Dixon v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROLAND LORENZO DIXON,

Petitioner,

v. Case No. 8:20-cv-490-MSS-CPT

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

Dixon petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his

state court convictions for aggravated assault with a firearm, possession of a firearm by a

convicted felon, and carrying a concealed firearm. (Docs. 1 at 1 and 9-2 at 1235–36) After

reviewing the petition (Doc. 1), the response and the appendix containing the relevant state

court record (Doc. 14), and the reply (Doc. 15), the Court DENIES the petition.

PROCEDURAL HISTORY

A jury found Dixon guilty of aggravated assault with a firearm and carrying a

concealed firearm (Doc. 14-2 at 18–19), and Dixon pleaded guilty to possession of a firearm

by a convicted felon. (Doc. 14-2 at 30–35) The jury found that, during the commission of the

aggravated assault, Dixon “did carry, display, use, threaten to use, or attempt to use a

firearm,” and “did discharge a firearm.” (Doc. 14-2 at 18) The trial court sentenced Dixon to

twenty years of prison with a twenty-year mandatory minimum term for a firearm

enhancement for the aggravated assault conviction, a consecutive five years of prison for the

carrying a concealed firearm conviction, and a concurrent five years of prison with a three-

year mandatory minimum term for a firearm enhancement for the possession of a firearm by

a convicted felon conviction. (Doc. 14-2 at 21–28, 37–43) Dixon appealed (Doc. 14-2 at 45),

and the state appellate court affirmed. (Doc. 14-2 at 47)

Dixon moved for post-conviction relief in state court (Doc. 14-2 at 51–52, 59–60,

81–101, 106–24, 172–73, 185–92), the post-conviction court denied relief (Doc. 14-2 at 57, 63,

104, 127–28, 178, 215), and the state appellate court affirmed. (Doc. 14-2 at 77, 168, 231)

Dixon’s federal petition follows.

FACTS

Evidence at trial proved that Dixon committed aggravated assault and carried a

concealed firearm.1 Samuel Mitchell, Jr. testified that his ex-girlfriend was the sister of

Elizabeth Cody, Dixon’s girlfriend. (Doc. 14-2 at 449–50) Dixon became angry at Mitchell

because of a disagreement between the two sisters. (Doc. 14-2 at 449–50) While visiting an

apartment complex, Mitchell saw Dixon, Dixon waved at Mitchell, and Mitchell approached

Dixon. (Doc. 14-2 at 452) Mitchell told Dixon that he was not involved in the disagreement

between the sisters. (Doc. 14-2 at 452) Mitchell directed his attention to Dixon’s girlfriend,

who was also present, and Dixon responded by punching Mitchell. (Doc. 14-2 at 452–53)

Dixon ran past Mitchell, stumbled, and pulled out a gun. (Doc. 14-2 at 453–54) Mitchell saw

the gun, started running away, and heard three gunshots behind him. (Doc. 14-2 at 454–57)

Surveillance video showed Dixon raise his arm and point the gun towards Mitchell twice.

(Doc. 14-2 at 458–59, 527)

1 Before trial, the trial court granted Dixon’s motion to sever the felon in possession of a

firearm charge from the other charges. (Doc. 14-2 at 12–13, 16)

A witness testified that a short male with dreads walked over to a bald male, punched

him, stumbled, dropped a gun, picked up the gun, and fired two or three shots. (Doc. 14-2 at

438–40) The witness observed the male with dreads fire the gun when the bald male started

to run away. (Doc. 14-2 at 440) Police secured an arrest warrant for Dixon and found him

hiding in the bathroom of his girlfriend’s apartment. (Doc. 14-2 at 471–72) When police first

arrived, Dixon’s girlfriend denied that she knew Dixon and denied that he was at her home.

(Doc. 14-2 at 471–72)

During a recorded interrogation, Dixon claimed that Mitchell confronted him about

the disagreement between the sisters. (Doc. 14-2 at 513) Dixon’s girlfriend started talking to

Mitchell, Mitchell threatened Dixon’s girlfriend, and Dixon tried to punch Mitchell in the

face but missed. (Doc. 14-2 at 513–14) Dixon admitted that he had a gun in his pocket. (Doc.

14-2 at 515–17) Dixon claimed that, when he pulled the gun out, the gun accidentally fired

once. (Doc. 14-2 at 523–25) After the shooting, Dixon threw away the gun. (Doc. 14-2 at 522)

After admitting that he wrongly possessed the gun, Dixon lamented, “I’m going to roast.”

(Doc. 14-2 at 524)

During the defense’s case-in-chief, Elizabeth Cody denied that she was Dixon’s

girlfriend and claimed that she was only his friend. (Doc. 14-2 at 537) She testified that

Mitchell came to her apartment and attacked her because she had beat up her sister, who was

Mitchell’s girlfriend. (Doc. 14-2 at 538–39) Cody had armed herself with a gun for protection

and defended herself by firing the gun once in the air. (Doc. 14-2 at 539–41, 543) Cody denied

that Dixon was present. (Doc. 14-2 at 539, 541) She claimed that Dixon told her that he would

“take the rap” for the crime. (Doc. 14-2 at 556)

STANDARDS OF REVIEW

AEDPA

Because Dixon filed his federal petition after the enactment of the Antiterrorism and

Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320,

327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

(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 U.S. Supreme Court] on a question of law

or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A

decision involves an unreasonable application of clearly established federal law “if the state

court identifies the correct governing legal principle from [the U.S. Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion

by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529

U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order 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, 694

(2002). A federal petitioner must show that the state court’s ruling was “so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

Ineffective Assistance of Counsel

Dixon asserts ineffective assistance of counsel — a difficult claim to sustain.

Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[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.” Strickland, 466 U.S. at 690.

“An error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability

is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694.

Strickland cautions that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at

690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel

was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly deferential,

“when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the

double deference due, it is a ‘rare case in which an ineffective assistance of counsel claim

that was denied on the merits in state court is found to merit relief in a federal habeas

proceeding.’” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019)

(citation omitted).

In decisions without a written opinion, the state appellate court affirmed the orders

denying Dixon post-conviction relief. (Doc. 14-2 at 77, 168, 231) A federal court “‘look[s]

through’ the unexplained decision to the last related state-court decision that does provide

a relevant rationale [and] presume[s] that the unexplained decision adopted the same

reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Because the post-conviction court

provided reasons for denying Dixon’s claims in a written order (Doc. 14-2 at 63, 127–28,

215), this Court evaluates those reasons under Section 2254(d).

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before

a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must

(1) alert the state court to the federal nature of his claim and (2) give the state court one full

opportunity to resolve the federal claim by invoking one complete round of the state’s

established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard

v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review

and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a

petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on a state

procedural ground, the federal court denies the claim as procedurally barred. Snowden v.

Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991)).

Also, a petitioner’s failure to comply with a state procedural rule governing the

proper presentation of a claim bars review of that claim on federal habeas. Coleman, 501

U.S. at 729. “[A] state court’s rejection of a federal constitutional claim on procedural

grounds will only preclude federal review if the state procedural ruling rests upon [an]

‘independent and adequate’ state ground.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001). A state court’s procedural ruling rests on an independent and adequate state ground

if (1) the last state court rendering a judgment in the case clearly and expressly relies on a

state procedural rule to resolve the federal claim without reaching the merits of the claim,

(2) the state court’s decision rests solidly on state law grounds and is not intertwined with

an interpretation of federal law, and (3) the state procedural rule is not applied in an

“arbitrary or unprecedented fashion,” or in a “manifestly unfair” manner. Judd, 250 F.3d at

1313 (citing Card v. Dugger, 911 F.2d 1494, 1516–17 (11th Cir. 1990)).

To excuse a procedural bar on federal habeas, a petitioner must demonstrate either

(1) cause for the default and actual prejudice from the alleged violation of federal law or (2)

a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S.

518, 536–37 (2006).

ANALYSIS

Ground One

Dixon asserts that the trial court violated his federal rights by erroneously instructing

the jury on the firearm enhancement for aggravated assault. (Doc. 1 at 6) He contends that

he raised the claim on direct appeal and post-conviction. (Doc. 1 at 7) The Respondent

asserts that, because Dixon failed to alert the state court to the federal nature of his claim

on direct appeal, the claim is unexhausted and procedurally barred. (Doc. 14 at 17)

In his brief on appeal (Doc. 14-2 at 647–54), Dixon raised a similar claim but failed

to “cit[e] in conjunction with the claim the federal source of law on which he relie[d] or a

case deciding such a claim on federal grounds, or [ ] simply label[ ] the claim ‘federal.’”

Reese, 541 U.S. at 32. Dixon instead cited state court opinions to argue that the trial court’s

failure to give the appropriate jury instruction for the firearm enhancement resulted in

reversible error. (Doc. 14-2 at 648–54) Because Dixon failed to alert the state court to the

federal nature of his claim, he failed to exhaust the claim on direct appeal. Anderson v.

Harless, 459 U.S. 4, 7 (1982).

In his motion for post-conviction relief, Dixon asserted different claims. He asserted

that the trial court violated his federal rights by imposing the mandatory minimum term for

the firearm enhancement at sentencing and that the prosecutor violated his federal right to

due process by failing to give adequate notice of the firearm enhancement. (Doc. 14-2 at

108–12) Also, Dixon asserted that trial counsel was ineffective for not objecting to the jury

instruction for the firearm enhancement. (Doc. 14-2 at 113–18) Because Dixon did not raise

a federal claim challenging the sufficiency of the language of the jury instruction, Dixon

failed to exhaust the claim on post-conviction. Kelley v. Sec’y, Dep’t Corrs., 377 F.3d 1317,

1345 (11th Cir. 2004) (“The ground relied upon must be presented face-up and squarely; the

federal question must be plainly defined. Oblique references which hint that a theory may

be lurking in the woodwork will not turn the trick.”) (quoting Martens v. Shannon, 836 F.2d

715, 717 (1st Cir. 1988)).

If Dixon returns to state court to exhaust the claim, the post-conviction court will

deny the claim as procedurally barred. Fla. R. Crim. P. 3.850(c) (“This rule does not

authorize relief based on grounds that could have or should have been raised at trial and, if

properly preserved, on direct appeal of the judgment and sentence.”). Consequently, this

Court denies the claim as procedurally barred on federal habeas. Snowden v. Singletary, 135

F.3d 732, 736 (11th Cir. 1998). Because Dixon fails to demonstrate either cause and actual

prejudice or a miscarriage of justice to excuse the procedural bar, the claim is barred from

federal review. (Doc. 15 at 8–13) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.

Ground One is DENIED.

Ground Two

Dixon asserts that the trial court erred by imposing the five-year prison sentence for

the carrying a concealed firearm conviction consecutively to the twenty-year mandatory

minimum term for the firearm enhancement on the aggravated assault conviction. (Doc. 1

at 8) He contends that the consecutive five-year sentence is illegal because the two crimes

arose from a single criminal episode and the victim was neither shot nor injured. (Doc. 1 at

8) The post-conviction court denied the claim as follows (Doc. 14-2 at 63) (state court record

citations omitted):

Defendant argues that his consecutive sentences are illegal as

the crimes arose from a single criminal episode. The record

indicates that the Defendant was sentenced to twenty years in

Florida State Prison on count one, Aggravated Assault with a

Firearm. Defendant’s sentence is a twenty-year minimum

mandatory sentence pursuant to Fla. Stat. § 775.087(2).

Defendant was sentenced to five years in Florida State Prison

on count two, Carrying a Concealed Firearm. Counts one and

two are to run consecutive to one another.

The Court finds that the Defendant’s claim should have been

raised pursuant to Fla. R. Crim. P. 3.850. As filed, Defendant’s

motion is legally insufficient. However, the Court finds that it

can deny the Defendant’s claim on its merits based upon the

holding in Martin v. State, 190 So. 3d 252 (Fla. 1st DCA 2016).

Because the Carrying a Concealed Firearm count was not

charged as a Fla. Stat. 775.087(2) offense, it can run

consecutively to count one.

The post-conviction court denied the claim as procedurally barred because the claim

was not cognizable in the post-conviction proceedings. See Coughlin v. State, 932 So. 2d 1224,

1226 (Fla. 2d DCA 2006). Because the Respondent fails to assert that the denial of the claim

on this independent and adequate state procedural ground bars federal review the

Respondent waives the defense. (Doc. 14 at 24–26) Smith v. Sec’y, Dep’t Corrs., 572 F.3d

1327, 1339–40 (11th Cir. 2009).

However, the claim is meritless. Because the claim raises an issue of state law and a

federal court cannot grant relief for a violation of state law, the claim is not cognizable on

federal habeas. 28 U.S.C. § 2254(a) (authorizing relief “only on the ground that [the

petitioner] is in custody in violation of the Constitution or laws or treaties of the United

States”). Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[W]e consistently have

held that federal courts cannot review a state’s alleged failure to adhere to its own sentencing

procedures.”).

Even if the claim is cognizable on federal habeas, a federal court defers to a state

court’s determination of state sentencing law. Machin v. Wainwright, 758 F.2d 1431, 1433

(11th Cir. 1985). Martin v. State, 190 So. 3d 252, 255 (Fla. 1st DCA 2016), held that Section

775.087(2)(d) requires a trial court to impose a sentence for an offense that qualifies for a

firearm enhancement consecutively to a sentence for an offense that does not qualify for a

firearm enhancement. In Martin, 190 So. 3d at 253, the defendant received a mandatory

minimum twenty-year sentence for an aggravated battery conviction with a firearm

enhancement and a consecutive five-year sentence for a possession of a firearm by convicted

felon conviction without a firearm enhancement. Martin, 190 So. 3d at 255, affirmed the

consecutive sentences because the plain language of Section 775.087(2)(d) (bolding added),

required the trial court to run the sentences consecutively:

It is the intent of the Legislature that offenders who actually

possess, carry, display, use, threaten to use, or attempt to use

firearms or destructive devices be punished to the fullest extent

of the law, and the minimum terms of imprisonment imposed

pursuant to this subsection shall be imposed for each qualifying

felony count for which the person is convicted. The court shall

impose any term of imprisonment provided for in this

subsection consecutively to any other term of imprisonment

imposed for any other felony offense.

The information charged Dixon with aggravated assault with a firearm enhancement

and carrying a concealed firearm without a firearm enhancement. (Doc. 14-2 at 8)2 Because

the aggravated assault charge qualified for a firearm enhancement and the carrying a

concealed firearm charge did not qualify for a firearm enhancement, Section 775.087(2)(d)

required the trial court to run the sentences for both convictions consecutively.

Consequently, the post-conviction court did not unreasonably deny the claim.

Dixon asserts that the consecutive sentences were illegal because the crimes arose

from the same criminal episode and the victim was neither shot nor injured. (Doc. 1 at 8)

Williams v. State, 186 So. 3d 989, 993 (Fla. 2016), holds that “consecutive sentencing of

mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if

the offenses arose from the same criminal episode and a firearm was merely possessed but

not discharged.” Williams, 186 So. 3d at 993, clarifies that “[i]f . . . multiple firearm offenses

are committed contemporaneously, during which time multiple victims are shot at, then

consecutive sentencing is permissible but not mandatory.”

The trial court did not impose consecutive mandatory minimum terms for firearm

offenses. The trial court imposed a single mandatory minimum term for the firearm

enhancement for the aggravated assault conviction. (Doc. 14-2 at 26) The information did

not charge Dixon with a firearm enhancement for carrying a concealed weapon (Doc. 14-2

at 8), and the trial court sentenced Dixon to five years for that conviction without a

mandatory minimum term. (Doc. 14-2 at 25–26) Because the bar on consecutive sentencing

2 Section 775.087 did not authorize a firearm enhancement for the carrying a concealed

firearm charge. § 775.087(2)(a)(1), Fla. Stat. (2015).

for firearm enhancements under Williams did not apply, the post-conviction court did not

unreasonably deny Dixon’s claim.

Lastly, if the Court could construe Ground Two as asserting that Dixon’s sentences

violated double jeopardy, the sentences did not violate double jeopardy, as explained in

Ground Five below. The legislature required the trial court to run the sentence for the

aggravated assault conviction with a firearm enhancement consecutively to the sentence for

the carrying a concealed firearm conviction without a firearm enhancement. § 775.087(2)(d),

Fla. Stat. Also, each offense required proof of an element that the other offense did not.

Consequently, as explained below, even though the offenses occurred during the same

criminal episode, the sentences for the three convictions did not violate double jeopardy.

Ground Two is DENIED.

Ground Three

Dixon asserts that the trial court violated his federal right to due process by failing to

comply with the plain language of Section 775.087 when imposing the mandatory minimum

term for the firearm enhancement for the aggravated assault conviction. (Doc. 1 at 9–10)

The Respondent asserts that the claim is procedurally barred. (Doc. 14 at 27–28) The post-

conviction court denied the claim as follows (Doc. 14-2 at 127) (state court record citations

omitted):

In his Motion, Defendant raised [the following] claim[ ] of

error: . . . Trial Court erred when it deviated from the language

of Fla. Stat. 775.087[.]

. . .

Defendant argues trial court error. This Court finds that trial

court errors are not cognizable in a Rule 3.850 Motion and

should be raised on direct appeal. The Court finds that the State

did give notice of its intent to seek enhanced sentencing

pursuant to Fla. Stat. 775.087. Additionally, as the Defendant

was found to be in possession of a firearm, and that he

discharged said firearm, the application of Fla. Stat. 775.087

was proper.

The post-conviction court denied the claim as procedurally barred. Fla. R. Crim. P.

3.850(c). The post-conviction court’s denial of the claim on this independent and adequate

state procedural ground bars federal review of the claim. LeCroy v. Sec’y, Fla. Dep’t Corrs.,

421 F.3d 1237, 1260 n.25 (11th Cir. 2005) (citing Whiddon v. Dugger, 894 F.2d 1266,

1267–68 (11th Cir. 1990)). Even though the post-conviction court alternatively reviewed the

merits of the claim, the claim is procedurally barred on federal habeas. Harris v. Reed, 489

U.S. 255, 264 n.10 (1989). Because Dixon fails to demonstrate either cause and actual

prejudice or a miscarriage of justice to excuse the procedural bar, the claim is barred from

federal review. (Doc. 15 at 8–13) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.

Ground Three is DENIED.

Ground Four

Dixon asserts that trial counsel was ineffective for not objecting to the jury instruction

on the firearm enhancement for aggravated assault. (Doc. 1 at 11) The post-conviction court

denied the claim as follows (Doc. 14-2 at 127) (state court record citations omitted):

In his Motion, Defendant raised [the following] claim[ ] of

error: . . . Trial counsel allowed the Court to give an erroneous

jury instruction[.]

Defendant argues that trial counsel allowed the Court to give

an erroneous jury instruction. Defendant writes that actual

possession was not defined and the jury was not instructed on

the application of Fla. Stat. 775.087. After review of the

instructions given by the Court, and the verdict form, the Court

finds no error. Defendant has failed to show deficient

performance or prejudice.

Whether the jury instructions adequately instructed the jury on the firearm

enhancement is an issue of state law, and a state court’s determination of state law receives

deference in federal court. Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982) (“As a general

rule, improper jury instructions will not form the basis for federal habeas corpus relief.

Instructions in a state trial are a matter of state law to which substantial deference is owed.”)

(citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)).

Florida Standard Criminal Jury Instruction 3.3(d) (2015), the standard instruction

for the firearm enhancement, states:

If you find that (defendant) committed (felony identified in

§ 775.087(2)(a)(2), Fla. Stat.) and you also find beyond a

reasonable doubt that during the commission of the crime,

[he][she] discharged a [firearm][destructive device], you should

find the defendant guilty of (felony) with discharge of a

[firearm][destructive device].

. . .

A [“firearm”] [“destructive device”] is legally defined as (adapt

from § 790.001(4) or § 790.001(6), Fla. Stat.).

Careful review of the jury instructions reveals that the trial court gave the standard

instruction to the jury. (Doc. 14-2 at 595–615) The trial court presented the jury with a

verdict form that contained the relevant instruction requiring proof that the defendant

discharged the firearm (Doc. 14-2 at 18) (bolding added):

We, the jury, find as follows, as to COUNT 1: (check only one

as to this count)

___ a. The defendant is guilty of Aggravated Assault, as

charged.

If you find the Defendant guilty of Aggravated Assault, you

must next make further findings (pick one):

___ During the commission of the crime, the Defendant did

carry, display, use, threaten to use, or attempt to use a firearm.

___ During the commission of the crime, the Defendant did not

carry, display, use, threaten to use, or attempt to use a firearm.

If you find that during the commission of the crime, the

Defendant did carry, display, use, threaten to use, or attempt to

use a firearm, you must next make further findings (pick one):

___ During the course of the commission of the crime, the

Defendant did discharge a firearm.

___ During the course of the commission of the crime, the

Defendant did not discharge a firearm.

The trial court provided the following instructions to the jury concerning this relevant

portion of the jury verdict form (Doc. 14-2 at 609–10) (bolding added):

[Court:] If you choose option A, which is, “The

Defendant is guilty of aggravated assault

as charged,” then there’s some additional

information and additional findings

you’re required to make. So, if you pick A,

please follow what’s indented under A on

the form.

And the further findings are, “If you find

the Defendant guilty of Aggravated

Assault, you must next make further

findings. Pick one.” And there are two

options under that little subheading. One

of the options is, “During the commission

of the crime, the Defendant did carry,

display, use, threaten to use, or attempt to

use a firearm.” If that’s what you find,

check the box.

The other option is, “During the

commission of the crime, the Defendant

did not carry, display, use, threaten to use,

or attempt to use a firearm.” If that’s what

you find, check the appropriate box. And

then there’s another finding. You’ll go on

under A, if you pick A, and the other

finding is, “If you find that during the

commission of the crime the Defendant

did carry, display, use, threaten to use, or

attempt to use a firearm, you must next

make a further finding.” And, again,

“Pick one.”

The first choice is, “During the course of

the commission of the crime, the

Defendant did discharge a firearm.” If

that’s what you find, check that box. Or,

“During the course of the commission of

the crime, the Defendant did not

discharge a firearm.” If that’s what you

find, check that box. Now, those special

findings only have to be made if you pick

Option A. Otherwise, you’ll pick Options

B, C, D, or E. And then that completes

Count One.

Also, the trial court defined the word “firearm” when presenting the instructions for

carrying a concealed firearm, improper exhibition of a firearm as a lesser included offense,

and discharging a firearm in public as a lesser included offense. (Doc. 14-2 at 597–601) The

definition of “firearm” presented by the trial court tracked the language required by the

standard instruction for the firearm enhancement. Fla. Std. Jury Instr. (Crim.) 3.3(d) (2015)

(citing § 790.001(6), Fla. Stat. (2015)).

During the charge conference, the trial judge and the parties agreed that the jury

verdict form adequately instructed the jury on the firearm enhancement (Doc. 14-2 at 487):

[Trial court:] All right. And then aggravated assault.

Let’s see, that’s charged in Count One. I

note that Count One alleges that the

assault was committed with a firearm, a

deadly weapon, and that the firearm was

discharged. And those additional factors

aren’t particularly referenced in the

proposed instruction 8.2, although it does

allege the elements of aggravated assault

and alleged that the assault was made with

a deadly weapon. So I don’t know if

there’s any significant in that or not.

[Prosecutor:] Your Honor, the specific findings that are

accompanied on the verdict form will

address the rest of that.

[Trial court:] I understand but I raise that because, you

know, I’m comparing the proposed

instruction with the actual charging

document, to call that to the attention of

the defense in the event the defense wants

to make note of it or has any particular

request in that regard.

[Trial counsel:] Your Honor, Instruction 8.2 does appear

to be standard. I have no objection. I

believe Mr. Levine is correct. The verdict

form will suffice for the additional

findings regarding the violence.

Because the record refutes Dixon’s claim, the post-conviction court did not

unreasonably deny the claim. The information charged Dixon with the firearm

enhancement by alleging that Dixon “did commit the assault with a firearm, a deadly

weapon, and during the course of the commission of said offense the firearm was

discharged, contrary to Florida Statutes 784.021 and 775.087.” (Doc. 14-2 at 8) At trial,

Mitchell testified that he ran away when he saw Dixon pull out a gun and subsequently

heard three gunshots behind him. (Doc. 14-2 at 453–57) Surveillance video showed Dixon

raise his arm and point the gun towards Mitchell. (Doc. 14-2 at 458–59, 527) A witness

observed Dixon fire the gun. (Doc. 14-2 at 440) Dixon admitted to the detective that he

possessed a gun that evening. (Doc. 14-2 at 523–25) On the verdict form, the jury found that

(Doc. 14-2 at 18): “During the course of the commission of the crime, [Dixon] did discharge

a firearm.” The jury’s finding required the trial court to impose the twenty-year mandatory

minimum term. § 775.087(2)(a)(2), Fla. Stat. (2015).

Dixon asserts that trial counsel should have objected to the lack of an instruction on

the definition of “actual possession.” (Doc. 15 at 13–14) Section 775.087(2)(a)(1) authorizes

a three-year mandatory minimum term if a defendant is convicted of aggravated assault and

“actually possessed a ‘firearm’ or ‘destructive device’” during the commission of the offense.

The information did allege that Dixon committed the aggravated assault “while in actual

possession of a firearm.” (Doc. 14-2 at 8) However, the jury found that Dixon discharged

the firearm. By finding that Dixon discharged the firearm, the jury necessarily determined

that Dixon actually possessed the firearm. Dixon could not demonstrate a reasonable

probability that, if trial counsel had requested an instruction for actual possession, the jury

would have rejected the firearm enhancement for discharging a firearm and instead found

that Dixon only possessed the firearm. Consequently, Dixon could not demonstrate

prejudice under Strickland. Strickland, 466 U.S. at 694. Crapser v. Sec’y, Dep’t Corrs., 855 F.

App’x 626, 628 (11th Cir. 2021) (“Under Florida law, a jury must ‘render a true verdict

according to the law and the evidence’ and, therefore, a jury is permitted to convict of a

lesser included offense ‘only if it decides that the main accusation has not been proved

beyond a reasonable doubt.’ Strickland requires that we assume the jury in Crapser’s trial

followed this rule of law.”) (citing Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006)).

Ground Four is DENIED.

Ground Five

Dixon asserts that trial counsel was ineffective for not asserting at sentencing that

the consecutive sentences for the aggravated assault with a firearm, carrying a concealed

firearm, and possession of a firearm by a convicted felon convictions violated his federal

right against double jeopardy. (Doc. 1 at 12) He contends that the three convictions all arose

from his possession of a single firearm during the same criminal episode. (Doc. 1 at 12)

Dixon raised this claim based on a violation of double jeopardy in his post-conviction

motion. (Doc. 14-2 at 119–20) The post-conviction court denied the claim as follows (Doc.

14-2 at 127–28) (state court record citations omitted):

In his Motion, Defendant raised [the following] claim[ ] of

error: . . . Trial counsel failed to object to consecutive sentences.

. . .

Defendant alleges that trial counsel was ineffective for failing to

object to consecutive sentences. That claim has previously been

raised and then denied in an order dated May 31, 2017. The

Second District Court of Appeal affirmed and issued a Mandate

on February 6, 2018.

The post-conviction court denied the claim as procedurally barred. See Rogers v. State,

970 So. 2d 884, 885 (Fla. 2d DCA 2007) (“Collateral estoppel ‘bars relitigation of the same

issues between the same parties in connection with a different cause of action.’”); Wood v.

State, 867 So. 2d 590, 592 (Fla. 5th DCA 2004) (“It is clear that the rulings in the prior

collateral attack raising the same issues presented here became the law of the case and

cannot be re-litigated in a subsequent post-conviction motion.”). Because the Respondent

fails to assert that the denial of the claim on this independent and adequate state procedural

ground bars federal review (Doc. 14 at 31–33), the Respondent waives the defense. Smith,

572 F.3d at 1339–40.

“[T]he Double Jeopardy Clause ‘. . . protects against multiple punishments for the

same offense.’” Albernaz v. United States, 450 U.S. 333, 343 (1981) (citation omitted).

However, Fallada v. Dugger, 819 F.2d 1564, 1572 (11th Cir. 1987) explains that, if the

legislature intended to authorize multiple punishments, the imposition of multiple

punishments does not violate double jeopardy:

“With respect to cumulative sentences imposed in a single trial,

the Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than the

legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366

(1983). In Whalen v. United States, 445 U.S. 684, 688–89 (1980)

the Supreme Court held that “the question whether

punishments imposed by a court after a defendant’s conviction

upon criminal charges are unconstitutionally multiple cannot

be resolved without determining what punishments the

Legislative Branch has authorized;” the “dispositive question”

is whether the legislature intended to authorize separate

punishments for the crimes. “This is so because the ‘power to

define criminal offenses and to prescribe punishments to be

imposed upon those found guilty of them, resides wholly with

the Congress.’” Albernaz v. United States, 450 U.S. 333, 344

(1981) (quoting Whalen, 445 U.S. at 689). “Thus, the question

of what punishments are constitutionally permissible is not

different from the question of what punishments the Legislative

Branch intended to be imposed. Where Congress intended . . .

to impose multiple punishments, imposition of such sentences

does not violate the Constitution.” Id. (footnote omitted).

Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996), identifies two steps that a

court must follow when reviewing whether multiple punishment violates double jeopardy:

First, [a court] ascertain[s] whether there exists a clear

legislative intent to impose cumulative punishments, under

separate statutory provisions, for the same conduct. If a clear

indication of such intent exists, our inquiry is at an end and the

double jeopardy bar does not apply. If there is no clear

indication of legislative intent to impose cumulative

punishments, we examine the relevant statutes under the same-

elements test of Blockburger [v. United States, 284 U.S. 299

(1932)]. Under that test, if each statutory offense requires proof

of an element not contained in the other, the offenses are not

the “same” and double jeopardy is no bar to cumulative

punishment. Otherwise, double jeopardy principles prohibit

cumulative punishment.

The trial court sentenced Dixon to twenty years of prison with a twenty-year

mandatory minimum term for the aggravated assault conviction, a consecutive five years of

prison for the carrying a concealed firearm conviction, and a concurrent five years of prison

with a three-year mandatory minimum term for the possession of a firearm by a convicted

felon conviction. (Doc. 14-2 at 21–28, 37–43)

Because Dixon asserts that trial counsel was ineffective for not objecting to

consecutive sentences (Doc. 1 at 12) and the trial court imposed the sentence for the

possession of a firearm by a convicted felon conviction concurrently (Doc. 14-2 at 42), the

record refutes the claim for that conviction.3 Also, because the carrying a concealed firearm

conviction required proof of an element that the convictions for aggravated assault and

possession of a firearm by a convicted felon did not require, the concurrent sentence for

carrying a concealed firearm did not violate double jeopardy. See State v. Maxwell, 682 So.

2d 83, 84 (Fla. 1996) (“While each of the offenses contains the common element of

possession of a firearm, each requires proof of an element that the others do not. Section

790.01(2) requires proof that the firearm was ‘concealed’; . . . and section 790.23 requires

proof that the person who was in possession of the firearm had been ‘convicted of a

felony.’”).

As explained above, the information charged aggravated assault with a firearm

enhancement and carrying a concealed firearm without a firearm enhancement. (Doc. 14-2

3 The Respondent further asserts that Dixon waived the double jeopardy challenge to the

possession of a firearm by a convicted felon conviction by pleading guilty. However, “‘a

defendant does not waive a double jeopardy challenge when, judged on the basis of the record

that existed at the time the guilty plea was entered, the second count is one the government

may not constitutionally prosecute.’” United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir.

2009) (citation omitted).

at 8) Section 775.087(2)(d) (2015) (bolding added) requires the trial court to run the sentence

for the offense qualifying for a firearm enhancement consecutively to the sentence for an

offense that does not qualify for a firearm enhancement:

It is the intent of the Legislature that offenders who actually

possess, carry, display, use, threaten to use, or attempt to use

firearms or destructive devices be punished to the fullest extent

of the law, and the minimum terms of imprisonment imposed

pursuant to this subsection shall be imposed for each qualifying

felony count for which the person is convicted. The court shall

impose any term of imprisonment provided for in this

subsection consecutively to any other term of imprisonment

imposed for any other felony offense.

Williams v. State, 186 So. 3d 989, 992 (Fla. 2016), construes the plain language of the

statute as follows:

As written, paragraph (2)(d) contemplates two distinct

imprisonment terms: a term imposed for a qualifying felony

pursuant to subsection (2), and a term imposed for a non-

qualifying felony. . . . Specifically, it expressly mandates only

that a qualifying felony sentence run ‘consecutively to’ any

sentence imposed for a non-qualifying felony.

Because aggravated assault qualified for a firearm enhancement and carrying a

concealed firearm did not qualify for a firearm enhancement, Section 775.087(2)(d) required

the trial court to run the sentences for the offenses consecutively. Because the Florida

legislature authorized cumulative punishment for both offenses, the consecutive sentences

did not violate double jeopardy. Hunter, 459 U.S. at 368–69.

Also, Section 775.021(4)(a), Florida Statutes (2015), grants a trial judge the

discretion to impose sentences for two offenses consecutively, even if the defendant commits

the offenses in the same criminal transaction or episode:

Whoever, in the course of one criminal transaction or episode,

commits an act or acts which constitute one or more separate

criminal offenses, upon conviction and adjudication of guilt,

shall be sentenced separately for each criminal offense; and the

sentencing judge may order the sentences to be served

concurrently or consecutively. For the purposes of this

subsection, offenses are separate if each offense requires proof

of an element that the other does not, without regard to the

accusatory pleading or the proof adduced at trial.

Aggravated assault requires proof that (1) the defendant intentionally and unlawfully

threatened, either by word or act, to do violence to the victim, (2) the defendant appeared

to have the ability to carry out the threat, and (3) the act created in the mind of the victim a

well-founded fear that violence was about to take place. Fla. Std. Jury Instr. (Crim.) 8.2

(2015). §§ 784.011(1) and 784.021(1)(a), Fla. Stat. (2015). Carrying a concealed firearm

requires proof that (1) a defendant knowingly carried on his or her person a firearm, (2) the

firearm was concealed from the ordinary sight of another person, and (3) the defendant was

not licensed to carry a concealed weapon. Fla. Std. Jury Instr. (Crim.) 10.1 (2015).

§ 790.01(2), Fla. Stat. (2015). Because carrying a concealed weapon requires proof of an

element that aggravated assault does not, Section 775.021(4)(a) authorized the trial judge to

impose consecutive sentences for the convictions, even if the crimes occurred during the

same criminal episode.

At sentencing, the trial judge exercised discretion to impose the consecutive

sentences, even if Section 775.087(2)(d) did not require consecutive sentencing (Doc. 14-2

at 634–35):

[Trial court:] I think, in light of your prior history, the

State has compelling argument here with

regard to Count Two. You’re adjudicated

guilty. You’re sentenced to five years in

Florida State Prison consecutive to the

twenty years on Count One, for a total of

twenty-five years toward which, again,

you will receive all credit for time served.

Now, having said that, I want to note that,

if the Court is required to have imposed a

consecutive sentence pursuant to

775.087(2)(d), I’ve done that. However, if

that is not required by virtue of the fact

that it’s the same criminal episode and this

provision doesn’t require the imposition

of consecutive sentences with regard to the

same criminal episode, nonetheless, the

Court would have that discretion in light

of the fact that the Defendant scores

prison anyway.

So, to the extent that I have the discretion

to impose that sentence, I would choose to

exercise my discretion in that regard, if it’s

not otherwise required, pursuant to

775.087(2)(d).

Because the legislature granted the trial court discretion to impose cumulative

punishment under Section 775.021(4)(a), the consecutive sentences did not violate double

jeopardy. Hunter, 459 U.S. at 368–69.

Ground Five is DENIED.

Ground Six

Dixon asserts that the trial court lacked subject matter jurisdiction over the

prosecution for carrying a concealed firearm and possession of a firearm by a convicted

felony because possession of the same firearm was an essential element of the aggravated

assault conviction. (Doc. 1 at 14) The Respondent asserts that the claim is unexhausted and

procedurally barred. (Doc. 14 at 33–34)

Dixon raised the claim in a motion for correction of sentence but failed to appeal the

post-conviction court’s order denying the claim. (Doc. 14-2 at 172–73) Because Dixon

failed to give the state court one full opportunity to resolve the federal claim by invoking

one complete round of the state’s established appellate review process, he failed to exhaust

the claim. O’Sullivan, 526 U.S. at 845. If Dixon returned to state court to exhaust the claim,

the state court would deny the claim as procedurally barred. Fla. R. Crim. P. 3.800(a)(2)

and 3.850(h). Consequently, this Court denies the claim as procedurally barred on federal

habeas. Snowden, 135 F.3d at 736. Because Dixon fails to demonstrate either cause and

actual prejudice or a miscarriage of justice (Doc. 15 at 17–18), the claim is barred from

federal review. Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.

Ground Six is DENIED.

Ground Seven

Dixon asserts that the trial court unlawfully imposed the twenty-year mandatory

minimum term for the aggravated assault conviction because the legislature amended the

firearm enhancement statute and removed aggravated assault from the list of offenses that

qualify for the enhancement. (Doc. 1 at 16) He contends that the legislature amended the

statute before his convictions and sentences became final. (Doc. 1 at 16) The post-conviction

court denied the claim as follows (Doc. 14-2 at 215):

Defendant first argues that his twenty-year minimum

mandatory sentence is illegal due to a law change that removed

Aggravated Assault from the list of enumerated felonies in Fla.

Stat. 775.087. The State argues that the version of Fla. Stat.

775.087 in effect when the Defendant committed the crime

controls the Defendant’s sentence. As such, the twenty-year

minimum mandatory provision is appropriate. . . .

After review of the State’s arguments, citations, and

attachments to its Response, adopted and incorporated herein,

the Court agrees.

The post-conviction court adopted the following from the prosecutor’s response to

Dixon’s post-conviction motion (Doc. 14-2 at 205–07):

A. Statutory Changes

A claim pursuant to a new rule of law may only be recognized

and applied on collateral review if it is determined to be fully

retroactive. Witt v. State, 387 So. 2d 922, 926 (Fla. 1980). “[T]he

essential considerations in determining whether a new rule of

law should be applied retroactively are essentially three: (a) the

purpose to be served by the new rule; (b) the extent of reliance

on the old rule; and (c) the effect on the administration of justice

of a retroactive application of the new rule.” Id. (citing Stovall

v. Denno, 388 U.S. 293, 297 (1967); Linkletter v. Walker, 381 U.S.

618 (1965); Brewer v. State, 264 So. 2d 833, 834 (Fla. 1972); State

v. Steinhauer, 216 So. 2d 214, 219 (Fla. 1968), cert. denied, 398

U.S. 914 (1970)). This same claim was recently examined by

the Fourth District Court of Appeal in State v. Reininger, 254 So.

3d 996 (Fla. 4th DCA 2018). In that case, the State appealed

the sentencing court’s application of the amendment to

§ 775.087, whereby [ ] Reininger was sentenced to three-years’

probation as opposed to three years minimum mandatory

prison. The sentencing court reasoned that the legislature

intended the new sentencing scheme be applied, otherwise it

would have specified “commission” not “conviction.” Since

the conviction occurred after the change, the court refused to

impose the minimum mandatory in effect on the date of

offense. Reininger, 254 So. 3d at 998. The appellate court

disagreed with this analysis and reversed for resentencing

consistent with its opinion. Reininger, 254 So. 3d at 1000.

The Fourth District noted that “Florida courts have repeatedly

held that [the] prohibition on retroactive application of statutes

only applies to statutes that effect substantive change in the law;

it has no application to changes in the law that are merely

procedural or remedial.” Changes to sentencing statutes are

substantive changes where they relate to the “elements of the

offense or the punishment therefor.” Reininger, 254 So. 3d at

999 (citing Grice v. State, 967 So. 2d 957, 960 (Fla. 1st DCA

2007)). The court further cited Judge Wolf’s concurring opinion

in Wright v. State, 225 So. 3d 914 (Fla. 1st DCA 2017) wherein

he wrote that the defendant not having “the benefit of the

discretionary version of the statute was a matter of ‘bad timing’

for the defendant, since ‘the offense was committed prior to’

[the amendment of section 775.087].” Reininger, 254 So. 3d at

1000 (quoting Wright, 225 So. 3d at 915). The version of

§ 775.087 under which the Defendant should be sentenced “is

the one in effect on the date that he committed the crime.”

Reininger, 254 So. 3d at 1000. This Court sentenced the

Defendant to the minimum mandatory as required by law. No

change is required.

Whether a state statute retroactively applies to a criminal case is an issue of state law,

and a state court’s determination of state law receives deference in federal court. Wilson v.

Corcoran, 562 U.S. 1, 5 (2010) (“‘[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.’”) (citation omitted).

Dixon committed the aggravated assault on March 3, 2015. (Doc. 14-2 at 8) The

legislature enacted a law, effective on July 1, 2016, removing aggravated assault from the

list of offenses that qualify for a firearm enhancement. Ch. 2016-7, § 1, Laws of Fla. On

February 15, 2017, the state appellate court affirmed Dixon’s convictions and sentences.

(Doc. 14-2 at 47)

The Florida constitution bars retroactive application of a criminal statute. Smiley v.

State, 966 So. 2d 330, 336 (Fla. 2007) (“‘Repeal or amendment of a criminal statute shall not

affect prosecution or punishment for any crime previously committed.’”) (italics in original)

(quoting Art. X, § 9, Fla. Const.). Because the amendment to the firearm enhancement

reduced the prescribed punishment for the crime, the amendment did not retroactively apply

to Dixon’s criminal case. State v. Reininger, 254 So. 3d 996, 999 (Fla. 4th DCA 2018) (“[A]

sentencing statute prescribing the punishment for a crime, such as section 775.087, qualifies

as a ‘criminal statute’ for purposes of applying Article X, section 9.”). See also Stapleton v.

State, 286 So. 3d 837, 840 (Fla. 5th DCA 2019) (“Florida courts have consistently held that,

based on article X, section 9, the criminal statute in effect at the time of the crime governs the

sentence an offender receives for the commission of that crime.”) (italics in original).

Ground Seven is DENIED.

Accordingly, it is ORDERED that Dixon's petition (Doc. 1) is DENIED. The Clerk

is DIRECTED to enter a judgment against Dixon and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Dixon neither makes a substantial showing of the denial of a constitutional

right nor demonstrates that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues that he seeks to raise, a certificate of

appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on January, 3, 2023, a

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE

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