Dixon v. Secretary, Department of Corrections

Filing 12

ORDER denying the Amended Petition 5 and dismissing case with prejudice; directions to the Clerk. Signed by Senior Judge Timothy J. Corrigan on 3/10/2025. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TERRY LEQUAN DIXON,
Petitioner,
v.

Case No. 3:22-cv-91-TJC-SJH

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.

Status
Petitioner Terry Lequan Dixon, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. See Doc. 1. With help from retained counsel,
Petitioner is proceeding on an Amended Petition. See Doc. 5. He challenges a
state court (Duval County, Florida) judgment of conviction for accessory after
the fact. He is serving a fifteen-year term of incarceration. Respondents filed a
Response. See Doc. 9 (Resp.).1.And Petitioner, with help from counsel, filed a

1 Attached to the Response are various exhibits (Docs. 9-1 to 9-25). The Court

refers to the exhibits as “Resp. Ex.”

Reply. See Doc. 10. This case is ripe for review.2
II.

Governing Legal Principles
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error correction.’” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,
1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “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 Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
2

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is
unaccompanied by an explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim 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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “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 (2010) (internal
quotation marks omitted). “A state court’s
determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
3

disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an
unreasonable application of law requires more than
mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
75 (“The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
error) with unreasonableness.”); Williams v. Taylor,
529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Exhaustion and Procedural Default
There are prerequisites to 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)(1)(A). 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 complete round of the State’s established appellate
4

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 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. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
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
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
5

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,[3] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[4] 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
default and prejudice from a violation of federal law.
See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be
excused under certain circumstances. 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. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and
prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
3 Coleman v. Thompson, 501 U.S. 722 (1991).
4 Wainwright v. Sykes, 433 U.S. 72 (1977).

6

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).[5] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense
so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.
The Eleventh Circuit has explained:
[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

5 Murray v. Carrier, 477 U.S. 478 (1986).

7

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
presented at trial.” Calderon 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.
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of 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 ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th
8

Cir. 2010). 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 viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
stated in 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.” 466 U.S. at 697.
“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 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“Reviewing courts apply a ‘strong presumption’ that counsel’s representation
was ‘within the wide range of reasonable professional assistance.’” Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 689). “When this presumption is combined with §
2254(d), the result is double deference to the state court ruling on counsel’s
performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t
9

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
III.

Factual and Procedural History
The following summary is taken from Petitioner’s initial brief filed on

direct appeal:
By Second Amended Information filed May 12,
2014, the State of Florida charged Mr. Dixon with being
an Accessory after the Fact. The State specifically
alleged Mr. Dixon “did maintain, assist or give aid to
William Davis by providing the vehicle used during the
commission of the crime, knowing that William Davis
had committed . . . Armed Robbery, with the intent that
William Davis shall avoid or escape detection, arrest,
trial or punishment.” Both Davis and Mr. Dixon
asserted their constitutional right to trial by jury.
Prior to trial the State filed a motion for joinder
pursuant to rule 3.150(b), Florida Rules of Criminal
Procedure to try Davis and Mr. Dixon together. The
State alleged the cases were related in that they were
triable in the same court and were based on the same
acts or transactions and were part of a common scheme
or plan. Mr. Dixon objected to the motion for joinder
arguing:
Your Honor, I would object to the motion
for joinder. . . . Just, specifically, for my
client’s case, the codefendant, there was
the victim’s property was found on the
codefendant. There was no property found
on my client. As well as the identity --there was an identification, show-up
identification with the codefendant, and
there is not a 100 percent identification of
my client. Because of those issues, I think

10

those are separate,
separate cases.

appropriate

for

However, when the trial court asked “[i]s there any
legal reason why they couldn’t be joined?” the defense
replied “[n]o, Your Honor, I guess, the difference in the
evidence.” The trial court granted the motion for
joinder. There was not a subsequent defense request to
sever the trials.
At trial, the State called Samantha Jenerette, a
named victim of Davis’ armed robbery charge. On April
22, 2013, she and her friend’s nine year-old son, T.G.,
went to Wal-Mart. While there, she met a man, asked
him for help with finding light bulbs, and where she
could obtain marijuana. Ms. Jenerette exchanged
phone numbers with the man so she could later meet
up with him and purchase the marijuana. Sometime
after 10:00 P.M. she left Wal-Mart, called the man, and
the two agreed to meet at a near-by Captain D’s.
Ms. Jenerette ultimately drove across the street
to an apartment complex and called the man to let him
know her whereabouts. The man told her to come
around to the side of the apartment complex and she
complied. There, she parked next to a red car, where
she observed a man in a white shirt with a low hair cut
in the front seat and another individual standing
behind the vehicle. She got out of her vehicle, was hit
from behind, and fell to the ground. When on the
ground someone pointed a gun at her.
The man wearing the white shirt exited the red
car, went through her pockets, and took her car key,
cell phone, and food stamp card bearing her name. He
then entered her car, asking T.G. for money. T.G.
provided the man with money, the man told her to
remain on the ground until they left, and two or three
people got in the red car and sped off. She and T.G. then
ran back to the Wal-Mart, flagged someone down, and
used his phone to call 9-1-1. Ms. Jenerette informed the
11

9-1-1 operator she was robbed and that the three black
males fled in a red Corolla.
Ms. Jenerette testified that the third black male
was standing behind the red car throughout the
robbery, but was unsure whether he had “an active
role” in the crime. She did not initially see that third
male get in the car when it left the apartment complex.
However, she saw the red car again after the robbery
at a stop light and noticed then that there were three
males in it.
Later that night a show-up was conducted of two
individuals. Ms. Jenerette was able to identify the man
in the white shirt, but was unable to identify the other
male - indicating that “it looked like him” but that she
could not be sure. She did identify the red car. She
identified her food stamp card, which officers
recovered. The officer also returned her car key.
Ms. Jenerette admitted she withheld information
from police and in a prior deposition as she never told
anyone she went to the apartment complex to purchase
marijuana. She testified she was unsure whether the
male at Wal-Mart was the same man from the robbery.
On cross-examination, Ms. Jenerette confirmed
that at the show-up on the night of the robbery she
identified Davis as the male she met at the apartment
complex. She further confirmed she was unable to
identify the other male who was in the show-up.
T.G., a named victim of Davis’ armed robbery
charge, who was nine years old at the time of the
offense also testified. Though he could not remember
the date, he did remember that he and Ms. Jenerette
went to Wal-Mart shortly after moving to Jacksonville.
They left Wal-Mart when it was dark and went to some
apartments across the street. Ms. Jenerette drove to
the side of the apartments and parked the car. Both
T.G. and Ms. Jenerette exited the car. Two black guys
12

were standing by a burgundy car, one came up and hit
Ms. Jenerette behind the head. T.G. ran back into the
passenger seat of his car.
T.G. testified that one of the males wore a white
shirt, sweat pants, and some “slide-on shoes”; that
particular individual was short and skinny. The other
male wore a black jacket, black pants, white shoes, and
a black hat. There were three males present; the third
male stood by a door. The man with the black clothes
was the one standing by the door[,] and the one who hit
Ms. Jenerette and held her at gunpoint was wearing
blue clothing.
The man in the white shirt got into the car,
demanded money using bad language, and took the
money T.G. threw at him. The man in the white shirt
also took phones and paperwork from the car. He was
holding a silver gun. The man in the white shirt and
two other males then left in the red car. T.G. identified
the red car in a photo.
At the show-up, T.G. identified the man with the
white shirt as the person who took his money in the car
and had a gun. He also i[]dentified the other male as
the man in the black hat and jacket as the person
standing by the door. He did not see the man who held
Ms. Jenerette at gunpoint. He testified that the men
told Ms. Jenerette “[h]old your head down or I’ll shoot
you -– I’m going to shoot you in front of your son.”
On cross-examination, Mr. Dixon’s attorney
asked T.G. if it was true that on the date of the showup “you told police that you could not identify the
second person?” T.G. testified that he could not
remember.
The State next called Roosevelt Knight. He
testified that as he was leaving Wal-Mart that evening
he stopped his car because he saw two panicked people
walking towards him. He could tell they were in
13

distress and very distraught about a situation. He
explained T.G. was crying and appeared very scared.
He used his phone to call 9-1-1.
Officer J.T. Crotty of the Jacksonville Sheriff’s
Office also testified. He was working the night of April
22, 2013, and was dispatched to the scene of the 9-1-1
call. He met with Ms. Jenerette and T.G. In doing so,
he obtained information about the red car and sent a
BOLO over the radio. He then received information
that the suspects were apprehended. He transported
T.G. to the show-up; T.G. was very upset and scared.
Referring to his written report, Officer Crotty
testified that T.G. was able to identify one of the
suspects at the show-up. That suspect was William
Davis. After reviewing his report once more, Officer
Crotty testified that as to the second suspect, T.G.
“could not positively identify him.”
Again referring to his report Officer Crotty
testified that Ms. Jenerette positively identified Davis
as the person who robbed her and T.G., but only
indicated that the other male “looks like the one who
had the gun”, but that she could not positively identify
him. Officer Crotty retrieved Ms. Jenerette’s food
stamp card and $156.00 in cash from William Davis.
On cross-examination, Officer Crotty confirmed
that Mr. Dixon was the second suspect whom T.G. was
unable to identify and Ms. Jenerette stated “looked like
the one who had the gun.”
Officer Kenneth Chastain of the Jacksonville
Sheriff’s Office testified that he encountered the
suspect car after hearing the BOLO on April 22, 2013.
He identified Mr. Dixon and Davis as two people that
were in the car and identified both men in open court.
He first saw the car at a gas station and then began to
follow it once the car drove away. He called for back-up.

14

Ultimately he activated his lights, the red car
stopped short of hitting another patrol car, the driver
fled and Officer Chastain pursued him. Officer
Chastain gave commands to the driver to stop but he
did not. Eventually Officer Chastain caught the driver,
who turned out to be Davis. Davis possessed money, a
key fob, Wal-Mart receipt, and an EBT card; the key fob
belonged to the car driven by Ms. Jenerette. Officer
Chastain had no contact with Mr. Dixon, but testified
he was present that evening.
On cross-examination, Officer Chastain testified
he first saw the red car at about 10:30 P.M. Due to
pursuing Davis, Officer Chastain did not observe the
actions of the other occupants of the red car.
Officer Christopher Winn, with the Jacksonville
Sheriff’s Office, testified to hearing Officer Chastain’s
call for back-up. Once the vehicle stopped he saw the
driver and the passenger exit the vehicle and flee
through the complex. The third male was in the
backseat. He was holding his hands up. According to
Officer Winn, that person had to be let out of the back
seat due to a possible door malfunction. He identified
the suspect that remained inside the car as Mr. Dixon.
Officer Jose Ruiz testified he also saw two
individuals flee from the red car; he pursued the
passenger. However, he was unable to detain the
passenger. He had no contact with Mr. Dixon.
Kendra Dixon, Mr. Dixon’s mother, testified. She
identified her son in open court. In 2013 she owned two
cars, one a burgundy 1999 Toyota Corolla. She allowed
Mr. Dixon to borrow the Corolla [on] April 22, 2013. He
left with the car between 7:00 and 8:00 P.M. alone. Ms.
Dixon provided law enforcement permission to search
her car. Ms. Dixon knew Davis as an acquaintance of
her son’s; she identified him in open court.

15

The State then rested its case. The defense
moved for a judgment of acquittal as to the charge of
Accessory after the Fact. Defense counsel argued that
the State failed to prove Mr. Dixon maintained,
assisted, aided or attempted to aid Davis, that Mr.
Dixon had knowledge Davis committed a felony, or that
Mr. Dixon aided Davis in an attempt to assist him to
avoid detection. The State replied it would rely on the
evidence adduced in its case-in-chief. The trial court,
without comment, denied Mr. Dixon’s motion.
The defense then called Ms. Karavay Cannon.
She met Mr. Dixon in March of 2013. She testified the
two spoke on the phone several times a day, several
times a week. Looking at phone records, Ms. Cannon
testified that she spoke with Mr. Dixon on April 22,
2013, from 10:15 P.M. until 10:41 P.M.
On cross-examination she explained that she
could not state the exact date she spoke with Mr. Dixon.
On re-direct, Ms. Cannon stated she could only
remember the prefix of her number as 672, but did not
know her previous phone number. She explained that
she called Mr. Dixon after the date the defense attorney
“listed”, but he never picked up. That last time they
spoke, she did not hear any commotion in the
background; Mr. Dixon did not appear upset, out of
sort, or nervous.
The defense then called Kendra Dixon. She paid
for the phone Mr. Dixon used and testified that his
phone number was 885-1577. When she called that
number Mr. Dixon answered; to her knowledge, no one
else used his phone. She identified phone records for
Mr. Dixon’s phone and testified the date of the phone
calls within the records were all from April 22, 2013.
She identified two phone calls Mr. Dixon made to her
on that date, which were made at 10:05 P.M. and 10:46
P.M. The defense entered the records into evidence
without State objection.

16

Both defendants rested their cases and each
exercised his right to remain silent. During closing
argument the State argued: “[t]hen after the robbery
was completed we didn’t hear any testimony about how
defendant Davis had grabbed defendant Dixon by the
arm to get him to the car. He volunteered. He got right
in that car with him as soon as the robbery concluded.”
Mr. Dixon’s counsel objected arguing “going towards
the defendant’s right to remain silent.” The trial court
overruled the objection and asked the State to be
cautious. When defense counsel asked to approach, the
trial court stated “I have already ruled. You can put it
on the record later.” The State proceeded:
As soon as the robbery concluded
defendant Dixon, he got in the backseat of
that car, the car that belonged to his
mother. He got in the backseat and he
stood idally [sic] and did nothing as a nineyear old was robbed and a woman was held
at gunpoint.
The State further argued that Mr. Dixon
maintained, assisted, aided or attempted to aid Davis
because “it was his vehicle. He was standing there. He
knew it was going on.” “He aided when they fled off in
that vehicle after the robbery was committed.” The
State argued Mr. Dixon “assisted by providing the get
away vehicle” and getting in the car with Davis.
Before his closing argument, Mr. Dixon’s counsel
asked to take a break, the jurors were excused, and
counsel addressed the trial court’s ruling on his
objection regarding Mr. Dixon’s right to remain silent.
He acknowledged that the trial court overruled the
objection, moved for a mistrial, and explained that the
comment led the jury to believe they did not hear Mr.
Dixon’s account of the incident. The trial court again
denied the objection and counsel’s motion for mistrial.
Resp. Ex. 12 at 2-14 (record citations omitted).
17

In its amended answer brief, the state accepted Petitioner’s statement of
the case and facts, subject to the following additions:
[T.G.] testified that when they arrived at the
apartment complex, Samantha Jenerette drove her car
“to the side” of the apartment complex and parked her
car next to a burgundy car. They got out of Jenerette’s
car and walked [] within a foot, “like close by”, from the
burgundy car. [T.G.] saw two guys standing next to the
burgundy car, and a third man standing by a door.
[T.G.] testified that [at the show up and at his
deposition,] he identified the third man, who was by the
door, as the man wearing black[.]
When Samantha Jenerette was asked if she
actually saw them get into the car and leave, she
replied “Yes, ma’am. The car sped off” and that she saw
“Two or three, maybe. I’m not really sure[.]” When
Appellant and his fellow robbers left the area,
Jenerette fled the scene.
Jenerette then flagged down Roosevelt Knight,
who loaned her his cellular telephone and had the two
victims sit in his car while parked near the crime scene.
9-1-1 is called and, while speaking, Jenerette sees
Davis driving the red vehicle with 2 other black males
in [the] car. They were at the red light right in front of
Jenerette as they “circled back” in the red/burgundy
car. Jenerette believed they were coming back to see if
she was still at her car, the scene of their crime.
When the red/burgundy car was stopped, officers
chased two that fled and Officer Winn went to [the]
vehicle and saw [Dixon] in [the] backseat, holding his
hands up. Winn described something wrong with the
car door, that [Dixon] could not get out of the car, that
it was either locked or damaged.
Resp. Ex. 13 (record citations omitted).

18

The jury found Petitioner guilty of accessory after the fact and Davis
guilty of two counts of robbery. Resp. Ex. 8 at 825. Petitioner, with help from
appellate counsel, sought a direct appeal, and the First District Court of Appeal
per curiam affirmed Petitioner’s judgment and conviction without a written
opinion. Resp. Ex. 15.
IV.

The Amended Petition
A. Ground One
Petitioner argues that the trial court erred in denying Petitioner’s motion

for judgment of acquittal, violating his rights under the Fourteenth
Amendment. Doc. 5 at 13-18. According to Petitioner, the state presented no
evidence that Petitioner committed an overt act of intent to aid Davis in
avoiding detection, arrest, trial, or punishment. Id. at 15.
Petitioner, through appellate counsel, raised this issue on direct appeal.
Resp. Ex. 12 at 16. He argued as follows:
In the instant case, the State charged Mr. Dixon
with accessory after the fact for “providing the vehicle
used during the commission of the crime, knowing that
William Davis had committed . . . Armed Robbery, with
the intent that William Davis shall avoid or escape
detection, arrest, trial or punishment.” However, the
evidence adduced at trial established that Davis,
wearing a white t-shi[r]t, was in the driver’s seat of the
vehicle in question when the victims arrived at the
scene of the armed robbery.
Mr. Dixon, the third black male, was somewhere
behind the vehicle and did not participate in the armed
19

robbery. In fact, Ms. Jenerette did not observe Mr.
Dixon get in the vehicle with Davis after the armed
robbery. When officers stopped the vehicle in question
after the armed robbery, Davis and another fled, but
Mr. Dixon remained in the backseat of the vehicle
holding his hands up.
Here, the defense moved for a judgment of
acquittal arguing that the State failed to prove Mr.
Dixon maintained, assisted, aided or attempted to aid
Davis, that Mr. Dixon had knowledge Davis committed
a felony, or that Mr. Dixon aided Davis in an attempt
to assist him to avoid detection. The State replied it
would rely on the evidence adduced in its case-in-chief.
The trial court denied Mr. Dixon’s motion. This was
error as the State failed to prove that Mr. Dixon took
some overt action to assist Davis after the armed
robbery occurred with the intent to aid him in avoiding
or escaping prosecution.
In closing argument, the State argued that it
proved its case against Mr. Dixon as “he aided when
they fled off in that vehicle after the robbery was
committed.” It further argued that Mr. Dixon assisted
Davis by providing the getaway vehicle and getting in
the car with Davis after the armed robbery. However,
the fact that Mr. Dixon got in the back seat of the
vehicle after the crime occurred does not establish
an overt act on his part or an intent to assist Davis in
avoiding or escaping arrest or prosecution.
No evidence was presented that Mr. Dixon
provided Davis with the keys to the vehicle either
before or after the armed robbery so that Davis could
drive off after committing the crime. Likewise, there
was no evidence to rebut the reasonable hypothesis
that if Mr. Dixon provided aid it was to protect his
personal safety or for other personal reasons, but was
not provided with the intent to assist Davis from
avoiding or escaping arrest or prosecution.

20

The law does not hold Mr. Dixon criminally
responsible for failing to prevent Davis from
committing a crime, or for failing to report it. Bowen,
791 So. 2d at 50. The burden lies with the State to prove
Mr. Dixon intended to assist Davis in avoiding or
escaping arrest or prosecution. This the State failed to
do. As such, this Court should vacate Mr. Dixon’s
conviction and sentence finding that the trial court
erred in denying hi[s] motion for judgment of acquittal.
Resp. Ex. 12 at 17-21 (record citations omitted).
In its answer brief, the state argued:
Contrary to argument by Appellant, this is not a
purely circumstantial evidence case. The State
presented direct evidence of Appellant’s guilt – he
provided his mother’s vehicle for co-defendant’s use and
accompanied co-defendant to [the] scene, stood by while
co-defendant robbed a child and a woman and then got
into the vehicle and fled the scene to avoid arrest
together with Davis, the codefendant.
....
In this case, Appellant’s mother testified that
Appellant had the use of her vehicle, that it was in
Appellant’s possession the night of the robbery, that he
left his mother’s residence in the get-away vehicle and
that he was driving alone. Appellant was apprehended
in the backseat of his mother’s vehicle, the vehicle that
met up with Samantha Jenerette and T.G., the vehicle
that Appellant stood by while a gun was placed to the
head of Jenerette while she and T.G. were robbed, the
same vehicle that Appellant and codefendant drove to
the Forest Apartments where the armed robbery
occurred, the same vehicle that fled the scene, and was
later apprehended, the vehicle he and his co-defendant
were riding in, the vehicle that he was extracted from
by law enforcement officers.

21

....
Appellant’s claim that he committed no “overt
action[”] assisting co-defendant is incorrect, as Kendra
Dixon, Appellant’s mother testified that she allowed
Appellant to use her car and that he left with the car,
driving alone. Appellant argues that “no evidence was
presented that Mr. Dixon provided Davis with keys to
the vehicle, either before or after the armed robbery.”
This argument fails to address that Appellant drove
alone in the car that Davis was seen sitting in the
driver’s seat, before[,] during[,] and after the armed
robbery.
Further, testimony of victims put Appellant at
the scene of the robbery, within steps of where
Jenerette was knocked to the ground and held there
with a gun to her head. [T.G.]’s description of Appellant
standing “close by”, and that they walked within a foot
of the burgundy car illustrates Appellant[’]s knowledge
of the crime. State’s Exhibit 1-B, a photograph of
Jenerette’s car parked at the crime scene illuminates
the close environment in which the robbery took place.
Also, [T.G.]’s testimony that Appellant, the third man
at the scene of the robbery, was standing by the back of
the vehicle, “by a door” is supported by State’s Exhibit
1-B.
The trial court correctly denied Appellant’s
motion for judg[]ment of acquittal as the evidence was
sufficient. As noted above, “Once the State introduces
such evidence, it is the jury’s duty to determine
whether the evidence is sufficient to exclude every
reasonable hypothesis of innocence beyond a
reasonable doubt.” [ ] The legal test for determining
whether a Judgment of Acquittal should be granted is
“whether after all conflicts in the evidence and all
reasonable inferences there-from have been resolved in
favor of the verdict on appeal, there is substantial,
competent evidence to support the verdict and the

22

judgment.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.
1981).
The evidence present in this case was clearly
sufficient for a jury to find that Appellant committed
the charged crime. Therefore, his Judg[]ment and
Sentence should be affirmed.
Resp. Ex. 13 at 8-10 (record citations omitted). The First DCA found Petitioner’s
claim to be without merit and affirmed his judgment and conviction without a
written opinion. Resp. Ex. 15.
Here, Respondents contend that when raising this issue on direct appeal,
Petitioner failed to fairly present the federal nature of this claim to the state
court, and thus his current federal due process claim is unexhausted and
procedurally defaulted. Doc. 9 at 42-48. They also assert the claim is otherwise
without merit. See id. at 48-52.
The Court agrees that Petitioner did not present the federal nature of this
claim to the state appellate court. In his initial brief filed on direct appeal,
Petitioner did not state or suggest that he was raising a federal due process
claim, nor did he rely on any other federal constitutional guarantee. Resp. Ex.
T. Instead, he argued, in terms of state law only, that the circumstantial
evidence for which the state relied in opposing Petitioner’s motion for judgment
of acquittal was insufficient under Florida law. Resp. Ex. 12 (citing Bowen v.
State, 791 So. 2d 44, 47 (Fla. 2d 2001)); see also Resp. Ex. 14 (Petitioner’s reply
brief citing Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016); Staten v. State,
23

519 So. 2d 622, 625 (Fla. 1988)). Thus, the federal nature of this claim is
unexhausted and procedurally defaulted, and Petitioner has failed to show
cause for or prejudice from this procedural bar. Likewise, Petitioner has not
shown that failure to consider this claim on the merits will result in a
fundamental miscarriage of justice.
Petitioner argues, however, that this claim is exhausted because when
addressing this issue on appeal, the state court applied a legal standard
identical to the one used in federal courts. See Doc. 10 at 2. In any event,
assuming Petitioner is correct, and this claim is properly exhausted, he is still
not entitled to the relief he seeks because the First DCA’s adjudication is
entitled to deference. When reviewing an insufficiency of the evidence claim in
a habeas petition, a federal court must determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume
that the jury resolved any evidentiary conflicts in favor of the prosecution, and
the court must defer to that resolution. Id.
Here, the evidence presented at trial supported the trial court’s denial of
Petitioner’s motion for judgment of acquittal. Four elements applied to
Petitioner’s accessory after the fact charge:

24

1. Armed Robbery was committed by WILLIAM
HENRY DAVIS, III.
2. After the Armed Robbery was committed,
TERRY LEQUAN DIXON maintained, assisted, aided
or attempted to aid, WILLIAM HENRY DAVIS, III.
3. At that time, TERRY LEQUAN DIXON knew
that WILLIAM HENRY DAVIS, III had committed the
Armed Robbery.
4. TERRY LEQUAN DIXON did so with the
intent that WILLIAM HENRY DAVIS, III avoid or
escape detection, arrest, trial, or punishment.
Resp. Ex. 9 at 6. At trial, T.G. testified that three men participated in the armed
robbery – one wearing a white shirt, one wearing a black jacket and black pants
with white shoes, and one wearing blue clothing. Resp. Ex. 6 at 23-28. He stated
that while the man in blue held Jenerette at gunpoint, the man wearing the
white shirt got into T.G.’s car and demanded money and took phones and other
items from the center console. Id. at 26-27. T.G. explained the man in the black
shirt stood by their burgundy/red car and watched as the robbery occurred. Id.
at 25. He stated that following the robbery, he saw the three men get into the
burgundy/red car and drive away. Id. at 32. Police then arrived and drove T.G.
to another location where T.G. advised officers he recognized the two males in
custody as two of the individuals who were at the scene – the one wearing a
white shirt who took items from T.G.’s car (Davis) and the other who was
wearing the black jacket and pants standing by the burgundy/red car as the

25

robbery occurred (Petitioner). Id. at 34. When shown a picture of the vehicle the
two men were apprehended from, T.G. positively identified it as the
burgundy/red car the three men used to drive away from the scene. Id. at 32;
Resp. Ex. 7 at 30-34.
Petitioner’s mother also identified the car used during the getaway as her
vehicle and explained she allowed Petitioner to borrow it the night of the
robbery. Resp. Ex. 7 at 114-15. And Officer Winn testified he apprehended
Petitioner from the backseat of the same vehicle before escorting him to the
show-up, and he then identified Petitioner in court. Id. at 33. As to intent, a
review of the evidence (Petitioner watching the armed robbery and then
allowing Davis to drive his mother’s vehicle away from scene while voluntarily
riding as a passenger in the same vehicle) supports an inference that
Petitioner’s underlying goal was to help hinder Davis’s apprehension. See, e.g.,
United States v. Salamanca, 990 F.2d 629, 637-40 (D.C. Cir. 1993) (holding that
flight from the scene of an assault along with the principal may be “strong
evidence” of being an accessory after the fact); 18 U.S.C. § 3 (defining the crime
of being an accessory after the fact to include assisting an offender, “knowing
that an offense . . . has been committed”). Taken in the light most favorable to
the state, the Court finds there was sufficient evidence to permit a rational trier
of fact to find Petitioner guilty of this offense. As such, upon review of the record,
this Court concludes that the state court’s adjudication of this claim was not
26

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. Ground One is denied.
B. Ground Two
Petitioner asserts the trial court erred in overruling trial counsel’s
objection to the state’s improper statements made during closing arguments,
which amounted to improper burden shifting and violated Petitioner’s right to
remain silent under the Fifth Amendment. Doc. 5 at 18. He also contends the
trial court erred in denying his later motion for a mistrial based on this
improper comment. Id. at 19.
Petitioner, with help from appellate counsel, raised this claim on direct
appeal. Resp. Ex. 12 at 22. Petitioner asserted, in pertinent part, as follows:
In the instant case, the State argued: “[t]hen
after the robbery was completed we didn’t hear any
testimony about how defendant Davis had
grabbed defendant Dixon by the arm to get him
to the car. He volunteered. He got right in that car
with him as soon as the robbery concluded.” As defense
counsel explained, this comment amplified to the jurors
that they did not hear Mr. Dixon’s account of the
incident. The State’s comment, “at least indirectly, . . .
highlighted for the jury the fact that [he] was not
testifying at trial and still had offered no plausible
explanation.” See DiGuilio, 491 So. 2d at 1138.
Thus, this Court should find that the State’s
comment was fairly susceptible of being interpreted as
27

a comment on Mr. Dixon’s right to remain silent, and
that this comment was not harmless in light of the
bleak, circumstantial evidence presented to convict him
of accessory after the fact.
Resp. Ex. 12 at 22-25 (record citations omitted).
In its answer brief, the state responded as follows:
Defendant Dixon’s argument on appeal hinges on
a single statement made during the State’s closing
argument: “(t)hen after the robbery was completed we
didn’t hear any testimony about how defendant Davis
had grabbed defendant Dixon by the arm to get him to
the car. He volunteered. He got right in that car with
him as soon as the robbery concluded.” While
Appellant’s Initial Brief presents only one issue for
review, it argues that the trial court erred in two ways:
by not sustaining Defendant’s objection to the
prosecutor’s closing, and by not granting Defendant’s
subsequent motion for mistrial.
First, the prosecutor’s remark regarding
uncontroverted evidence was not improper. Florida
courts have recognized two distinct categories of
“uncontroverted evidence” arguments: permissible
arguments that comment on the uncontroverted nature
of the evidence, and impermissible remarks that are
fairly susceptible to interpretation as comments on a
defendant’s exercise of his right to remain silent. Rich
v. State, 756 So. 2d 1095, 1096 (Fla. 4th DCA 2000),
citing Rodriguez v. State, 753 So. 2d 29, 38 (Fla. 2000).
A
prosecutor’s
comment
that
evidence
is
uncontroverted is improper if the defendant is the only
person who can refute that evidence, especially if only
one state witness testifies against the defendant; such
comments may lead the jury to believe that a defendant
has to present a case. Hill v. State, 980 So. 2d 1195,
1199 (Fla. 3d DCA 2008).

28

However,
comments
emphasizing
the
uncontroverted nature of the State’s evidence are
permissible and typical arguments in cases where a
defendant does not testify. Smith v. State, 378 So. 2d
313, 314 (Fla. 5th DCA 1980), opinion approved of 394
So.2d 407 (Fla.1980.)
In Smith, the defendant was placed at the scene
of a burglary by fingerprint evidence and his possession
of a pocket knife stolen from the victim. Smith did not
testify, but did have an alibi witness say that he was
elsewhere when the crime occurred. Id. at 313-14.
During closing arguments, the prosecutor stated that
“there was no explanation” for Smith’s fingerprints at
the crime scene. Id. at 314. The Fifth District Court of
Appeals held that the prosecutor’s argument was a
proper comment on the lack of any evidence on a
particular issue. Id.
A prosecutor’s comments in closing must be
taken in context, and a prosecutor may state that
evidence of an essential element of an offense is
uncontroverted if witnesses other than the defendant
could have testified to rebut that evidence. Bell v. State,
33 So. 3d 724, 726-27 (Fla. 1st DCA 2010) approved,
108 So. 3d 639 (Fla. 2013). In this case, we have
multiple witnesses who testified, but neither one gave
any testimony indicating that Appellant was forced
into the vehicle. Victim/witness, Jenerette, testified at
least three times that “there was a partner standing
behind the car . . . a person like behind the car” and
that he was there the entire time the robbery occurred.
Further, she testified that she saw them get into the
car and leave. The State’s second witness, T.G.,
testified similarly when he stated three times on direct
examination that Dixon “was standing like by a door”
and “the one with the black clothes was standing by a
door” and once on cross-examination, answering “Yes”
to defense attorney’s question regarding “the man
wearing the black hat and jacket as the gentleman who
was standing by the – by the door or by the porch.” T.G.
29

further testified that “they went in their car[,]”
testifying that all three men got into their vehicle and
left the scene.
Each witness’s testimony supported the
prosecutor’s statement “He stood there and he did
nothing.” Neither witness testified . . . that Appellant
was forced into the vehicle. Prosecutor’s statement on
closing was a logical argument based on the facts of the
case.
To be fundamental error, “the error must reach
down into the validity of the trial itself to the extent
that a verdict of guilty could not have been obtained
without the assistance of the alleged error.” Brown v.
State, 124 So. 2d 481, 484 (Fla. 1960). A prosecutor’s
improper remarks do not constitute fundamental error
unless they jeopardize the validity of the trial or
verdict. Rimmer v. State, 825 So. 2d 304, 324 (Fla.
2002).
The State presented ample evidence that
Defendant was present, and in fact, stood behind his
vehicle, watching while Jenerette and T.G. were robbed
at gunpoint. Evidence clearly demonstrates that he
stood behind the car while one co-defendant was
holding a gun to the head of a prone Jenerette, while
co-defendant Davis went through Jenerette’s pockets
and removed papers and three cellphones from the
vehicle’s console. And when the robbery was concluded,
the testimony shows that Appellant and his codefendants fled together in Dixon’s vehicle, the car he
borrowed from his mother.
If the prosecutor’s statement had been fairly
susceptible to interpretation as a comment on
Defendant’s right to remain silent, then the remark
would be reviewed for harmless error and the State
would bear the burden of proving that there is no
reasonable possibility the error contributed to the
conviction. State v. DiGuilio, 491 So. 2d 1129, 1138
30

(Fla. 1986); State v. Marshall, 476 So. 2d 150, 153 (Fla.
1985) (State has burden of showing error is harmless
beyond a reasonable doubt). However, a single
improper comment is harmless beyond a reasonable
doubt when there is no reasonable possibility the
verdict would have been different if the error had not
occurred. Richardson v. State, 604 So. 2d 1107, 1109
(Fla. 1992), opinion corrected on denial of
reconsideration (Oct. 8, 1992).
In light of the evidence cited above, there is no
reasonable possibility that the prosecutor’s single
comment in closing argument contributed to Mr.
Dixon’s conviction. The evidence of Jenerette and
Garrett, the two witnesses who testified before the jury
clearly supports the jury’s verdict.
Last, the trial court did not abuse its discretion
in denying Appellant’s motion for mistrial. Granting a
motion for mistrial is only proper if the prosecutor’s
comments are so prejudicial that no reasonable person
would allow the trial to continue. Ford v. State, 802 So.
2d 1121, 1129 (Fla. 2001). In order to grant a mistrial
for improper closing argument, the objectionable
comments must be so pervasive, inflammatory, and
prejudicial so as to preclude the jury’s rational thinking
of the case. Knoizen v. Bruegger, 713 So. 2d 1071, 1072
(Fla. 5th DCA 1998) (citations omitted).
A motion for mistrial based on a prosecutor’s
remarks should be denied unless “the error committed
was so prejudicial as to vitiate the entire trial.” Cobb v.
State, 376 So. 2d 230, 232 (Fla. 1979). In Poole v. State,
997 So. 2d 382 (Fla. 2008), even though a prosecutor
made a blatant and direct reference to a defendant’s
choice not to testify (commenting on the fact that Poole
himself did not testify to rebut the testimony of two
detectives), the Court held that in light of the evidence
against Poole, the trial court did not abuse its
discretion by denying Poole’s motion for mistrial. Poole,
997 So. 2d at 390-91.
31

The prosecutor in Appellant’s case made an
isolated remark that did not comment directly on the
fact Appellant did not testify, and it was far less
harmful than the closing argument made in Poole. As a
result, in Appellant’s case, the trial court did not abuse
its discretion in finding that the prosecutor’s comment
did not vitiate the entire trial or preclude the jury’s
rational consideration of the case. Therefore, his
Judg[]ment and Sentence should be affirmed.
Resp. Ex. 13 at 12-17 (record citations omitted). The First DCA found
Petitioner’s claim to be without merit and affirmed his judgment and conviction
without a written opinion. Resp. Ex. 15.
The Court addresses the claim in accordance with the deferential
standard for federal court review of state court adjudications. In doing so, as
the reviewing Court, it must evaluate an allegedly improper comment in the
context of both the prosecutor’s entire closing argument and the trial as a whole,
because “[c]laims of prosecutorial misconduct are fact-specific inquiries which
must be conducted against the backdrop of the entire record.” United States v.
Hall, 47 F.3d 1091, 1098 (11th Cir. 1995); accord United States v. Young, 470
U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the
basis of a prosecutor’s comments standing alone, for the statements or conduct
must be viewed in context; only by doing so can it be determined whether the
prosecutor’s conduct affected the fairness of the trial.”). An improper
prosecutorial remark compels habeas corpus relief only if the remark is so

32

egregious that the proceeding is rendered fundamentally unfair. “The relevant
question is whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Darden
v. Wainwright, 477 U.S. 168, 181(1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). Due process is denied “when there is a reasonable
probability,” or “a probability sufficient to undermine confidence in the
outcome,” that, but for the improper remarks, “the outcome of the proceeding
would have been different.” United States v. Eyster, 948 F.2d 1196, 1206-07
(11th Cir. 1991); see also Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986)
(“If a reviewing court is confident that, absent the improper remarks, the jury’s
decision would have been no different, the proceeding cannot be said to have
been fundamentally unfair.”). The prosecutor’s comments must both (1) be
improper and (2) “prejudicially affect the substantial rights of the defendant.”
United States v. Thompson, 422 F.3d 1285, 1297 (11th Cir. 2005). A prosecutor’s
statement violates a defendant’s right to remain silent if it was “manifestly
intended to be a comment on the defendant’s failure to testify” or was “of such
a character that a jury would naturally and necessarily take it to be a comment”
on the defendant’s failure to testify. United States v. Blankenship, 382 F.3d
1110, 1128 (11th Cir. 2004)
Here, the comment at issue is – “Then after the robbery was completed
we didn’t hear any testimony about how defendant Davis had grabbed
33

defendant Dixon by the arm to get him in the car. He volunteered. He got right
in that car with him as soon as the robbery concluded.” Resp. Ex. 7 at 705.
Evaluating that single comment in the context of the trial evidence as a whole,
the Court cannot find a denial of due process. Indeed, considering the direct
evidence and eyewitness testimony placing Petitioner at the scene, that his own
mother’s car was used in the robbery, and all the perpetrators got into
Petitioner’s mother’s vehicle to escape the scene, Petitioner cannot show that
but for the prosecutor’s comment, the outcome of his case would have been
different. To that end, Petitioner has failed to show that the prosecutor’s
improper comment “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.”
Upon review of the record and considering the closing arguments and the
trial evidence, the Court finds 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. Ground Two is denied.
C. Ground Three
Petitioner asserts that his trial counsel was ineffective for failing to object
or request a clarifying instruction on the principal theory jury instruction where

34

the jury was never informed that the principal instruction applied only to codefendant Davis. Doc. 5 at 22.
Petitioner raised this claim in his pro se Florida Rule of Criminal
Procedure 3.850 motion. Resp. Ex. 16 at 27. The trial court summarily denied
the claim as follows:
In Ground Five, Defendant alleges counsel was
ineffective for failing to object to the principal
instruction being read to the jury when Defendant was
not charged as a principal. Defendant claims this
instruction created confusion among the jurors about
whether it should apply to Defendant or his codefendant. Defendant also argues he was prejudiced by
this instruction because he claims it has nearly the
same elements as the instruction for Accessory After
the Fact, which could have confused the jurors.
Without reaching whether counsel was deficient,
there is no prejudice because it was clarified multiple
times at trial that the instruction only applied to CoDefendant. During the State’s closing, the principal
instruction was explained regarding only the codefendant. At no time while explaining the elements of
the offenses did the State assert the instruction applied
to Defendant. During the defense closing, counsel
clarified that Defendant was not charged with Robbery
or Theft, but Accessory After the Fact. Counsel went on
to explicitly clarify: “the principal argument, and you
are going to see a sheet on principal theory, and that
doesn’t apply to Mr. Dixon at all, don’t be confused by
that.” During jury instructions, the Court specified that
the Robbery instructions only applied to Co-Defendant
and the Accessory After the Fact instructions only
applied to Defendant. Thus, it was clear the principal
instruction only applied to Co-Defendant. There is
nothing to suggest Defendant suffered any prejudice,
much less the level to reach his burden of a reasonable
35

probability of a different outcome. Therefore, Ground
Five is without merit and denied.
Resp. Ex. 19 at 10 (record citations omitted). Petitioner appealed, and the First
DCA per curiam affirmed the trial court’s denial without a written opinion.
Resp. Ex. 25.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. In doing so, the
Court applies deference to the state court’s finding that Petitioner was not
prejudiced by an alleged error. Indeed, during closing arguments, the state only
explained the principal theory when describing the charges only against Davis.
Resp. Ex. 7 at 715-16. Also, during his closing arguments, trial counsel clarified:
“The principal argument, and you are going to see a sheet on principal theory,
and that doesn’t apply to Mr. Dixon at all. Don’t be confused by that. It only
goes towards Mr. Davis[.]” Resp. Ex. 7 at 763. As such, upon thorough review of
the record and the applicable law, the Court finds that the state court’s decision
to deny Petitioner’s claim was neither contrary to nor an unreasonable
application of Strickland, and it was not based on an unreasonable
determination of the facts given the evidence presented to the state court. See
28 U.S.C. § 2254(d). Ground Three is denied.

36

D. Ground Four
Petitioner argues that his trial counsel was ineffective for failing to object
to the joinder of Petitioner and Davis’s cases for trial or for failing to move to
sever the cases. Doc. 5 at 30.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 16 at 16.
The trial court summarily denied the claim as follows:
In Ground Two, Defendant alleges counsel was
ineffective for failing to move to sever Defendant’s trial
from Co-Defendant. Defendant argues severing the
trial was necessary because the State would have been
prevented from calling some witnesses to testify and
Co-Defendant would have testified Defendant was not
at the scene of the robbery.
Whether to sever or join defendants is a decision
that should be determined on a case-by-case basis.
Bryant v. State, 565 So. 2d 1298, 1302 (Fla. 1990); Dean
v. State, 478 So. 2d 38, 43 (Fla. 1985). Some general
rules regarding joinder and severance have, however,
developed over time. A defendant is not entitled to
severance if: (1) the defendant is given a full
opportunity to confront and examine witnesses called
against him; (2) none of the defendants inculpated each
other by confessing as explained in Bruton v. United
States, 391 U.S. 123 (1968); and (3) the evidence is not
too complex in that it would confuse the jury. McCray
v. State, 416 So. 2d 804, 807 (Fla. 1982); see also
Gordon v. State, 863 So. 2d 1215, 1223 (Fla. 2003).
Initially the Court notes, Defendant had a full
opportunity to confront the witnesses against him, his
co-defendant did not make a Bruton-type confession,
and the evidence presented was not so complex that the
jury would be confused by it and incapable of applying
it to the conduct of each individual defendant. The fact
37

that Defendant may have had a better chance of
acquittal if tried separately does not justify severance.
McCray, 416 So. 2d at 806. Thus, there was no legal
basis for severance and counsel cannot be deemed
deficient for failing to make a frivolous argument.[FN3]
In an abundance of caution, Defendant’s claims of
prejudice will also be addressed.
Exclusion of Some Witnesses
Defendant claims he was prejudiced by counsel’s
failure to move to sever the trials because the State
would have been prevented from calling some
witnesses that were strictly relevant to his codefendant’s case. Defendant does not specify who these
witnesses are, but to the extent they were witnesses to
the underlying crime they would not have been
excluded even if the trials had been severed. Defendant
was charged with Accessory After the Fact, which
requires the State to prove beyond a reasonable doubt
that the co-defendant committed the underlying
offense. Bowen v. State, 791 So. 2d 44, 50-5 1 (Fla. 2d
2001). Thus, testimony about the underlying crime of
robbery would still have been relevant at a trial only
involving Defendant. Accordingly, this claim of
prejudice is without merit.
Co-Defendant Testimony
Defendant also claims he was prejudiced by
counsel’s failure to move to sever the trial because
joinder of the trials prevented counsel from compelling
Co-Defendant to testify. Defendant claims CoDefendant would have testified that Defendant was
picked up after the robbery and had no knowledge of
the crime. Defendant does not provide any
corroborating evidence to suggest Co-Defendant would
have testified in this exculpatory manner or was willing
to waive his right to remain silent. Defendant even
concedes Co-Defendant would be prejudiced by
testifying but argues that had the trials been severed
38

the prejudice would have gone away. Defendant ignores
the fact that this testimony by Co-Defendant would
essentially amount to a confession and would be usable
against Co-Defendant at his own trial. Thus, whether
severed or not, Co-Defendant faced the same prejudice
in waiving his right to remain silent and testifying in
the manner Defendant claims. Therefore, Defendant’s
claim in Ground Two is without merit and is denied.
[FN3: As Defendant points out in his motion there was a
hearing on the State’s Motion for Joinder where both
counsel for Defendant and his co-defendant objected to
the joinder, but ultimately conceded there was no legal
basis to not join the trials.]
Resp. Ex. 19 at 5-7 (record citations omitted). Petitioner appealed, and the First
DCA per curiam affirmed the trial court’s denial without a written opinion.
Resp. Ex. 25.
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. First, Petitioner
cannot show deficient performance, because the severance likely would not have
been granted. Here, during the trial court’s hearing on the state’s motion for
joinder, trial counsel verbally objected to the request, conceding there was no
legal reason for the objection but instead merely argued about the difference in
evidence the state would need to present for each defendant. Resp. Ex. 3 at 11.
The trial court granted the state’s request. Id. at 12. Indeed, the state may try
codefendants together “if they are alleged to have participated in the same act
or transaction, or in the same series of acts or transactions, constituting an

39

offense or offenses.” Fed. R. Crim. P. 8(a). Defendants can move for severance,
but a court will grant such a motion only when joinder will result in prejudice.
Fed. R. Crim. P. 14(a). And usually “people who are charged together are tried
together.” United States v. Novaton, 271 F.3d 968, 989 (11th Cir. 2001) (citation
omitted). Second, Petitioner cannot establish that had the severance been
granted, the result of the trial would have been different. Thus, he cannot meet
Strickland’s prejudice prong. 466 U.S. at 687.
Upon thorough review of the record and the applicable law, the Court
finds that the state court’s decision to deny Petitioner’s claims was neither
contrary to nor an unreasonable application of Strickland, and it was not based
on an unreasonable determination of the facts given the evidence presented to
the state court. See 28 U.S.C. § 2254(d). Ground Four is denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 5) is DENIED, and this case is

DISMISSED WITH PREJUDICE.
2.

The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.
3.

If Petitioner appeals this denial, 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
40

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.6
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
March, 2025.

Jax-7
C:

Terry Lequan Dixon, #J40148
Counsel of record

6 The 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, 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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
41