllllllllllllllllllllMovant - Appellant

                                           v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                             Submitted: April 14, 2015
                               Filed: July 10, 2015
                                  [Unpublished]
                                 ____________

Before BYE, BEAM, and SMITH, Circuit Judges.
                           ____________

PER CURIAM.

       DeMario Griffin appeals the district court's1 denial of his petition for habeas
relief challenging his conviction for being a felon in possession of ammunition and

      1
       The Honorable Dean Whipple, United States District Judge for the Western
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 that same day. Detective Martin Taraski of the 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
Miranda2 rights. According to Detective Taraski's testimony, he gave Griffin a
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 was illegal 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 domestic-
violence offense. Notwithstanding, federal authorities indicted Griffin for being a


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

                                          -2-
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.



                                          -3-
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 as two 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 classify Griffin 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.




                                          -4-
       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 issues raised 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

                                          -5-
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 claim of ineffective 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 testimony fell below professional 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.'" Rodela-
Augilar 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 was filed 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

                                           -6-
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

      3
        As a preliminary matter, the government argues that this court should not
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 challenges to 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

                                          -7-
       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 him as an Armed Career 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 issues raised 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.

                                           -8-
argues that the government cannot reach the required threshold of predicate offenses
because his conviction of second-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 criminalizes the 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.


                                         -9-
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,4 reckless conduct proscribed in
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).




      4
       See United States v. Jones, 574 F.3d 546, 552 (8th Cir. 2009) (holding that a
conviction for second-degree domestic assault under § 565.073.1(1) constitutes a
violent felony).

                                         -10-
        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,5 which
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

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

                                         -11-
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 maximum term of 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.

                                          -12-
       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 have made 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).
                        ______________________________




                                         -13-
