Dicks v. Secretary, Department of Corrections et al
Filing
24
ORDER denying 3 the amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 3/21/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM C. DICKS,
Petitioner,
vs.
Case No. 3:16-cv-581-J-39PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner William C. Dicks, challenges a 2010 Columbia County
conviction for burglary of a dwelling.
In his Amended Petition
(Doc. 3), he raises five claims for habeas relief.
Respondents
filed an Answer to Petition for Writ of Habeas Corpus (Response)
(Doc. 21) and a Notice of Filing and Serving Exhibits (Doc. 22).1
Petitioner filed a Response to Respondents' Answer to Petition for
Writ of habeas Corpus (Doc. 23).
II.
See Order (Doc. 10).
CLAIMS OF PETITION
The Amended Petition presents five claims for relief:
(1)
ineffective assistance of counsel for failure to interview, depose,
1
The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the particular document will be
referenced. The Court will reference the page numbers assigned by
the electronic docketing system where applicable.
and present two witnesses (Samantha McGuigan and Brandon Dicks) for
the defense at trial; (2) ineffective assistance of counsel for
misadvising Petitioner concerning the consequences of Petitioner's
right to testify; (3) ineffective assistance of counsel based on
counsel's concession of guilt throughout the trial; (4) ineffective
assistance of counsel for failure to object to prosecutorial
misconduct during closing argument regarding the prosecutor's
intentional misstatement of the law defining dwelling; and (5)
ineffective assistance of counsel for failure to ensure Petitioner
was aware of the possible enhancements of Prison Release Reoffender
(PRR) and Habitual Felony Offender (HFO) prior to Petitioner's
refusal of the plea offer.
The Court will address these grounds, see Long v. United
States, 626 F.3d 1167, 1169 (11th Cir. 2010) ("The district court
must resolve all claims for relief raised on collateral review,
regardless of whether relief is granted or denied.") (citing Clisby
v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) and Rhode v. United
States, 583 F.3d 1289, 1291 (11th Cir. 2009)), but no evidentiary
proceedings are required in this Court.
It is Petitioner's burden to establish the need for a federal
evidentiary hearing.
Chavez v. Sec'y, Fla. Dep't of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011), cert. denied, 565 U.S. 1120
(2012).
A district court is not required to hold an evidentiary
hearing if the record refutes the asserted factual allegations or
- 2 -
otherwise precludes habeas relief.2 Schriro v. Landrigan, 550 U.S.
465, 474 (2007).
In this case, the pertinent facts are fully
developed in the record before the Court.
As a result, this Court
can "adequately assess [Petitioner's] claim[s] without further
factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), cert. denied, 541 U.S. 1034 (2004), and no further
evidentiary proceedings are required in this Court.
III.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28
U.S.C.
§
2254;
Ledford
v.
Warden,
Ga.
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
As such,
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
court errors.
Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
2
It is important to note that Petitioner received a post
conviction evidentiary hearing in the trial court on several claims
of ineffective assistance of counsel. Petitioner retained counsel
for the post conviction proceeding. Ex. T at 74. The record shows
retained counsel, Travis Koon, represented Petitioner in the
evidentiary proceeding which took place on September 3, 2014. Id.
at 80, Evidentiary Hearing.
- 3 -
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" 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; or ... 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). "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." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
Cir. 2014).
As for the "contrary to" clause, "a
federal habeas court may grant the writ 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." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
- 4 -
omitted). To overcome this substantial 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, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
findings,
unless
the
convincing evidence.
presumption
is
rebutted
28 U.S.C. § 2254(e)(1).
with
clear
and
The standard of
proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
factual finding.
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts."
Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
- 5 -
Cir. 2016).3
Once identified, the Court reviews the state court's
decision, "not necessarily its rationale."
Pittman, 871 F.3d at
1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
Regardless of whether the last state court provided a reasoned
opinion, "it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]
habeas
court
must
determine
what
arguments
Id. at 98.
or
theories
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
jurists
3
could
disagree
that
those
arguments
or
theories
are
As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), cert. denied, 138
S.Ct. 925 (2018), in order to avoid any complications if the United
States Supreme Court decides to overturn Eleventh Circuit precedent
as pronounced in Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct. 1203
(2017), this Court, will employ "the more state-trial-court focused
approach in applying § 2254(d)[,]" where applicable.
- 6 -
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of Corr., 876
F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach the level
of an unreasonable application of federal law, the ruling must be
objectively unreasonable, not merely wrong or even clear error),
petition for cert. docketed by (U.S. Mar. 9, 2018) (No. 17-8046).
Indeed, in order to obtain habeas relief, "a state prisoner must
show
that
the
state
court's
ruling
on
the
claim
being
presented . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at
103.
IV.
PROCEDURAL HISTORY
The Court will provide a brief procedural history. Petitioner
and his brother, Brandon Andrew Dicks, were charged by information
with
burglary
mischief.
of
a
dwelling,
Ex. A at 8-9.
grand
theft
III,
and
criminal
On November 22, 2010, the state filed a
Notice of State's Intention to Seek Sentencing as a Habitual Felony
Offender Pursuant to Florida Statue [sic] 775.084.4
4
Id. at 67.
The state gave Notice of Defendant's Qualification as Prison
Release Reoffender and Required Sentencing Term Pursuant to F.S..
[sic] 775.082, although the certificate of service is not signed.
Ex. A at 68.
The trial court considered the timing of the
provision of the notice at the evidentiary hearing.
- 7 -
The state also filed a Notice of Intent to Offer Evidence of Other
Crimes, Wrongs or Acts, commonly referred to as Williams[v. State,
110 So.2d 654 (Fla. 1959)] Rule evidence.
By amended information, Petitioner was charged with burglary
of a dwelling.
Ex. A at 102.
conducted a jury trial.
guilty as charged.
On December 9, 2010, the trial court
Ex. D.
Ex. A at 128; Ex. D at 151.
denied the motion for new trial.
On
January
proceeding.
7,
The jury returned a verdict of
2011,
the
The trial court
Ex. C at 4.
trial
court
Ex. C, Sentencing Proceeding.
held
a
sentencing
The court sentenced
Petitioner as a PRR offender to a mandatory minimum term of fifteen
years in imprisonment.
Ex. B at 218-20.
judgment and sentence on January 7, 2011.
Petitioner appealed his conviction.
The court entered
Id. at 216-20.
Id. at 279.
Through
counsel, Petitioner filed an appeal brief. Ex. E. The state filed
an answer brief.
Ex. F.
Petitioner replied.
Ex. G.
On December
20, 2011, the First District Court of Appeal (1st DCA) affirmed
with a written decision.
2012.
Ex. H.
The mandate issued on January 5,
Ex. J.
On April 15, 2012, pursuant to the mailbox rule, Petitioner
filed a Motion for Leave to Exceed Page Limit on Postconviction
Relief, Ex. Q, and a Motion for Postconviction Relief.
Ex. R.
The
trial court denied the motion to exceed the page limit and notified
Petitioner he could re-file a motion in compliance with the rules.
Ex. S.
- 8 -
Petitioner filed a Motion for Postconviction Relief (Rule
3.850 motion), pursuant to the mailbox rule, on June 25, 2012. Ex.
T.
The Court set an evidentiary hearing on grounds 1B, 2 and 6.
Id. at 68-69.
Appearance
Travis Koon, retained counsel, entered a Notice of
for
Petitioner.
Id.
at
74-75.
The
trial
conducted an evidentiary hearing on September 3, 2014.
court
Id. at 80-
144.
The trial court denied the Rule 3.850 Motion in its Order
Denying
Motion
for
Petitioner appealed.
Ex. DD.
Postconviction
Ex. CC.
Petitioner replied.
2016, per curiam affirmed.
22, 2016.
Relief.
Id.
at
145-200.
The state filed an answer brief.
Ex. EE.
The 1st DCA, on February 24,
Ex. FF.
The mandate issued on March
Ex. GG.
V.
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a Sixth Amendment claim of ineffective
assistance of trial counsel, a petitioner must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668,
688 (1984), requiring that he show both deficient performance
(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).
The Eleventh Circuit, in
Reaves v. Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1148 (11th
Cir. 2017) (quoting Strickland, 466 U.S. at 687), instructed:
a
counsel's performance is deficient only if counsel's errors are "so
- 9 -
serious
that
counsel
was
not
functioning
as
the
'counsel'
guaranteed the defendant by the Sixth Amendment." And importantly,
with regard to the establishment of prejudice requirement, the
Eleventh Circuit related that the reasonable probability of a
different result must be "a probability sufficient to undermine
confidence in the outcome.
Id. (quoting Strickland, 466 U.S. at
694).
It is important to note that both parts of the Strickland test
must be satisfied.
Bester v. Warden, Att'y Gen. of the State of
Ala., 836 F.3d 1331, 1337 (11th Cir. 2016) (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)), cert. denied, 137
S.C. 819 (2017). However, a court need only address one prong, and
if it is found unsatisfied, the court need not address the other.
Id.
VI.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground 1A
In ground one, Petitioner raises a claim of ineffective
assistance of trial counsel, complaining that counsel failed to
interview, depose, and present two witnesses (Samantha McGuigan and
Brandon Dicks) for the defense at trial.
As
noted
by
Respondents,
Petitioner
Amended Petition at 5.
raised
this
claim
of
ineffective assistance of counsel in ground one of his Rule 3.850
motion, and this claim is exhausted.
- 10 -
Response at 26-27.
In ground 1A, Petitioner claims his girlfriend, Samantha
McGuigan, would have provided alibi testimony. Amended Petition at
5.
This claim has no merit.
Petitioner asserts he was with Ms. McGuigan on March 31, 2010,
and she could have provided alibi testimony that Petitioner was not
on the victim's property cutting or pulling copper wiring on that
date.
As
recognized
by
the
trial
court,
this
assertion
is
unavailing because the offense did not occur until April 1, 2010,
and Petitioner was caught red-handed, underneath the mobile home on
April 1, 2010.
Notably, the trial court, in denying the Rule 3.850 motion,
referenced the applicable two-pronged Strickland standard as a
preface to addressing Petitioner's claims of ineffective assistance
of counsel.
Ex. T at 146.
The court explained its basis for
denying this claim:
However, the Defendant was not on trial
for conduct that allegedly occurred on March
31 for which Ms. McGuigan's potential "alibi"
testimony would have been beneficial. If Ms.
McGuigan could have provided alibi testimony
for the actual time of the offense - on April
1, when the Defendant was discovered under the
mobile home at 1:52 p.m. (See attached Jury
Trial transcript at 46, testimony of Deputy
Rhodes) - her testimony would have potentially
exonerated the Defendant.
However, the
Defendant does not allege that Ms. McGuigan
could provide such testimony.
Instead, her
testimony
concerning
the
Defendant's
whereabouts on March 31, the day before the
incident, are immaterial in this case.
Moreover, the Defendant, in the instant
motion, admits that he was present at the
scene on April 1, thereby defeating any
- 11 -
potential alibi defense.
Therefore, the
Defendant cannot show how trial counsel's
failure to call Ms. McGuigan was deficient or
how the Defendant was prejudiced by this
conduct. Accordingly, Ground One-A fails and
must be denied.
Ex. T at 147-48.
"Which witnesses, if any, to call . . . is the epitome of a
strategic decision, and it is one that [a court] will seldom, if
ever, second guess."
Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995), cert. denied, 516 U.S. 856 (1995).
In order to
demonstrate ineffectiveness, the decision must be so patently
unreasonable that no competent attorney would have chosen that
path.
Dingle v. Sec'y for the Dep't of Corr. 480 F.3d 1092, 1099
(11th Cir. 2007) (quotation omitted), cert. denied, 552 U.S. 990
(2007).
See Rizo v. United States, No. 03-20010-CIV, 2014 WL
7152755, at *5 (S.D. Fla. Dec. 15, 2014) (finding counsel's
decision
not
to
call
alibi
witnesses
was
not
unreasonable,
particularly where the alibis were not airtight, avoiding leaving
the jury with the conundrum as to whether to focus more on the
proof of the alibi than on whether the state has met its burden of
proof), aff'd, 662 F. App'x 901 (11th Cir. 2016).
Upon due consideration, Petitioner has not shown that Mr.
Siegmeister's decision not to present an alibi defense was an
unreasonable strategic move that no competent counsel would have
taken.
In this instance, Petitioner's counsel's decision not to
call Ms. McGuigan as a witness was not unreasonable or otherwise
- 12 -
deficient.
Furthermore, Petitioner failed to establish prejudice
by counsel's failure to call Ms. McGuigan.
Here, the trial court found Petitioner failed to satisfy the
performance and prejudice prongs of Strickland and denied post
conviction relief.
court.
Ex. FF.
The 1st DCA affirmed the decision of the trial
The 1st DCA did not give reasons for its summary
affirmance; however, if there was any reasonable basis for the
court to deny relief, the denial must be given deference by this
Court.
Cullen v. Pinholster, 563 U.S. 170, 187-88 (2011).
There is a qualifying state court decision and AEDPA deference
is warranted.
decision
that
The adjudication of the state court resulted in a
involved
a
reasonable
application
of
clearly
established federal law, as determined by the United States Supreme
Court.
Therefore, Petitioner is not entitled to relief on ground
1A because the state court's decision was not contrary to clearly
established federal law, Strickland and its progeny, did not
involve an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the
facts.
B.
Ground 1B
Petitioner claims his counsel was ineffective for failure to
interview, depose, and present Brandon Dicks for the defense at
trial.
Amended Petition at 5.
an evidentiary hearing.
The trial court set ground 1B for
Ex. T at 68-69.
the evidentiary hearing.
Id. at 84.
- 13 -
Petitioner testified at
He said Mr. Dicks was
subpoenaed for trial and sworn in by the court.
Id. at 86.
Prior
to trial, Petitioner discussed with his counsel calling Mr. Dicks.
Id.
Petitioner attested he did not know if his counsel had
interviewed Mr. Dicks. Id. at 86-87. When asked about the content
of Mr. Dicks' testimony if called at trial, Petitioner responded:
A
That he [Brandon Dicks] had been there
the day before and took –- cut copper wire and
was unable to pull it. You know, that's why I
had went back with him to pull copper wire out
from underneath the house.
Q
And did you have knowledge that a crime
was being committed at that time?
A
Id. at 87.
Yes, sir.
Consistent with his testimony on direct, on cross
examination, Petitioner said Brandon Dicks would have testified
that he was the individual present at the scene the day before the
arrest.
Id. at 94.
Petitioner's trial counsel, Mr. Siegmeister, testified he was
not asked to depose Mr. Dicks, the Petitioner's brother, prior to
trial.
Id. at 109-10.
In addition, Mr. Siegmeister said he was
not asked to call Mr. Dicks as a witness at trial.
Id. at 110.
Mr. Siegmeister said the matter of calling Mr. Dicks was discussed
with Petitioner.
Id.
Mr. Siegmeister explained his strategic decision not to call
Mr. Dicks:
"[h]e [Brandon Dicks] pled on December 3rd and gave a
proffer that was, I would say going to help convict my client, Mr.
[William] Dicks.
And in light of the State's presentation, it was
- 14 -
a tactical decision not to call him [Brandon Dicks]."
Id.
Mr.
Siegmeister explained that he was well aware of what Brandon Dicks
would have testified to if called at trial, as Mr. Siegmeister was
present at Mr. Dicks' proffer and had the proffer video.
Id.
Not
only did Mr. Siegmeister listen to the proffer, he spoke with Mr.
Dicks and he spoke with "Ms. Mears" the day Mr. Dicks pled.
Id.
Mr. Siegmeister also spoke with "Mr. Durrett [the prosecutor] about
what [Mr. Dicks'] testimony would be[.]" Id.
Concerning the events at trial, Mr. Siegmeister testified that
he spoke to Brandon Dicks multiple times on the day of Petitioner's
trial.
Id.
As a state's witness, Mr. Dicks was present, under the
state's subpoena.
Id.
Mr. Siegmeister decided not to call Mr.
Dicks for any purpose:
Well, I mean I think the record somewhat
speaks for itself. But my client was found
underneath the alleged victim's house with
tools that allowed him to take copper wiring.
The State had Williams Rule evidence that he
was involved with other thefts in another
county and his brother put him at the scene
and actually established the intent element of
the theft.
My whole defense was he was a
trespasser, not a burglar.
And his brother
would have said, even though it was consistent
with what Mr. Dicks just testified to, he
would have said, yes, I was there earlier and
I brought my brother back to help me steel
[sic] copper. And that would have pretty much
been a plea of guilty for my client. And so
calling him would have been ineffective, he
would have established all the elements of the
burglary. I just, I mean, I figured the State
would call him and I was prepared to cross him
the best I could and shift as much blame as I
could to his brother. But it didn't change
the fact that my client was found literally by
- 15 -
the victim and the police underneath the
trailer with tools in his possession and wire
all spooled up.
Id. at 111-12.
Finally, counsel explained that due to the state
not calling Mr. Dicks or presenting Williams Rule evidence, defense
counsel decided not to "open that door."
Id. at 112.
On cross examination, Mr. Siegmeister testified that, not only
is he very experienced defense counsel, he had been an assistant
state attorney and tried a hundred jury trials as a prosecutor,
legal counsel for the sheriff's office, and an adjunct professor of
law at St. Leo's college.
Id. at 118.
As far as criminal defense
work, he testified he had his own defense practice and defended
well over a thousand clients, including representing defendants in
at least 100 jury trials.
Id.
Mr. Siegmeister testified he is
"currently the elected state attorney for the third circuit."
Id.
As far as counsel's decision not to call Brandon Dicks, Mr.
Siegmeister, after investigation, concluded Mr. Dicks "was not
going to negate William Dicks' guilt." Id. at 120. Basically, Mr.
Dicks was going to testify that he told Petitioner about the
trailer, and they could go steal the cooper.
to probation.
Id.
Id.
Mr. Dicks pled
Mr. Siegmeister concluded that nothing Mr.
Dicks would have testified to would have negated an element of the
state's case against Petitioner.
Id. at 120-21.
At trial, Mr. Siegmeister argued Petitioner was a trespasser,
not a burglar.
Id. at 122.
Mr. Siegmeister recognized that if he
blamed Brandon Dicks, the prosecutor would have called Mr. Dicks in
- 16 -
rebuttal and would have put Petitioner at the scene with intent to
steal.
Id. at 122-23.
At the evidentiary hearing, the assistant state attorney asked
Mr. Siegmeister about his decision not to call Mr. Dicks:
Q
Okay. So it definitely would have
weakened your defense?
A
Yes.
Q
Absolutely if you called him.
A
Yes.
Q
Is it fair to say that this was a
strategic decision?
A
Oh,
definitely.
most
definitely.
Most
Q
That he would have helped a little
bit, but hurt even more?
A
He would have hurt very much more.
Id. at 123.
In this habeas proceeding, it is certainly significant that
the
records
counsel:
shows
"[w]hen
Petitioner
courts
are
had
the
examining
benefit
the
of
experienced
performance
of
an
experienced trial counsel, the presumption that his conduct was
reasonable is even stronger."
Cummings v. Sec'y for Dep't of
Corr., 588 F.3d 1331, 1364 (11th Cir. 2009) (quoting Chandler v.
United States, 218 F.3d 1305, 1316 (11th Cir. 2000)), cert. denied,
562 U.S. 872 (2010).
The record demonstrates that Mr. Siegmeister had a wealth of
experience representing criminal defendants, pre-trial and at
- 17 -
trial.
Also very important to this case, Mr. Siegmeister was very
familiar
with
Petitioner's
brother's
case.
Mr.
Siegmeister
attended the plea proffer and spoke with Mr. Dicks and other
individuals with relevant information.
After conducting an evidentiary hearing, the trial court
addressed Petitioner's claim of ineffective assistance of counsel
and found:
Based upon his motion and evidentiary
hearing testimony, the Defendant mistakenly
believes that the Burglary of a Dwelling
occurred on March 31, 2010, when his brother
was alone at the scene, and therefore, the
Defendant would not have been convicted of
this offense if his brother had been called to
"clarify" this point.
However, this is not
the case.
The Defendant was charged with
conduct that occurred on April 1, 2010, when
he was found under the mobile home.
Additionally, the Defendant refuted his
allegation in his motion that Brandon Dicks's
testimony would have proven that the Defendant
was unaware (lacked the "criminal intent")
that the copper wire being taken did not
belong to his brother Brandon Dicks by his own
admission at the evidentiary hearing . . . .
This admission alone defeats the Defendant's
allegation in Ground One-B.
Ex. T at 148.
The trial court noted that, even assuming Brandon Dicks would
have testified that he alone was at the mobile home the day before
the arrest, March 31, 2010, this fact would not absolve Petitioner
of the burglary which occurred on April 1, 2010.
Id. at 148-49.
Petitioner had no alibi for April 1, 2010, and he was caught,
underneath the mobile home, on April 1, 2010.
- 18 -
After
taking
into
consideration
the
content
of
Mr.
Siegmeister's testimony at the evidentiary hearing, the trial court
concluded that counsel "made a tactical decision to not call
Brandon Dicks" because his testimony would have harmed Petitioner's
case.
Id. at 149.
The trial court reasoned that defense counsel
made his decision after considering alternative courses of action,
but rejected them. Id. The trial court decided counsel's decision
to not call Brandon Dicks was "sound trial strategy."
Id. at 150.
As such, the court found counsel's performance was not deficient
for failing to call Mr. Dicks.
Id.
Again, the decision to call a witness is a strategic decision,
Waters, 46 F.3d at 1512, and the decision will not be considered to
be ineffective unless it is so patently unreasonable that no
competent attorney would have made that decision. Dingle, 480 F.3d
at 1099. Here, Mr. Siegmeister chose to not call Brandon Dicks for
any purpose at trial.
Mr. Dicks, a co-defendant, was a state's
witness, under subpoena by the prosecutor.
Mr. Dicks had pled out
to the offense and made a proffer which was not favorable to
Petitioner. Defense counsel was fully aware of the content of this
proffer, and had obtained additional information by speaking to Mr.
Dicks and the prosecutor on the day of the proffer.
In this instance, Petitioner has not demonstrated that Mr.
Siegmeister's decision not to call Mr. Dicks was an unreasonable
strategic
move
that
no
competent
counsel
would
have
taken.
Counsel's decision was not unreasonable or otherwise deficient, and
- 19 -
as such, Petitioner has failed to establish the first prong of
Strickland.
Therefore, he is not entitled to habeas relief.
The trial court employed the Strickland standard and found no
deficient performance.
Thus, the court found the first prong of
the Strickland standard had not been met. The record shows the 1st
DCA affirmed the decision of the trial court in denying this
ground,
and
this
Court
will
presume
that
the
state
court
adjudicated the claim on its merits, as there is an absence of any
indication or state-law procedural principles to the contrary.
Since the last adjudication on the merits is unaccompanied by an
explanation, it is Petitioner's burden to show there was no
reasonable basis for the state court to deny relief. He has failed
in this regard.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
The 1st
DCA's decision is not inconsistent with Supreme Court precedent,
including Stickland and its progeny.
Thus, the state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
Accordingly, ground 1B is due to be
denied.
C.
Ground Two
In ground two, Petitioner raises a claim of ineffective
assistance of counsel for misadvising Petitioner concerning the
consequences of Petitioner's right to testify. Amended Petition at
- 20 -
9.
In this ground, Petitioner claims his attorney advised him he
would be defenseless if he took the stand, his criminal record
would be exposed, the state would use Petitioner's record against
him, and the state would be allowed to reveal the exact nature of
Petitioner's prior convictions.
Id.
The trial court conducted an evidentiary hearing on this
ground.
Petitioner testified he had approximately seven prior
felonies at the time of his trial.
Ex. T at 95.
He said that his
attorney told him the state would be able to bring up his past
history and use it against Petitioner to make him look bad.
96.
Id. at
Petitioner testified that he was aware that he could have
taken the stand even if his counsel advised him it was not a good
idea.
Id. at 97.
Petitioner admitted that when the trial court
asked him if he wanted to testify, he said he did not want to
testify.
Id. at 97-98.
With regard to his advice to Petitioner, Mr. Siegmeister
testified he based his advice not just on the fact that Petitioner
was a seven-time convicted felon, but more importantly, on the fact
that the state had filed a Williams Rule notice.
Id. at 112.
The
notice concerned a companion burglary involving Petitioner and his
girlfriend, and the sale of the same type of materials to one of
the state's witnesses.
Id.
Defense counsel believed it to be
"absolute malpractice" to put Petitioner on the stand and open
himself up to cross examination about this other burglary.
Id.
Mr. Siegmeister thought that the jury would not be receptive to the
- 21 -
defense that this was trespass, not burglary, if it heard about the
Williams Rule evidence as well as Petitioner being a seven-time
convicted felon.
Id. at 113.
Mr. Siegmeister testified that he never told Petitioner he
could not testify.
Id.
Defense counsel noted that Petitioner's
testimony would either have been perjurious or "it would have
convicted him."5
Id. at 114.
Defense counsel advised Petitioner
he had the right to testify, and the trial judge did a colloquy
concerning Petitioner's right to testify.
Id.
Mr. Siegmeister reiterated that he told Petitioner he had an
absolute right to testify, and the trial judge reconfirmed this
advice at trial.
Id. at 124.
Mr. Siegmeister described his legal
advice to Petitioner:
I will admit I told him I strongly
suggested he not testify since the State
didn't put Williams Rule evidence on.
It
would subject –- he was put on notice there
was no real legal argument to keep out the
pending burglary in Suwannee County because we
had been put on notice and reached a
stipulation to the limited use of it. And if
he testified, hey, I never did this before, or
minimized it in any way, Mr. Durrett [the
prosecutor], who is a very good trial
attorney, was going to, pardon my expression,
eat his lunch.
Id.
5
Petitioner admitted at the evidentiary hearing that after
his brother told him about the mobile home, Petitioner went to the
scene knowing they were going to steal copper. Ex. T at 87.
- 22 -
Thus, two significant factors persuaded defense counsel to
advise against Petitioner testifying:
the seven prior convictions
and the Williams Rule evidence, which had not been presented by the
state in its case.
Id.
Counsel said he never would have told
Petitioner the nature of the priors would come in if he admitted
the number of priors.
Id. at 125.
Counsel's paramount concern,
and what he feared the most about Petitioner possibly testifying,
was the Williams Rule evidence of which the state had provided
notice.
Id.
The trial record demonstrates that, after the state rested,
Mr. Siegmeister asked the court to address Petitioner's right to
testify, noting that there had been an off-the-record discussion
between Mr. Siegmeister and his client.
Ex. D at 103.
following colloquy took place:
THE COURT: Certainly.
Mr. Dicks, what
you say to your attorney between the two of
you is private between you, but one thing that
comes up that judges inquire about is did your
attorney speak with you about your right to
testify. You have a right to testify, but you
also have a right not to testify. Did he talk
with you about that?
THE DEFENDANT: Yes, sir
THE COURT: And have you made a decision
with him?
THE DEFENDANT: Yes, sir.
THE
testify?
COURT:
And
you
decided
THE DEFENDANT: Yes, sir.
- 23 -
not
to
The
Id.
The trial court, in denying this claim of ineffectiveness,
pointed out that Petitioner admitted knowing at the time of trial
that he could have taken the stand, even if his counsel advised
otherwise.
Ex. T at 151.
The court referenced counsel's two-fold
reasons for recommending Petitioner not testify.
Id. at 152.
With respect to the question as to whether Petitioner was
aware
of
his
absolute
right
to
testify,
the
court
Petitioner's counsel more credible in this regard.
found
Id. at 153.
"As such, this Court believes and finds that the Defendant was
adequately advised of his right to testify and the consequences
associated with exercising that right by trial counsel and that the
Defendant understood that he could testify despite his trial
counsel's advice and recommendation to the contrary."
Id.
Again, the post conviction court applied the two-pronged
Strickland standard, finding Petitioner failed to satisfy the first
prong of the two-part test.
Of importance, the 1st DCA affirmed
the decision of the circuit court in denying this ground, and this
Court will presume that the state court adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary. Since the last adjudication
on
the
merits
is
unaccompanied
by
an
explanation,
it
is
Petitioner's burden to show there was no reasonable basis for the
state court to deny relief.
He has failed in this regard.
- 24 -
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
The 1st
DCA's decision is not inconsistent with Supreme Court precedent,
including Stickland and its progeny.
Thus, the state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
Accordingly, ground two is due to be
denied.
D.
Ground Three
In ground three, Petitioner raises a claim of ineffective
assistance of trial counsel based on counsel's concession of
Petitioner's guilt throughout the trial.
Amended Petition at 12.
With respect to the question of exhaustion, Petitioner raised this
claim as ground three of the Rule 3.850 motion.
Ex. T at 13-21.
The trial court, without conducting an evidentiary hearing on this
particular claim of ineffective assistance of counsel, denied post
conviction relief.
The 1st DCA affirmed without opinion.
Admittedly, trial counsel told the jury that Petitioner may be
guilty of trespass or stealing, but counsel adamantly denied that
Petitioner was a burglar or was guilty of burglary.
Petitioner,
believing the terms "steal" and "burglary" are synonymous, found
fault with counsel's trial tactics of conceding Petitioner's guilt
to trespass, but the trial court found Petitioner's contention
flawed.
Ex. T at 153.
- 25 -
The trial court explained its reasoning.
First, defense
counsel was faced with certain irrefutable facts: Petitioner was
found at the scene of the crime, under the mobile home, near copper
wiring.
Id. at 154.
concede
Petitioner
Thus, counsel had no real choice but to
was
trespassing,
because
he
was
caught
underneath the mobile home. Petitioner could not believably refute
these facts, and counsel was left having to explain or justify
Petitioner's presence under the mobile home. The court found trial
counsel's concession "was not a leap or an unfounded concession" as
it was in accordance with Petitioner's proposed testimony, that he
was found under the mobile home and was at the scene rolling up
copper wiring.
Id.
In closing argument, trial counsel urged the jury to find that
Petitioner
was
guilty
of
misdemeanor
trespassing,
an
option
available for the jury to select on the verdict form, or theft,
which was not an available verdict to select, meaning the jury
would be left with a not guilty verdict as a viable option.
at 123.
Ex. D
The trial court found this to be sound strategy on defense
counsel's part, stating:
The Defendant was charged with a second-degree
felony punishable by fifteen years in prison.
The Defendant's trail [sic] counsel provided
the jury with a feasible and favorable outcome
- find the Defendant guilty of the lesser
included offense of trespass, a misdemeanor of
the second degree (§ 810.08); or find that the
Defendant had committed a theft (stealing
copper wire), which, as it was not charged in
the amended information and was not a lesser
included offense, would have resulted in a not
- 26 -
guilty verdict. The Defendant's trial counsel
plainly explained how these were viable
options available to the jury, and it is clear
that either would have been preferable to a
guilty-as-charged verdict.
Ex. T at 154.
The trial court further explained that any concession to
trespass did not support or establish burglary and any reference to
theft was in accordance with the facts and testimony.
55.
Id. at 154-
The court distinguished the attorney's concession to trespass
and theft from admitting participation in the burglary; the defense
theory maintained denial of entry into the dwelling or crossing the
threshold of the dwelling, facts which would support a finding of
guilt to the burglary charge.
Id. at 155.
In closing, defense counsel argued Petitioner was outside of
the mobile home rolling up wire, and when the police pulled up,
Petitioner crawled under the house. Ex. D at 125. Mr. Siegmeister
suggested that this amounted to stealing, as Petitioner had been
rolling up the wire, or merely trespassing, but not burglary.
The
trial
performance,
court,
found
after
Petitioner
reviewing
failed
to
defense
satisfy
counsel's
either
performance prong or the prejudice prong of Strickland.
157.
Id.
the
Ex. T at
Indeed, the court found that trial counsel's defense theory,
not to deny all criminal activity, was reasonable in light of the
facts and circumstances presented, and it would have been "an
illogical defense" to contend otherwise.
- 27 -
Id.
As noted previously, the court referenced the applicable twopronged Strickland standard as a preface to addressing Petitioner's
claims of ineffective assistance of counsel, and the court employed
the two-pronged test when addressing this particular claim of
ineffective assistance of trial counsel.
The record demonstrates
that trial counsel's actions were within the broad range of
reasonably competent counsel under prevailing professional norms.
There is no reasonable probability that, if counsel has acted as
Petitioner suggests, the result of the proceeding would have been
different.
The 1st DCA affirmed the trial court's decision.
There is a
reasonable basis for the state court to deny relief, and this
decision must be given deference.
The 1st DCA's decision is not
inconsistent with Supreme Court precedent, and the state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
Thus, AEDPA deference is due, and
Petitioner is not entitled to relief on ground three.
E.
Ground Four
In ground four, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to prosecutorial
misconduct during closing argument regarding the prosecutor's
intentional misstatement of the law defining dwelling.
Petition at 14.
Amended
Petitioner exhausted this ground by raising it in
- 28 -
ground four of his Rule 3.850 motion and appealing the denial of
this claim.
It is important to note that on direct appeal, Petitioner,
through counsel, claimed "the state thoroughly misstated the law of
burglary during closing arguments, removing crucial questions from
the jury's consideration and creating fundamental error." Ex. E at
i.
Addressing this claim, the 1st DCA opined, "[t]here is no
dispute that the prosecutor's definition of a dwelling designed to
include a trespass on unenclosed property surrounding the dwelling
expressed an erroneous interpretation of the law."
Ex. H at 5.
However, the 1st DCA did not find fundamental error because
Petitioner was not discovered outside in the unenclosed yard.
at 7-8.
Id.
Instead, Petitioner was found underneath the mobile home,
removing the copper wiring.
Id. at 7.
The 1st DCA did not find
convincing the argument that the jury's verdict was contrary to the
law of burglary, allowing that removal of copper wiring underneath
a home "penetrated the invisible, vertical plane into the airspace
of the house by crawling under the house to gain access to the
[wiring,]" thereby entering the house.
Id. at 8 (quoting Tindall
v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009).
In denying the claim of ineffective assistance of counsel
raised in the Rule 3.850 motion, the trial court found deficient
performance
by
trial
counsel
for
failing
to
object
to
the
prosecutor's misstatement of law, but not prejudice. Ex. T at 158.
The trial court correctly recognized that a petitioner must also
- 29 -
satisfy the prejudice prong of Strickland in order to obtain post
conviction relief.
Id.
Finding any potential prejudice cured by
the actions of the court and defense counsel, the court held
Petitioner failed in this regard.
Id.
The records shows that the trial court properly instructed the
jury as to the definition of dwelling:
Dwelling means a building of any kind,
whether such a building is temporary or
permanent, mobile or immobile, which has a
roof over it and is designed to be occupied by
people lodging therein at night, together with
the enclosed space of ground and outbuildings
immediately surrounding it. For the purposes
of burglary, a dwelling includes an attached
porch or attached garage.
Ex. D at 135.
Thus, on post conviction review, the trial court concluded
that as the jury had been properly instructed, there was no
reasonable probability that but for counsel's error in failing to
object, the result of the proceeding would have been different.
Ex. T at 158.
The court also noted, in addition to the court's
instructions, the jury also heard defense counsel's argument, which
sought to correct the prosecutor's misstatements during closing
argument.
Id.
The trial record shows that defense counsel, during closing
argument, said he had a legitimate disagreement with the state's
position on the case because when dwelling is defined by the court,
the jury will hear that, other than the inside of the building, a
dwelling may include the enclosed yard, but in this case, it was
- 30 -
not an enclosed yard.
Ex. D at 120.
To support his argument,
defense counsel summarized the definition of dwelling for the jury.
Id. at 121.
The trial court, in denying post conviction relief, stressed
that although defense counsel did not object to the misstatements
of the prosecutor, "he countered them during his closing remarks."
Ex. T at 158.
The trial court found the potential prejudice of the
prosecutor's
misstatement
of
the
definition
of
dwelling
was
satisfactorily removed by the actions of the court and defense
counsel.
Id. at 158-59.
In order to show a violation of the Sixth Amendment, both
parts of the Strickland test must be satisfied.
The trial court
rejected Petitioner's claim, finding he failed to demonstrate
prejudice, the second prong.
The 1st DCA affirmed without a
written decision.
The Court will presume, under these circumstances, the 1st DCA
adjudicated the claim on its merits as there is an absence of any
indication or state-law procedural principles to the contrary.
Petitioner has failed to meet his burden to show that there was no
reasonable basis for the state court to deny relief.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
Thus,
deference under AEDPA should be given to the last adjudication on
the merits provided by the 1st DCA.
decision
is
not
Given due consideration, its
inconsistent with
- 31 -
Supreme
Court
precedent,
including
Stickland
and
its
progeny.
The
state
court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
As such, ground four is due to be
denied.
Alternatively, even assuming deficient performance, Petitioner
has not shown resulting prejudice.
Indeed, he has not shown that
a reasonable probability exists that the outcome of the case would
have been different if his counsel had objected to the prosecutor's
closing argument.
In sum, Petitioner's ineffectiveness claim
raised in ground four is without merit since he has not shown
resulting prejudice.
F.
In
his
final
Ground Five
ground,
Petitioner
presents
his
claim
of
ineffective assistance of counsel for failure to ensure that
Petitioner was aware of the possible enhancements of PRR and HFO
prior to Petitioner's refusal of the plea offer.
Amended Petition
at 17. In ground five, he contends that had he been properly
advised, "there is a reasonable probability" he would have accepted
the five-year plea offer.
Id.
Respondents note that Petitioner
exhausted this ground by raising it in claim six of his Rule 3.850
motion
and
presenting
Response at 64.
evidence
at
the
evidentiary
hearing.
To complete exhaustion, Petitioner appealed the
denial of this ground.
Ex. CC; Ex. FF.
- 32 -
First of all, the record shows that the state filed a Notice
of State's Intention to Seek Sentencing as a Habitual Felony
Offender, with a certificate of service that Petitioner was mailed
or delivered a true and correct copy of the notice on November 22,
2010.
Ex. A at 67.
On the other hand, the record is unclear with
respect to the mailing of the notice regarding qualification as a
Id. at 68.
PRR.
Importantly, the record demonstrates that the
state's intent to seek enhancement is discussed on the record
immediately following the publishing of the verdict and in the
presence of Petitioner.
Ex. D at 155.
During the discussion, the
state said Petitioner qualifies as both a PRR as well as an HFO.
Id.
Petitioner blames his lack of knowledge about enhancements on
counsel's failure to ensure that his client, pre-trial, was aware
of these potential enhancements.
At the evidentiary hearing,
Petitioner testified he was not notified prior to trial, in
writing, that he qualified as a PRR, nor was he notified in writing
during the trial.
never
provided
Ex. T at 90.
him
with
qualification as a PRR.
there
were
no
a
He testified that his attorney
copy
of
Id. at 91.
off-the-record
the
document
concerning
Petitioner testified that
discussions
with
his
attorney
concerning Petitioner's qualification to be sentenced as a PRR
prior to trial.
no
Id. at 98.
on-the-record
qualification.
Id.
Petitioner testified that there were
discussions
at 98-99.
before
trial
concerning
PRR
Finally, Petitioner testified that
- 33 -
his attorney never told Petitioner about the HFO notice.
Id. at
101.
At the evidentiary hearing, Petitioner testified that he was
not notified of his PRR or HFO status prior to rejecting the fiveyear plea offer.
Id. at 102-103.
He also said he was never
advised that he was facing a prison term of fifteen years if the
state sought PRR status.
Id. at 103.
received a copy of the PRR document.
Petitioner said he never
Id. at 104.
At the hearing,
the parties stipulated that the last court date prior to jury
Id. at 108.
selection was December 3, 2010.
Mr. Siegmeister testified at the evidentiary hearing and
addressed this issue.
with the HFO notice.
Id. at 114.
Id. at 115.
He said Petitioner was served
Mr. Siegmeister related that he
was well aware that Petitioner qualified as a PRR.
Id.
Mr.
Siegmeister said that although he did not know when notice was
actually served, he knew Petitioner was facing it, and he advised
Petitioner accordingly.
Id.
Mr. Siegmeister testified that he
certainly advised Petitioner of it prior to the rejection of the
state's last plea offer.
Id. at 116.
Counsel said that on
December 3rd, he "point-blank told [Petitioner] he was looking at
fifteen years minimum mandatory every day, day for day."
Id.
Mr.
Siegmeister testified that Petitioner was standing in the courtroom
when counsel put on the record that he was looking at fifteen
years,
"notwithstanding
the
HFO
- 34 -
sanctions."
Id.
at
117.
Additionally, in closing argument, reference is made to the state's
evidentiary hearing exhibit 1, the recording from the courtroom on
December 3, 2010, in which Petitioner makes an on-the-record
acknowledgment that he qualifies for a PRR enhancement.
Id. at
138-39.
On
re-direct,
Mr.
Siegmeister
responded
to
Petitioner's
allegation that he would have taken the five-year plea offer had he
known he was facing an enhanced sentence:
And with all due respect, that is not a
truthful statement.
He was advised of his
maximum punishment and he turned down all
advice as well as plea offers and went to
trial facing the maximum. I can't tell you
when his notices went. In fact, you've shown
me the unsigned copy.
I don't think Mr.
Durrett gave the PRR notice until after there
was a conviction if you want to know the
truth.
Id. at 130.
Mr. Siegmeister continued:
My advice to him was you're facing fifteen
years prison and he turned down five years
straight –- I mean, not straight time, but
five years with credit and gain time on
everything, two burglary cases, one in
Suwannee and one in Columbia in this courtroom
on December 3rd.
I can't tell you about the written
I know he was served with the HFO
notice.6
notice and I know the judge inquired. And I
know that Mr. Dicks acknowledged that he had
6
In closing argument, the state imparted that there is no
requirement under the PRR statute that written notice be provided,
unlike the HFO statute. Ex. T at 139.
- 35 -
been told because I used the acronym and the
judge said –- asked if I had explained all
this to him and I said I had explained he's
looking at fifteen years PRR, I don't know if
I used the term prison releasee reoffender,
but I didn't think my client cared what the
statute was.
I think he cared what the
maximum was and I explained that to him.
Id. at 131.
Counsel explained that he knew what Petitioner was
facing from his scoresheet, his priors, and from the PRR statute.
Id. at 133.
At each plea discussion, counsel informed Petitioner
of the prison time he was facing if he rejected the plea offer and
proceeded to trial.
Id.
After the evidentiary hearing, the trial court addressed claim
six of the Rule 3.850 motion, now raised in federal habeas ground
five.
Of great import, the court found trial counsel's testimony
corroborated by previous events and more credible.
Ex. T at 165.
This Court must defer to the state court's findings of fact, 28
U.S.C. § 2254(e)(1), including applying deference to the trial
court's
credibility
testimony.
determination
that
resolves
conflicting
Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir.
1998), cert. denied, 526 U.S. 1047 (1999).
Indeed,
The
deference
is
heightened
when
reviewing a credibility determination in a
Section 2254 application. Gore v. Sec'y, Dep't
of Corr., 492 F. 3d 1273, 1300 (11th Cir.
2007), cert. denied, 552 U.S. 1190 (2008).
Accord Kurtz v. Warden, Calhoun State Prison,
541 Fed. App'x 927, 929 (11th Cir. 2013) ("'A
certain amount of deference is always given to
a trial court's credibility determinations,'
and a credibility determination in a case on
habeas review receives heightened deference.")
- 36 -
(quoting Gore), cert. denied sub nom. Kurtz v.
Jeanes, 134 S. Ct. 2728 (2014).
Fedor v. Sec'y, Dep't. of Corr., No. 8:13-CV-640-T-23EAJ, 2016 WL
866661, at *7 (M.D. Fla. Mar. 7, 2016).
Petitioner has not rebutted the presumption of correctness by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Therefore,
based on the credible testimony of Mr. Siegmeister that he notified
Petitioner of the state's intent to seek enhanced sentencing prior
to Petitioner's refusal of the five-year plea offer, Petitioner's
claim is unavailing.
The trial court explained its reasoning for rejecting the
claim of ineffective assistance of counsel:
This Court has reviewed that recording of the
December 3, 2010 hearing that occurred in this
case, which was provided by the State at the
evidentiary hearing. During that hearing, the
Defendant's trial counsel explained that he
had made the Defendant aware of the mandatory
fifteen-year sentence that would be imposed if
the Defendant was convicted as charged.
He
further explained that he may not have used
the term "Prison Releasee Reoffender" but that
he had explained the consequences of such
treatment to him. The trial judge then swore
the Defendant in and asked the Defendant if he
understood everything that his attorney just
explained.
The Defendant, under oath,
indicated that he understood. Therefore, in
addition to the Defendant's trial counsel's
testimony that he had informed the Defendant
of prison releasee reoffender treatment at
some prior time during their off-the-record
discussions, but he was also able to provide
this Court with actual evidence that refutes
the Defendant's claim that he was first made
aware of the potential for prison releasee
reoffender "thirty minutes before sentencing."
- 37 -
Ex. T at 165.
The trial court found Petitioner's recollection of events
"flawed"
and
trial
counsel's
testimony
previous events and more credible.
trial
counsel's
testimony
Petitioner's claim.
Id.
convincing,
both
corroborated
by
Finding the record and
the
court
rejected
Id.
In denying this claim of the Rule 3.850 motion, the trial
court concluded that counsel's performance was not deficient under
Strickland.
The
1st
DCA
affirmed.
Its
adjudication
is
unaccompanied by an explanation. Thus, the Court presumes that the
1st DCA adjudicated the claim on its merits, as there is an absence
of
any
indication
contrary.
or
state-law
procedural
principles
to
the
Now it is Petitioner's burden to show there was no
reasonable basis for the state court to deny relief.
If he fails
to accomplish this task, he cannot prevail on ground five.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
In this
instance, deference under AEDPA should be given to the last
adjudication on the merits provided by the 1st DCA.
Given due
consideration, its decision is not inconsistent with Supreme Court
precedent, including Stickland and its progeny.
The state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
or
- 38 -
based
on
an
unreasonable
determination of the facts.
As such, ground five is due to be
denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 3) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly.
3.
The Clerk of the Court shall close this case.
4.
If Petitioner appeals the denial of his Amended Petition,
the Court denies a certificate of appealability.7
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 case.
Such termination shall serve as a denial of
the motion.
7
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
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
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 39 -
DONE AND ORDERED at Jacksonville, Florida, this 21st day of
March, 2018.
sa 3/14
c:
William C. Dicks
Counsel of Record
- 40 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?