United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, United States District Judge
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.
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).
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;
(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.
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.
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
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
Assistance Of Counsel
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
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.
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
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
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
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
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.”).
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.
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.
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
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).
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
Defendant claims that counsel was ineffective for failing to
object to “inadmissible hearsay testimony and in-court
identification” by Detective Laura Spelman of ...