Dixon v. Secretary, Department of Corrections

          ORDER

          Charlene Edwards Honeywell, United States District Judge

         Petitioner Gabriel Dixon, a Florida prisoner, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Pinellas County convictions. (Dkt. 1). In the response (Dkt. 6), Respondent does not contest the petition's timeliness. Dixon filed a reply. (Dkt. 13). Upon consideration, the petition will be DENIED.

         Procedural History

         Dixon was convicted after a jury trial of first degree murder (count one) and attempted first degree murder (count two). (Dkt. 8, Ex. 3). The state court sentenced him to life in prison on count one and 30 years in prison on count two. (Dkt. 8, Ex. 4). The state appellate court per curiam affirmed. (Dkt. 8, Ex. 12). Dixon filed a motion and an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 8, Exs. 14, 16). The state court denied his claims. (Dkt. 8, Ex. 17). The state appellate court per curiam affirmed the denial of relief. (Dkt. 8, Ex. 19).

         Standard Of Review

         Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision is “contrary to” clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413.

         The AEDPA was meant “to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one.” Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court, 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.”).

         The state appellate court affirmed the denial of postconviction relief in a per curiam decision. This decision warrants deference under § 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, 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.”).

         Ineffective Assistance Of Counsel

         Dixon alleges ineffective assistance of trial counsel. His claims are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Dixon must demonstrate that his counsel performed deficiently in that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Additionally, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         Dixon must also show that he suffered prejudice by demonstrating “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal habeas review is “doubly” deferential to counsel's performance and the state court's decision. Richter, 562 U.S. at 105.

         Discussion

          Ground One

         Dixon contends that trial counsel was ineffective in failing to request an independent act jury instruction. Dixon and three co-felons were accused in the murder of Joseph Shaw and the attempted murder of Shawanda Larry, who were shot during a robbery. Dixon concedes that he participated in the robbery. But he claims that he did not know a firearm would be used and that he left the scene before the shootings. Dixon therefore claims that the murder and attempted murder were independent acts of his co-felons. The state court denied Dixon's claim:

Defendant claims that counsel was ineffective for failing to request a jury instruction on “independent act.” According to the facts as alleged by Defendant in his motion, on the night of the murder, he agreed to participate in a robbery of the victim because his cofelons convinced him that his only role in the robbery would be to incapacitate the victim by tying him up. Defendant claims that he did not know that firearms would be used during the robbery. Defendant claims that upon arriving at the residence, Defendant and his cofelons grabbed the victim, Joseph Shaw, outside his house and beat him until they were able to force him inside. Once inside, they discovered the presence of the other victim, Shawanda Larry, and confined her in a bathroom. Defendant asserts that several of his cofelons beat and kicked Shaw, and dragged him into the bedroom where Defendant tied up Shaw with a phone cord. Defendant claims that at that point, after he had tied up Shaw, he heard Ms. Larry scream and then became aware that one of his cofelons, Brown, had a gun and was holding the gun to Mr. Shaw's head. Defendant claims that he then abandoned the robbery and left the residence. He claims that while heading home on foot, he heard gunshots from inside the residence, and that his cofelons later picked him up and gave him a ride home.

The “independent act” doctrine applies when a defendant, who previously participated in a common plan, does not participate in acts committed by his cofelon “which fall outside of, and are foreign to, the common design of the original collaboration.” Bradley v. State, 33 So.3d 664, 675 (Fla. 2010), quoting Willacy v. State, 967 So.2d 131, 141 (Fla. 2007); see also Ray v. State, 755 So.2d 604, 609 (Fla. 2000); see also Fla. Std. Jury Inst. (Crim.) 3.6(l). However, a defendant's absence when the crime occurred does not establish, in and of itself, that the crime was an independent act of another. Jackson v. State, 18 So.3d 1016, 1026 (Fla. 2009), citing Ray, 755 So.2d at 609. Indeed, where a defendant “was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.” Ray, 755 So.2d at 609, citing Lovette v. State, 636 So.2d 1304 (Fla. 1994). Furthermore, an “independent act” defense cannot apply when death was a foreseeable result of the original plan. Bradley, 33 So.3d at 675; citing Archer v. State, 613 So.2d 446, 448 (Fla. 1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim's death was a natural and foreseeable result of forces which the Defendant set in motion).

In his motion, Defendant claims that the shooting of M[r]. Shaw and M[s]. Larry was an independent act of cofelon Brown, who “flipped out” during the commission of the robbery. Defendant claims that the independent act instruction was applicable, because he thought that he was participating in an unarmed robbery in which lethal force was not contemplated, his role in the robbery was limited to tying up the victim, and he abandoned the robbery after hearing Ms. Larry scream and seeing cofelon Brown with a gun. For these reasons, Defendant claims that the murder of Mr. Shaw and attempted murder of Ms. Larry were outside the scope of and not a foreseeable consequence of the underlying robbery. Defendant asserts that he was prejudiced by counsel's failure to request the independent act instruction because in the absence of this instruction, the jury had no legal basis on which to consider Defendant's version of events while determining its verdict.

Defendant's argument is without merit. An independent act instruction would not have been appropriate in this case, as Defendant was a willing participant in the underlying robbery and both the murder and attempted murder were foreseeable results of forces which Defendant set in motion. According to Defendant's motion, not only was he a willing participant in the underlying robbery, he was the one who bound Mr. Shaw's hands with the phone cord. In fact, Defendant bound Mr. Shaw's hands so tightly that the medical examiner had to cut the cord in order to remove it. Ms. Larry testified at trial that upon entering the house, the robbers proceeded to beat Mr. Shaw, “stomping him and kicking him, ” and continued to kick him while making him crawl to the back bedroom, where Defendant bound his hands. As a principal to the robbery, Defendant is responsible for his cofelons beating Mr. Shaw, and Defendant himself bound Mr. Shaw's hands, making it impossible for Mr. Shaw to defend himself. It is clear that the underlying home invasion, robbery, and physical attack of Mr. Shaw set in motion his murder, and that Mr. Shaw's murder was a natural and foreseeable culmination of the level of violence used by all four cofelons in executing the robbery. See Bradley, 33 So.3d at 675 (“[E]ven if the underlying criminal enterprise was merely to ‘beat some sense' into [the victim], the beating would clearly be considered a foreseeable force which set in motion the killing.”). Although Defendant did not himself pull the trigger, he fully participated in creating the circ umstances that directly produced both Mr. Shaw's death and the shooting of Ms. Larry. See cf. Jackson, 18 So.3d at 1026.

The independent act doctrine likewise does not apply when the evidence demonstrates that the murder was committed in furtherance of the initial criminal scheme. Thomas v. State, 787 So.2d 27 (Fla. 2d DCA 2001), citing Lovette, 636 So.2d 1304 (rejecting independent act instruction where murders committed to lessen the possibility of detection and apprehension of robbers). In this case, Ms. Larry testified at trial that she saw the face of one of the robbers when his mask fell off, and recognized his identity. Ms. Larry testified that after Mr. Shaw was shot, one of the robbers said that “if you don't go back in there and kill [her], we going to kill you.” At that point, the robber who she recognized as Joseph Simmons came back in and shot her three times in the head. Therefore, the evidence presented at trial supports the conclusion that the attempted murder of Ms. Larry was committed in an effort to lessen the possibility of detection and apprehension of the cofelons, and was thus committed in furtherance of the underlying robbery.

Furthermore, “a shooting during an armed robbery is a foreseeable event.” Cannon v. State, 18 So.3d 562, 564 (Fla. 1st DCA 2009), citing Washington v. State, 873 So.2d 1268, 1270 (Fla. 4th DCA 2004) (“A shooting that occurs during an armed robbery with a firearm does not exceed the scope of the armed robbery so that an independent act instruction is required.”). Although Defendant contends that he was unaware that the robbery scheme involved the use of firearms until just before Mr. Shaw was shot, the testimony of Ms. Larry at trial directly contradicts this assertion. Ms. Larry testified that on the night the robbery took place, she heard a knock on the front door and as soon as she opened the door one of the robbers was pointing a gun in her face. Ms. Larry further testified that she was positive that all four of the robbers were armed with firearms during the commission of the robbery.

For the foregoing reasons, the “independent act” jury instruction would not have been appropriate in this case. Therefore, Defendant cannot show that counsel's failure to request such an instruction constituted deficient performance falling below prevailing professional standards. See Zakrzewski, 866 So.2d at 692. Counsel cannot be deficient for failing to raise a meritless claim. Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla. 1999); accord Ferrell v. State, 29 So.3d 959, 976 (Fla. 2010). Because Defendant has failed to satisfy the deficiency prong of Strickland, the inquiry ends, and this Court need not determine if the prejudice prong has been satisfied. See Maxwell v. Wainwright, 490 So.2d 927; Schoenwetter v. State, 46 So.3d 535, 546 (Fla. 2010). Accordingly, this claim is denied.

(Dkt. 8, Ex. 17, pp. 99-102) (court's record citations omitted).

         As the state court explained, the independent act doctrine is meant “to exonerate the nonparticipant from acts committed by a co-felon that are beyond the scope of the original plan.” Jackson v. State, 18 So.3d 1016, 1026 (Fla. 2009). In its detailed order, the state court thoroughly analyzed the applicability of an independent act instruction. This Court must accept the state court's conclusion that, under Florida law, the evidence did not warrant this instruction. “It is a ‘fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'” Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)). See also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

         Further, as the state court found, counsel cannot be ineffective in failing to raise a meritless issue. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance.”). Dixon does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground One.

         Ground Two

         Detective Laura Spelman testified that during the investigation, she received descriptions of four suspects, including Dixon. After she testified to Dixon's description, Dixon stood for the jury at the prosecutor's request:

Q I wanted to ask you about the physical descriptions during the course of your investigation. Would it be fair to say that you developed four suspects in this case?

A Yes. . . .

A The second suspect that was identified was Mr. Dixon.

Q Okay. And can you give us a physical description of Mr. Dixon?

A Yes. Mr. Dixon was identified as having a very large build, being a black male, tall, with a large build and short hair.

Q And during the time when you had contact with Mr. Dixon back in 2007, did he have short hair back then?

A Yes, he did.

[STATE]: Judge, at this time I would ask the Court to direct Mr. Dixon to stand so that the jury might get a view of his description.

THE COURT: What says the defense?

[COUNSEL]: It's okay.

THE COURT: Mr. Dixon, sir, would you please stand up?

(WHEREUPON, DEFENDANT STANDS.)

THE COURT: Okay. Thank you.

(Dkt. 8, Ex. 2, Vol. III, pp. 320-21).

         Dixon alleges that trial counsel was ineffective in failing to object when Detective Spelman testified to hearsay and identified him in court. The state court denied Dixon's claim:

Defendant claims that counsel was ineffective for failing to object to “inadmissible hearsay testimony and in-court identification” by Detective Laura Spelman of ...