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Dicks v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

March 21, 2018

WILLIAM C. DICKS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE

         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). See Order (Doc. 10).

         II. CLAIMS OF PETITION

         The 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.

         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 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:

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. 770.

Pittman, 871 F.3d at 1243-44.

         There 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).

         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 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. 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.

         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 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.[4] 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.

         By 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.

         On 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.

         Petitioner 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.

         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.

         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. 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.

         The 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.

         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 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).

         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. 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.

         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 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 Fed.Appx. 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 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. 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).

         There 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 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. 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.

         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 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 ...


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