Opinion

Dial v. Secretary, Department of Corrections (St. Johns County)

Court: District Court, M.D. Florida
Filed: Aug 23, 2023
Cited by: 0 cases
Authority: More cited than 20.0%

“It must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some [constitutional right].” (internal quotations omitted)

How later courts described this case

“It must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some [constitutional right].” (internal quotations omitted)
recognizing that an unarmed defendant can be convicted of armed robbery under a principal theory
“A lawyer cannot be deficient for failing to raise a meritless claim. . . .”
“[D]ocket sheets are public records of which the court could take judicial notice.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DONALD DIAL,

Petitioner,

v. Case No. 3:20-cv-566-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

___________________________________

ORDER

I. Status

Petitioner Donald Dial, an inmate of the Florida penal system, initiated

this action on May 31, 2020, by filing a Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2254 (Petition; Doc. 1).1 Dial challenges a 2016 state court

(St. Johns County, Florida) judgment of conviction for armed robbery. He

raises six grounds for relief. See id. at 4−15. Respondents have submitted a

memorandum opposing the Petition, in which they argue that the Petition is

untimely filed. See Response to Petition (Response; Doc. 14). They also

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

submitted exhibits. See Response Ex. 1. Dial filed a Reply. See Reply to

Petitioner’s 28 U.S.C. § 2254 (Reply; Doc. 15). This action is ripe for review.

II. Relevant Procedural History

On April 8, 2016, the state charged Dial by Amended Information with

one count of armed robbery. Response Ex. 1 at 5. Dial proceeded to trial, and

on April 29, 2016, a jury found him guilty as charged in the Amended

Information. Id. at 1134−35. On May 27, 2016, the trial court adjudicated Dial

as a prison releasee reoffender and sentenced him to a term of life

imprisonment. Id. at 1058, 1060.

On direct appeal, Dial, with the assistance of appellate counsel, filed an

initial brief arguing that the trial court erred in failing to instruct the jury

regarding the consideration of Dial’s trial testimony. Id. at 1089−95. The state

filed an answer brief. Id. at 1099. The Fifth District Court of Appeal (Fifth

DCA) per curiam affirmed Dial’s conviction and sentence without a written

opinion on April 4, 2017. Id. at 1119. The mandate issued on April 28, 2017. Id.

at 1121.

Dial then filed three motions for postconviction relief in state court.

Response Ex. 1 at 1123−29, 1190−95, 1203−38. He first filed a motion to correct

illegal sentence under Florida Rule of Criminal Procedure 3.800(a) on March

2, 2018. Id. at 1123−29. The trial court summarily denied relief. Id. at 1139−42.

On June 26, 2018, the Fifth DCA per curiam affirmed without opinion the trial

court’s denial, and on July 20, 2018, it issued the mandate. Dial v. State, 248

So. 3d 1159, 1159 (Fla. 5th DCA 2018).2 On May 8, 2018, Dial filed a second

motion to correct illegal sentence under Rule 3.800(a). Response Ex. 1 at

1190−95. The trial court found the allegations raised in the second Rule

3.800(a) motion were not cognizable and dismissed the motion. Id. at

1199−1201.

On December 20, 2018, Dial filed his third motion for postconviction

relief, this time under Florida Rule of Criminal Procedure 3.850, alleging trial

counsel was ineffective when he failed to: object to the Amended Information

and the jury instructions read at trial (ground one); renew and preserve for

appeal a race-based challenge to the state’s use of a peremptory strike during

jury selection (ground two); object when the jury was instructed on an element

not charged in the Amended Information (ground three); and ensure the jury

was properly instructed regarding Dial’s decision to testify at trial (ground

four). Id. at 1203−38. The trial court summarily denied relief on all grounds.

Id. at 1252−69. On March 24, 2020, the Fifth DCA per curiam affirmed the

trial court’s denial without a written opinion, id. at 1397, and on April 17, 2020,

it issued the mandate, id. at 1399.

2 The Court takes judicial notice of Petitioner’s state court dockets. See

Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are

public records of which the court could take judicial notice.”).

III. One-Year Limitations Period

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

imposes a one-year statute of limitations on petitions for writ of habeas

corpus. Specifically, 28 U.S.C. § 2244 provides:

(d)(1) A 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run from the

latest of—

(A) the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to

filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if

the applicant was prevented from filing

by such State action;

right asserted was initially recognized

by the Supreme Court, if the right has

been newly recognized by the Supreme

Court and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual

predicate of the claim or claims

presented could have been discovered

through the exercise of due diligence.

(2) The time during which a properly filed

application for State post-conviction or other

collateral review with respect to the pertinent

judgment or claim is pending shall not be counted

toward any period of limitation under this

subsection.

28 U.S.C. § 2244(d).

The parties dispute the timeliness of this Petition. Respondents contend

the Petition is untimely filed, arguing the May 2018 Rule 3.800(a) motion was

not a tolling event. According to Respondents, because the trial court found the

claims were only cognizable under Rule 3.850, the lack of oath rendered the

May 2018 motion improperly filed for tolling purposes. The Court finds this

argument to be without merit.

Despite Petitioner’s failure to raise this claim in a proper procedural

manner before the trial court, he properly filed the motion. The Supreme Court

makes clear that “an application is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and rules governing

filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Determining if a petitioner

properly filed an application is a separate issue from whether the claims

themselves are meritorious or free from procedural bars. Id. at 9. Under Artuz,

“properly filed” means delivered to the proper person, within the applicable

time, with the required filing fees, in a form that enables the court to consider

the motion. Id. at 8.

The Eleventh Circuit later applied Artuz to a situation similar to the

circumstances before the court here and concluded that a Rule 3.800(a) motion

tolled the limitations period even though the state court dismissed it because

the petitioner brought it pursuant to the wrong statutory vehicle. Delancy v.

Fla. Dep’t of Corr., 246 F.3d 1328, 1331 (11th Cir. 2001), overruled on other

grounds, Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339, 1350, 1353 (11th

Cir. 2018). In so finding, the Eleventh Circuit instructed that a court should

not look beyond the face of the Rule 3.800(a) motion to determine whether

petitioner properly filed it for tolling purposes. Id. at 1330−31. Instead, the

determination on whether a petitioner properly filed a motion should center on

whether it met state procedural and filing requirements. Id. at 1330−31.

Dial submitted to the state court a Rule 3.800(a) motion in May 2018.

Respondents contend this motion did not toll his one-year limitation period,

resting their argument on Dial’s failure to properly file his motion pursuant to

Florida procedural requirements. While the trial court discussed in its order

the fact that Dial’s claims would be cognizable in a Rule 3.850 motion, it is

evident from the trial court’s order that it did not construe his motion to be a

Rule 3.850 motion. Instead, the trial court dismissed the motion and gave Dial

an opportunity to file a Rule 3.850 motion. Dial’s filing remained a Rule

3.800(a) motion. And Florida Rule of Criminal Procedure 3.800(a) does not

require an oath. Fla. R. Crim. P. 3.800(a). Thus, despite the trial court’s finding

that the claims contained within the May 8, 2018 Rule 3.800(a) motion were

not cognizable, Dial still properly filed his Rule 3.800(a) motion with the trial

court. See Artuz, 531 U.S. at 9; Delancy, 246 F.3d at 1331. Based on this

reasoning, the Court finds this action was timely filed within the one-year

limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318−19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Dial’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

governs a state prisoner’s federal petition for habeas corpus. 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) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

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

decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97−98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief 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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102−03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9−10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[5]

Under the prejudice prong, [a petitioner] must show

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

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

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

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

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The 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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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 ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Dial contends his trial counsel was ineffective for failing

to object to the deficient Amended Information because it did not allege

possession of a firearm. Petition at 4. Dial further maintains trial counsel

failed to object to the trial court’s subsequent jury instruction on possession of

a firearm. Id. Dial raised a substantially similar claim in ground one of his

Rule 3.850 Motion. Response Ex. 1 at 1211−17. The trial court denied the

claim, stating in pertinent part:

The body of the Amended Information under which

Defendant was charged in the instant case provided as follows:

COUNT I: DONALD EMANUEL DIAL, on or about October 22,

2014, in the County of ST. JOHNS and State of Florida, by force,

violence, assault, or putting in fear, did knowingly take away

jewelry, of some value, from the person or custody of MITZI

CONLEY and/or CORAL ELYSE ROLAND, with the intent to

permanently or temporarily deprive MITZI CONLEY and/or

CORAL ELYSE ROLAND or any person not the defendant(s) of

the property, or did aid, abet, counsel, hire, or otherwise procure

another to by the force, violence, assault, or putting in fear,

knowingly take away jewelry, of some value, from the person or

custody of MITZI CONLEY and/or CORAL ELYSE ROLAND, with

the intent to permanently or temporarily deprive MITZI CONLEY

and/or CORAL ELYSE ROLAND or any other person not the

defendant(s) of the property; and in the course of committing the

robbery a firearm was used, contrary to Florida Statutes

812.13(2)(a) and 812.13(1) and 775.087(2) and 777.011 (1 DEG

FEL, PEL)[.]

The Amended Information thus properly charged Defendant

with all requisite elements of robbery with a firearm pursuant to

Fla. Stat.§ 812.13(2)(a). The portion of the body of the Information

providing, “and in the course of committing the robbery a firearm

was used,” sufficiently apprised Defendant that he was being

charged with the element of use of a firearm during the

commission of the robbery.

. . . .

Based on the portion of the record to which Defendant cites

in support of his claim, it is apparent to the Court that Defendant

has misinterpreted the State’s concession that the Information

didn’t charge Defendant with actual possession of the firearm used

in the commission of the robbery to invoke the 10-20-life provisions

of Fla. Stat. § 775.087(2). In the instant case, Defendant was

charged under the “principal theory” with robbery with a firearm

pursuant to Fla. Stat. § 812.13(2)(a). Id. To be convicted of robbery

with a firearm under s. 812.13(2)(a), a defendant does not need to

have actually possessed the firearm used in the course of

committing the robbery; rather, a defendant may be properly

charged and convicted with this offense merely by virtue of

participating as a principal in a robbery in which a firearm was

used. Dotel v. State, 175 So. 3d 830, 832 (2015); Demps v. State,

649 So. 2d 938, 938 (Fla. 5th DCA 1995) (citing Poiteer v. State,

627 So. 2d 526 (Fla. 2d DCA 1993) and Freeny v. State, 621 So. 2d

505 (Fla. 5th DCA 1993). Here, the State acknowledged the

charging language did not subject Defendant to the 10-20-life

statute because the Information did not charge Defendant with

actually possessing the firearm in question; however, Defendant

nonetheless was properly charged and convicted as a principal to

Robbery with a Firearm.

Defendant was not sentenced under the 10-20-life statute for

possessing a firearm during the crime. Therefore, the fact the

Information did not allege he possessed a firearm is of no moment.

Defendant’s sentence was enhanced because the offense of which

he was properly convicted-Robbery with a Firearm under s.

812.13(2)(a)-subjected him to a mandatory life sentence as a prison

releasee reoffender pursuant to Fla. Stat. § 775.082(9)(a)(3)(a).

Response Ex. 1 at 1254−58 (record citations omitted). The Fifth DCA per

curiam affirmed the trial court’s denial without a written opinion. Id. at 1397.

To the extent that the Fifth DCA decided this issue on the merits,6 the

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

6 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

of this claim 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 given the evidence

presented in the state court proceedings. Dial is therefore not entitled to relief

on the basis of this claim.

That said, even if the state court’s adjudication of this claim is not

entitled to deference, Dial’s Strickland claim lacks merit. The Amended

Information charged Dial with armed robbery with the use of a firearm based

on the principal theory. Response Ex. 1 at 5. Trial testimony revealed Dial and

his co-defendant committed the armed robbery, with one co-defendant acting

as a getaway driver while the other co-defendant entered the jewelry store with

a firearm. Id. at 433, 442, 449, 455, 675.

Under Florida law, a defendant may be convicted as a principal of armed

robbery without actual possession of the firearm himself. See Freeny v. State,

621 So. 2d 505, 506 (Fla. 5th DCA 1993) (stating “possession of a firearm by a

co-defendant is sufficient to convict a defendant of armed robbery, pursuant to

the principal theory. . . .”); Kenny v. State, 693 So. 2d 1136, 1136–37 (Fla. 1st

DCA 1997) (recognizing that an unarmed defendant can be convicted of armed

robbery under a principal theory). The jury instructions that the trial court

read to the jury tracked the charge in the Amended Information, and included

the instruction on principals. Response Ex. 1 at 986−1014. Thus, trial counsel

was not deficient when he failed to make the argument Dial presents here, as

such an argument would have been meritless. See Freeman v. Att’y Gen., 536

F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for failing to

raise a meritless claim. . . .”). Dial has failed to carry his burden of showing

that his trial counsel’s representation fell outside the range of reasonably

professional assistance.

Likewise, even assuming trial counsel acted deficiently, Dial has not

shown any resulting prejudice. He has not shown that a reasonable probability

exists that the outcome would have been different if trial counsel had objected

to the Amended Information and jury instruction. Because he has shown

neither deficient performance nor resulting prejudice, this claim lacks merit.

Relief on the claim in Ground One is due to be denied.

B. Ground Two

As Ground Two, Dial contends his trial counsel rendered ineffective

assistance when he failed to preserve a peremptory challenge objection before

the trial court accepted and swore in the jury. Petition at 6. After jury selection

began, the state asked the trial court to strike a prospective juror. Id. According

to Dial, trial counsel requested a race-neutral explanation for the strike, which

the state provided. Id. Trial counsel objected to the explanation. Id. Dial

maintains trial counsel failed to renew that objection before the trial court

swore in the jury, thereby failing to preserve the issue for appeal. Id.

Dial raised a substantially similar claim in his Rule 3.850 Motion.

Response Ex. 1 at 1217−21. The trial court denied the claim, stating in

pertinent part:

The record reflects that Defendant’s counsel properly raised

a challenge to the State’s peremptory strike of Ms. Boykin in

accordance with the requirements set forth in Melbourne[.]

. . . .

Defendant correctly asserts that jury selection commenced

on April 18, 2016, before Judge Howard McGillin, and the jury was

not sworn until April 27, 2016, before Judge Dennis Craig.

Defendant further correctly alleges that counsel did not renew his

peremptory challenge immediately prior to the jury being sworn.

However, counsel expressly indicated to Judge Craig that he

remained dissatisfied with Judge McGillin’s determination as to

the legitimacy of the State’s race-neutral explanation regarding

Ms. Boykin when jury selection resumed [.]

. . . .

Thus, counsel expressly indicated to Judge Craig that he

persisted in his disagreement with the genuineness of the race-

neutral reason previously accepted by Judge McGillin for striking

Ms. Boykin. Accordingly, it is not reasonable to believe defense

counsel abandoned the objection; to the contrary, because defense

counsel specifically indicated he wished to place the objection on

the record before Judge Craig, the record supports that both the

Court and the State were apprised that counsel intended to

preserve the objection. See e.g., Scott v. State, 920 So. 2d 698, 700

(Fla. 3d DCA 2006) (“In the instant case, the issue is preserved

despite defense counsel’s failure to specifically renew his objection

before accepting the panel. The record reveals that it was clear to

the trial court and the State that defense counsel was not

abandoning his objection. . . . In these specific circumstances,

‘neither the state nor the court was misled into a belief that the

voir dire issue was being abandoned by failure to renew it.’”)

(quoting Ingrassia v. State, 902 So. 2d 357, 359 (Fla. 4th DCA

2005) (further internal citations omitted)).

It must also be noted that Defendant never even attempted

to raise on direct appeal the issue that the Court allegedly

improperly permitted the State’s peremptory strike of Ms. Boykin.

Thus, Defendant’s allegation that he was unable to successfully

challenge the Court’s ruling on the objection on appeal because it

had not been properly preserved is unsubstantiated. Defendant

merely speculates that the appellate court would have found the

objection had not been properly preserved, which is insufficient to

warrant relief. Gore v. State, 964 So. 2d 1257 (Fla. 2007)

(“[P]ostconviction relief cannot be based on speculative assertions.”

(quoting Jones v. State, 845 So. 2d 55, 64 (Fla. 2003)).

Response Ex. 1 at 1262−65 (record citations omitted). The Fifth DCA per

curiam affirmed the denial of relief without a written opinion. Id. at 1397.

To the extent that the Fifth DCA decided this claim on the merits, the

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim 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 in light of the evidence

presented in the state court proceedings. As a result, Dial is not entitled to

relief on the basis of this claim.

Even if the state court’s adjudication of this claim is not entitled to

deference, Dial’s ineffectiveness claim is baseless. Jury selection began on

April 18, 2016, but the trial court did not swear in the jury until April 27, 2016.

Id. at 43−185, 392. After making the initial objection on April 18, 2016, trial

counsel again raised his concerns about the genuineness of the state’s race-

neutral reason on April 26, 2016, before the jury was sworn. Id. at 43, 174−77,

187, 191−92, 206, 207−08. While the circumstances of the jury selection in this

case were unusual−in that it took place over several days and before two

different judges−trial counsel made clear on the record after his initial

objection that he disagreed with the race-neutral reason provided by the state

as to this specific juror. Id. Trial counsel’s action of alerting the trial court a

second time that he remained concerned about the genuineness of the state’s

race-neutral reason before the trial court administered the jury oath served as

a renewed objection. Davis v. Sec’y Dep’t of Corr., 341 F.3d 1310, 1315 (11th

Cir. 2003) (citing Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)) (“Under

Florida law, simply objecting to the state’s possibly discriminatory strikes, and

then countering any purportedly race-neutral explanation given by the

prosecution, does not suffice to preserve a Batson[7] claim for appeal. Rather,

trial counsel must press the already rejected challenge a second time at the

conclusion of voir dire, either by expressly renewing the objection or by

accepting the jury pursuant to a reservation of this claim.”); see also Melbourne

7 Batson v. Kentucky, 476 U.S. 79 (1986).

v. State, 679 So. 2d 759, 765 (Fla. 1996). That the objection occurred the day

before the jury took their oath is of little consequence. Thus, trial counsel was

not deficient.

Nevertheless, even assuming deficient performance by trial counsel, Dial

has not shown any resulting prejudice. He has not shown that a reasonable

probability exists that the outcome would have been different if trial counsel

had made a second objection on April 27, 2016, right before the trial court

administered the oath to the jury. Further, the basis of Dial’s prejudice

argument is that trial counsel did not preserve the error for direct appeal. The

record shows, however, that Dial never tried to raise this issue on appeal.

Response Ex. 1 at 1067−97. And Dial relies only on speculation for the

proposition that the appellate court would have found the issue unpreserved

had he raised the claim on direct appeal. Habeas relief cannot rest on

speculation. Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)

(concluding speculation is “insufficient to carry the burden of a habeas corpus

petitioner.”) Because he has shown neither deficient performance nor resulting

prejudice, the claim lacks merit. Relief on the claim in Ground Two is due to

be denied.

C. Ground Three

As Ground Three, Dial maintains trial counsel rendered ineffective

assistance because he failed to object to the trial court instructing the jury on

an element not charged in the Amended Information; specifically, the element

of actual possession of a firearm. Petition at 8. Dial further contends trial

counsel was ineffective for failing to object to the state pursuing the uncharged

element of possession of a firearm during the trial. Id. Dial raised a

substantially similar claim in his Rule 3.850 Motion. Response Ex. 1 at

1221−26. The trial court denied relief, stating in pertinent part:

This Court has already engaged in a lengthy analysis of this

issue in Ground One, supra, within which it determined that the

Defendant was properly charged, and the jury appropriately

instructed, regarding the element of use of a firearm during the

commission of the robbery in question, in accordance with Fla.

Stat. § 812.13(2)(a). The Court further observes that insofar as

Defendant asserts the jury was instructed specifically with respect

to Defendant’s possessing a firearm, the record reflects the jury

was merely instructed on the use of a firearm during the

commission of the robbery. Based on the aforementioned

reasoning, Ground Three will likewise be summarily denied.

Response Ex. 1 at 1267. (record citations omitted). The Fifth DCA per curiam

affirmed the trial court’s denial without a written opinion. Id. at 1397.