Dickson v. Secretary, Department of Corrections et al
ORDER denying the Petition 1 , and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 10/5/2015. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
KURT AARON DICKSON,
Case No. 3:12-cv-1125-J-34MCR
DEPARTMENT OF CORRECTIONS,
Petitioner Kurt Aaron Dickson, an inmate of the Florida penal
system, initiated this action on October 16, 2012, by filing a pro
se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254 and Memorandum of Law and Supporting Grounds for
Habeas Corpus Relief (Memorandum; Doc. 2). In the Petition, Dickson
challenges a 2002 state court (Duval County, Florida) judgment of
conviction for aggravated battery on a law enforcement officer,
resisting an officer with violence, possession of a firearm by a
possession of drug paraphernalia. Respondents have submitted a
memorandum in opposition to the Petition. See Respondents' Answer
in Response to Order to Show Cause (Response; Doc. 13) with
exhibits (Resp. Ex.). On November 19, 2012, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 8), admonishing
Dickson regarding his obligations and giving Dickson a time frame
in which to submit a reply. Dickson submitted a brief in reply. See
Petitioner's Traverse/Reply (Reply; Doc. 15). This case is ripe for
II. Procedural History
On July 13, 2001, in Case No. 16-2001-CF-7761, the State of
enforcement officer (count one), resisting an officer with violence
(count two), possession of a firearm by a convicted felon (count
three), possession of a controlled substance (count four), and
possession of controlled substance paraphernalia (count five).
Resp. Ex. A at 9-10, Information. Dickson, with the benefit of
counsel, filed a motion to suppress physical evidence, see id. at
27-157, and the trial court denied the motion on December 4, 2001,
see id. at 158.
In December 2001, Dickson proceeded to trial, see Resp. Ex. B,
Transcript of the Jury Trial (Tr.), at the conclusion of which, on
December 4, 2001, a jury found him guilty of aggravated battery on
a law enforcement officer (count one), resisting an officer with
violence (count two), possession of a firearm by a convicted felon
(count three), possession of a controlled substance (count four),
and possession of drug paraphernalia (count five). Id. at 243-44;
Resp. Ex. A at 190-94, Verdicts. On January 3, 2002, the court
sentenced Dickson to a term of imprisonment of fifty years for
count one with a minimum mandatory five-year term; a term of
imprisonment of ten years for count two; a term of imprisonment of
fifteen years for count three with a minimum mandatory three-year
term; a term of imprisonment of five years for count four; and a
one-year term of imprisonment for count five, such terms to run
concurrently with each other. Resp. Exs. A at 217-26; C at 292-94.
On direct appeal, Dickson, with the benefit of counsel, filed
an initial brief, arguing that the circuit court erred when it
denied: his motion to correct illegal sentence (ground one) and
motion to suppress (ground two). Resp. Ex. D. The State filed an
answer brief, see Resp. Ex. E, and Dickson filed a reply brief, see
Resp. Ex. F. On September 19, 2005, the appellate court affirmed
remanded the case "for resentencing before a different judge."
Dickson v. State, 910 So.2d 930 (Fla. 1st DCA 2005); Resp. Ex. G.
Reflecting his understandable frustration with
insensitive and ill-advised remarks made by
the appellant prior to his sentencing, the
trial judge unfortunately made remarks that
placed his impartiality in doubt. In light of
these remarks, the appellant's sentences must
Id. The mandate issued on October 6, 2005. See http://www.1dca.org,
Kurt Aaron Dickson v. State of Florida, No. 1D02-0325.
On March 9, 2006, a different sentencing judge sentenced
Dickson to a term of imprisonment of fifty years with a minimum
mandatory five-year term (count one); a term of imprisonment of ten
years (count two); a term of imprisonment of fifteen years with a
imprisonment of five years (count four); and a one-year term of
jail time (count five), all terms to run concurrently, and counts
one, two and three to be served as a habitual felony offender
(HFO). Resp. Ex. H, Transcript of the Sentencing Proceeding, at
334-35; Judgment at 278-91. On direct appeal, Dickson, with the
benefit of counsel, filed an initial brief, arguing that the
court's imposition of an HFO sentence violated Apprendi v. New
Jersey,1 Shepard v. United States,2 Crawford v. Washington,3 and
Davis v. Washington4 (grounds one and four); the trial court erred
when it admitted hearsay at the sentencing proceeding (ground two);
and the evidence was not legally sufficient to establish Dickson's
qualifications as an HFO (ground three). Resp. Ex. I. The State
filed an answer brief, see Resp. Ex. J, and Dickson filed a reply
brief, see Resp. Ex. K. On July 13, 2007, the appellate court
affirmed Dickson's convictions and sentences per curiam without
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Shepard v. United States, 544 U.S. 13 (2005).
Crawford v. Washington, 541 U.S. 36 (2004).
Davis v. Washington, 547 U.S. 813 (2006).
issuing a written opinion, see Dickson v. State, 961 So.2d 937
(Fla. 1st DCA 2007); Resp. Ex. L; and later denied Dickson's motion
for rehearing on August 16, 2007, see Resp. Exs. M; N. The mandate
issued on September 4, 2007. See http://www.1dca.org, Kurt Dickson
v. State of Florida, No. 1D06-1729.
On October 23, 2007, Dickson filed a pro se motion to reduce,
Procedure 3.800(c). Resp. Ex. O. The court denied the motion on
October 31, 2007. Resp. Ex. P. On January 23, 2008, Dickson filed
a pro se motion for post-conviction relief pursuant to Florida Rule
of Criminal Procedure 3.850. Resp. Ex. Q. However, he voluntarily
dismissed that motion on March 3, 2008. Resp. Ex. R.
On September 2, 2008, Dickson filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850. Resp. Ex. R at 1-29. On May 27, 2009, with the benefit of
counsel, Dickson filed an amended motion. Id. at 30-38. In his
request for post-conviction relief, Dickson asserted that counsel
(Craig J. Martin) was ineffective because he failed to: move to
sever the possession of a firearm by a convicted felon charge
(ground one); move to sever the charges involving the assault
(counts one and two) from the drug charges (ground two); renew his
motion to suppress physical evidence at trial, including the
cocaine, firearms, and paraphernalia found in the backpack (ground
three); conduct an adequate voir dire of the jury (ground four);
substance found in the backpack was cocaine (ground five); properly
request jury instructions on justifiable use of non-deadly force
and mens rea (ground six); adequately prepare for and argue his
motions for judgment of acquittal (ground seven); adequately advise
Dickson about whether he should testify at trial or not (ground
Dickson's trial testimony (ground nine); and properly investigate
issues related to the victim's injuries (ground ten). Id. at 30-34.
Additionally, he asserted that the cumulative effect of trial
counsel's errors resulted in the denial of Dickson's rights to a
fair trial and due process of law (ground eleven). Id. at 34. The
State responded. Id. at 40-42.
On November 23, 2009, the post-conviction court held an
evidentiary hearing, at which Mr. Craig J. Martin (Dickson's
defense counsel) and Dickson testified. Resp. Ex. T, Transcript of
the Evidentiary Hearing (EH Tr.). At the evidentiary hearing,
Assistant Public Defender Ann Finnell represented Dickson. After
the evidentiary hearing, Dickson, with the benefit of counsel,
filed a memorandum in support of his amended motion, see Resp. Ex.
S at 43-50, and the State filed a summary of argument, see id. at
51-52. On January 25, 2011, the post-conviction court granted the
Rule 3.850 motion as to ground nine. Id. at 53-56. In doing so, the
court vacated and set aside Dickson's convictions on counts one and
two. Id. at 56. As to counts three, four and five and the remaining
grounds, the court denied the motion. Id. at 56-58.
On February 11, 2011, the State filed a notice of appeal, and
Dickson filed a notice of cross-appeal on February 15, 2011. See
http://www.1dca.org, State of Florida v. Kurt Aaron Dickson, No.
1D11-742. The State filed an initial brief, see Resp. Ex. U, and
Dickson, with the benefit of counsel, filed an answer brief, see
Resp. Ex. V. Dickson filed a Notice of Voluntary Dismissal of
Cross-Appeal on February 28, 2012, see Resp. Ex. W, and the court
dismissed his cross-appeal the next day, see http://www.1dca.org,
N. 1D11-742. On May 4, 2012, in a written opinion, the appellate
court reversed the post-conviction court's partial granting of
Dickson's motion and its vacating of his convictions for aggravated
battery on a law enforcement officer and resisting an officer with
violence. State v. Dickson, 89 So.3d 277 (Fla. 1st DCA 2012); Resp.
Ex. X. The court denied Dickson's motion for rehearing on June 15,
2012. Resp. Ex. Y. The mandate issued on July 3, 2012. Resp. Ex. Z.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d); Response at 25-26;
Reply at 1.
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can "adequately assess [Petitioner's]
claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
V. Standard of Review
The Court will analyze Dickson's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section 2254(d) states:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim (1) resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
determined by the Supreme Court of
the United States; or
(2) resulted in a decision that
determination of the facts in light
of the evidence presented in the
State court proceeding.
'adjudicated on the merits' in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131
S.Ct. 770, 784 (2011). As the United States Supreme Court stated,
"AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court." Burt
v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is
described as follows:
Under AEDPA, when the state court has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). "Under § 2254(d)(1)'s 'contrary
to' clause, we grant relief only 'if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme Court] has on a
set of materially indistinguishable facts.'"
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
'unreasonable application' clause, we grant
relief only 'if the state court identifies the
correct governing legal principle from [the
Supreme] Court's decisions but unreasonably
applies that principle to the facts of the
prisoner's case.'" Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, "a
state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n
'unreasonable application of' [Supreme Court]
holdings must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not
suffice." Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
Supreme Court cases "so long as neither the
reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
"AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 ("The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so." (citations and internal
quotation marks omitted)). [A petitioner] must
establish that no fairminded jurist would have
reached the Florida court's conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). "If this standard is
difficult to meet, that is because it was
meant to be." Richter, 131 S.Ct. at 786....
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014), cert. denied, 135 S.Ct. 2323 (2015); see also Hittson
v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014), cert. denied,
135 S.Ct. 2126 (2015).
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Hittson, 759 F.3d at 1232 ("[T]here is
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]"); Richter, 131 S.Ct. at 785 (holding that §
2254(d) does not require a state court to give reasons before its
decision can be deemed to have been adjudicated on the merits);
Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th
adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Exhaustion/Procedural Default
There are prerequisites to a federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b), (c). To exhaust
state remedies, the petitioner must "fairly present" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
Before seeking a federal writ of habeas
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Maples v.
Thomas, 132 S.Ct. 912, 922 (2012) (citations omitted); In Re Davis,
565 F.3d 810, 821 (11th Cir. 2009) (citation omitted). In order for
Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct." McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the
prejudice prong, [a petitioner] must show that
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In Martinez, the Supreme Court modified the general rule in
"Negligence on the part of a prisoner's postconviction
attorney does not qualify as 'cause.'" Maples v. Thomas, 132 S.Ct.
912, 922 (citing Coleman, 501 U.S. at 753). The Court reasoned
that, under principles of agency law, the attorney is the
prisoner's agent, and therefore, the principal bears the risk of
default. Martinez, 132 S.Ct. at 1315. "Importantly, the Martinez
Court expressly limited its holding to attorney errors in initialreview collateral proceedings . . . ." Arthur v. Thomas, 739 F.3d
611, 629 (11th Cir. 2014), cert. denied, 135 S.Ct. 106 (2014).
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding, a
prisoner may establish cause for a default of
circumstances. The first is where the state
courts did not appoint counsel in the initialreview collateral proceeding for a claim of
ineffective assistance at trial. The second is
where appointed counsel in the initial-review
collateral proceeding, where the claim should
have been raised, was ineffective under the
standards of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner
must also demonstrate that the underlying
is a substantial one, which is to say that the
prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537
negligent conduct on the part of his agent. Coleman, 501 U.S. at
753-54. In Coleman, the alleged ineffectiveness of counsel was on
appeal from an initial-review collateral proceeding, and in that
proceeding the prisoner's claims had been addressed by the state
habeas trial court. Id. at 755. However, the Martinez Court
addressed inadequate assistance of counsel at an initial-review
U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003) (describing standards for certificates
of appealability to issue).
Id. at 1318-19.
procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit has
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649. "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "To meet this standard, a petitioner must
'show that it is more likely than not that no reasonable juror
would have convicted him' of the underlying offense." Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, "'[t]o be credible,'
a claim of actual innocence must be based on reliable evidence not
Murray v. Carrier, 477 U.S. 478 (1986).
presented at trial." Calderson v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such
evidence, in most cases, allegations of actual innocence are
ultimately summarily rejected. Schlup, 513 U.S. at 324.
VII. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
Richter, 131 S.Ct. at 787-88. The Eleventh Circuit has recognized
"the absence of any iron-clad rule requiring a court to tackle one
prong of the Strickland test before the other." Ward v. Hall, 592
F.3d at 1163. Since both prongs of the two-part Strickland test
must be satisfied to show a Sixth Amendment violation, "a court
need not address the performance prong if the petitioner cannot
meet the prejudice prong, and vice-versa." Id. (citing Holladay v.
Strickland: "If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed." Strickland, 466 U.S.
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
Hittson, 759 F.3d at 1248; Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). "In addition to the deference to counsel's performance
deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VIII. Findings of Fact and Conclusions of Law
A. Ground 1(a)
As ground 1(a), Dickson asserts that counsel (Craig J. Martin)
was ineffective because the police report he introduced into
evidence to impeach a witness contained inculpatory hearsay from a
non-testifying witness. See Memorandum at 3-4. Dickson raised the
ineffectiveness claim in his Rule 3.850 motion, as ground nine, in
state court, and the circuit court held an evidentiary hearing9
At the 2009 state court evidentiary hearing, Mr. Martin
testified that the Florida Supreme Court suspended him from the
practice of law in 2004 (after Dickson's 2001 trial), and that his
Florida Bar status was inactive, but he was eligible for
concerning this issue. The court granted Dickson's Rule 3.850
aggravated battery on a law enforcement officer and resisting an
officer with violence (counts one and two). Resp. Ex. S at 53-58.
On the State's appeal, the appellate court reversed the postconviction court's granting of Dickson's motion as to this claim.
Dickson, 89 So.3d 277; Resp. Ex. X. In doing so, the court
summarized the trial testimony, and ultimately denied the postconviction motion with respect to this claim, stating in pertinent
The State appeals the trial court's order
granting appellant's postconviction motion in
part and vacating appellant's convictions for
aggravated battery on a law enforcement
violence. Because we find no prejudice was
established, we reverse for reinstatement of
At trial, the State presented the testimony of
four witnesses. The injured officer testified
that while she was running after appellant
during an attempted stop, appellant turned and
began punching her in the face. The officer
reinstatement. See EH Tr. at 6-7. On cross-examination, he
acknowledged that one of the reasons for the Florida Bar suspension
was he failed to file a timely notice of appeal in Dickson's case.
See id. at 17-18. The Court takes judicial notice of Mr. Martin's
thirty-month suspension. See id. at 7; The Florida Bar v. Martin,
879 So.2d 625 (Fla. 2004); The Florida Bar v. Martin, 869 So.2d 541
See Tr. at 109, lines 3-4 ("I believe that was around the
first time he punched me in the face."), lines 14-16 ("The
defendant was continuously punching me in the face with his fist,
I don't know how many times but I just remember being continuously
reported appellant hit her several times in
the face, got on top of her, continued to hit
her in the face, and then threw her onto the
hood of a car, after which she fell, hitting
her head hard on the concrete. As a result
of this altercation, the officer underwent
several surgeries, had a plate implanted in
headaches.[ ] Photographs of her injuries were
published to the jury.
A 15–year–old eyewitness corroborated the
officer's version of events and further stated
that he saw appellant "beat [the officer] bad
mostly just with his fist." In addition,
appellant admitted to hitting the officer
several times. In contrast, appellant
testified at trial that he did not hit the
officer intentionally. However, appellant
conceded he pushed at the officer to get away,
and they fell to the ground together where
they engaged in a scuffle.
punched."), lines 17-18 ("[H]e kept pounding my face and I remember
trying to radio for help.").
See Tr. at 109-12.
See Tr. at 113-14.
See Tr. at 114-16.
See Tr. at 131; 132 ("Yeah, so you could see he was hitting
her in the head.").
See Tr. at 140, lines 21-24 ("At that point [Dickson] was
in the back seat of the car, he stated he knew the officer was all
right, he saw it on the news, and he just punched her a couple of
times and he was just trying to get away."), 159, lines 1-2 ("He
stated he wasn't trying to hurt her and then he stated he only hit
her two or three times.").
See Tr. at 183, 190 ("I admit to hitting her.").
During trial, appellant's counsel, in an
attempt to refresh the recollection of one of
the State's witnesses, referred to a portion
of the police report in front of the jury
which stated eye-witnesses had seen the
officer and appellant fall down a flight of
stairs during the incident. The State
objected to the partial introduction of the
introduce the report in its entirety. Defense
counsel agreed, and the report was introduced.
In addition to the reference to eye-witness
testimony that the officer and appellant fell
down stairs, there was another portion of
the report which provided the statement of an
eyewitness who did not testify at trial. In
the statement, the non-testifying witness
reported seeing appellant get on top of the
victim, hold her down, and punch her face five
to ten times. The non-testifying witness
further stated that appellant unsuccessfully
attempted to grab the officer's gun and then
picked the officer up and threw her on the
hood of her car.
Following trial, appellant was convicted of
four offenses. He later filed a rule 3.850
motion attacking his convictions and asserting
his counsel was ineffective for introducing
the police report. After holding a limited
evidentiary hearing, the trial court agreed
and vacated the convictions. The State
. . . .
On cross-examination of Officer Willey, defense counsel
introduced the police report as Defendant's Exhibit 1, and the
court admitted it into evidence. See Tr. at 145-46.
See Tr. at 143; Resp. Ex. A at 1-5, Arrest and Booking
See Resp. Ex. A at 2, Witness #3, Bridgette Eads' statement.
See Resp. Ex. A at 3, Mrs. Eads' statement.
See Resp. Ex. A at 3, Mrs. Eads' statement.
Applying the foregoing principles to the
underlying case, to establish prejudice
appellant was required to show that the
introduction of the police report was so
prejudicial that there existed a reasonable
probability the jury would have acquitted
appellant of aggravated battery on a law
enforcement officer and resisting an officer
with violence if the report had not been
Given the overwhelming evidence of guilt
introduced at trial, appellant cannot meet
this burden. Specifically, the injured officer
and an eye-witness testified that appellant
punched the officer in the face at least three
times. The injured officer testified that she
was permanently disfigured as a result of
appellant's actions, and photographs were
admitted of these injuries. Two other officers
testified appellant confessed to hitting the
victim several times. Appellant, at trial,
conceded he pushed and hit at the victim to
get away. Given this overwhelming evidence of
guilt, it could not be said [that] the
information in the police report, which only
served to corroborate the testimony of four
other witnesses, could have reasonably changed
the outcome of the proceeding. Accordingly, we
reverse for reinstatement of appellant's
Dickson, 89 So.3d at 278-80. The court denied Dickson's motion for
rehearing. Resp. Ex. Y.
There is a qualifying state court decision. Thus, the Court
considers this claim in accordance with the deferential standard
for federal court review of state court adjudications. After a
review of the record and the applicable law, the Court concludes
The appellate court identified the two-part Strickland
ineffectiveness test as the controlling law.
that the state court's adjudication of this claim was not contrary
to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Dickson is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, Dickson's claim is without
merit because the record supports the state court's conclusion. As
previously stated, since both prongs of the two-part Strickland
test must be satisfied to show a Sixth Amendment violation, "a
court need not address the performance prong if the petitioner
cannot meet the prejudice prong . . . ." Ward v. Hall, 592 F.3d at
1163 (citing Holladay, 209 F.3d at 1248). On this record, Dickson
has failed to carry his burden of showing prejudice, as the second
prong of the two-part Strickland test. He has not shown that a
reasonable probability exists that the outcome of the case would
have been different if counsel had not introduced the police report
into evidence. Given the overwhelming evidence of guilt (including
that Dickson testified and, in doing so, conceded that he pushed
and hit at the victim to get away), "it [can]not be said [that] the
information in the police report, which only served to corroborate
the testimony of four other witnesses, could have reasonably
changed the outcome of the proceeding." Dickson, 89 So.3d at 279-
80. Dickson's ineffectiveness claim is without merit since he has
Accordingly, Dickson is not entitled to federal habeas relief on
B. Grounds 1(b)-(e)
Dickson asserts that counsel was ineffective because he failed
to: investigate and prepare for trial (ground 1(b)); research the
applicable law and cite State v. Taylor, 740 So.2d 89 (Fla. 1st DCA
1999) (ground 1(c)); move to sever the charges involving the
aggravated battery on the officer (counts one and two) from the
possession of a firearm by a convicted felon and possession of
cocaine charges (ground 1(d)); and request a jury instruction on
the justifiable use of non-deadly force (ground 1(e)). See Petition
at 5; Memorandum at 3-6. Additionally, he asserts that counsel
failed to: renew his motion to suppress physical evidence at trial;
conduct an adequate voir dire of the jury; adequately advise
Dickson about whether he should testify at trial or not; and
properly investigate issues related to the victim's injuries. See
Memorandum at 1. Dickson raised these ineffectiveness claims in his
Rule 3.850 motion in state court, and the circuit court held an
evidentiary hearing concerning the claims, and ultimately denied
the post-conviction motion with respect to these claims. Dickson
did not appeal the trial court's denial as to these claims.
Respondents contend that the claims are procedurally barred
since Dickson failed to appeal the trial court's denial. See
Response at 40 ("Although petitioner raised these issues in his
motion for postconviction relief, petitioner dismissed his crossappeal in which he was appealing the portion of the circuit court's
petitioner did not appeal [these claims] the exhaustion requirement
was not satisfied."). On this record, the Court agrees that the
claims have not been exhausted, and are therefore procedurally
barred since Dickson failed to raise these claims in a procedurally
correct manner. Dickson has not shown either cause excusing the
default or actual prejudice resulting from the bar.23 Moreover, he
has failed to identify any fact warranting the application of the
fundamental miscarriage of justice exception.
Assuming that Dickson's claims are not procedurally barred,
Dickson is not entitled to relief. As previously stated, Dickson
raised these ineffectiveness claims in his Rule 3.850 motion. The
post-conviction court ultimately denied the post-conviction motion
as to these claims, stating in pertinent part:
"To overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim
is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit." Martinez, 132 S.Ct. at
1318 (citation omitted). As discussed in the alternative merits
analysis that follows, these ineffectiveness claims lack any merit.
Therefore, Dickson has not shown that he can satisfy an exception
to the bar.
ineffective assistance of counsel, all of
which are without merit save for Ground IX.
. . . .
The fact that trial counsel did not move to
sever the charge of Possession of a Firearm by
a Convicted Felon is mooted by the fact that
the defendant chose to testify. The jury was
going to learn of the defendant's prior felony
convictions, so severance would be a futile
Severing the other counts was a possible
tactic that Mr. Martin discussed with the
defendant, and they agreed between them to try
explained the defendant's options on this
issue. A decision to try these cases
together, rather than to have multiple trials,
can be a valid tactical decision. Brown v.
State, 604 So.2d 20 (1DCA Fla. 1992). A valid
tactical decision made by a knowing and
willing defendant cannot be the subject of
appellate review, so there was no issue to
The trial court's denial of defendant's
motion to suppress the cocaine, firearms, and
backpack was a correct and legal decision.
There is no reasonable possibility that it
As ground nine, Dickson asserted that counsel failed to
recognize the consequences of his actions when he introduced a
police report into evidence which contradicted Dickson's trial
testimony. See Resp. Ex. R at 33-34; see also supra Section VIII.
A. Ground 1(a).
See EH Tr. at 10-11, 30-31.
See Tr. at 69 ("And
much for your -– the way
memorandum, it was very well
kind of work."), 77-79; see
Mr. Martin, I want to thank you very
you prepared this, especially your
done. I wish more people would do this
also EH Tr. at 29-30.
Preservation of this issue would have been yet
another meaningless gesture.
acceptable standards for effective assistance
of trial counsel. His decision not to ask
every question suggested by the movant herein
was based upon reasonable tactical decisions,
and did not constitute ineffective assistance
Defense counsel consulted frequently and
thoroughly with his client. The movant
admitted at the evidentiary hearing that his
lawyer had explained things these things to
him, including the written stipulation signed
by the defendant and any stipulations made by
defense counsel in his argument to the jury.
(Record of Evid. Hrg., pgs 68-70.)
Defense counsel at trial made repeated
efforts to have the trial court take judicial
notice of Florida Statute § 776.051(2) and to
instruct the jury on justifiable use of
nondeadly force. The trial court repeatedly
denied these efforts. . . . .
The motions for judgment of acquittal
raised in this case were adequate and
The movant admitted in the evidentiary
hearing that it was his decision to testify.
(Record of Evid. Hrg. pg. 67.) Further, the
very experienced trial judge in this case (not
the undersigned) conducted a series of
colloquies with the defendant, in which he
advised the defendant of his right to remain
silent, the Court's instruction to the jury
relative to that right if the defendant chose
not to testify, and the ramifications of his
See EH Tr. at 42-47.
See EH Tr. at 31-33.
See Tr. at 169, 197.
decision to testify. The Court gave the
defendant multiple opportunities to confer
with counsel after these dialogues with the
Court, and indeed took a recess for the
defendant to consider his choices, prior to
the defendant taking the stand. Even if trial
counsel had never discussed the defendant's
right to remain silent (which the record
herein conclusively shows is not the case),
the defendant was fully advised of his Fifth
Amendment privilege when he made the decision
to testify, and admitted so in the evidentiary
hearing. (Record of Evid. Hrg. pg. 67.)
Resp. Ex. S at 53, 56-58. Dickson did not appeal the trial court's
Given the record in the instant action, Dickson would not be
entitled to relief because the state court's adjudication of these
claims is entitled to deference under AEDPA. After a review of the
record and the applicable law, the Court concludes that the state
court's adjudication of these claims was not contrary to clearly
application of clearly established federal law. Nor was the state
court's adjudication based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. Accordingly, Dickson is not entitled to relief on the
basis of these claims.
Even assuming that the state court's adjudication of these
claims is not entitled to deference, and that the claims present
sufficiently exhausted issues of federal constitutional dimension,
See Tr. at 170-175; see also EH Tr. at 65-71.
Dickson's claims are, nevertheless, without merit. The record fully
supports the trial court's conclusions. Even assuming arguendo
deficient performance by defense counsel, Dickson has not shown
prejudice. As previously stated, the State's evidence against
Dickson was overwhelming, and Dickson admitted that he pushed and
hit at the officer to get away from her. Therefore, Dickson's
ineffectiveness claims are without merit since he has shown neither
deficient performance nor any resulting prejudice. Dickson is not
entitled to habeas relief on the basis of these ineffectiveness
grounds. See Response at 42.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Dickson seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Dickson "must demonstrate that reasonable
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
If Dickson appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
Such termination shall serve as a denial of the motion.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 5th day of
Kurt Aaron Dickson
Ass't Attorney General (Pate)
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