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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TERRY LEQUAN DIXON,

Petitioner,

v. Case No. 3:22-cv-91-TJC-SJH

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Terry Lequan Dixon, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254. See Doc. 1. With help from retained counsel,

Petitioner is proceeding on an Amended Petition. See Doc. 5. He challenges a

state court (Duval County, Florida) judgment of conviction for accessory after

the fact. He is serving a fifteen-year term of incarceration. Respondents filed a

Response. See Doc. 9 (Resp.).1.And Petitioner, with help from counsel, filed a

1 Attached to the Response are various exhibits (Docs. 9-1 to 9-25). The Court

refers to the exhibits as “Resp. Ex.”

Reply. See Doc. 10. This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

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

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

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

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

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

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

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

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

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

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

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

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

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

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

citations modified).

B. Exhaustion and 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); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

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 and

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

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

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

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 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

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

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 effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). 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.” 466 U.S. at 697.

“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 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Factual and Procedural History

The following summary is taken from Petitioner’s initial brief filed on

direct appeal:

By Second Amended Information filed May 12,

2014, the State of Florida charged Mr. Dixon with being

an Accessory after the Fact. The State specifically

alleged Mr. Dixon “did maintain, assist or give aid to

William Davis by providing the vehicle used during the

commission of the crime, knowing that William Davis

had committed . . . Armed Robbery, with the intent that

William Davis shall avoid or escape detection, arrest,

trial or punishment.” Both Davis and Mr. Dixon

asserted their constitutional right to trial by jury.

Prior to trial the State filed a motion for joinder

pursuant to rule 3.150(b), Florida Rules of Criminal

Procedure to try Davis and Mr. Dixon together. The

State alleged the cases were related in that they were

triable in the same court and were based on the same

acts or transactions and were part of a common scheme

or plan. Mr. Dixon objected to the motion for joinder

arguing:

Your Honor, I would object to the motion

for joinder. . . . Just, specifically, for my

client’s case, the codefendant, there was

the victim’s property was found on the

codefendant. There was no property found

on my client. As well as the identity ---

there was an identification, show-up

identification with the codefendant, and

there is not a 100 percent identification of

my client. Because of those issues, I think

those are separate, appropriate for

separate cases.

However, when the trial court asked “[i]s there any

legal reason why they couldn’t be joined?” the defense

replied “[n]o, Your Honor, I guess, the difference in the

evidence.” The trial court granted the motion for

joinder. There was not a subsequent defense request to

sever the trials.

At trial, the State called Samantha Jenerette, a

named victim of Davis’ armed robbery charge. On April

22, 2013, she and her friend’s nine year-old son, T.G.,

went to Wal-Mart. While there, she met a man, asked

him for help with finding light bulbs, and where she

could obtain marijuana. Ms. Jenerette exchanged

phone numbers with the man so she could later meet

up with him and purchase the marijuana. Sometime

after 10:00 P.M. she left Wal-Mart, called the man, and

the two agreed to meet at a near-by Captain D’s.

Ms. Jenerette ultimately drove across the street

to an apartment complex and called the man to let him

know her whereabouts. The man told her to come

around to the side of the apartment complex and she

complied. There, she parked next to a red car, where

she observed a man in a white shirt with a low hair cut

in the front seat and another individual standing

behind the vehicle. She got out of her vehicle, was hit

from behind, and fell to the ground. When on the

ground someone pointed a gun at her.

The man wearing the white shirt exited the red

car, went through her pockets, and took her car key,

cell phone, and food stamp card bearing her name. He

then entered her car, asking T.G. for money. T.G.

provided the man with money, the man told her to

remain on the ground until they left, and two or three

people got in the red car and sped off. She and T.G. then

ran back to the Wal-Mart, flagged someone down, and

used his phone to call 9-1-1. Ms. Jenerette informed the

9-1-1 operator she was robbed and that the three black

males fled in a red Corolla.

Ms. Jenerette testified that the third black male

was standing behind the red car throughout the

robbery, but was unsure whether he had “an active

role” in the crime. She did not initially see that third

male get in the car when it left the apartment complex.

However, she saw the red car again after the robbery

at a stop light and noticed then that there were three

males in it.

Later that night a show-up was conducted of two

individuals. Ms. Jenerette was able to identify the man

in the white shirt, but was unable to identify the other

male - indicating that “it looked like him” but that she

could not be sure. She did identify the red car. She

identified her food stamp card, which officers

recovered. The officer also returned her car key.

Ms. Jenerette admitted she withheld information

from police and in a prior deposition as she never told

anyone she went to the apartment complex to purchase

marijuana. She testified she was unsure whether the

male at Wal-Mart was the same man from the robbery.

On cross-examination, Ms. Jenerette confirmed

that at the show-up on the night of the robbery she

identified Davis as the male she met at the apartment

complex. She further confirmed she was unable to

identify the other male who was in the show-up.

T.G., a named victim of Davis’ armed robbery

charge, who was nine years old at the time of the

offense also testified. Though he could not remember

the date, he did remember that he and Ms. Jenerette

went to Wal-Mart shortly after moving to Jacksonville.

They left Wal-Mart when it was dark and went to some

apartments across the street. Ms. Jenerette drove to

the side of the apartments and parked the car. Both

T.G. and Ms. Jenerette exited the car. Two black guys

were standing by a burgundy car, one came up and hit

Ms. Jenerette behind the head. T.G. ran back into the

passenger seat of his car.

T.G. testified that one of the males wore a white

shirt, sweat pants, and some “slide-on shoes”; that

particular individual was short and skinny. The other

male wore a black jacket, black pants, white shoes, and

a black hat. There were three males present; the third

male stood by a door. The man with the black clothes

was the one standing by the door[,] and the one who hit

Ms. Jenerette and held her at gunpoint was wearing

blue clothing.

The man in the white shirt got into the car,

demanded money using bad language, and took the

money T.G. threw at him. The man in the white shirt

also took phones and paperwork from the car. He was

holding a silver gun. The man in the white shirt and

two other males then left in the red car. T.G. identified

the red car in a photo.

At the show-up, T.G. identified the man with the

white shirt as the person who took his money in the car

and had a gun. He also i[]dentified the other male as

the man in the black hat and jacket as the person

standing by the door. He did not see the man who held

Ms. Jenerette at gunpoint. He testified that the men

told Ms. Jenerette “[h]old your head down or I’ll shoot

you -– I’m going to shoot you in front of your son.”

On cross-examination, Mr. Dixon’s attorney

asked T.G. if it was true that on the date of the show-

up “you told police that you could not identify the

second person?” T.G. testified that he could not

remember.

The State next called Roosevelt Knight. He

testified that as he was leaving Wal-Mart that evening

he stopped his car because he saw two panicked people

walking towards him. He could tell they were in

distress and very distraught about a situation. He

explained T.G. was crying and appeared very scared.

He used his phone to call 9-1-1.

Officer J.T. Crotty of the Jacksonville Sheriff’s

Office also testified. He was working the night of April

22, 2013, and was dispatched to the scene of the 9-1-1

call. He met with Ms. Jenerette and T.G. In doing so,

he obtained information about the red car and sent a

BOLO over the radio. He then received information

that the suspects were apprehended. He transported

T.G. to the show-up; T.G. was very upset and scared.

Referring to his written report, Officer Crotty

testified that T.G. was able to identify one of the

suspects at the show-up. That suspect was William

Davis. After reviewing his report once more, Officer

Crotty testified that as to the second suspect, T.G.

“could not positively identify him.”

Again referring to his report Officer Crotty

testified that Ms. Jenerette positively identified Davis

as the person who robbed her and T.G., but only

indicated that the other male “looks like the one who

had the gun”, but that she could not positively identify

him. Officer Crotty retrieved Ms. Jenerette’s food

stamp card and $156.00 in cash from William Davis.

On cross-examination, Officer Crotty confirmed

that Mr. Dixon was the second suspect whom T.G. was

unable to identify and Ms. Jenerette stated “looked like

the one who had the gun.”

Officer Kenneth Chastain of the Jacksonville

Sheriff’s Office testified that he encountered the

suspect car after hearing the BOLO on April 22, 2013.

He identified Mr. Dixon and Davis as two people that

were in the car and identified both men in open court.

He first saw the car at a gas station and then began to

follow it once the car drove away. He called for back-up.

Ultimately he activated his lights, the red car

stopped short of hitting another patrol car, the driver

fled and Officer Chastain pursued him. Officer

Chastain gave commands to the driver to stop but he

did not. Eventually Officer Chastain caught the driver,

who turned out to be Davis. Davis possessed money, a

key fob, Wal-Mart receipt, and an EBT card; the key fob

belonged to the car driven by Ms. Jenerette. Officer

Chastain had no contact with Mr. Dixon, but testified

he was present that evening.

On cross-examination, Officer Chastain testified

he first saw the red car at about 10:30 P.M. Due to

pursuing Davis, Officer Chastain did not observe the

actions of the other occupants of the red car.

Officer Christopher Winn, with the Jacksonville

Sheriff’s Office, testified to hearing Officer Chastain’s

call for back-up. Once the vehicle stopped he saw the

driver and the passenger exit the vehicle and flee

through the complex. The third male was in the

backseat. He was holding his hands up. According to

Officer Winn, that person had to be let out of the back

seat due to a possible door malfunction. He identified

the suspect that remained inside the car as Mr. Dixon.

Officer Jose Ruiz testified he also saw two

individuals flee from the red car; he pursued the

passenger. However, he was unable to detain the

passenger. He had no contact with Mr. Dixon.

Kendra Dixon, Mr. Dixon’s mother, testified. She

identified her son in open court. In 2013 she owned two

cars, one a burgundy 1999 Toyota Corolla. She allowed

Mr. Dixon to borrow the Corolla [on] April 22, 2013. He

left with the car between 7:00 and 8:00 P.M. alone. Ms.

Dixon provided law enforcement permission to search

her car. Ms. Dixon knew Davis as an acquaintance of

her son’s; she identified him in open court.

The State then rested its case. The defense

moved for a judgment of acquittal as to the charge of

Accessory after the Fact. Defense counsel argued that

the State failed to prove Mr. Dixon maintained,

assisted, aided or attempted to aid Davis, that Mr.

Dixon had knowledge Davis committed a felony, or that

Mr. Dixon aided Davis in an attempt to assist him to

avoid detection. The State replied it would rely on the

evidence adduced in its case-in-chief. The trial court,

without comment, denied Mr. Dixon’s motion.

The defense then called Ms. Karavay Cannon.

She met Mr. Dixon in March of 2013. She testified the

two spoke on the phone several times a day, several

times a week. Looking at phone records, Ms. Cannon

testified that she spoke with Mr. Dixon on April 22,

2013, from 10:15 P.M. until 10:41 P.M.

On cross-examination she explained that she

could not state the exact date she spoke with Mr. Dixon.

On re-direct, Ms. Cannon stated she could only

remember the prefix of her number as 672, but did not

know her previous phone number. She explained that

she called Mr. Dixon after the date the defense attorney

“listed”, but he never picked up. That last time they

spoke, she did not hear any commotion in the

background; Mr. Dixon did not appear upset, out of

sort, or nervous.

The defense then called Kendra Dixon. She paid

for the phone Mr. Dixon used and testified that his

phone number was 885-1577. When she called that

number Mr. Dixon answered; to her knowledge, no one

else used his phone. She identified phone records for

Mr. Dixon’s phone and testified the date of the phone

calls within the records were all from April 22, 2013.

She identified two phone calls Mr. Dixon made to her

on that date, which were made at 10:05 P.M. and 10:46

P.M. The defense entered the records into evidence

without State objection.

Both defendants rested their cases and each

exercised his right to remain silent. During closing

argument the State argued: “[t]hen after the robbery

was completed we didn’t hear any testimony about how

defendant Davis had grabbed defendant Dixon by the

arm to get him to the car. He volunteered. He got right

in that car with him as soon as the robbery concluded.”

Mr. Dixon’s counsel objected arguing “going towards

the defendant’s right to remain silent.” The trial court

overruled the objection and asked the State to be

cautious. When defense counsel asked to approach, the

trial court stated “I have already ruled. You can put it

on the record later.” The State proceeded:

As soon as the robbery concluded

defendant Dixon, he got in the backseat of

that car, the car that belonged to his

mother. He got in the backseat and he

stood idally [sic] and did nothing as a nine-

year old was robbed and a woman was held

at gunpoint.

The State further argued that Mr. Dixon

maintained, assisted, aided or attempted to aid Davis

because “it was his vehicle. He was standing there. He

knew it was going on.” “He aided when they fled off in

that vehicle after the robbery was committed.” The

State argued Mr. Dixon “assisted by providing the get

away vehicle” and getting in the car with Davis.

Before his closing argument, Mr. Dixon’s counsel

asked to take a break, the jurors were excused, and

counsel addressed the trial court’s ruling on his

objection regarding Mr. Dixon’s right to remain silent.

He acknowledged that the trial court overruled the

objection, moved for a mistrial, and explained that the

comment led the jury to believe they did not hear Mr.

Dixon’s account of the incident. The trial court again

denied the objection and counsel’s motion for mistrial.

Resp. Ex. 12 at 2-14 (record citations omitted).

In its amended answer brief, the state accepted Petitioner’s statement of

the case and facts, subject to the following additions:

[T.G.] testified that when they arrived at the

apartment complex, Samantha Jenerette drove her car

“to the side” of the apartment complex and parked her

car next to a burgundy car. They got out of Jenerette’s

car and walked [] within a foot, “like close by”, from the

burgundy car. [T.G.] saw two guys standing next to the

burgundy car, and a third man standing by a door.

[T.G.] testified that [at the show up and at his

deposition,] he identified the third man, who was by the

door, as the man wearing black[.]

When Samantha Jenerette was asked if she

actually saw them get into the car and leave, she

replied “Yes, ma’am. The car sped off” and that she saw

“Two or three, maybe. I’m not really sure[.]” When

Appellant and his fellow robbers left the area,

Jenerette fled the scene.

Jenerette then flagged down Roosevelt Knight,

who loaned her his cellular telephone and had the two

victims sit in his car while parked near the crime scene.

9-1-1 is called and, while speaking, Jenerette sees

Davis driving the red vehicle with 2 other black males

in [the] car. They were at the red light right in front of

Jenerette as they “circled back” in the red/burgundy

car. Jenerette believed they were coming back to see if

she was still at her car, the scene of their crime.

When the red/burgundy car was stopped, officers

chased two that fled and Officer Winn went to [the]

vehicle and saw [Dixon] in [the] backseat, holding his

hands up. Winn described something wrong with the

car door, that [Dixon] could not get out of the car, that

it was either locked or damaged.

Resp. Ex. 13 (record citations omitted).

The jury found Petitioner guilty of accessory after the fact and Davis

guilty of two counts of robbery. Resp. Ex. 8 at 825. Petitioner, with help from

appellate counsel, sought a direct appeal, and the First District Court of Appeal

per curiam affirmed Petitioner’s judgment and conviction without a written

opinion. Resp. Ex. 15.

IV. The Amended Petition

A. Ground One

Petitioner argues that the trial court erred in denying Petitioner’s motion

for judgment of acquittal, violating his rights under the Fourteenth

Amendment. Doc. 5 at 13-18. According to Petitioner, the state presented no

evidence that Petitioner committed an overt act of intent to aid Davis in

avoiding detection, arrest, trial, or punishment. Id. at 15.

Petitioner, through appellate counsel, raised this issue on direct appeal.

Resp. Ex. 12 at 16. He argued as follows:

In the instant case, the State charged Mr. Dixon

with accessory after the fact for “providing the vehicle

used during the commission of the crime, knowing that

William Davis had committed . . . Armed Robbery, with

the intent that William Davis shall avoid or escape

detection, arrest, trial or punishment.” However, the

evidence adduced at trial established that Davis,

wearing a white t-shi[r]t, was in the driver’s seat of the

vehicle in question when the victims arrived at the

scene of the armed robbery.

Mr. Dixon, the third black male, was somewhere

behind the vehicle and did not participate in the armed

robbery. In fact, Ms. Jenerette did not observe Mr.

Dixon get in the vehicle with Davis after the armed

robbery. When officers stopped the vehicle in question

after the armed robbery, Davis and another fled, but

Mr. Dixon remained in the backseat of the vehicle

holding his hands up.

Here, the defense moved for a judgment of

acquittal arguing that the State failed to prove Mr.

Dixon maintained, assisted, aided or attempted to aid

Davis, that Mr. Dixon had knowledge Davis committed

a felony, or that Mr. Dixon aided Davis in an attempt

to assist him to avoid detection. The State replied it

would rely on the evidence adduced in its case-in-chief.

The trial court denied Mr. Dixon’s motion. This was

error as the State failed to prove that Mr. Dixon took

some overt action to assist Davis after the armed

robbery occurred with the intent to aid him in avoiding

or escaping prosecution.

In closing argument, the State argued that it

proved its case against Mr. Dixon as “he aided when

they fled off in that vehicle after the robbery was

committed.” It further argued that Mr. Dixon assisted

Davis by providing the getaway vehicle and getting in

the car with Davis after the armed robbery. However,

the fact that Mr. Dixon got in the back seat of the

vehicle after the crime occurred does not establish

an overt act on his part or an intent to assist Davis in

avoiding or escaping arrest or prosecution.

No evidence was presented that Mr. Dixon

provided Davis with the keys to the vehicle either

before or after the armed robbery so that Davis could

drive off after committing the crime. Likewise, there

was no evidence to rebut the reasonable hypothesis

that if Mr. Dixon provided aid it was to protect his

personal safety or for other personal reasons, but was

not provided with the intent to assist Davis from

avoiding or escaping arrest or prosecution.

The law does not hold Mr. Dixon criminally

responsible for failing to prevent Davis from

committing a crime, or for failing to report it. Bowen,

791 So. 2d at 50. The burden lies with the State to prove

Mr. Dixon intended to assist Davis in avoiding or

escaping arrest or prosecution. This the State failed to

do. As such, this Court should vacate Mr. Dixon’s

conviction and sentence finding that the trial court

erred in denying hi[s] motion for judgment of acquittal.

Resp. Ex. 12 at 17-21 (record citations omitted).

In its answer brief, the state argued:

Contrary to argument by Appellant, this is not a

purely circumstantial evidence case. The State

presented direct evidence of Appellant’s guilt – he

provided his mother’s vehicle for co-defendant’s use and

accompanied co-defendant to [the] scene, stood by while

co-defendant robbed a child and a woman and then got

into the vehicle and fled the scene to avoid arrest

together with Davis, the codefendant.

. . . .

In this case, Appellant’s mother testified that

Appellant had the use of her vehicle, that it was in

Appellant’s possession the night of the robbery, that he

left his mother’s residence in the get-away vehicle and

that he was driving alone. Appellant was apprehended

in the backseat of his mother’s vehicle, the vehicle that

met up with Samantha Jenerette and T.G., the vehicle

that Appellant stood by while a gun was placed to the

head of Jenerette while she and T.G. were robbed, the

same vehicle that Appellant and codefendant drove to

the Forest Apartments where the armed robbery

occurred, the same vehicle that fled the scene, and was

later apprehended, the vehicle he and his co-defendant

were riding in, the vehicle that he was extracted from

by law enforcement officers.

. . . .

Appellant’s claim that he committed no “overt

action[”] assisting co-defendant is incorrect, as Kendra

Dixon, Appellant’s mother testified that she allowed

Appellant to use her car and that he left with the car,

driving alone. Appellant argues that “no evidence was

presented that Mr. Dixon provided Davis with keys to

the vehicle, either before or after the armed robbery.”

This argument fails to address that Appellant drove

alone in the car that Davis was seen sitting in the

driver’s seat, before[,] during[,] and after the armed

robbery.

Further, testimony of victims put Appellant at

the scene of the robbery, within steps of where

Jenerette was knocked to the ground and held there

with a gun to her head. [T.G.]’s description of Appellant

standing “close by”, and that they walked within a foot

of the burgundy car illustrates Appellant[’]s knowledge

of the crime. State’s Exhibit 1-B, a photograph of

Jenerette’s car parked at the crime scene illuminates

the close environment in which the robbery took place.

Also, [T.G.]’s testimony that Appellant, the third man

at the scene of the robbery, was standing by the back of

the vehicle, “by a door” is supported by State’s Exhibit

1-B.

The trial court correctly denied Appellant’s

motion for judg[]ment of acquittal as the evidence was

sufficient. As noted above, “Once the State introduces

such evidence, it is the jury’s duty to determine

whether the evidence is sufficient to exclude every

reasonable hypothesis of innocence beyond a

reasonable doubt.” [ ] The legal test for determining

whether a Judgment of Acquittal should be granted is

“whether after all conflicts in the evidence and all

reasonable inferences there-from have been resolved in

favor of the verdict on appeal, there is substantial,

competent evidence to support the verdict and the

judgment.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.

1981).

The evidence present in this case was clearly

sufficient for a jury to find that Appellant committed

the charged crime. Therefore, his Judg[]ment and

Sentence should be affirmed.

Resp. Ex. 13 at 8-10 (record citations omitted). The First DCA found Petitioner’s

claim to be without merit and affirmed his judgment and conviction without a

written opinion. Resp. Ex. 15.

Here, Respondents contend that when raising this issue on direct appeal,

Petitioner failed to fairly present the federal nature of this claim to the state

court, and thus his current federal due process claim is unexhausted and

procedurally defaulted. Doc. 9 at 42-48. They also assert the claim is otherwise

without merit. See id. at 48-52.

The Court agrees that Petitioner did not present the federal nature of this

claim to the state appellate court. In his initial brief filed on direct appeal,

Petitioner did not state or suggest that he was raising a federal due process

claim, nor did he rely on any other federal constitutional guarantee. Resp. Ex.

T. Instead, he argued, in terms of state law only, that the circumstantial

evidence for which the state relied in opposing Petitioner’s motion for judgment

of acquittal was insufficient under Florida law. Resp. Ex. 12 (citing Bowen v.

State, 791 So. 2d 44, 47 (Fla. 2d 2001)); see also Resp. Ex. 14 (Petitioner’s reply

brief citing Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016); Staten v. State,

519 So. 2d 622, 625 (Fla. 1988)). Thus, the federal nature of this claim is

unexhausted and procedurally defaulted, and Petitioner has failed to show

cause for or prejudice from this procedural bar. Likewise, Petitioner has not

shown that failure to consider this claim on the merits will result in a

fundamental miscarriage of justice.

Petitioner argues, however, that this claim is exhausted because when

addressing this issue on appeal, the state court applied a legal standard

identical to the one used in federal courts. See Doc. 10 at 2. In any event,

assuming Petitioner is correct, and this claim is properly exhausted, he is still

not entitled to the relief he seeks because the First DCA’s adjudication is

entitled to deference. When reviewing an insufficiency of the evidence claim in

a habeas petition, a federal court must determine “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume

that the jury resolved any evidentiary conflicts in favor of the prosecution, and

the court must defer to that resolution. Id.

Here, the evidence presented at trial supported the trial court’s denial of

Petitioner’s motion for judgment of acquittal. Four elements applied to

Petitioner’s accessory after the fact charge:

1. Armed Robbery was committed by WILLIAM

HENRY DAVIS, III.

2. After the Armed Robbery was committed,

TERRY LEQUAN DIXON maintained, assisted, aided

or attempted to aid, WILLIAM HENRY DAVIS, III.

3. At that time, TERRY LEQUAN DIXON knew

that WILLIAM HENRY DAVIS, III had committed the

Armed Robbery.

4. TERRY LEQUAN DIXON did so with the

intent that WILLIAM HENRY DAVIS, III avoid or

escape detection, arrest, trial, or punishment.

Resp. Ex. 9 at 6. At trial, T.G. testified that three men participated in the armed

robbery – one wearing a white shirt, one wearing a black jacket and black pants

with white shoes, and one wearing blue clothing. Resp. Ex. 6 at 23-28. He stated

that while the man in blue held Jenerette at gunpoint, the man wearing the

white shirt got into T.G.’s car and demanded money and took phones and other

items from the center console. Id. at 26-27. T.G. explained the man in the black

shirt stood by their burgundy/red car and watched as the robbery occurred. Id.

at 25. He stated that following the robbery, he saw the three men get into the

burgundy/red car and drive away. Id. at 32. Police then arrived and drove T.G.

to another location where T.G. advised officers he recognized the two males in

custody as two of the individuals who were at the scene – the one wearing a

white shirt who took items from T.G.’s car (Davis) and the other who was

wearing the black jacket and pants standing by the burgundy/red car as the

robbery occurred (Petitioner). Id. at 34. When shown a picture of the vehicle the

two men were apprehended from, T.G. positively identified it as the

burgundy/red car the three men used to drive away from the scene. Id. at 32;

Resp. Ex. 7 at 30-34.

Petitioner’s mother also identified the car used during the getaway as her

vehicle and explained she allowed Petitioner to borrow it the night of the

robbery. Resp. Ex. 7 at 114-15. And Officer Winn testified he apprehended

Petitioner from the backseat of the same vehicle before escorting him to the

show-up, and he then identified Petitioner in court. Id. at 33. As to intent, a

review of the evidence (Petitioner watching the armed robbery and then

allowing Davis to drive his mother’s vehicle away from scene while voluntarily

riding as a passenger in the same vehicle) supports an inference that

Petitioner’s underlying goal was to help hinder Davis’s apprehension. See, e.g.,

United States v. Salamanca, 990 F.2d 629, 637-40 (D.C. Cir. 1993) (holding that

flight from the scene of an assault along with the principal may be “strong

evidence” of being an accessory after the fact); 18 U.S.C. § 3 (defining the crime

of being an accessory after the fact to include assisting an offender, “knowing

that an offense . . . has been committed”). Taken in the light most favorable to

the state, the Court finds there was sufficient evidence to permit a rational trier

of fact to find Petitioner guilty of this offense. As such, upon review of the record,

this 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. Ground One is denied.

B. Ground Two

Petitioner asserts the trial court erred in overruling trial counsel’s

objection to the state’s improper statements made during closing arguments,

which amounted to improper burden shifting and violated Petitioner’s right to

remain silent under the Fifth Amendment. Doc. 5 at 18. He also contends the

trial court erred in denying his later motion for a mistrial based on this

improper comment. Id. at 19.

Petitioner, with help from appellate counsel, raised this claim on direct

appeal. Resp. Ex. 12 at 22. Petitioner asserted, in pertinent part, as follows:

In the instant case, the State argued: “[t]hen

after the robbery was completed we didn’t hear any

testimony about how defendant Davis had

grabbed defendant Dixon by the arm to get him

to the car. He volunteered. He got right in that car

with him as soon as the robbery concluded.” As defense

counsel explained, this comment amplified to the jurors

that they did not hear Mr. Dixon’s account of the

incident. The State’s comment, “at least indirectly, . . .

highlighted for the jury the fact that [he] was not

testifying at trial and still had offered no plausible

explanation.” See DiGuilio, 491 So. 2d at 1138.

Thus, this Court should find that the State’s

comment was fairly susceptible of being interpreted as

a comment on Mr. Dixon’s right to remain silent, and

that this comment was not harmless in light of the

bleak, circumstantial evidence presented to convict him

of accessory after the fact.

Resp. Ex. 12 at 22-25 (record citations omitted).

In its answer brief, the state responded as follows:

Defendant Dixon’s argument on appeal hinges on

a single statement made during the State’s closing

argument: “(t)hen after the robbery was completed we

didn’t hear any testimony about how defendant Davis

had grabbed defendant Dixon by the arm to get him to

the car. He volunteered. He got right in that car with

him as soon as the robbery concluded.” While

Appellant’s Initial Brief presents only one issue for

review, it argues that the trial court erred in two ways:

by not sustaining Defendant’s objection to the

prosecutor’s closing, and by not granting Defendant’s

subsequent motion for mistrial.

First, the prosecutor’s remark regarding

uncontroverted evidence was not improper. Florida

courts have recognized two distinct categories of

“uncontroverted evidence” arguments: permissible

arguments that comment on the uncontroverted nature

of the evidence, and impermissible remarks that are

fairly susceptible to interpretation as comments on a

defendant’s exercise of his right to remain silent. Rich

v. State, 756 So. 2d 1095, 1096 (Fla. 4th DCA 2000),

citing Rodriguez v. State, 753 So. 2d 29, 38 (Fla. 2000).

A prosecutor’s comment that evidence is

uncontroverted is improper if the defendant is the only

person who can refute that evidence, especially if only

one state witness testifies against the defendant; such

comments may lead the jury to believe that a defendant

has to present a case. Hill v. State, 980 So. 2d 1195,

1199 (Fla. 3d DCA 2008).

However, comments emphasizing the

uncontroverted nature of the State’s evidence are

permissible and typical arguments in cases where a

defendant does not testify. Smith v. State, 378 So. 2d

313, 314 (Fla. 5th DCA 1980), opinion approved of 394

So.2d 407 (Fla.1980.)

In Smith, the defendant was placed at the scene

of a burglary by fingerprint evidence and his possession

of a pocket knife stolen from the victim. Smith did not

testify, but did have an alibi witness say that he was

elsewhere when the crime occurred. Id. at 313-14.

During closing arguments, the prosecutor stated that

“there was no explanation” for Smith’s fingerprints at

the crime scene. Id. at 314. The Fifth District Court of

Appeals held that the prosecutor’s argument was a

proper comment on the lack of any evidence on a

particular issue. Id.

A prosecutor’s comments in closing must be

taken in context, and a prosecutor may state that

evidence of an essential element of an offense is

uncontroverted if witnesses other than the defendant

could have testified to rebut that evidence. Bell v. State,

33 So. 3d 724, 726-27 (Fla. 1st DCA 2010) approved,

108 So. 3d 639 (Fla. 2013). In this case, we have

multiple witnesses who testified, but neither one gave

any testimony indicating that Appellant was forced

into the vehicle. Victim/witness, Jenerette, testified at

least three times that “there was a partner standing

behind the car . . . a person like behind the car” and

that he was there the entire time the robbery occurred.

Further, she testified that she saw them get into the

car and leave. The State’s second witness, T.G.,

testified similarly when he stated three times on direct

examination that Dixon “was standing like by a door”

and “the one with the black clothes was standing by a

door” and once on cross-examination, answering “Yes”

to defense attorney’s question regarding “the man

wearing the black hat and jacket as the gentleman who

was standing by the – by the door or by the porch.” T.G.

further testified that “they went in their car[,]”

testifying that all three men got into their vehicle and

left the scene.

Each witness’s testimony supported the

prosecutor’s statement “He stood there and he did

nothing.” Neither witness testified . . . that Appellant

was forced into the vehicle. Prosecutor’s statement on

closing was a logical argument based on the facts of the

case.

To be fundamental error, “the error must reach

down into the validity of the trial itself to the extent

that a verdict of guilty could not have been obtained

without the assistance of the alleged error.” Brown v.

State, 124 So. 2d 481, 484 (Fla. 1960). A prosecutor’s

improper remarks do not constitute fundamental error

unless they jeopardize the validity of the trial or

verdict. Rimmer v. State, 825 So. 2d 304, 324 (Fla.

2002).

The State presented ample evidence that

Defendant was present, and in fact, stood behind his

vehicle, watching while Jenerette and T.G. were robbed

at gunpoint. Evidence clearly demonstrates that he

stood behind the car while one co-defendant was

holding a gun to the head of a prone Jenerette, while

co-defendant Davis went through Jenerette’s pockets

and removed papers and three cellphones from the

vehicle’s console. And when the robbery was concluded,

the testimony shows that Appellant and his co-

defendants fled together in Dixon’s vehicle, the car he

borrowed from his mother.

If the prosecutor’s statement had been fairly

susceptible to interpretation as a comment on

Defendant’s right to remain silent, then the remark

would be reviewed for harmless error and the State

would bear the burden of proving that there is no

reasonable possibility the error contributed to the

conviction. State v. DiGuilio, 491 So. 2d 1129, 1138

(Fla. 1986); State v. Marshall, 476 So. 2d 150, 153 (Fla.

1985) (State has burden of showing error is harmless

beyond a reasonable doubt). However, a single

improper comment is harmless beyond a reasonable

doubt when there is no reasonable possibility the

verdict would have been different if the error had not

occurred. Richardson v. State, 604 So. 2d 1107, 1109

(Fla. 1992), opinion corrected on denial of

reconsideration (Oct. 8, 1992).

In light of the evidence cited above, there is no

reasonable possibility that the prosecutor’s single

comment in closing argument contributed to Mr.

Dixon’s conviction. The evidence of Jenerette and

Garrett, the two witnesses who testified before the jury

clearly supports the jury’s verdict.

Last, the trial court did not abuse its discretion

in denying Appellant’s motion for mistrial. Granting a

motion for mistrial is only proper if the prosecutor’s

comments are so prejudicial that no reasonable person

would allow the trial to continue. Ford v. State, 802 So.

2d 1121, 1129 (Fla. 2001). In order to grant a mistrial

for improper closing argument, the objectionable

comments must be so pervasive, inflammatory, and

prejudicial so as to preclude the jury’s rational thinking

of the case. Knoizen v. Bruegger, 713 So. 2d 1071, 1072

(Fla. 5th DCA 1998) (citations omitted).

A motion for mistrial based on a prosecutor’s

remarks should be denied unless “the error committed

was so prejudicial as to vitiate the entire trial.” Cobb v.

State, 376 So. 2d 230, 232 (Fla. 1979). In Poole v. State,

997 So. 2d 382 (Fla. 2008), even though a prosecutor

made a blatant and direct reference to a defendant’s

choice not to testify (commenting on the fact that Poole

himself did not testify to rebut the testimony of two

detectives), the Court held that in light of the evidence

against Poole, the trial court did not abuse its

discretion by denying Poole’s motion for mistrial. Poole,

997 So. 2d at 390-91.

The prosecutor in Appellant’s case made an

isolated remark that did not comment directly on the

fact Appellant did not testify, and it was far less

harmful than the closing argument made in Poole. As a

result, in Appellant’s case, the trial court did not abuse

its discretion in finding that the prosecutor’s comment

did not vitiate the entire trial or preclude the jury’s

rational consideration of the case. Therefore, his

Judg[]ment and Sentence should be affirmed.

Resp. Ex. 13 at 12-17 (record citations omitted). The First DCA found

Petitioner’s claim to be without merit and affirmed his judgment and conviction

without a written opinion. Resp. Ex. 15.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, as

the reviewing Court, it must evaluate an allegedly improper comment in the

context of both the prosecutor’s entire closing argument and the trial as a whole,

because “[c]laims of prosecutorial misconduct are fact-specific inquiries which

must be conducted against the backdrop of the entire record.” United States v.

Hall, 47 F.3d 1091, 1098 (11th Cir. 1995); accord United States v. Young, 470

U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the

basis of a prosecutor’s comments standing alone, for the statements or conduct

must be viewed in context; only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.”). An improper

prosecutorial remark compels habeas corpus relief only if the remark is so

egregious that the proceeding is rendered fundamentally unfair. “The relevant

question is whether the prosecutors’ comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Darden

v. Wainwright, 477 U.S. 168, 181(1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). Due process is denied “when there is a reasonable

probability,” or “a probability sufficient to undermine confidence in the

outcome,” that, but for the improper remarks, “the outcome of the proceeding

would have been different.” United States v. Eyster, 948 F.2d 1196, 1206-07

(11th Cir. 1991); see also Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986)

(“If a reviewing court is confident that, absent the improper remarks, the jury’s

decision would have been no different, the proceeding cannot be said to have

been fundamentally unfair.”). The prosecutor’s comments must both (1) be

improper and (2) “prejudicially affect the substantial rights of the defendant.”

United States v. Thompson, 422 F.3d 1285, 1297 (11th Cir. 2005). A prosecutor’s

statement violates a defendant’s right to remain silent if it was “manifestly

intended to be a comment on the defendant’s failure to testify” or was “of such

a character that a jury would naturally and necessarily take it to be a comment”

on the defendant’s failure to testify. United States v. Blankenship, 382 F.3d

1110, 1128 (11th Cir. 2004)

Here, the comment at issue is – “Then after the robbery was completed

we didn’t hear any testimony about how defendant Davis had grabbed

defendant Dixon by the arm to get him in the car. He volunteered. He got right

in that car with him as soon as the robbery concluded.” Resp. Ex. 7 at 705.

Evaluating that single comment in the context of the trial evidence as a whole,

the Court cannot find a denial of due process. Indeed, considering the direct

evidence and eyewitness testimony placing Petitioner at the scene, that his own

mother’s car was used in the robbery, and all the perpetrators got into

Petitioner’s mother’s vehicle to escape the scene, Petitioner cannot show that

but for the prosecutor’s comment, the outcome of his case would have been

different. To that end, Petitioner has failed to show that the prosecutor’s

improper comment “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.”

Upon review of the record and considering the closing arguments and the

trial evidence, the Court finds 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. Ground Two is denied.

C. Ground Three

Petitioner asserts that his trial counsel was ineffective for failing to object

or request a clarifying instruction on the principal theory jury instruction where

the jury was never informed that the principal instruction applied only to co-

defendant Davis. Doc. 5 at 22.

Petitioner raised this claim in his pro se Florida Rule of Criminal

Procedure 3.850 motion. Resp. Ex. 16 at 27. The trial court summarily denied

the claim as follows:

In Ground Five, Defendant alleges counsel was

ineffective for failing to object to the principal

instruction being read to the jury when Defendant was

not charged as a principal. Defendant claims this

instruction created confusion among the jurors about

whether it should apply to Defendant or his co-

defendant. Defendant also argues he was prejudiced by

this instruction because he claims it has nearly the

same elements as the instruction for Accessory After

the Fact, which could have confused the jurors.

Without reaching whether counsel was deficient,

there is no prejudice because it was clarified multiple

times at trial that the instruction only applied to Co-

Defendant. During the State’s closing, the principal

instruction was explained regarding only the co-

defendant. At no time while explaining the elements of

the offenses did the State assert the instruction applied

to Defendant. During the defense closing, counsel

clarified that Defendant was not charged with Robbery

or Theft, but Accessory After the Fact. Counsel went on

to explicitly clarify: “the principal argument, and you

are going to see a sheet on principal theory, and that

doesn’t apply to Mr. Dixon at all, don’t be confused by

that.” During jury instructions, the Court specified that

the Robbery instructions only applied to Co-Defendant

and the Accessory After the Fact instructions only

applied to Defendant. Thus, it was clear the principal

instruction only applied to Co-Defendant. There is

nothing to suggest Defendant suffered any prejudice,

much less the level to reach his burden of a reasonable

probability of a different outcome. Therefore, Ground

Five is without merit and denied.

Resp. Ex. 19 at 10 (record citations omitted). Petitioner appealed, and the First

DCA per curiam affirmed the trial court’s denial without a written opinion.

Resp. Ex. 25.

The Court addresses this claim in accordance with the deferential

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

Court applies deference to the state court’s finding that Petitioner was not

prejudiced by an alleged error. Indeed, during closing arguments, the state only

explained the principal theory when describing the charges only against Davis.

Resp. Ex. 7 at 715-16. Also, during his closing arguments, trial counsel clarified:

“The principal argument, and you are going to see a sheet on principal theory,

and that doesn’t apply to Mr. Dixon at all. Don’t be confused by that. It only

goes towards Mr. Davis[.]” Resp. Ex. 7 at 763. As such, upon thorough review of

the record and the applicable law, the Court finds that the state court’s decision

to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

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

D. Ground Four

Petitioner argues that his trial counsel was ineffective for failing to object

to the joinder of Petitioner and Davis’s cases for trial or for failing to move to

sever the cases. Doc. 5 at 30.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 16 at 16.

The trial court summarily denied the claim as follows:

In Ground Two, Defendant alleges counsel was

ineffective for failing to move to sever Defendant’s trial

from Co-Defendant. Defendant argues severing the

trial was necessary because the State would have been

prevented from calling some witnesses to testify and

Co-Defendant would have testified Defendant was not

at the scene of the robbery.

Whether to sever or join defendants is a decision

that should be determined on a case-by-case basis.

Bryant v. State, 565 So. 2d 1298, 1302 (Fla. 1990); Dean

v. State, 478 So. 2d 38, 43 (Fla. 1985). Some general

rules regarding joinder and severance have, however,

developed over time. A defendant is not entitled to

severance if: (1) the defendant is given a full

opportunity to confront and examine witnesses called

against him; (2) none of the defendants inculpated each

other by confessing as explained in Bruton v. United

States, 391 U.S. 123 (1968); and (3) the evidence is not

too complex in that it would confuse the jury. McCray

v. State, 416 So. 2d 804, 807 (Fla. 1982); see also

Gordon v. State, 863 So. 2d 1215, 1223 (Fla. 2003).

Initially the Court notes, Defendant had a full

opportunity to confront the witnesses against him, his

co-defendant did not make a Bruton-type confession,

and the evidence presented was not so complex that the

jury would be confused by it and incapable of applying

it to the conduct of each individual defendant. The fact

that Defendant may have had a better chance of

acquittal if tried separately does not justify severance.

McCray, 416 So. 2d at 806. Thus, there was no legal

basis for severance and counsel cannot be deemed

deficient for failing to make a frivolous argument.[FN3]

In an abundance of caution, Defendant’s claims of

prejudice will also be addressed.

Exclusion of Some Witnesses

Defendant claims he was prejudiced by counsel’s

failure to move to sever the trials because the State

would have been prevented from calling some

witnesses that were strictly relevant to his co-

defendant’s case. Defendant does not specify who these

witnesses are, but to the extent they were witnesses to

the underlying crime they would not have been

excluded even if the trials had been severed. Defendant

was charged with Accessory After the Fact, which

requires the State to prove beyond a reasonable doubt

that the co-defendant committed the underlying

offense. Bowen v. State, 791 So. 2d 44, 50-5 1 (Fla. 2d

2001). Thus, testimony about the underlying crime of

robbery would still have been relevant at a trial only

involving Defendant. Accordingly, this claim of

prejudice is without merit.

Co-Defendant Testimony

Defendant also claims he was prejudiced by

counsel’s failure to move to sever the trial because

joinder of the trials prevented counsel from compelling

Co-Defendant to testify. Defendant claims Co-

Defendant would have testified that Defendant was

picked up after the robbery and had no knowledge of

the crime. Defendant does not provide any

corroborating evidence to suggest Co-Defendant would

have testified in this exculpatory manner or was willing

to waive his right to remain silent. Defendant even

concedes Co-Defendant would be prejudiced by

testifying but argues that had the trials been severed

the prejudice would have gone away. Defendant ignores

the fact that this testimony by Co-Defendant would

essentially amount to a confession and would be usable

against Co-Defendant at his own trial. Thus, whether

severed or not, Co-Defendant faced the same prejudice

in waiving his right to remain silent and testifying in

the manner Defendant claims. Therefore, Defendant’s

claim in Ground Two is without merit and is denied.

[FN3: As Defendant points out in his motion there was a

hearing on the State’s Motion for Joinder where both

counsel for Defendant and his co-defendant objected to

the joinder, but ultimately conceded there was no legal

basis to not join the trials.]

Resp. Ex. 19 at 5-7 (record citations omitted). Petitioner appealed, and the First

DCA per curiam affirmed the trial court’s denial without a written opinion.

Resp. Ex. 25.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. First, Petitioner

cannot show deficient performance, because the severance likely would not have

been granted. Here, during the trial court’s hearing on the state’s motion for

joinder, trial counsel verbally objected to the request, conceding there was no

legal reason for the objection but instead merely argued about the difference in

evidence the state would need to present for each defendant. Resp. Ex. 3 at 11.

The trial court granted the state’s request. Id. at 12. Indeed, the state may try

codefendants together “if they are alleged to have participated in the same act

or transaction, or in the same series of acts or transactions, constituting an

offense or offenses.” Fed. R. Crim. P. 8(a). Defendants can move for severance,

but a court will grant such a motion only when joinder will result in prejudice.

Fed. R. Crim. P. 14(a). And usually “people who are charged together are tried

together.” United States v. Novaton, 271 F.3d 968, 989 (11th Cir. 2001) (citation

omitted). Second, Petitioner cannot establish that had the severance been

granted, the result of the trial would have been different. Thus, he cannot meet

Strickland’s prejudice prong. 466 U.S. at 687.

Upon thorough review of the record and the applicable law, the Court

finds that the state court’s decision to deny Petitioner’s claims was neither

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

on an unreasonable determination of the facts given the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground Four is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 5) is DENIED, and this case is

DISMISSED WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

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

appealability. Because this Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.®

DONE AND ORDERED at Jacksonville, Florida, this 10th day of

March, 2025.

Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-7

C: Terry Lequan Dixon, #J40148

Counsel of record

6 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, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

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

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

Al