United States District Court, M.D. Florida, Jacksonville Division
WILLIAM C. DICKS, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS UNITED STATES DISTRICT JUDGE
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).Petitioner filed a Response to
Respondents' Answer to Petition for Writ of habeas Corpus
(Doc. 23). See Order (Doc. 10).
CLAIMS OF PETITION
Amended Petition presents five claims for relief: (1)
ineffective assistance of counsel for failure to interview,
depose, 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.
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.
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
otherwise precludes habeas relief. 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.
STANDARD OF REVIEW
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)).
parameters of review are as follows:
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 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.
Pittman, 871 F.3d at 1243-44.
is a presumption of correctness of state court's factual
findings, unless the presumption is rebutted with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). 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).
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 Cir.
2016). 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)).
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
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.
Id. at 98. "[A] habeas court must determine
what arguments 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 could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828
F.3d at 1285.
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.
Court will provide a brief procedural history. Petitioner and
his brother, Brandon Andrew Dicks, were charged by
information with burglary of a dwelling, grand theft III, and
criminal mischief. Ex. A at 8-9. 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. Id. at 67. 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.
amended information, Petitioner was charged with burglary of
a dwelling. Ex. A at 102. On December 9, 2010, the trial
court conducted a jury trial. Ex. D. The jury returned a
verdict of guilty as charged. Ex. A at 128; Ex. D at 151. The
trial court denied the motion for new trial. Ex. C at 4.
January 7, 2011, the trial court held a sentencing
proceeding. Ex. C, Sentencing Proceeding. The court sentenced
Petitioner as a PRR offender to a mandatory minimum term of
fifteen years in imprisonment. Ex. B at 218-20. The court
entered judgment and sentence on January 7, 2011.
Id. at 216-20.
appealed his conviction. 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. Ex. H. The mandate
issued on January 5, 2012. Ex. J.
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.
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. Travis Koon, retained counsel, entered
a Notice of Appearance for Petitioner. Id. at 74-75.
The trial court conducted an evidentiary hearing on September
3, 2014. Id. at 80-144.
trial court denied the Rule 3.850 Motion in its Order Denying
Motion for Postconviction Relief. Id. at 145-200.
Petitioner appealed. Ex. CC. The state filed an answer brief.
Ex. DD. Petitioner replied. Ex. EE. The 1st DCA, on February
24, 2016, per curiam affirmed. Ex. FF. The mandate issued on
March 22, 2016. Ex. GG.
INEFFECTIVE ASSISTANCE OF COUNSEL
order to prevail on a Sixth Amendment claim of ineffective
assistance of trial counsel, a petitioner must satisfy the
two-pronged 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 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).
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
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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. Amended
Petition at 5. As noted by Respondents, Petitioner raised
this claim of ineffective assistance of counsel in ground one
of his Rule 3.850 motion, and this claim is exhausted.
Response at 26-27.
ground 1A, Petitioner claims his girlfriend, Samantha
McGuigan, would have provided alibi testimony. Amended
Petition at 5. This claim has no merit.
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.
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 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.
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 Fed.Appx. 901 (11th Cir. 2016).
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 deficient. Furthermore,
Petitioner failed to establish prejudice by counsel's
failure to call Ms. McGuigan.
the trial court found Petitioner failed to satisfy the
performance and prejudice prongs of Strickland and
denied post conviction relief. The 1st DCA affirmed the
decision of the trial court. Ex. FF. 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).
is a qualifying state court decision and AEDPA deference is
warranted. The adjudication of the state court resulted in a
decision that 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
Petitioner claims his counsel was ineffective for failure to
interview, depose, and present Brandon Dicks for the defense
at trial. Amended Petition at 5. The trial court set ground
1B for an evidentiary hearing. Ex. T at 68-69. Petitioner
testified at the evidentiary hearing. Id. at 84. 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 Yes, sir.
Id. at 87. 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.
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.
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 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 ...