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

> District Court, M.D. Florida · August 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10113751

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113751

## How later opinions describe it (automated extraction)

- recognizing that an unarmed defendant can be convicted of armed robbery under a principal theory

## Opinion text

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;

(C) the date on which the constitutional
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.
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. Dial is therefore not entitled to relief
on the basis of this claim.

Yet even if the state court’s adjudication of this claim is not entitled to
deference, Dial’s claim lacks merit. As explained above, a defendant may be
convicted as a principal of armed robbery without actually possessing the
firearm himself. See Freeny, 621 So. 2d at 506; Kenny, 693 So. 2d at 1136–37.

The state charged Dial with armed robbery pursuant to the principal theory.
Response Ex. 1 at 5. Consistent with the charges filed, the state did not include
the actual possession of a firearm enhancement in the Amended Information
because it is not required for a principal theory. Instead, the charging

document asserted that a firearm was used during the robbery. Id. Trial
counsel was not deficient for failing to put forth the meritless argument Dial
raised here as, for the reasons explained above, actual possession is not
required for this charge. See Freeman, 536 F.3d at 1233. As a result, Dial has

failed to carry his burden of showing that his trial counsel’s representation fell
outside the range of reasonably professional assistance.
Even if trial counsel was deficient, Dial has not shown any resulting
prejudice. Evidence adduced at trial shows that on October 22, 2014, Dial and

his co-defendant robbed a Zales jewelry store in Saint Augustine, Florida. The
store employees testified that a person entered the store wielding a gun and
demanded jewelry. Response Ex. 1 at 433, 442, 449. Dial and his co-defendant
stole ninety-eight rings worth about $192,000. Id. at 675. The general manager
of the Saint Augustine Outlets, where the Zales store is located, witnessed a

white vehicle sitting in the fire lane outside the store. Id. at 453. The individual
who had entered the store with a gun exited the store after taking the rings
and entered the passenger side of the waiting vehicle. Id. at 455. The general
manager reported the vehicle’s partial tag number to law enforcement. Id. at

456.
The white car used in the armed robbery belonged to a friend of the co-
defendant who loaned him the vehicle on the morning of the robbery. Id. at
537−40, 651−52. Law enforcement traced the co-defendant to his place of

employment and learned Dial was his partner at work. Id. at 652. A search of
Dial and the co-defendant’s work truck produced a briefcase that contained
evidence pointing to pawned rings at various pawn shops. Id. at 652−53.
Police investigated associates of Dial, including Pamela Walker, the

mother of his child, and discovered that she also pawned rings. Id. at 655−56.
Walker testified that following the robbery, Dial called her from the co-
defendant’s cell phone and asked her to pick him up at a Publix. Id. at 468−70.
Walker picked-up Dial and the co-defendant and heard them discussing Zales

in the back seat. Id. at 471. Dial gave Walker a ring that she later pawned. Id.
at 472. Dial’s cousin, Brian Dempsey, was in Walker’s car when she met Dial
and his co-defendant. Id. at 470, 492−93. Dial gave Dempsey jewelry that he
pawned as well. Id. at 473, 495−96. Dempsey recalled Dial arriving with the
co-defendant at the Publix in a white vehicle. Id. at 493. Dempsey further

testified that Dial said he obtained the jewelry after committing a robbery in
Saint Augustine. Id. at 500−01.
Cell site location data showed that Dial and his co-defendant
communicated on the morning of the robbery. Id. at 594−95. Their phones

tracked south towards the robbery location and the co-defendant’s phone
showed activity near the Zales store at the time of the robbery. Id. at 610, 660.
Following the robbery, the co-defendant’s phone called Walker while near the
Zales store. Id. at 601. Dial’s phone traveled north towards Jacksonville after

the robbery, and then to various pawn shop locations. Id. at 661. The rings
Dial, Walker, and Dempsey pawned matched the rings stolen from the Zales
store. Id. at 675−78, 734−38, 740−41.
Considering the evidence presented at trial showing Petitioner’s

participation as a principal, Dial 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 instruction. Because he has shown neither
deficient performance nor resulting prejudice, the ineffectiveness claim is

baseless. Relief on the claim in Ground Three is due to be denied.
D. Ground Four

As Ground Four, Dial asserts trial counsel was ineffective for failing to
secure the standard jury instruction about a defendant becoming a witness.
Petition at 10. Dial contends that by failing to give this instruction, the trial
court deprived him of a fair trial because the jury was not instructed to fairly
weigh and consider his trial testimony. Id.

Dial raised this claim in his Rule 3.850 motion. Response Ex. 1 at
1227−34. The trial court denied the claim, finding:
On direct appeal, Defendant’s appellate counsel
exhaustively briefed and argued this ground as the singular
argument on appeal. Appellate counsel argued that the failure to
“instruct the jury with respect to the portion of Standard Jury
Instruction 3.9 regarding the defendant in this case becoming a
witness and the rules of consideration of his testimony” constituted
fundamental error. Id. at 19. The State asserted in its answer brief
that the portion of Standard Jury Instruction 3.9 wherein the jury
is instructed to “apply the same rules to consideration of [the
defendant’s] testimony” as it applied “to the testimony of the other
witnesses” is redundant, because the jury had been properly
instructed on the considerations for evaluating witnesses’
testimony generally. The State consequently argued that the
failure to include this redundant portion of Standard Jury
Instruction 3.9 constituted harmless error, rather than
fundamental error. Because Defendant raised this exact claim, on
direct appeal, and the appellate court affirmed Defendant’s
conviction, he is procedurally barred from attempting now to re-
litigate precisely the same claim merely by couching it in terms of
ineffective assistance of counsel for “failing to ensure the jury was
properly instructed.” Troy v. State, 57 So. 3d 828, 838 (Fla. 2011)
(“A defendant may not circumvent the procedural bar to his claims
by raising conclusory allegations of ineffective assistance of
counsel.”) (Internal citations omitted). Consequently, Ground Four
will be denied as procedurally barred.
Response Ex. 1 at 1268. Dial appealed and the Fifth DCA affirmed the trial
court’s order without issuing a written opinion. Id. at 1397.
If the last state court to examine a petitioner’s claim explicitly finds that
the claim is barred because the petitioner failed to follow state procedural

rules, and that procedural bar provides an adequate and independent state
ground for denying relief, federal review of the habeas petitioner’s claim is
barred. See Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). Stated
otherwise, federal courts may not address claims that “have been held to be

procedurally defaulted under state law.” Tower v. Phillips, 7 F.3d 206, 210
(11th Cir. 1993) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)); see
also Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims that have
been held to be procedurally defaulted under state law cannot be addressed by

federal courts.”).
Here, the sole issue raised on Dial’s direct appeal was whether the trial
court fundamentally erred by failing to instruct the jury about Dial becoming
a witness at trial. Response Ex. 1 at 1067−97. The state filed an answer brief

arguing that the omitted instruction was redundant to the instruction given
about general witness testimony and maintained nothing in the jury
instructions advised the jury not to apply the general witness standards to
Dial’s testimony. Id. at 1104. The state acknowledged that it was error for the
instruction at issue to be omitted, but that it was a harmless error, not a
fundamental one. Id. Thus, when the Fifth DCA affirmed Dial’s judgment and

sentences, it is fair to assume that it adjudicated the merits of Dial’s claim and
found that exclusion of this instruction did not result in an unfair trial.
On collateral review, the state court declined to consider the ineffective
assistance of counsel claims at issue because the allegations for which Dial’s

Strickland claim were based were previously found to lack merit on his direct
appeal. The state court’s ruling did not alternatively address the merits of the
claim, and the case that the trial court cited to support its ruling was similar
to the record here. In the cited case, the court found a claim of ineffective

assistance of counsel procedurally barred because the primary issue
supporting the claim was raised on direct appeal and rejected on the merits.
See Troy v. State, 57 So. 3d 828, 838 (Fla. 2011) (“A defendant may not attempt
to circumvent the procedural bar to his claims by raising conclusory allegations

of ineffective assistance of counsel.”).
The state court’s determination that Dial’s claim of ineffective assistance
based on the failure to assure the jury was properly instructed is procedurally
barred. And Dial has failed to show that the adjudication of the claim was

contrary to clearly established law, involved an unreasonable application of
clearly established law, or resulted from an unreasonable determination of the
facts in light of the evidence presented. Thus, he is not entitled to relief on this
claim.

Even if this claim were not procedurally barred, rejection of this ground
is still appropriate because Dial cannot demonstrate the required prejudice. At
issue is the omission of an instruction that reads, “[t]he defendant in this case
has become a witness. You should apply the same rules to consideration of [his]

testimony that you apply to the testimony of the other witnesses.” Fla. Std.
Jury Instr. (Crim.) 3.9. Dial maintains that because the jury never heard this
instruction, he was somehow deprived of the right to have the jury fairly weigh
and consider his trial testimony. The trial court, however, instructed the jurors

that it was up to them to decide what evidence was reliable or unreliable.
Response Ex. 1 at 1005. The trial court also described several factors to
consider in evaluating the testimony of witnesses and told the jurors that they
“may believe or disbelieve all or any part of the evidence or the testimony of

any witness.” Id. at 1005−08. In light of these instructions, it is unreasonable
to think the jury did not afford Dial’s testimony with these same
considerations. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is
presumed to follow its instructions.”).

As already discussed, on direct appeal, the Fifth DCA affirmed Dial’s
judgment and conviction and rejected his claim that the omission of this
instruction amounted to fundamental error. In doing so the state court found
there was no possibility that the outcome of Dial’s trial would have been
different had this instruction been included. See Floyd v. State, 850 So. 2d 383,

403 (Fla. 2002) (“Fundamental error is that which ‘reaches down into the
validity of the trial itself to the extent that a verdict . . . could not have been
obtained without [that] error.’”) (internal citation omitted). Likewise, Dial
cannot demonstrate that but for trial counsel’s failure to request this

instruction, the outcome of his trial would have been different. As such, relief
on the claim in Ground Four is due to be denied.
E. Ground Five
As Ground Five, Dial opines trial counsel provided ineffective assistance

when he failed to move to suppress the historical cell site information because
law enforcement obtained it without a warrant. Petition at 12. Dial maintains
that when law enforcement obtained the cell site location information (CSLI)
through a subpoena to the mobile carrier, it violated his constitutional rights

because it did not satisfy the probable cause requirements of a warrant. Id.
Dial failed to present this claim to the state court either on direct appeal
or on collateral review. Response Ex. 1 at 1067−97, 1123−29, 1190−95,
1203−38. Therefore this claim is unexhausted and procedurally defaulted. See

O’Sullivan, 526 U.S. at 845. In an effort to overcome the procedural bar, Dial
relies on Martinez v. Ryan, 566 U.S. 1 (2012), and argues that his lack of
postconviction counsel constitutes cause to overcome the procedural bar.
Petition at 12. The Eleventh Circuit has explained the holding of Martinez as
follows:

In Martinez, the U.S. Supreme Court enunciated a
narrow exception to the general rule that the lack of
an attorney or attorney error in state post-conviction
proceedings does not establish cause to excuse the
procedural default of a substantive claim. 566 U.S. at
8, 13-14, 132 S.Ct. at 1315, 1318. The Supreme Court,
however, set strict parameters on the application of
this exception. It applies only where (1) state law
requires a prisoner to raise ineffective-trial-counsel
claims during an initial collateral proceeding and
precludes those claims during direct appeal; (2) the
prisoner failed to properly raise ineffective-trial-
counsel claims during the initial collateral proceeding;
(3) the prisoner either did not have counsel or his
counsel was ineffective during those initial state
collateral proceedings; and (4) failing to excuse the
prisoner’s procedural default would result in the loss
of a “substantial” ineffective-trial-counsel claim. Id. at
14, 132 S.Ct. at 1318; see also Arthur v. Thomas, 739
F.3d 611, 629 (11th Cir. 2014) (setting forth the
Martinez requirements).

Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017). A
claim is substantial if the petitioner demonstrates it “has some merit.”
Martinez, 566 U.S. at 14.
Upon consideration of the record, the Court determines Dial has not
shown that the underlying ineffective assistance of trial counsel claim is
substantial. Pursuant to the provisions of the Stored Communications Act, the
government may obtain records from a cellular service provider based on a
showing of “reasonable grounds” that it believes the records are “relevant and
material to an ongoing investigation.” 18 U.S.C. § 2703(d). However, in 2018,
after Dial’s trial, the United States Supreme Court held that to obtain CLSI

law enforcement must have more than the reasonable grounds required for a
subpoena; law enforcement must show probable cause and obtain a warrant.
Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (“Consequently, an
order issued under Section 2703(d) of the Act is not a permissible mechanism

for accessing historical cell-site records. Before compelling a wireless carrier to
turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—
get a warrant.”).
Testimony at trial revealed the St. John’s County Sheriff’s Office

provided the Florida Department of Law Enforcement with the CLSI in
November 2015 for mapping purposes. Response Ex. 1 at 545−46. As noted
above, the trial court sentenced Dial based on the jury’s verdict in 2016. Id. at
1058, 1144. It is unreasonable to task trial counsel with the responsibility to

move to suppress this information because law enforcement obtained it with a
subpoena instead of warrant, given that the Supreme Court did not determine
that a warrant was required until after Dial’s trial and conviction. The Court
cannot find trial counsel deficient for failing to predict a change in the law.

Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986)
(“[D]efendants are not entitled to an attorney capable of foreseeing the future
development of constitutional law.”). As a result, trial counsel was not deficient
for failing to move to suppress the CLSI on this basis.

Dial also cannot demonstrate a reasonable probability that the outcome
of his trial would have been different had trial counsel successfully moved to
suppress the CLSI. As discussed above, law enforcement traced the vehicle
leaving the Zales jewelry store to the co-defendant. Response Ex. 1 at 456,

537−40, 610. Dial worked with his co-defendant, and police found
incriminating evidence in their shared vehicle. Id. at 652−53. Walker and
Dempsey received rings from Dial that they pawned, and Dial told Dempsey
he committed the robbery. Id. at 470, 472−73, 492−93, 495, 500-01. Rings

pawned by Dial, Walker, and Dempsey matched the rings stolen from the Zales
store. Id. at 675−77, 678, 734−38, 740−41. So even without the CLSI, there was
sufficient evidence to support the jury’s verdict.
Because Dial has shown neither deficient performance nor prejudice, the

Court finds that Dial’s claim is not substantial such that his failure to exhaust
should be excused under Martinez. Accordingly, relief on the claim in Ground
Five is due to be denied.
F. Ground Six

As Ground Six, Dial contends the trial court fundamentally erred by
failing to instruct the jury with Florida Jury Instruction 3.9 regarding the
defendant becoming a witness. Petition at 14. He maintains the failure to give
the omitted portion of this instruction affected his Fifth, Sixth, and Fourteenth
Amendment rights. Id.

Dial raised this claim on direct appeal. Response Ex. 1 at 1089−95,
1112−15. The Fifth DCA denied this claim and affirmed the judgment and
sentence. Id. at 1119. The state court’s adjudication is entitled to deference
under AEDPA. 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. Dial is thus not entitled to relief on the basis of this claim.
Even assuming the state court’s adjudication of the claim is not entitled
to deference, Dial’s claim lacks merit. “[I]mproper jury instructions can never
be the basis for federal habeas corpus relief unless the instruction rendered the

whole trial so unfair as to amount to a denial of due process.” Jones v. Dugger,
888 F.2d 1340, 1343 (11th Cir. 1989); see Estelle v. McGuire, 502 U.S. 62,
71−72 (1991) (“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)). For most alleged
constitutional errors in the trial process, “a federal court reviewing a state-
court determination in a habeas corpus proceeding ordinarily should apply the
‘harmless error’ standard, . . . namely, whether the error had substantial and
injurious effect or influence in determining the jury’s verdict.” California v.

Roy, 519 U.S. 2, 4−5 (1996) (internal quotations omitted); see also Neder v.
United States, 527 U.S. 1, 9 (1999) (noting that a jury instruction “that omits
an element of the offense does not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or

innocence”).
Here, the record reflects that the trial court thoroughly instructed the
jury on weighing the evidence and determining the credibility of witnesses.
Indeed, it instructed the jurors that it was up to them to decide what evidence

was reliable or unreliable. Response Ex. 1 at 1005. The trial court also
described several factors to be considered in evaluating the testimony of
witnesses and told the jurors that they “may believe or disbelieve all or any
part of the evidence or the testimony of any witness.” Id. at 1005−08. The

omission of the instruction in light of the full record did not render the trial
fundamentally unfair given the trial court’s instructions to the jury. Thus,
relief on the claim in Ground Six is due to be denied
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Dial seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The Court should
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Dial “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 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of

appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Dial appeals the denial of the Petition, 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.
4, The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 23rd day of
August, 2028.

MARCIA MORALES HOWARD
United States District Judge
C:
Donald Dial, # 399195
Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113751. Public record. Not legal advice.