                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           June 13, 2006
                             FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                           Clerk of Court



    M A TTH EW JA M ES G RIFFIN ,

                Petitioner-A ppellant,

    v.                                                     No. 04-2285
                                                 (D.C. No. CIV-97-1560 M V/RH S)
    TIM LEM ASTER, W arden,                                 (D . N.M .)
    New M exico State Penitentiary;
    A TTO RN EY G EN ER AL FO R THE
    STA TE OF N EW M EX IC O,

                Respondents-Appellees.



                              OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




         M atthew Griffin appeals the district court’s denial of his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. W e previously granted Griffin a




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
certificate of appealability (COA), and we now affirm the district court’s order

denying the petition.

      In January 1991, Griffin was convicted by a New M exico jury of felony

murder, aggravated burglary, five counts of armed robbery, and tampering with

evidence. Griffin’s convictions were affirmed on appeal by the New M exico

Supreme Court. He filed a petition for habeas corpus relief in state court, which

was denied. He then filed a petition for a writ of certiorari to the New M exico

Supreme Court, which was also denied.

      Griffin’s first § 2254 habeas petition filed in federal court was dismissed

without prejudice for failure to prosecute. He then filed a second petition, which

was dismissed for failure to timely file under 28 U.S.C. § 2244(d)(2). Griffin

appealed those dismissals to this court and they were consolidated for procedural

purposes. W e reversed and remanded and directed the district court to reinstate

the first habeas petition and to consider whether equitable tolling applied to the

second petition. On remand, after briefing by the parties, the district court denied

both petitions. The district court also denied a COA on all claims.

      Griffin appealed the district court’s decision and we granted COA on the

following issues: (1) whether trial counsel’s failure to pursue a Fourth

Amendment suppression motion constituted ineffective assistance of counsel, and

(2) whether counsel on direct appeal was ineffective for failure to pursue an




                                         -2-
ineffective-assistance-of-counsel claim based on trial counsel’s failure to pursue a

suppression motion. 1 W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

                                            I

         W e consider first our standard of review. Griffin argues that his federal

constitutional claim was not adjudicated on the merits in state court and that

therefore his appeal is entitled to de novo review instead of the more deferential

standard of review under AEDPA . W e disagree. The state court entered the

following order:

               The Court having reviewed the Petition for W rit of Habeas
         Corpus, State v. Griffin, 116 NM (Sup. Ct. 1993), the State’s
         Response thereto and having heard oral argument on October 20,
         1997 and being fully advised in the premises hereby;
               Orders that the Petition be and hereby is denied. The Court
         adopts as its reasoning the Response to Petition for W rit of Habeas
         Corpus, filed June 11, 1997 by the State.

R., Doc. 14, Ex. K. In Aycox v. Lytle, we applied the A EDPA deferential standard

of review to a state court denial of a habeas petition that simply stated “as a

matter of law , Petitioner is not entitled to relief.” 196 F.3d 1174, 1177 (10th Cir.

1999) (quotation omitted). W e concluded that when a state court issues a

summary decision, we should defer to the state court’s result even if its reasoning

is not expressly stated. Id. The order here is not nearly as summary as that in

Aycox. Because the state court adopted as its reasoning the government’s



1
         W e decline G riffin’s request to expand the scope of our original COA
order.

                                           -3-
response to the habeas petition, we are able to effectively review the state court’s

decision. There is no evidence here that the state court did not consider and reach

the merits of Griffin’s claims. Accordingly, in order to prevail on his habeas

petition, Griffin must show that the state court’s adjudication of his claim:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the U nited States; or

      (2) resulted in a decision that was 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).

                                          II

      W e turn next to the merits of G riffin’s appeal. In order to establish

ineffective assistance of counsel, Griffin must show that his attorney’s

performance fell below an objective standard of reasonableness and that his

attorney’s deficient performance prejudiced his case. Strickland v. Washington,

466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel’s performance is

highly deferential and there is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. Id. at 689.

                       Ineffective Assistance of Trial Counsel

      The first issue is w hether trial counsel’s failure to pursue a Fourth

Amendment suppression motion constituted ineffective assistance of counsel.

Griffin argues that there were enough facts known to defense counsel about the

                                          -4-
search of his residence to compel a reasonable attorney to file a motion to

suppress the evidence that was seized there. Specifically, Griffin argues that his

trial attorney should have filed a suppression motion because of the following

Fourth Amendment violations: (1) the officers executing the w arrant were

conducting an exploratory search because the affidavit was not attached to the

warrant; (2) Griffin was not given a copy of the affidavit at the time of the search;

and (3) the items listed in the affidavit were overbroad. 2 The state court found

that trial counsel was not ineffective for failing to seek the exclusion of the

evidence obtained during the search because the warrant was prepared, approved,

and executed in accordance with the law . Based on our review of the record

evidence and applicable law, Griffin has not shown that there was a Fourth

Amendment violation during the search of his home; as a result, trial counsel’s

decision not to file a motion to suppress w as reasonable. The state court’s

decision denying habeas relief was therefore not based on an unreasonable

determination of the facts or contrary to clearly established federal law.



2
       Griffin also argues that some of the items seized exceeded the scope of the
search. W e will not address this argument on appeal because we conclude that
the COA grant was limited by the inclusion of the following sentence: “Petitioner
argues that the search warrant issued for his home was not particular enough to
satisfy the Fourth Amendment, and that the affidavit in support cannot be used to
cure this defect. See U nited States v. Leary, 846 F.2d 592, 603 (10th Cir. 1988)
(affidavit does not cure lack of particularity in search warrant unless attached to
the warrant and specifically incorporated by reference).” COA Order Dated
10/14/05, at 2. W e will therefore only consider arguments regarding the
specificity of the warrant and attachment and incorporation of the affidavit.

                                         -5-
       First, there is sufficient evidence in the record demonstrating that the

affidavit was attached to the warrant. The warrant on its face indicates that the

affidavit is attached and incorporated into the warrant and the warrant commands

that the officers search “the place described in the Affidavit for the property

described in the Affidavit . . . .” Aplee. App. at 7. The second page of the

affidavit lists the places to be searched and the items to be seized. Id. at 9.

W ithout the affidavit, the officers w ould not have known that Griffin’s vehicle

was also to be searched because it was not identified on the general warrant form,

see id. at 7, but it w as listed in the affidavit, see id. at 9. The return and

inventory reflects that the vehicle was searched by the officers executing the

search warrant. See id. at 21.

       Although there is no direct testimony about whether the affidavit was

attached to the warrant, the record reflects that there were specific items seized

during the search that correlate with specific items listed on the affidavit. For

example, the affidavit lists “walkie talkies, headphones, and microphones” as

items to be seized. Id. at 9. The inventory reflects that the only thing seized in

the second bedroom was one pair of headphones. Id. at 16. W ithout the affidavit,

an officer attempting to perform the search using the generic warrant form would

not have know n to seize something as particular as a pair of headphones. Because

there is sufficient evidence to support the state court’s finding that the affidavit

was attached to the warrant during the search, Griffin did not show a Fourth

                                            -6-
Amendment violation and trial counsel’s decision not to file a motion to suppress

on that basis was reasonable.

      Second, Griffin contends he did not receive a copy of the affidavit at the

time of the search. Griffin argues that this violates the Fourth Amendment

warrant requirement because one of its purposes is to “alert[] the individual

subject to search what the police may seize.” Aplt. Reply Br. at 15. Griffin relies

on Groh v. Ramirez, 540 U.S. 551 (2004) to support his argument.

      Griffin, however, has not presented any Supreme Court authority from the

relevant time period establishing that the failure to serve a warrant or any

attachments thereto is a Fourth Amendment violation. See Allen v. Reed,

427 F.3d 767, 774 (10th Cir. 2005) (explaining that for purposes of § 2254

analysis, “we are exclusively concerned with the state of the case law at the time

[petitoner’s] conviction became final”), petition for cert. filed (U.S. Feb. 25,

2006) (No. 05-9470). At the time of trial in 1990 and at the time G riffin’s

conviction became final in 1997, the general view was that not serving the

warrant or any attachments thereto prior to the search did not necessarily violate

the Constitution, but was merely a technical or ministerial violation, absent a

showing a prejudice. See, e.g., Frisby v. United States, 79 F.3d 29, 31-32

(6th Cir. 1996) (citing United States v. M cKenzie, 446 F.2d 949, 954 (6th Cir.

1971)); see also 2 W ayne R. LaFave, Search & Seizure (4th ed. 2004), § 4.12(a),

at 812 (explaining prevailing view , prior to 2004, that provisions related to

                                          -7-
exhibiting or delivering the warrant were ministerial and not grounded in the

Fourth Amendment).

      M oreover, Groh itself does not change the law on this issue. Groh does

seem to indicate that there is some right of the person being searched to receive

particularized information about the items to be seized prior to the search

comm encing. See 540 U.S. at 557, 561. The Court went on to affirm, however,

“that neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal

Procedure requires the executing officer to serve the w arrant on the owner before

comm encing the search.” Id. at 562 n.5. Relying on Groh, in United States v.

Grubbs, the Court explicitly rejected the assumption that an officer is

constitutionally required to present the property owner with a copy of the warrant

prior to the search. 126 S. Ct. 1494, 1501 (2006). The Court explained that:

      The absence of a constitutional requirement that the warrant be
      exhibited at the outset of the search, or indeed until the search has
      ended, is . . . evidence that the requirement of particular description
      does not protect an interest in monitoring searches. The Constitution
      protects property owners not by giving them license to engage the
      police in a debate over the basis for the warrant, but by interposing,
      ex ante, the deliberate, impartial judgment of a judicial officer . . .
      between the citizen and the police[,] and by providing, ex post, a
      right to suppress evidence improperly obtained and a cause of action
      for damages.

Id. (citations and quotations omitted). Because there was no constitutional

requirement that Griffin be given a copy of the warrant or any attachments thereto

prior to the search, trial counsel’s decision not to file a motion to suppress on that



                                          -8-
basis was reasonable. Likew ise, the state court’s determination that the delivery

of the affidavit was not a precondition to a valid search is not contrary to clearly

established federal law.

      Finally, Griffin claims that, assuming the affidavit was available to the

officers conducting the search, the list of items to be seized was not sufficiently

specific. Griffin cites generally to United States v. Leary, 846 F.2d 592 (10th Cir.

1988), to support this proposition, but fails to include a specific page citation to

direct this court to any relevant discussion on this issue. See Aplt. Reply Br.

at 18. Griffin asserts that the following items listed in the affidavit were

problematic: “all firearms”; “any license plates”; and “any craftsman brand

tools.” Id. He contends that the information in the affidavit did not support the

use of these item listings, but does not include any citations to the record to

support his contention. See id. He then makes the broad statement, without any

legal authority, that “[w]hen the word proceeding the items is ‘any’ a red flag

should go up concerning the particularity of the item listed.” Id.

      In Leary, the warrant was found to be facially overbroad because it

included a laundry list of items typically found in an export business and the only

limitation placed on seizing those items was that they “had to relate to the

purchase, sale and illegal exportation of materials in violation of the federal

export laws.” 846 F.2d at 600-01 (quotation omitted). That is not the case here.

The affidavit includes a detailed list of fifteen items or categories of items that

                                          -9-
are tied to the affidavit of probable cause. W ith respect to Griffin’s specific

concerns, the affidavit indicates that the offender used several different kinds of

firearms (a .45 or 9mm caliber handgun, an Uzi, and a Glock 9mm

semi-automatic pistol) in committing the different crimes, so the use of “any

firearms” is not overbroad. Likewise, the affidavit indicates that the offender

used several different cars with different license plate numbers so the request for

“any license plates” is justified. Finally, the affidavit states that a Craftsman

brand screwdriver was found at the scene of an attempted car theft, which

supports the warrant’s request for Craftsman brand tools. The record adequately

supports the state court’s finding that the warrant “specifically lists all the items

to be seized, and is supported by a detailed five-page affidavit stating probable

cause.” R., Doc. 14, Ex. J at 12. Griffin has not presented any factual or legal

authority to demonstrate that trial counsel’s decision not to file a motion to

suppress on this basis was unreasonable or that the state court’s determination

was unreasonable in light of the facts presented.

      Because we conclude that trial counsel’s decision not to file a motion to

suppress was reasonable, we do not need to reach the second prong of the

Strickland test, which requires Griffin to demonstrate that he was prejudiced by

his attorney’s deficient performance. Griffin has not established his entitlement

to habeas relief on this issue.




                                          -10-
                     Ineffective Assistance of Appellate Counsel

      The second issue is whether counsel on direct appeal was ineffective for

failure to pursue an ineffective-assistance-of-counsel claim based on trial

counsel’s failure to pursue a suppression motion. Appellee claims that this issue

was not properly raised in state court. W e disagree. Griffin argued in his state

habeas petition that his counsel on direct appeal was ineffective for raising but

failing to brief the issue of ineffective assistance of trial counsel. Although

Griffin did not point to the specific reasons why his trial counsel was ineffective

in that section of his habeas petition, he had argued earlier in the petition that

trial counsel was ineffective for failing to file a suppression motion. It is

therefore implicit in his argument that his counsel on direct appeal was ineffective

for failing to brief the issue that his trial counsel was ineffective for failing to file

a suppression motion.

      On the merits, however, we conclude that because trial counsel’s decision

not to file a suppression motion was reasonable, Griffin could not have succeeded

on his claim of ineffective assistance of trial counsel. Appellate counsel’s

decision not to pursue an ineffective assistance claim against trial counsel was

therefore reasonable. The state court’s decision denying habeas relief on this

issue is not unreasonable in light of the facts presented or contrary to clearly

established federal law .




                                           -11-
The judgment of the district court is AFFIRMED.

                                          Entered for the Court



                                          David M . Ebel
                                          Circuit Judge




                               -12-
