Wagner v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

TERRY LYNNE WAGNER,

Petitioner,

v. Case No: 5:20-cv-65-TPB-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER DENYING THE AMENDED PETITION AND

DISMISSING CASE WITH PREJUDICE

I. Status

Petitioner, Terry Lynne Wagner, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of

Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner is challenging a

state court (Marion County, Florida) judgment of conviction for lewd and lascivious

molestation of a child. Petitioner is serving a twenty-five-year term of incarceration

to be followed by a life term of sex offender probation. Respondents filed a Response

(Doc. 10).1 Petitioner filed a Reply (Doc. 14). This case is ripe for review.

1 Attached to the Response are several exhibits. The Court cites the exhibits as “Resp. Ex.”

II. Governing Legal Principles

A. Standard of Review Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs

a state prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga.

Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). “‘The

purpose of AEDPA is to ensure that federal habeas relief functions as a guard

against extreme malfunctions in the state criminal justice systems, and not as a

means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall

v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court

need not issue an opinion explaining its rationale for the state court’s decision to

qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100

(2011). When the state court’s adjudication on the merits is unaccompanied by an

explanation, “the federal court should ‘look through’ the unexplained decision to the

last related state-court decision that does provide a relevant rationale” and

“presume that the unexplained decision adopted the same reasoning.” Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of the

claim 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)(1), (2). A state court’s

factual findings are “presumed to be correct” unless rebutted “by clear and

convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that state-

court decisions be given the benefit of the doubt.” Renico

v. Lett, 559 U.S. 766, 773 (2010) (internal quotation

marks omitted). “A state court’s determination that a

claim lacks merit precludes federal habeas relief so long

as fairminded jurists could disagree on the correctness of

the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (internal quotation marks omitted). “It

bears repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade, 538

U.S. 63, 75 (2003)). The Supreme Court has repeatedly

instructed lower federal courts that an unreasonable

application of law requires more than mere error or even

clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18

(2003); Lockyer, 538 U.S. at 75 (“The gloss of clear error

fails to give proper deference to state courts by conflating

error (even clear error) with unreasonableness.”);

Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from

an incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective assistance

of counsel. That right is denied when a defense counsel’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.”

Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Wiggins v. Smith, 539 U.S. 510,

521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

ineffective assistance, a person must show that: (1) counsel’s performance was

outside the wide range of reasonable, professional assistance; and (2) counsel’s

deficient performance prejudiced the challenger in that there is a reasonable

probability that the outcome of the proceeding would have been different absent

counsel’s deficient performance. Strickland, 466 U.S. at 687.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any

reasonable argument that counsel satisfied Strickland’s deferential standard,” then

a federal court may not disturb a state-court decision denying the claim. Richter,

562 U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a

‘strong presumption’ that counsel’s representation was ‘within the wide range of

reasonable professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d

1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this

presumption is combined with § 2254(d), the result is double deference to the state

court ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013); Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Analysis

A. Ground One

Petitioner argues that the trial court erred in denying his motion to suppress

his post-arrest statements made during a police interview in violation of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966), (Doc. 1 at 5-9). According to

Petitioner, the statements he made to Agent Jefferey Rohrer immediately following

a polygraph examination exceeded the scope of his consent, and were made without

the benefit of counsel when Agent Rohrer knew Petitioner was represented by

counsel. Petitioner’s also argues that his alleged waiver of counsel was not

knowingly and intelligently made.

To provide context to Petitioner’s claim, the Court discusses the procedural

history as it relates to this issue. Before trial, Petitioner, through defense counsel,

moved to suppress statements Petitioner made during a post-arrest polygraph test

conducted by United States Secret Service Agent Rohrer in violation of his Fifth,

Sixth, and Fourteenth Amendment rights (Resp. Ex. B). The trial court conducted a

pretrial hearing on the motion to suppress (Resp. Ex. C). During the hearing,

defense counsel argued that after Petitioner was arrested, he suggested that

Petitioner undergo the polygraph test to help aid in dismissal of the case (id. at 7).

According to counsel, however, contrary to their prior agreement, the state did not

provide counsel with the polygraph questions before the interview, and Petitioner’s

low IQ made him vulnerable to continued questioning after the polygraph test.

Counsel asserted that the polygraph exam was supposed to be limited to a few

specific questions about a single issue – did Petitioner touch B.L. with sexual intent

(id. at 6-7). But, according to counsel, the state did not limit the questioning and

improperly continued to question Petitioner after the polygraph test, ultimately

coercing incriminating statements and a confession from Petitioner. Thus, counsel

argued Petitioner’s statements should be suppressed. The state argued that the

parties did not agree that the exact questions would be provided to defense counsel

before the polygraph test and Petitioner executed a written waiver before making

the subject incriminating statements (id. at 8-10).

Agent Rohrer testified at the pretrial hearing that in March 2013, the Marion

County Sheriff’s Office contacted his department asking that he help conduct

Petitioner’s polygraph test (id. at 34-35). Agent Rohrer explained that during the

polygraph test, only he and Petitioner were in the interview room while Marion

County Detective Mongeluzzo observed the test from an adjacent observation room

(id. at 36-37). According to Agent Rohrer, before the interview, he advised Petitioner

of his rights and Petitioner executed two written forms, one acknowledging his

rights and voluntarily waiving those rights, and another consenting to the

examination (id. at 38-39). In executing the forms, Petitioner acknowledged that he

had a right to request his attorney at any time, and that he could refuse to answer

questions at any time (id. at 45).

Agent Rohrer testified that after the polygraph test, Petitioner voluntarily

told Rohrer he touched the victim’s vagina in a sexual manner because the victim

was “sexually testing him” by doing jumping jacks in front of him, so he decided “to

sexually test her” (id. at 46-47). According to Rohrer, when Petitioner made that

statement, Petitioner did not indicate that he was confused about his rights, nor did

he appear mentally challenged (id. at 46-47). Agent Rohrer explained that

Petitioner’s statement was not in response to any question asked by Rohrer;

instead, Petitioner voluntarily offered the information on his own (id. at 48). Rohrer

testified that after this statement, Rohrer then left the room and spoke with

Detective Mongeluzzo who advised that Petitioner could leave (id. at 48-49).

Petitioner testified at the motion hearing that after the polygraph test, Agent

Rohrer told Petitioner he failed and then proceeded to ask Petitioner further

questions (id. at 24). Petitioner stated that he then made the incriminating

statements because he thought that’s what the Agent wanted to hear (id.).

According to Petitioner, he felt like he was not free to leave and was intimidated by

Rohrer’s questioning (id. at 25).

At the hearing, the trial court also considered testimony from Detective

Mongeluzzo and defense expert Dr. Gary Honickman, as well as extensive argument

from defense counsel and the state (id. at 13-18, 55-71, 72-92). The trial court

subsequently denied Petitioner’s request to suppress the statements, explaining:

All right, then. I think I fully understand your

argument, counselor, at this point.

And this is a case that actually has an added fact in

it that these other cases that have been cited did not

have, other than the distinguishing facts of how the

questions were elicited. I don’t find that there was any

deliberate eliciting by the State of incriminating

statements. I don’t find that. I don’t find there was

exploitation by the State in this case. I don’t find that.

But the difference, factually, in the cases that were

presented and the case at bar is that this defendant was,

without question in the court’s mind, from the expert

witness, Dr. Honickman, and from the agent of the state,

aware that he was limited in his IQ and intelligence. And

I phrase it such, to be more specific, from the expert,

mildly retarded. He fell in that IQ percentile or score, 61.

Now, the State did not know that specifically, but

they were aware that he was an ESE student and had

special classes. So that, in and of itself, gave knowledge to

the State that he was of limited intelligence.

So then the question becomes whether he

understood what he was doing there and furthermore,

specifically, whether he understood his waivers and his

consent that he did sign. He didn’t recall signing them. He

didn’t say he didn’t sign them. He didn’t recall signing

them. But there’s evidence for the State that, in fact, he

did sign them. That they were read to him and he was

asked did he understand and he answered yes.

Well, that’s a fact that I have to consider, coupled

with the fact that·the expert, Dr. Honickman, indicated

that his responses, his answers, his actions in this

polygraph process could be, he said, he didn’t say they

were, but could be affected, that is, he could be more

sensitive, more easily intimidated, based on his

personality testing and because of the limited IQ he had.

So how does that, then, affect whether or not his

consent and waiver -- consent to the polygraph, he

consented to that. That was pursuant to an agreement

through his attorney, and his waiver of his right to have

an attorney there and to answer questions was voluntary

or not. Although he signed the document. Said he

understood.

The question is to what extent did he understand. I

don’t have that clearly before me except that I know that

it could be affected, it could have been affected because of

his limited IQ, because of his -- it’s not limited IQ, because

of his IQ and the fact that he’s mildly -- in the mildly

retarded range of IQ. That, really, in this court’s mind,

becomes a factor to be considered.

I do also find that the type of questions and more

specifically, his statement provided during the polygraph

testing was not one that would have required the attorney

to be present, because it was not a crucial confrontation

from what I’ve heard in the way that the polygraph went

forward. So it wasn’t required that you be there. In other

words, he could voluntarily waive the right to have you

present as his attorney.

And then it comes to the main question as to

whether or not his statement was voluntary. In other

words, was it in response to a question or was it

voluntarily given regarding his actions and his act of

touching the victim in the vaginal area over clothing as

this charge relates. And I took a note on that issue and let

me just find it, because -- and what I have here in my

notes is -- well, let me just read a couple things I think are

germane.

Is one, he initially denied that he intentionally

molested the child. And he was told by the agent that he

failed the test and asked if he was a rapist or a molester

and he said, “none of the above.” So he fully understood

that and said “none of the above.” He responded “none of

the above.”

And then just to get out of there -- this is the

testimony of Mr. Wagner today -- just to get out of there,

he told them what they wanted to hear is what he said,

what they wanted to hear. He knew the questions he was

going to be asked before they were asked. And then I find

this germane -- the defendant admits that he touched the

victim on her vagina in a sexual manner. [He said the]

[v]ictim was . . . sexually test[ing] him by doing jumping

jacks. Then he would test her. But when the victim told

him he should not be touching her vagina, he pulled away

and he stated that the victim should be in control of her

body. Defendant made statement[s] gratuitously, not in

response to a specific question. He did not appear

retarded is what I wrote. I wrote “retarded.” The words

were he did not appear to seem confused. He did not seem

mentally challenged, is what I think the exact words

were.

So having read those statements that I heard from

the defendant on the witness stand and from the agent on

the witness stand that testified today, the special agent

whose name I don’t remember at the moment but I have it

written down here. Rohrer.

I find that·the statements were voluntary. Now,

that means I’m going to deny the motion to suppress. The

question is still a question of fact as to whether it was

accidental, whether it was intentional, whether when he

made the gratuitous statement to the agent, he did so,

even though gratuitously, because in fact he did

intentionally touch her in a sexual way or that he just

made that statement to get out of the -- to conclude it. He

was ready to go. But he was not in custody at the time. I

don’t find that it falls under the crucial confrontation. He

had gone there voluntarily and he understood to the

extent that he understood everything, all of the

statements he made; those that would benefit him and

those that would not.

And so I cannot find that this statement should be

suppressed.

(Resp. Ex. C at 92-97).

Petitioner proceeded to trial and a jury found him guilty of lewd or lascivious

molestation (Resp. Ex. I). Petitioner, with help from appellate counsel, sought a

direct appeal and argued that the trial court erred in denying Petitioner’s pretrial

motion to suppress the statement made to Agent Rohrer (Resp. Ex. M at 23). The

state filed an answer brief arguing that the trial court properly denied the motion to

suppress because neither the state nor Agent Rohrer elicited Petitioner’s

incriminating statements; Petitioner consulted his attorney before the interview

and voluntarily went to the interview alone; and Petitioner was advised of his

Miranda rights and signed two written forms waiving his rights before the

interview (Resp. Ex. N). The Fifth District Court of Appeal then denied Petitioner’s

claim and per curiam affirmed his judgment and sentence without a written opinion

(Resp. Ex. P).

Initially, “[a]s a general rule, a federal court in a habeas corpus case will not

review the trial court’s actions concerning the admissibility of evidence,” because

the state court “has wide discretion in determining whether to admit evidence at

trial[.]” Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994); see also Baxter v.

Thomas, 45 F.3d 1501, 1509 (11th Cir. 1985) (federal habeas corpus is not the

proper vehicle to correct evidentiary rulings); Boykins v. Wainwright, 737 F.2d

1539, 1543 (11th Cir. 1984) (federal courts are not empowered to correct erroneous

evidentiary rulings in state court unless rulings deny petitioner fundamental

constitutional protections). Thus, Petitioner’s underlying challenge to the state’s

court’s determination on the admissibility of his statements to Agent Rohrer is not

generally proper for this Court’s consideration.

In any event, the Court addresses the claim in accordance with the

deferential standard for federal court review of state court adjudications. In doing

so, the Courts finds that the state court properly determined that Petitioner’s

statements to Agent Rohrer were voluntary. Before the polygraph test, Petitioner

was given his Miranda warnings and executed a written waiver. After Agent Rohrer

advised Petitioner he failed the polygraph test, Petitioner, unprovoked and without

coercion, attempted to explain his actions, and in doing so, offered incriminatory

statements. Based on the totality of the circumstances, the Court finds that the

state court’s decision was not contrary to clearly established federal law, did not

involve an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts considering the evidence

presented in the state court proceedings. United States v. Lall, 607 F.3d 1277, 1285

(11th Cir. 2010) (In order to determine whether a confession was voluntarily given,

there must be “an examination of the totality of the circumstances[.]”). Ground one

is due to be denied.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to file a

motion to suppress the statements Petitioner made during his initial, pre-arrest

police interrogation because police obtained the statements in violation of

Petitioner’s Miranda rights (Doc. 1 at 11).

Petitioner raised this claim in his Florida Rule of Criminal Procedure 3.850

motion (Resp. Ex. R at 4). The trial court ordered an evidentiary hearing and

appointed postconviction counsel to represent Petitioner at the hearing (Resp. Ex.

T). During the hearing, the trial court considered testimony from Petitioner, Deputy

Michael Mongeluzzo, and Assistant State Attorney Jennifer Kipke (Resp. Ex. U).2

The trial court later denied the claim:

The defendant argues that he was “in-custody” for

purposes of Miranda[] when he was interviewed by

investigators without having been informed of the

warnings required by Miranda for a custodial

2 Petitioner’s trial attorney, Mr. Lewis Dinkins, passed away after Petitioner’s trial and

before his postconviction proceedings (Resp. Ex. C at 4).

interrogation. He argues that Mr. Dinkins was ineffective

because there was no motion to suppress the pre-arrest

statements.

The State argues that the interview was non-

custodial; therefore, no Miranda warnings were required.

The trial transcript reflects that the pre-arrest

interview took place in a conference room at a local high

school where the defendant was employed. There were

two deputies present for the interview with the defendant.

The interviewing deputy testified that he did not inform

the defendant of the Miranda warnings because the

defendant was not in custody and was free to leave at any

time. The defendant was not under arrest, and was not

arrested until the following day. The deputy testified that

he was not confrontational during the interview, that

neither deputy got up during the interview, and that the

interview was not suggestive in any way.

The defendant’s motion does not allege that either

of the deputies threatened him in any fashion, that they

detained him against his will, that they prevented him

from leaving, or that they exercised any form of coercion

on him. At the evidentiary hearing the defendant testified

he was nervous and intimidated during the interview by

the deputy because he suffers from being mildly mentally

retarded, and it is his belief that this should have been

the basis for a motion to suppress his statements. He did

not establish such a motion would have been successful.

Deputy Mike Mongeluzzo is the officer who

conducted the interview of the defendant. Deputy

Mongeluzzo testified at the evidentiary hearing that he

interviewed the defendant at Forest High School where

the defendant worked. Detective Skinner was also present

during the interview. He was not informed by the

defendant or anyone else that the defendant had a low IQ,

and was not aware of it at the time of the interview. He

did not read Miranda warnings to the defendant because

it was a non-custodial interview in a room at the school,

the exit door was behind the defendant and was unlocked,

the defendant was free to leave, he was not under arrest,

he was allowed to leave after the interview and he was

not arrested that day.

The defendant has not established that a motion to

suppress his statements would have been successful.

Counsel cannot be ineffective for failing to file a motion

which would have been properly denied. Branch v. State,

952 So.2d 970 (Fla. 2006).

. . . .

(Resp. Ex. V at 4-6) (record citations omitted). Petitioner appealed the trial court’s

denial, and the Fifth DCA per curiam affirmed the order without a written opinion

(Resp. Ex. BB).

The Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. In doing so, the Court defers to the

state court’s finding that counsel was not deficient for failing to file a meritless motion

to suppress. The record shows that Petitioner’s first encounter and interview with

police was not custodial in nature (Resp. Ex. C at 60-63). The interview occurred in a

conference room at the school where Petitioner worked, the door was unlocked, and

officers did not arrest Petitioner after the interview (id. at 57-58). According to

Detective Mongeluzzo, Petitioner appeared to understand the nature of the interview,

he never suggested he was confused about what he was saying or being asked, and

the officers did not have a problem understanding Petitioner’s answers (id. at 61).

During the interview, Petitioner admitted to touching the victim but advised officers

that the touching was accidental; however, Petitioner then changed his story and

claimed he touched the victim because he “wanted a better relationship with her” (id.

at 58-59). Officers did not arrest Petitioner until the next day (id. at 63). On this

record, any motion to suppress Petitioner’s statements under Miranda would not

have succeeded. Under the deferential standard of AEDPA review, the state court’s

adjudication of this claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts given

the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d).

Ground Two is denied.

C. Ground Three

Petitioner argues that his trial counsel was ineffective for advising Petitioner

to participate in the polygraph examination with Agent Rohrer and then failing to

accompany Petitioner to the test, allowing officers to coerce Petitioner, who is

intellectually challenged, into making incriminating statements (Doc. 1 at 14-17).

Petitioner raised this issue in his Rule 3.850 motion (Resp. Ex. R at 13-18).

Following an evidentiary hearing, the trial court denied this claim:

The defendant alleges that he agreed to take a

polygraph examination in connection with this case

because Mr. Dinkins told him that if he took the

examination he (Mr. Dinkins) could get the charge

dropped. Mr. Dinkins later moved to suppress certain

statements made by the defendant during the polygraph

examination that was administered. This motion to

suppress was denied and is not an issue in these

proceedings.

The State points out that the defendant agreed to a

polygraph examination before he retained Mr. Dinkins to

represent him.[3] The State also points out that when the

defendant arrived for the polygraph examination he was

told he was free to leave; he signed a waiver of rights and

3 The record shows that during his first pre-arrest interview with police at Forest High

School, Petitioner advised Detective Mogeluzzo that he would undergo a polygraph test (Resp. Ex. C

at 63).

an agreement to answer questions without his lawyer

present; and a consent to the polygraph examination.

After the polygraph examination the defendant was told

he failed the exam and subsequently confessed to the

officer administering the examination. During his

confession, the defendant volunteered information about

the incident, including saying he was “sexually testing”

the victim.

The State argues the polygraph examination was

clearly a strategic decision on the part of the defense

intended to support their theory of defense that there was

no intentional touching by the defendant. The

examination was intended to facilitate a dismissal of the

charges, and it was agreed that the results of the

examination would not be admissible at any trial.

The defendant argues that Mr. Dinkins was

ineffective for allowing the polygraph examination to take

place based upon his prior knowledge of the defendant’s

low IQ, and also that Mr. Dinkins was ineffective for not

accompanying the defendant to the polygraph

examination and being there for the defendant if he was

needed. The defendant suggests that if Mr. Dinkins

wanted a polygraph examination of the defendant, he

should have given him one privately first to see what the

result would be prior to suggesting that one be

administered in conjunction with the State, the results of

which would be made know[n] and could be a basis for

negotiations with the State.

Jennifer Kipke, the prosecutor in the case, testified

[at the evidentiary hearing] that she discussed with Mr.

Dinkins the matter of the defendant taking a polygraph

examination. Mr. Dinkins requested that the defendant

take a polygraph examination fairly early in the case and

she eventually agreed because the crux of her case was

whether or not the defendant intentionally touched the

victim in a sexual manner. Notwithstanding the fact that

the results would not be admissible, she would have

dropped the charge against the defendant if he had

passed the polygraph examination.

“Counsel cannot be deemed ineffective merely

because current counsel disagrees with trial counsel’s

strategic decisions.” Occhicone v. State, 768 So. 2d 1037,

1048 (Fla. 2000). In addition, although post conviction

counsel argued this to the court, the defendant failed to

offer any evidence that no reasonable competent attorney

would have made the same decision as Mr. Dinkins

regarding the polygraph.

. . . .

The defendant argues that Mr. Dinkins determined

the defendant was “presumptively incompetent” and was

aware of the defendant’s mental health history. The

defendant argues that, based upon the assessment by Mr.

Dinkins, and the results of a consultation with Dr. Gary

Honickman about his current assessment of the

defendant, Mr. Dinkins should have sought a competency

determination before trial. He argues there was a

reasonable probability that he would have been found

incompetent to stand trial. The defendant offered no

evidence of any evaluation finding him incompetent in

support of this claim.

The State points out that evidence of the

defendant’s diminished mental capacity was introduced

both at the hearing on the motion to suppress and at trial.

Dr. Honickman testified at trial that the defendant was

mildly retarded based upon his IQ scores. Dr. Honickman

admitted that the defendant functioned “fairly well” and

that the defendant was “able to think t[h]rough things . . .

.[”] The State also points out that low IQ alone is not

sufficient to establish incompetence. See Thompson v.

State, 88 So. 3d 312, 321 (Fla. 4th DCA 2012); Fuse v.

State, 642 So. 2d 1142 (Fla. 4th DCA 1994); and Padmore

v. State, 743 So. 2d 1203 (Fla 4th DCA 1999).

Missing from the defendant’s presentation in this

claim is any evidence that no reasonable or competent

attorney would have made the same decision as Mr.

Dinkins regarding the competency issue. Although the

defendant presented this premise in argument form, the

defendant did not establish that Mr. Dinkins’ decision is

one no other competent attorney would have made. The

defendant does not identify anyone in his motion or in his

hearing testimony who either could have, or would have

appeared to testify on the defendant’s behalf, and he

offered no one who could have, or would have offered any

evidence in support of this claim. Even if it were

concluded that Mr. Dinkins’ representation fell below

professional norms as alleged by the defendant, there has

been no prejudice demonstrated. By failing to offer any

evidence that the defendant was in fact not competent to

proceed, the defendant has failed to demonstrate how he

was prejudiced by the failure to have an evaluation to

determine competency such “that confidence in the

outcome is undermined.” Hurt v. State, 18 So. 3d 975, 995

(Fla. 2009). See, also, Keith v. State, 46 So. 3d 85, 88 (Fla.

5th DCA 2010). This is especially important in light of the

assessment of Dr. Honickman that the defendant

functioned “fairly well” and was “able to think things

through.”

In Chestnut v. State, 538 So. 2d 820 (Fla. 1989), the

Florida Supreme Court rejected the doctrine of

diminished capacity and found that abnormal mental

conditions that did not meet the definition of insanity

were inadmissible to negate specific intent. The Court

found that persons with mental deficiencies not meeting

the definition of insanity could be held accountable for

their crimes just as anyone else.

(Resp. Ex. V at 6-10) (record citations omitted). Petitioner appealed the trial court’s

denial, and the Fifth DCA per curiam affirmed the order without a written opinion

(Resp. Ex. BB).

The Court addresses the claim in accordance with the deferential standard

for federal court review of state court adjudications. In doing so, the Court heeds the

state court’s determination that counsel did not act ineffectively regarding the

polygraph examination. The record shows that Petitioner first mentioned taking a

polygraph test during his pre-arrest interview with police, before being charged and

retaining counsel (Resp. Ex. C at 63). Once counsel was retained, counsel and the

state agreed that if Petitioner passed the test, the state would drop the charge

against Petitioner and acknowledged that any test results would be inadmissible if

Petitioner went to trial. Thus, advising Petitioner to undergo the test was a

strategic decision. As the trial court noted during the hearing on the motion to

suppress the post-polygraph statements, the polygraph test itself was not

confrontational and Petitioner knowingly waived his right to have his attorney

present; thus counsel’s absence was not per se deficient. Further, after the

polygraph test Petitioner never asked for his attorney. Petitioner claims that had

counsel been at the polygraph test, counsel would have prevented Petitioner from

making incriminating statements after the exam; however, that argument is purely

speculative. The record also refutes any claim that Petitioner’s intellectual

deficiency demanded the presence of counsel. Thus, under the deferential standard

of AEDPA review, the state court’s adjudication of this claim was neither contrary

to nor an unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts given the evidence presented in the state

court proceedings. See 28 U.S.C. § 2254(d). Ground Three is denied.

D. New Claims in Reply Brief

Petitioner raises three grounds in his Petition, which the Court has

addressed. In his Reply, however, Petitioner, for the first time appears to raise

three new claims. See generally Doc 14. Specifically, for the first time, Petitioner

argues (1) his trial counsel was ineffective for failing to seek a competency

determination before trial; (2) trial counsel was ineffective for failing to object to

hearsay statements introduced at trial; and (3) the cumulative effect of trial

counsel’s errors amounted to a Sixth Amendment violation (id.). But arguments

raised for the first time in a reply brief are not properly before a reviewing court.

See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (citations

omitted). Thus, the Court declines to consider those improperly and newly raised

claims.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED with

prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate any

pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of appealability

is not warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Tampa, Florida, this 28th day of February,

2023.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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C: Terry Lynne Wagner, #U52240

Counsel of record

4 The Court should issue a certificate of appealability only if Petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial

showing, Petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2008) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the

record as a whole, the Court will deny a certificate of appealability.

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