Dunkum v. Secretary, Department of Corrections (Manatee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RANDY DUNKUM,

Petitioner,

v. Case No. 8:22-cv-2702-WFJ-AEP

SECRETARY, Department

of Corrections,

Respondent.

________________________________/

ORDER

Before the Court is Petitioner Randy Dunkum’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2554. Dkt. 1. The Secretary of the Florida

Department of Corrections (“Respondent”) filed a response in opposition. Dkt. 7.

Upon careful consideration, the Court finds that an evidentiary hearing is

unnecessary and dismisses the petition as untimely.

BACKGROUND

On October 7, 2013, Petitioner was charged with sexual battery on a person

twelve years or younger by a person eighteen years or older in violation of section

794.011(2)(a), Florida Statutes—a capital felony subject to a mandatory life

sentence in Florida. Dkt. 7-2 at 7. The State subsequently filed a notice of intent to

use evidence of other crimes, wrongs, or acts against Petitioner in the proceeding.

Id. at 20. On October 6, 2014, the state court held a hearing on the admissibility of

minor witnesses C.L. and C.P.’s testimony concerning Petitioner’s wrongdoing

against minor victim A.D. Id. at 58. The state court did not rule on this issue before

Petitioner entered into a plea agreement.

On October 17, 2014, Petitioner entered a no-contest plea to the negotiated

charge of attempted sexual battery on a child less than twelve years old by a person

eighteen years of age or older. Id. at 123. The Circuit Court of the Twelfth Judicial

Circuit in and for Manatee County, Florida, sentenced Petitioner to fifteen years in

prison followed by twenty-four months of sex offender probation. Id. at 142−48.

Florida’s Second District Court of Appeal affirmed the sentence on December 18,

2015. Id. at 188. Petitioner then filed a petition for writ of habeas corpus pursuant to

Florida Rules of Appellate Procedure 9.100 and 9.141, alleging ineffective

assistance of appellate counsel. Id. at 194. On March 16, 2016, the Second District

Court of Appeal denied the petition. Id. at 208.

On August 15, 2016, Petitioner filed a motion for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 210. The post-

conviction court rejected six claims raised by Petitioner, and the state appellate court

affirmed per curium. Id. at 499, 783. On May 16, 2022, Petitioner filed a motion to

correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Id.

at 787. After amendment on June 3, 2022, the state court denied the motion on

August 23, 2022. Id. at 794, 799.

On November 18, 2022, Petitioner filed the instant petition claiming

ineffective assistance of counsel due to 1) failure to conduct an adequate pretrial

investigation concerning state witness C.P. and 2) failure to inform Petitioner of the

overall weaknesses of the State’s case before Petitioner’s entry of a no-contest plea.

Dkt. 1. On March 2, 2023, Respondent filed a response in opposition. Dkt. 7.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”)

governs the instant petition. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998). The AEDPA “establishes a highly deferential standard for reviewing

state court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th

Cir. 2003). This type of review does not allow relief of a state court conviction:

[o]n a claim “that was adjudicated on the merits in the State court

proceedings” unless the state court's decision was “(1) . . . contrary to,

or involved an unreasonable application of, clearly established Federal

law as determined by the Supreme Court of the United States; or (2) . .

. based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28

U.S.C. § 2254(d)).

“Established Federal law” means holdings of the United States Supreme Court

“as of the time of the relevant state-court decision.” Id. at 1288–89. “Contrary to”

requires a state court 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.” Id. at 1289 (citations

omitted) (alterations in original). The “unreasonable application” clause applies only

“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. (citation omitted) (alterations in original).

A state court’s factual determination “is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”

Id. (citation omitted). Indeed, “even if reasonable minds reviewing the record might

disagree about the [fact] finding in question, on habeas review that does not suffice

to supersede the [state] trial court’s determination.” Wood v. Allen, 558 U.S. 290,

301 (2010) (internal quotations omitted). Further, this standard applies even if the

state court does not provide the reasoning behind its decision because “the summary

nature of a state court’s decision does not lessen the deference that it is due.” Wright

v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002).

DISCUSSION

I. Timeliness

Federal habeas petitions are subject to a one-year statute of limitation. 28

U.S.C. § 2244(d)(1). Time begins when the judgment becomes final by the

conclusion of direct review or the expiration of the time for seeking such review. Id.

§ 2244(d)(1)(A). Time stops running when “a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or

claim is pending.” Id. § 2244(d)(2).

Here, Petitioner’s judgment and sentence became final on March 17, 2016.

Dkt. 7-2 at 188. This means that the one-year limitations period began to run on

March 18, 2016. According to § 2244(d)(2), this limitation period is tolled when “a

properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment is pending.” Petitioner’s motion for post-

conviction relief therefore tolled the limitations period when it was filed on August

15, 2016, after 150 days of the limitations period had already passed. Dkt. 7-2 at

210. Post-conviction relief was denied on appeal on November 15, 2021, causing

the limitation period to resume. Id. at 783. After another 182 days of the limitations

period had passed, Petitioner’s motion to correct illegal sentence, subsequently filed

on May 16, 2022, tolled the statute of limitations further. Id. at 787. The limitations

period did not resume until the time to appeal the denial of that motion had expired.

Id. at 799.

The statute of limitations ultimately went back into effect on September 22,

2022. With 150 days passing between the direct appeal becoming final and the

motion for post-conviction relief, and another 182 days passing between the denial

of post-conviction relief and the filing of the motion to correct illegal sentence,

Petitioner had 33 days remaining under the statute of limitations. Accordingly, the

instant petition needed to have been filed by October 25, 2022, to be timely.

Petitioner filed the instant petition on November 18, 2022. Dkt. 1-1. It follows that

the instant petition is untimely and due to be dismissed.1

II. Merits

Notwithstanding the untimeliness of the instant petition, the Court will

address each of Petitioner’s claims on the merits. Petitioner has presented two claims

for federal habeas corpus relief, both based on alleged ineffective assistance of

counsel.

Counsel is ineffective under the Sixth Amendment if “(1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the defense

such that Petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354

(11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The

petitioner carries the burden of establishing both prongs. Strickland, 466 U.S. at 687.

To establish deficient performance under Strickland, a petitioner must

demonstrate that counsel's performance “fell below an objective standard of

1 Petitioner is not entitled to equitable tolling. For equitable tolling to apply, Petitioner must show

that 1) he was pursuing his rights diligently and 2) extraordinary circumstance stood in the way of

achieving timely filing. Holland v Florida, 560 U.S. 631, 649 (2010). The timing between

Petitioner’s actions leads the Court to conclude that Petitioner failed to pursue his rights with

diligence. And with no evidence suggesting that extraordinary circumstances prevented Petitioner

from filing his instant petition by October 25, 2022, there is no basis for equitable tolling.

reasonableness.” Id. at 688. The test is not “what the best lawyers” or “what most

good lawyers would have done.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.

1992). Instead, the question is “whether some reasonable lawyer . . . could have

acted, in the circumstances, as defense counsel acted[.]” Id.

To establish resulting prejudice under Strickland, a petitioner “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

A petitioner’s claim fails if either of the Strickland prongs is not met. See Maharaj

v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1319 (11th Cir. 2005).

“Establishing that a state court's application of Strickland was unreasonable

under § 2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105

(2011). In the habeas context, “the question is not whether a federal court believes

the state court’s determination under the Strickland standard was incorrect but

whether the determination was unreasonable—a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). “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.” Hittson v. GDCP

Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (quoting Richter, 562 U.S. at 105).

“[I]t 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. . . . [I]t is rarer still for merit to be found in a claim that challenges a

strategic decision of counsel.” Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d

1298, 1303 (11th Cir. 2019) (internal citations omitted). A strategic decision by

counsel is only subject to federal habeas review when it was so “patently

unreasonable that no competent attorney would have chosen it.” Adams v.

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). “If this standard is difficult to

meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

Given this, the Court will review the claims as they were decided by the

Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida.

Dkt. 7-2 at 499. This is “the highest state court decision reaching the merits of the

petitioners claim,” Kokal v. Sec’y, Dep’t of Corr., 623 F.3d 1331, 1345 (11th Cir.

2010), as the state appellate court affirmed per curium, Dkt. 7-2 at 783.

a. Ground One

In Ground One, Petitioner alleges trial counsel provided ineffective assistance

by failing to conduct an adequate pretrial investigation and subsequently failing to

inform Petitioner that the State’s Williams2 rule witness, C.P., likely would not

2 Williams v. State, 110 So.2d 654 (Fla. 1959). Holding of the Florida Supreme Court allowing introduction of other

crimes, wrongs, or acts as evidence in trial in order to corroborate victim testimony. Codified in Florida Statute §

90.404(2)(a).

testify at trial due to a lack of credibility. Petitioner further states that trial counsel

did not take extra time to ensure that Petitioner understood the impact of these facts

before entering into the plea agreement, despite Petitioner’s permanent mental

disabilities. Petitioner alleges he would not have plead guilty had he known of the

lack of Williams rule proof. Respondent maintains that this claim is not exhausted

for federal habeas review purposes.

A federal habeas claim fails to qualify as “exhausted” where “the petitioner

failed to exhaust state remedies, and the court to which the petitioner would be

required to present his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred.” Henderson v. Campbell, 353 F.3d 880,

898−99 (11th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991)). Petitioners are responsible for bringing their claims to the appropriate state

court proceedings. If the petitioner has raised new points to support his or her claim,

that claim is barred from consideration. Federal courts cannot hear the merits of

procedurally barred claims absent showing 1) cause for the default and actual

prejudice growing out of the alleged violations of federal law or 2) a resulting

fundamental miscarriage of justice if the federal court does not consider the claims.

Murray v Carrier, 477 U.S. 478, 485 (1986).

There is a material distinction between the present claim and the claim filed

by Petitioner in his appeal for post-conviction relief. Dkt. 7-2 at 726. In Petitioner’s

post-conviction motions, there are also variations of the claim presented. Id. at 217,

317. There, Petitioner alleged counsel was ineffective because counsel did not

present evidence at the Williams rule hearing concerning C.P.—not because counsel

failed to inform Petitioner of C.P.’s credibility issues. Id. at 720. Because of this

difference, the only claim that this Court can consider is one of alleged ineffective

assistance of counsel for failure to adequately investigate witness C.P. This would,

in turn, bar the instant assertions that mental disabilities prevented the Petitioner

from understanding the importance of C.P.’s alleged lack of credibility. See Dkt. 1

at 5. The assertions in Ground One regarding Petitioner’s mental disabilities are

therefore beyond the Court’s ability to consider.3

In considering the claim to the extent that it could be deemed exhausted,

Petitioner asserts that the state court unreasonably applied Strickland when it found

that Petitioner was aware of C.P.’s recantations and credibility issues because

Petitioner was present at the Williams rule hearing. Petitioner asserts that he could

not fully appreciate C.P.’s lack of credibility as a witness. Dkt. 1.

The Court agrees with the state court’s findings and application of relevant

law. In denying Petitioner's claim, the post-conviction court stated:

3 Petitioner’s claim that mental disabilities prevented his understanding of C.P.’s potential lack of

credibility does not rise to the level of a fundamental miscarriage of justice that would allow this

Court to examine the procedurally barred claims. Murray v Carrier, 477 U.S. 478, 485 (1986).

The record shows that Petitioner had multiple opportunities to raise claims of mental deficiency in

conjunction with this ground yet did not raise that issue. Beyond this, Petitioner denied having any

mental illness or disease when entering his plea. Dkt. 7-2 at 133.

Counsel was clearly aware of C.P.’s recantations to friends, family members,

law enforcement, and attorneys, as well as her possible motives for lying,

and the outcome of the law enforcement investigation conducted into her

initial claims. See Attachments 4 and 5. Thus, Defendant’s claim fails the

first prong of the Strickland test.

But even if Counsel’s performance was deficient, Defendant did not

successfully prove that he would have rejected the plea deal and insisted on

going to trial. “[I]n determining whether a reasonable probability exists that

the defendant would have insisted on going to trial, a court should consider

the totality of the circumstances surrounding the plea, including such factors

as whether a particular defense was likely to succeed at trial, the colloquy

between the defendant and the trial court at the time of the plea, and the

difference between the sentence imposed under the plea and the maximum

possible sentence the defendant faced at a trial.” Grosvenor v. State, 874 So.

2d 1176, 1181−82 (Fla. 2004). Here, Defendant entered a negotiated plea for

a much lower sentence than the maximum he was facing at trial.

More importantly, though, as the State points out in its response, there was

one other similar fact witness ready to testify regarding previous crimes. See

Attachments 2 and 5. So, even without C.P.’s testimony, another witness

could have testified in a similar regard. In light of these facts, the Court finds

that there is not a reasonable probability that, but for Counsel’s alleged

errors, he would not have pied and would have instead insisted on going to

trial. Therefore, Defendant’s claim fails on both prongs of the Strickland test.

Dkt. 7-2 at 503−04. This ruling is neither contrary to established law nor an

unreasonable determination of facts in light of the evidence. See Nejad, 830 F. 3d at

1288.

The state post-conviction court reasonably found that counsel’s performance

was not deficient under Strickland. C.P. and C.L. were witnesses subject to the

State’s notice of intent to use evidence of other crimes. Petitioner was present at the

hearing on the admissibility of that evidence. Dkt. 7-2 at 24. Petitioner’s counsel

deposed C.P. and C.L. before this hearing and challenged the C.P.’s inconsistent

statements in that hearing. Id. at 61, 63. Petitioner’s counsel made reasonable

contentions regarding C.P.’s credibility. At a hearing on the admissibility of victim

A.D.’s hearsay statements, Petitioner’s counsel also questioned A.D.’s mother about

the allegations made by C.P.

What is more, the trial court had not ruled on the admissibility of the

witnesses’ statements in a trial before Petitioner entered his plea agreement, and the

Petitioner was informed that there would not be a ruling on that issue. Id. at 131.

Similarly, when entering the plea, Petitioner stated that he had no impediment in

reading or writing, had never received mental illness treatment, and did not feel that

he suffered from any mental diseases or illness. Id. at 134. The record from the state

post-conviction court does not reflect that counsel failed to investigate or contest the

potential credibility of an important witness. Based on the proceedings, it is evident

that counsel and Petitioner understood the potential importance of C.P. as a witness,

and Petitioner accepted the plea knowing that there would not be a ruling on the

admissibility of C.P.’s statements. These factors point to the objective

reasonableness of counsel’s performance and therefore fail to show deficiency.

Further, the state post-conviction court correctly applied Strickland in finding

that Petitioner could not establish resulting prejudice. To show prejudice under

Strickland, Petitioner must show that, but for the failure of counsel to make

Petitioner aware of C.P.’s weakness as a witness, Petitioner would not have entered

the plea agreement. The state post-conviction court reasonably demonstrated that

Petitioner had a strong motivation to enter the plea agreement irrespective of the

admissibility of C.P.’s testimony. It was appropriate for the state post-conviction

court to point to the much harsher mandatory life sentence Petitioner faced if he did

not enter into the plea agreement. Moreover, had C.P.’s possible testimony been a

factor that significantly contributed to Petitioner’s acceptance of the plea deal,

Petitioner likely would have chosen to wait for a ruling on the issue of admissibility.

Finally, the state court's determination that Petitioner could not demonstrate

that counsel failed to conduct an adequate pretrial investigation of witness C.P. does

not represent “a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding.” § 2254(d)(2).

The AEDPA “requires federal habeas courts to presume the correctness of state

courts’ factual findings unless applicants rebut this presumption with ‘clear and

convincing evidence.’” Nejad, 830 F.3d at 1289. Petitioner presents no clear and

convincing evidence to rebut the presumption of correctness. Disregarding the

untimeliness of the instant petition and the procedural bar pertaining to this claim,

the Court finds that Petitioner is still not entitled to relief on Ground One.

b. Ground Two

In Ground Two, Petitioner alleges counsel was ineffective by failing to

explain the weaknesses of the State’s case before advising Petitioner to accept the

negotiated plea. Petitioner asserts that victim A.D.’s competency to testify as a

witness was questionable and made the State’s case weak. Petitioner claims that, had

he understood this, he would not have entered the plea agreement and instead would

have gone to trial.

Once again, the Court agrees with the finding of the state court that the

evidence offered by the Petitioner to support this claim does not show deficiency of

counsel or resulting prejudice. In so holding, the state court conducted the following

thorough review of the record:

As an initial matter, the Court declines to consider the State’s case against

Defendant weak based on counsel’s allegedly deficient performance outlined

in Grounds One through Three, as all three Grounds have been denied. The

Court also finds that Defendant’s vague and conclusory claims that counsel

“was pressuring and coercing [him] into pleading” do not establish that he

received ineffective assistance of counsel. See Kennedy v State, 54 7 So. 2d

912, 913 (Fla. 1989) (conclusory allegations of ineffective assistance of

counsel are insufficient to warrant a post-conviction evidentiary hearing).

Defendant testified under oath during the plea hearing colloquy that no one

put pressure on him or forced him in any way to enter his plea, and that his

plea was being entered freely and voluntarily. See Attachment 3. Therefore,

as Defendant is not alleging affirmative misadvice by his attorney, the claim

is refuted by the record. See Wright v. State, 447 So. 2d 961, 961 (Fla. 1st

DCA 1984) (affirming trial court’s decision to deny the defendant’s post-

conviction claim that his guilty plea was coerced because, before accepting

the plea, the trial court determined that the plea was not coerced).

Next, Defendant does not point to any evidence supporting his claim that the

victim was coerced into repeatedly changing her story. He does not explain

how the story changed in any material way, and the alleged inconsistencies

are not apparent from reviewing the record. Furthermore, he does not explain

who coerced the victim or in what way she was coerced. This claim is

therefore conclusory and does not warrant relief. Freeman v. State, 761 So.

2d 1055 (Fla. 2000).

Finally, regarding Defendant’s claim that the victim was incompetent and

unable to testify against him, the Court agrees with the State’s argument that

the record refutes such an assertion. “A witness is incompetent to testify if

the trial court determines the witness is (1) unable to communicate to the

jury; (2) unable to understand the duty to tell the truth; or (3) unable to

perceive and remember the events.” Rutherford v. Moore, 774 So. 2d 637,

646 (Fla. 2000); see also § 90.603, Fla. Stat. Furthermore, “[e]very person is

competent to be a witness, except as otherwise provided by statute.” §

90.601, Fla. Stat. As “[t]he prime test of testimonial competency of a young

child is his intelligence rather than his age,” Bell v. State, 93 So. 2d 575, 577

(Fla. 1957), Defendant cannot rely on the victim’s young age alone to

persuade the Court that she would have been incompetent to testify. Instead,

Defendant points to the Child Protection Team (“C.P.T.”) interview

conducted with the victim after the allegations against Defendant were made

to law enforcement. Defendant states that, “[w]hen considering the video

that shows the victim not being competent enough to testify, the State's case

was extremely weak.” He argues that the victim “could not differentiate

between play doe [sic] and ‘poop,’ nor could not differentiate the

interviewer’s color of hair.” He also complains that some of the victim’s

statements conflict with subsequent statements made by her mother. A

conflict between the victim’s statements and her mother’s testimony do not

necessarily indicate that the victim is incompetent to testify. Witnesses

regularly give conflicting testimony, and those inconsistencies can be

pointed out at trial. Defendant seems to suggest that the inconsistencies

prove that the victim is unable to appreciate the need to tell the truth or

unable to remember the events of the case. Specifically, Defendant

complains that the victim’s answers do not concur with her mother’s answers

regarding the following: (1) who told her that boys have penises, and (2)

whether she had ever seen pornography. However, the Court is not persuaded

that the victim’s answers during the C.P.T. interview indicate that she was

lying or even misremembering facts. The victim stated in her C.P.T.

interview that her mother told her that boys have penises. See Attachment 5.

Defendant complains that the mother testified (at some unspecified time) that

she had never discussed with the victim what a penis is because of her young

age. While Defendant seems to blame the victim for either lying or

misremembering, it is equally likely that the mother is incorrect.

Similarly, Defendant complains that the victim stated that she has seen scary

movies with “the butt, naked,” and claims that this indicates that she has seen

pornography, despite her mother’s testimony to the contrary. Again, there is

no indication of who is correct. But the Court notes that it is not clear that

the victim was shown pornography. Nudity in a horror film, while

inappropriate for a small child, is not the same thing as the graphic depictions

of sexual behavior seen in X-rated movies. The Court declines to use the

statements made by the victim in her C.P.T. interview as evidence that she

was incompetent to testify.

Moreover, Defendant’s assertions that the victim could not tell the difference

between poop and Play-Doh or tell the color of the C.P.T. interviewer’s hair

are taken out of context. The victim indicated that she was pretending the

Play-Doh was poop because it was brown. Id. And a mistake about hair color

is not reason to assume that the child is lying or unable to appreciate the need

to be honest. More importantly, though, the victim held an intelligible

conversation where she related the events of the case, and the interviewer

went through a series of questions to determine that the victim was able to

differentiate between the truth and lie. Id. The victim’s mother also testified

that the victim is able to tell the difference between the truth and a lie when

it comes to “something very serious.” See Attachment 6. This caused the

judge that presided over the motion hearing conducted on October 15, 2014,

to state, “Even though the child is young, the impression I received from [the

victim’s mother] was that she was able to tell the truth, that she’s aware of

the importance of telling the truth.” See id. Based on the C.P.T. interview,

the fact that the victim would have been at least two years older if she would

have testified during a trial (see id.), and the Court’s assessment made at the

relevant motion hearing, the Court finds that there is record evidence to

indicate that the victim was able to communicate to the jury, understand the

duty to tell the truth, and perceive and remember the events of the case.

Therefore, the record refutes Defendant’s claim that the case against him was

weak because the victim was incompetent to testify as a witness. For all of

the foregoing reasons, Ground Four will be denied.

Dkt. 7-2 at 505−09.

This analysis is neither contrary to clearly established federal law nor an

unreasonable application of Strickland. The state court reasonably found that the

performance of Petitioner’s counsel met an objective standard of reasonableness.

The state court correctly determined that the Petitioner’s assertion that the State’s

case against him was weak had been refuted. In so doing, the state court examined

the victim’s direct allegations against the Petitioner, the victim’s credibility in light

of the victim’s age, and the initial interview conducted with the Child Protection

Team.

Nevertheless, Petitioner asserts that any reasonable counsel or reviewing court

would view the interview of the victim and conclude that the allegations made

therein could not possibly be true. The finding and reasoning of the state court

demonstrate a clear and reasonable argument to the contrary, though, and this the

Court cannot declare unreasonable. Reasonable counsel could have considered the

State’s case and not found the case to be as weak as Petitioner alleges. Indeed, the

State offered multiple witnesses and potentially admissible former crimes or actions.

For a finding of deficient performance by counsel, the State’s evidence in support of

the charges would need to be relatively baseless to the point that no reasonable

counsel would advise his or her client to accept a negotiated plea agreement.

Counsel’s strategic decision in light of the evidence does not rise to the level

of deficiency in a Strickland analysis. In sum, for the reasons explained by the state

court, it is not patently unreasonable that counsel evaluated the weight of evidence

against Petitioner and determined that the State would likely prevail at trial. The state

court appropriately found that Petitioner’s counsel was not deficient, and it is not for

this Court to dispute those findings without a showing that they were clearly

erroneous.

Given that deficient performance by counsel was not found by the state court,

there is no need to review the prejudice element of Strickland. However,

notwithstanding the highly deferential standard given to the state court’s decision,

the Court similarly finds that prejudice is not established. Prejudice requires, at the

very minimum, that the potential outcome likely would have been more favorable to

Petitioner than the actual outcome. See Jones v. Sec’y, Fla. Dep’t of Corr., No. 21-

13448, 2023 WL 334386, at *2 (11th Cir. Jan 20, 2023) (quoting Lafler v. Cooper,

566 U.S. 156, 168 (2012)). Petitioner, before entering into a plea agreement, was

facing a mandatory life sentence. Petitioner alleges that counsel created prejudice by

advising him to accept a plea agreement resulting in fifteen years’ imprisonment and

two years’ sex offender probation. Thus, the prejudice of which Petitioner complains

appears to be that he received a fifteen-year prison sentence when he could have

been acquitted at trial. But no reasonable court would take this position—there is no

evidence to support it. As mentioned above, the State had significant evidence

against Petitioner at the time of the plea deal. Accordingly, accepting the plea deal

likely did not adversely prejudice Petitioner. It most likely helped him. Petitioner is

entitled to no relief on Ground Two.

Certificate of Appealability

“The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant,” and if a certificate is issued, “the court

must state the specific issue or issues that satisfy the showing required by 28 U.S.C.

§ 2253(c)(2).” See Rule 11(a) of Rules Governing Section 2254 Proceedings for the

United States District Courts; see also Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To receive a certificate of appealability, Petitioner must show that reasonable

jurists would find debatable both the merits of the underlying claims and the

procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,

529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001).

Because he fails to show that reasonable jurists would debate either the merits

of the claims or the procedural issues, Petitioner is not entitled to a certificate of

appealability or leave to proceed on appeal in forma pauperis. Accordingly, a

certificate of appealability is denied, and leave to appeal in forma pauperis is denied.

CONCLUSION

Petitioner Dunkum’s Petition, Dkt. 1, is DISMISSED WITH PREJUDICE

as untimely. The Clerk is directed to enter judgment in favor of Respondent and

against Petitioner and close this case.

DONE AND ORDERED at Tampa, Florida, on June 6, 2023.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

Petitioner, pro se