The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ERIN VICKERS,
Petitioner,
v. Case No. 3:23-cv-963-JEP-LLL
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
Petitioner Erin Vickers, an inmate of the Florida penal system, initiated
this action on July 31, 2023, by filing a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254. (Doc. 1). In the Petition, Vickers challenges a 2018
state court (Flagler County, Florida) judgment of conviction for sexual battery
on a person less than 12 years of age, conspiracy to commit sexual battery on
a person less than 12 years of age, five counts of transmission of child
pornography, and five counts of promoting sexual performance by a child.
Respondent submitted a memorandum in opposition to the Petition. (Doc. 11).
Respondent also submitted exhibits. (Doc. 12-1). Vickers filed a brief in reply.
(Doc. 14). This action is ripe for review.1
1 When citing pleadings and exhibits, the Court will use the page numbers assigned
I. PROCEDURAL HISTORY
The State charged Petitioner by a Fifth Amended Information with
(Counts 1, 45–48) sexual battery on a person less than 12 years of age, (Counts
2–21) promoting sexual performance by a child, (Counts 22–41) transmission
of child pornography, and (Counts 42–43, 49) conspiracy to commit sexual
battery on a person less than 12 years old. (Doc. 12-1 at 139–45). The case went
to trial only on Counts 1 and 20. A jury found Vickers guilty as charged. (Id. at
161–62).2 Several months after the trial, Vickers signed a plea agreement in
which she pleaded guilty to counts 2-6, 22-26, 43, and 46, and the State nolle
prossed the remaining counts. (Id. at 197–201). The trial judge sentenced
Vickers to life in prison. (Id. at 211–40). Vickers appealed, and the state
appellate court affirmed without a written opinion. (Id. at 1136).
Vickers filed a motion for post-conviction relief under Rule 3.850, Florida
Rules of Criminal Procedure, alleging three grounds of ineffective assistance
of trial counsel. (Id. at 1156–63). After the State responded (id. at 1171–80),
the state post-conviction court summarily denied Ground 1 and set an
evidentiary hearing for the remaining two grounds, (id. at 1181–85). After the
evidentiary hearing, the state post-conviction court denied the remaining two
by this Court’s electronic docketing system.
2 The Court referred to Count XX as Count II. (Doc. 12-1 at 162, 657).
2
grounds. (Id. at 1199–1262). Vickers appealed, and the state appellate court
affirmed without a written opinion. (Id. at 1521). Vickers’s section 2254
petition followed.
The evidence at trial showed that Vickers met Paul Dykes on an online
dating site. (Id. at 822). They dated for some time and continued to
communicate online. (Id. at 822–25). Eventually, Dykes told Vickers that he
wanted to see her perform oral sex on her infant daughter. (Id. at 830).
During an interview with law enforcement, Vickers admitted she
performed oral sex on her daughter four or five times. (Id. at 833). She also
described how Dykes would watch and communicate with her while she was
performing oral sex on her daughter. (Id. at 834–37). Photographs and video
images of Vickers performing oral sex on her daughter were discovered on
Vickers’s and Dykes’s cellphones, and on Dykes’s laptop computer. (Id. at 737,
740, 749–50, 753). One of the videos was created on February 26, 2015, which
was during the time charged in Count 1 of the Fifth Amended Information. (Id.
at 140, 738–39). There were also “Skype” chats between Dykes and Vickers
while Vickers was performing oral sex on her daughter. (Id. at 756–76). One of
the chats took place on February 26, 2015. (Id. at 764–65).
II. LEGAL STANDARD
A. AEDPA
3
Pursuant to the Antiterrorism Effective Death Penalty Act, a federal
court may not grant federal habeas relief with respect to a claim adjudicated
on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that 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) resulted in a decision that 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). The phrase “clearly established Federal law” encompasses
only the holdings of the United States Supreme Court “as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state
court decisions; the ‘contrary to’ and ‘unreasonable application’ clauses
articulate independent considerations a federal court must consider.” Maharaj
v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). Williams, 529
U.S. at 412–13, explains the meaning of each clause:
Under the “contrary to” clause, a federal court may grant the writ
if the state court arrives at a conclusion opposite to that reached
by [the United States Supreme Court] on a question of law or if the
state court decides a case differently than [the United States
Supreme Court] has on a set of materially indistinguishable facts.
Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from [the United States Supreme
Court’s] decisions but unreasonably applies that principle to the
4
facts of the prisoner’s case.
“[A] state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,
103 (2011).3
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas
corpus if the state court’s decision “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). However, the state court’s “determination
of a factual issue...shall be presumed correct,” and the habeas petitioner “shall
have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
“[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in
the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if
‘[r]easonable minds reviewing the record might disagree’ about the finding in
3 In considering the “unreasonable application inquiry,” the Court must determine
“whether the state court’s application of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409. Review is limited to the record before the state
court. Cullen v. Pinholster, 563 U.S. 170, 180–81 (2011).
5
question, ‘on habeas review that does not suffice to supersede the trial court’s
. . . determination.” Id. (citation omitted).
B. Exhaustion and Procedural Default
Before seeking habeas relief in federal court, a state prisoner must
exhaust all state court remedies that are available for challenging his
conviction. See 28 U.S.C. § 2254(b)(1)(A). To do so, he 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 their claims, “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),
thereby alerting the appropriate state court of “the federal nature of the
claim[s],” Baldwin v. Reese, 541 U.S. 27, 29 (2004). 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.”).
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. Under the doctrine of procedural default:
[A] federal court will not review the merits of claims,
6
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 v. Thompson, 501 U.S. 722, 747–48 (1991);
Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977). 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. 307, 316
(2011); Beard v. Kindler, 558 U.S. 53, 60–61 (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.
Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (internal citations modified).
“To show cause, the petitioner must demonstrate ‘some objective factor
external to the defense’ that impeded his effort to raise the claim properly in
state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once cause is established, “the
petitioner also must show actual prejudice from the alleged constitutional
violation.” Id. (citing Sykes, 433 U.S. at 84). “[I]n order to show prejudice, a
petitioner must demonstrate that ‘the errors at trial actually and substantially
disadvantaged his defense so that he was denied fundamental fairness.’” Id.
(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992)).
In the absence of a showing of cause and prejudice, a petitioner may still
7
receive consideration on the merits of a procedurally defaulted claim if he can
show that a fundamental miscarriage of justice would occur:
“[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. “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 (internal citations modified).
“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, 256 F.3d at 1171 (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
8
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); 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.
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Because 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, “[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which . . . will often be so, that course should be followed.” 466 U.S.
at 697.
Further, “[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially higher
9
threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal
quotation marks omitted). 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 [federal courts] 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).
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).
III. DISCUSSION
A. Grounds One through Thirteen
Vickers contends that she was denied the due process that the
Fourteenth Amendment guarantees when the state trial court: 1) admitted the
State’s similar fact evidence with respect to the sexual battery allegations
contained in Counts 45, 46, 47, and 48; 2) granted the State’s request to amend
10
the information changing the date range on Count I; 3) overruled the defense
objection to a video (State’s exhibit #13); 4) allowed into evidence state exhibit
#14; 5) allowed into evidence four pictures of sexual activity upon the victim as
similar fact evidence; 6) allowed into evidence state exhibit #19 (copy of social
media chats); 7) denied Vickers’s motion for mistrial; 8) allowed Vickers’s
mother to testify about the identity of Vickers and the victim in state exhibits
#13 and #14; 9) allowed into evidence the audio recording of Vickers’s police
interview; 10) denied Vickers’s motion for mistrial based on the cumulative
effect of the similar fact evidence allowed into evidence such that it became a
feature of the trial; 11) denied Vickers’s motion for judgment of acquittal as to
Counts 1 and 20; 12) denied Vickers’s objection to the exhibits concerning
similar fact evidence going back with the jury during their deliberations; and
13) denied Vickers’s motion for new trial. (Doc. 1 at 6–20).
Respondent contends that each of these grounds is unexhausted and now
procedurally barred because Vickers never argued in state court that she was
denied federal due process. (Doc. 11 at 18–19). The Court agrees.
Vickers raised similar claims in her Initial Brief before the Florida Fifth
District Court of Appeal, which affirmed her convictions and sentences. (Doc.
12-1 at 1136). Significantly, Vickers’s state court Initial Brief raised these
claims only in the context of state law. (See id. at 1037–72). She made no
11
argument or reference to the United States Constitution or federal due process.
(See id.). Because she did not fairly present the federal nature of her claims,
she deprived the Florida Fifth District Court of Appeal of a meaningful
opportunity to review them. See Baldwin, 541 U.S. at 29.
Even when the substance of a claim is identical under state and federal
law, a petitioner still is required to put the state court on notice that her claim
rests on a federal legal theory. See Duncan v. Henry, 513 U.S. 364, 365–66
(1995); Pringle v. Sec’y, Fla. Dep’t of Corr., 2024 WL 3936915, at *7–8 (11th
Cir. 2024)4 (finding that Duncan “forecloses Pringle’s argument that the
coextensive nature of the due process guarantees under the United States and
Florida Constitutions alerted the state courts to the federal and state nature
of her faulty jury instructions claim,” and explaining that “petitioners must
apprise the state courts of the federal nature of their claim, even if they present
the substance of a federal claim”); see also Preston v. Sec’y, Fla. Dep’t of Corr.,
785 F.3d 449, 458 (11th Cir. 2015) (stating that “a petitioner with a claim that
could arise under either state or federal law must clearly indicate to the state
courts that he intends to bring a federal claim”). “If a habeas petitioner wishes
to claim that an evidentiary ruling at a state court trial denied him the due
4 While not binding upon the Court, any unpublished decisions cited in this Order are
deemed persuasive authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th
1055, 1061 (11th Cir. 2022).
12
process of law guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.” Duncan, 513 U.S. at 366. “It is not
enough that all the facts necessary to support the federal claim were before the
state courts, ... or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 6 (1982). “Thus, to exhaust state remedies
fully the petitioner must make the state court aware that the claims asserted
present federal constitutional issues.” Snowden v. Singletary, 135 F.3d 732,
735 (11th Cir. 1998).
Vickers did not assert in her state court brief that she intended to raise
a federal claim, and she did not mention federal due process or any federal
constitutional provision. Thus, the Court concludes that Vickers failed to
exhaust her state court remedies. See Preston, 785 F.3d at 458–59 & n.6
(concluding that petitioner failed to exhaust his state court remedies when he
failed to (i) assert his intention to raise a federal claim, (ii) cite any federal
cases or mention any federal constitutional provisions, and (iii) reference the
case setting out the applicable federal legal standard for his claim, despite
counsel suggesting at oral argument “for the first time . . . that [the petitioner
had] couched his motion for judgment of acquittal before the trial court in
terms of federal due process”); see also Johnson v. Florida, 32 F.4th 1092,
1096–97 (11th Cir. 2022) (concluding that a petitioner failed to exhaust his
13
state court remedies when he grounded his speedy-trial claim on state law and
never cited the Sixth Amendment except in a motion to proceed pro se); Pringle,
2024 WL 3936915, at *5 (“Pringle’s state court briefing referenced ‘the
Constitution or the laws of the United States’ but otherwise presented the jury
instruction claim as involving state law alone. This is insufficient to fairly
present a federal claim to the state courts.”).
Vickers’s “failure to exhaust means that [her] federal claim[s] ha[ve]
been procedurally defaulted.” Preston, 785 F.3d at 462. Further, Vickers has
not shown cause and prejudice,5 or any factor warranting the application of
the fundamental miscarriage of justice exception to overcome the procedural
default. Harris v. Reed, 489 U.S. 255, 262 (1989). Therefore, her claims in
5 In her reply, Vickers asserts entitlement to the “cause and prejudice” exception,
contending that appointed appellate counsel “caused” the procedural default by failing to
assert a federal claim on direct appeal. (Doc. 14 at 12). To the extent the basis for “cause”
constitutes an independent constitutional claim—such as ineffective assistance of counsel—
Vickers must have exhausted what she claims excuses her procedural default. “A showing of
ineffective assistance of appellate counsel in failing to raise a claim on direct appeal can
constitute ‘cause’ so long as the ineffective assistance ‘occur[red] during a stage when a
petitioner had a constitutional right to counsel’ and the ineffective-assistance claim itself is
‘both exhausted and not procedurally defaulted.’” Sealey v. Warden, Georgia Diagnostic
Prison, 954 F.3d 1338, 1365 (11th Cir. 2020) (internal citations omitted). See also Murray v.
Carrier, 477 U.S. at 488–89 (recognizing that, if ineffective assistance of counsel is alleged as
cause to excuse a procedural default, the applicant must have presented the claim of
ineffectiveness to the state courts as an independent claim); Hill v. Jones, 81 F.3d 1015, 1030
(11th Cir. 1996) (“[P]rocedurally defaulted claims of ineffective assistance cannot serve as
cause to excuse a default of a[nother] claim.”) (emphasis in original)). Vickers never presented
to the state courts her claim that appellate counsel was ineffective for omitting the federal
basis for Grounds One through Thirteen. Consequently, Vickers is not eligible for the “cause
and prejudice” exception.
14
Grounds One through Thirteen must be denied as unexhausted and
procedurally defaulted.
B. Ground Fourteen
Vickers argues she was denied effective assistance of trial counsel
because her lawyer did not get a DNA rape kit examination of the victim. She
asserts the results would have proved that she did not penetrate the victim’s
vagina.
Vickers raised this claim in her Rule 3.850 Motion, alleging her lawyer
was ineffective for failing to have the victim tested with a DNA rape kit
because it would have proved she never penetrated the victim’s vagina. (See
Doc. 12-1 at 1159). In its initial order denying this claim, the state post-
conviction court set forth the Strickland standard and adopted the State’s
response to the claim. (See id. at 1182–83).
In its response, the State argued that Vickers showed no prejudice
because the DNA rape kit would not have produced any evidence, because more
than 72 hours had passed between the last sexual offense and the time the
abuse was discovered. DNA evidence is not expected to be found in a rape kit
if the last sexual encounter was more than 72 hours before the exam. (See id.
at 1173–74). Moreover, the State argued that to convict Vickers of capital
sexual battery, it was required to prove either penetration or union between
15
Vickers’s mouth and the victim’s vagina. (Id.); see Fla. Stat., § 794.011 (1) (j)
(“Sexual battery” means oral, anal, or female genital penetration by, or union
with, the sexual organ of another . . . .”) (emphasis added). The evidence
presented at trial included videos and photographs of Vickers putting her
mouth on the victim’s vagina, and Vickers’s admission to law enforcement that
she performed oral sex on the victim. (See Doc. 12-1 at 750, 864, 991). Thus,
the DNA rape kit would not have contradicted the evidence of union. Nor would
DNA evidence showing no penetration have affected the sentence because the
mandatory sentence for capital sexual battery is life in prison, whether the act
is penetration or union. See Peters v. State, 861 So. 2d 1236, 1237 n. 1 (Fla. 2d
DCA 2003) (noting that in Florida, “[a] conviction for capital sexual battery
carries a mandatory sentence of life imprisonment” (citing §§ 794.011(2)(a),
775.082(1), Fla. Stat. (1999))).
The Fifth DCA per curiam affirmed the trial court’s denial without a
written opinion. (See Doc. 12-1 at 1521). The Court addresses this claim in
accordance with the deferential standard for federal court review of state court
adjudications. Upon thorough review of the record and the applicable law, the
Court concludes that the state court’s denial of Petitioner’s claim was neither
contrary to nor an unreasonable application of federal law, and it was not based
on an unreasonable determination of the facts given the evidence presented to
16
the state court. See 28 U.S.C. § 2254(d).
Also, Vickers only speculates that the DNA rape kit would have
established no penetration of the victim. She provides no evidence supporting
her assertion. Self-serving speculation will not sustain a claim of ineffective
assistance of counsel. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.
1991) (vague, conclusory, or unsupported allegations cannot support an
ineffective assistance of counsel claim); Brown v. United States, 2023 WL
11158245, at *1 (11th Cir. Nov. 6, 2023) (speculative claims are “insufficient to
establish an ineffective-assistance claim.” (citing Tejada, 941 F2d at 1559)).
Ground Fourteen is denied.
C. Ground Fifteen
Vickers argues she was denied effective assistance of trial counsel
because her lawyer told her she would receive only thirty years in prison if she
went to trial. (See Doc. 1 at 21). She speculates that had she pleaded guilty or
taken a plea, “she might have [fared] better than a life sentence.” (See id.).
Vickers raised this claim in her Rule 3.850 motion, alleging her lawyer
told her that if she proceeded to trial, she would receive only a thirty-year
prison sentence. (Doc. 12-1 at 1160). The state post-conviction court held an
evidentiary hearing, summarized the witnesses’ testimony, and denied the
claim as follows:
17
Under the Strickland standard, a defendant must satisfy
deficiency and prejudice in order to prevail on an ineffective
assistance of counsel claim. Strickland v. Washington, 466 U.S.
668, 687–88, 694 (1984). The deficiency prong requires a defendant
to “show ‘that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,’ and that ‘counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.’” State v. Jackson, 204 So. 3d 958, 962 (Fla. 5th DCA 2016)
(citing Strickland, 466 U.S. at 687). Additionally, in cases where a
defendant alleges that based on counsel’s misadvice the defendant
rejected a favorable plea offer the defendant must demonstrate the
four requirements of Alcorn v. State, 121 So. 3d 419 (Fla. 2013),
that:
(1) he or she would have accepted the offer had counsel
advised the defendant correctly, (2) the prosecutor
would not have withdrawn the offer, (3) the court
would have accepted the offer, and (4) the conviction
or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and
sentence that in fact were imposed.
Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014).
In the instant case, the Court finds trial counsel’s testimony
more credible than Defendant’s testimony. See Santiago v. State,
252 So. 3d 421, 422 (Fla. 5th DCA 2018) (During an evidentiary
hearing, the trial court is tasked with making a credibility
determination regarding the findings of fact.); see also Moore v.
State, 458 So. 2d 61, 61 (Fla. 3d DCA 1984) (recognizing that at a
rule 3.850 evidentiary hearing, the trial court is entitled to reject
the defendant’s testimony in favor of the conflicting testimony of
trial counsel). Trial counsel met with Defendant nine times during
the course of his representation and on each occurrence Defendant
was engaged in the discussions about her case, asked appropriate
questions, and understood the proceedings. The State never
provided an offer to Defendant even after trial counsel attempted
to obtain a reduction in the sentence or an amendment of the
18
charges. Additionally, on January 10, 2017, while Defendant and
trial counsel were present during a pretrial hearing, the Assistant
State Attorney, Joseph Ledonne[,] stated that there was no offer
and that the State was seeking life. Thus, Defendant was aware
that a capital sexual battery charge carried a penalty of life in
prison, and that there was no plea offer from the State. Defendant
also knew that if she proceeded to trial the trial judge had no
discretion in sentencing her for anything less than life in prison on
the capital sexual battery charge. Defendant, knowledgeable of her
maximum penalties, after consulting with trial counsel decided
that she had nothing to lose by going to trial. Therefore, the Court
finds that trial counsel did not advise Defendant that if she
proceeded to trial she would only serve a thirty years sentence, and
therefore, Defendant has failed to show that trial counsel was
deficient.
Defendant also fails to show that she was prejudiced by
proceeding to a jury trial. As to the first, second, and third prongs
required in Alcorn, there was no offer from the prosecutor for trial
counsel to advise Defendant of or for the court to accept. Regarding
the fourth prong of Alcorn, it is also inapplicable because there was
no offer. Thus, Defendant fails to show that she was prejudiced.
(Id. at 1204–06) (alteration added). The Fifth DCA per curiam affirmed the
denial of the claim without a written opinion. (Id. at 1521).
Because the Fifth DCA affirmed without a written opinion, the Court
presumes the affirmance was based on the state post-conviction court’s
findings. See Wilson v. Sellers, 584 U.S. 122, 125–26 (2018) (holding that where
the relevant state court decision on the merits does not provide any rationale
for its decision, “the federal court should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant
19
rationale” and “should then presume that the unexplained decision adopted
the same reasoning”). As the state post-conviction court decided the claim on
the merits, the Court addresses it in accordance with the deferential standard
for federal court review of state court adjudications. Upon thorough review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of the 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.
It is apparent from the testimony during the evidentiary hearing on
Vickers’s Rule 3.850 motion that Vickers’s lawyer never told her that if she
proceeded to trial, she would be sentenced to thirty years in prison. Vickers’s
lawyer testified that before trial, he explained to Vickers that the sexual
battery count carried a mandatory life sentence, the State offered nothing less
than a life sentence, she had nothing to lose by going to trial, and she could
have waived “potential errors or issues” if she entered an open plea. (Doc. 12-
1 at 1415–17). He specifically denied telling Vickers that she would get
something less than life for the sexual battery charge. (Id. a 1422–23). During
Vickers’s testimony, she admitted her lawyer explained that sexual battery
carried a mandatory life sentence and told her that the State was making no
20
offers. (Id. at 1358). Vickers also testified that it was not until months after the
trial that her lawyer brought her a plea agreement and told her that the State
was offering thirty years. Therefore, Vickers’s lawyer was not deficient6
because he never told Vickers she would receive only thirty years if she
proceeded to trial and was convicted. Ground Fifteen is denied.
In her reply, Vickers raises a new claim that her lawyer misadvised her
that if she signed the plea agreement pertaining to the charges severed from
the two charges at issue in her trial, she would receive only thirty years for the
severed counts. (Doc. 14 at 4–5). It wasn’t until after she went to prison and
reviewed her papers that she realized she was sentenced to “life and 30 years
on the plea agreement[.]” (Id. at 5). She contends that had she known she
would receive a life sentence, she would have rejected the plea agreement and
proceeded to trial. (Id.).
The Court need not address this claim because Vickers failed to raise it
in her Petition. See Wilson v. United States, 2017 WL 3225903, at *1 (11th Cir.
Feb. 23, 2017) (citing Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th
Cir. 2005) (“[T]his claim was not properly raised until [the] reply brief and,
therefore, was not properly before the district court.”)); see also Prada v. United
6 See Burt v. Titlow, 571 U.S. 12, 23 (2013) (“[W]ithout evidence that [counsel] gave
incorrect advice or evidence that [they] failed to give material advice, [the claimant] cannot
establish that [counsel’s] performance was deficient.”) (quotations omitted).
21
States, 692 F. App’x 572, 574 (11th Cir. 2017) (affirming the district court’s
refusal to consider new arguments raised in a reply brief because petitioner
“was barred from raising new claims”); Enriques v. United States, 416 F. App’x
849, 850 (11th Cir. 2011) (“Although pro se pleadings are construed more
liberally than those filed by counsel, . . . issues not argued by a pro se litigant
in his initial brief are deemed waived[,] . . . [and] we do not address arguments
raised for the first time in a pro se litigant’s reply brief.”); Snyder v. United
States, 263 F. App’x 778, 780 (11th Cir. 2008) (affirming the district court’s
ruling that a pro se petitioner’s reply brief could not be construed as an
amendment to add an additional claim to the motion to vacate).
Even if the Court were to consider the claim, it would be denied. First,
Vickers failed to exhaust the claim in state court. Although she asserted the
claim for the first time during the evidentiary hearing on her Rule 3.850
motion, she failed to address the claim on appeal. In her Initial Brief, she
raised and argued only her claim that she would not have proceeded to trial on
the two severed claims had counsel not misadvised her that she would receive
no more than thirty years in prison if convicted. (Doc. 12-1 at 1484–85). Thus,
Vickers failed to “give the state courts one full opportunity to resolve [this
issue] by invoking one complete round of the State’s established appellate
review process.” Boerckel, 526 U.S. at 845; Pope, 358 F.3d at 854. As such, her
22
claim is unexhausted and procedurally defaulted, and Vickers has failed to
show cause for or prejudice from this procedural default.
Second, the claim fails on the merits. Although Vickers failed to raise
this claim in her Rule 3.850 motion, the state post-conviction court recognized
that “during the evidentiary hearing held on December 3, 2021, [Vickers]
presented argument, and the Court allowed, [her] to enlarge her claim that her
plea was involuntary.” (Doc. 12-1 at 1204). The state court denied the claim as
follows:
To succeed on a claim of ineffective assistance of counsel, a
defendant must demonstrate both deficient performance and
prejudice. Strickland, 466 U.S. at 687. The deficiency prong
requires a defendant to show that counsel’s errors were so serious
that counsel was not in accordance with the type of counsel that
the Sixth Amendment guarantees, and therefore deprived the
defendant of a fair trial. Id. In order to demonstrate prejudice in
the context of a guilty or no contest plea, one must establish a
reasonable probability that, but for counsel’s errors, he or she
would have proceeded to trial instead of entering a plea. Ey v.
State, 982 So. 2d 618, 621 (Fla. 2008) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)). In determining whether there is a reasonable
probability that a defendant would have insisted on going to trial,
a court should consider “the totality of the circumstances
surrounding the plea, including such factors as whether a
particular defense was likely to succeed at trial, the colloquy
between the defendant and the trial court at the time of the plea,
and the difference between the sentence imposed under the plea
and the maximum possible sentence the defendant faced at a trial.”
Grosvenor v. State, 874 So. 2d 1176, l181–82 (Fla. 2004).
The Court finds that as it relates to Defendant’s plea to a life
sentence for capital sexual battery Defendant has failed to show
23
that trial counsel was deficient. Trial counsel told Defendant that
if she entered a plea to the capital sexual battery charge she would
receive a life sentence, not a thirty-year sentence. As stated
previously, trial counsel met with Defendant nine times during the
course of his representation and on each occurrence Defendant was
engaged in the discussions about her case, asked appropriate
questions, and understood the proceedings.
Furthermore, Defendant fails to satisfy prejudice. It is
highly unlikely that Defendant would have insisted on going to
trial. Based on the totality of the circumstances the evidence
against Defendant was overwhelming. Appendix B, Trial
Transcript, pp. 37, 86, 103, 105, 106, 109, 194, 209. Defendant’s
defense would also likely not have succeed[ed] at trial. A jury found
Defendant guilty of identical charges, with the same facts,
evidence and testimony. Appendix C, Jury Verdict. Additionally,
the colloquy clearly indicates that Defendant knowingly and
voluntarily entered the plea with a complete understanding of the
proceeding, the charges and the maximum sentence that she faced.
Appendix D, Motion for New Trial, Plea & Sentencing - Appeal, pp.
10–22.
The Court finds that Defendant fails to satisfy the
requirements of Strickland, and as such, Ground II is denied.
(Id. at 1206–07) (alteration added).
As the state post-conviction court decided the claim on the merits, the
Court addresses it in accordance with the deferential standard for federal court
review of state court adjudications. Upon thorough review of the record and
the applicable law, the Court concludes that the state court’s adjudication of
the claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
24
based on an unreasonable determination of the facts in light of the evidence
presented.
Also, the written plea agreement Vickers signed clearly stated that she
agreed she would be sentenced to life in prison on Count 46, the sexual battery
charge that was not part of her prior trial. (Id. at 198–99). During the change-
of-plea hearing, Vickers affirmed that she had read the plea agreement,
reviewed it with her lawyer, and that no one had promised her anything other
than what was included in it. (Id. at 1244). She also affirmed that the reason
she was entering the plea was that the State agreed that if she were successful
on appeal of her trial, she could withdraw from the plea agreement. (Id. at
1244–45). “Solemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). Such representations
are presumptively trustworthy and considered conclusive absent compelling
evidence to the contrary. See United States v. Rogers, 848 F.2d 166, 168 (11th
Cir. 1988) (“[W]hen a defendant makes statements under oath at a plea
colloquy, he bears a heavy burden to show his statements were false.”). Vickers
presented no compelling evidence to the state post-conviction court to suggest
her statements at the change of plea hearing were not true.Given Vickers’s
declarations during the change of plea hearing, coupled with the testimony
during the Rule 3.850 evidentiary hearing, Vickers cannot establish prejudice
25
from any alleged error of her lawyer. The state post-conviction court could
reasonably conclude that Vickers understood the implications of the various
provisions of the plea agreement, including the agreement to a life sentence on
the sexual battery charge. Accordingly, Vickers’s claim raised in her reply that
her plea was not voluntary is denied.
D. Ground Sixteen
Vickers contends that her lawyer was ineffective for failing to have three
court-appointed psychologists evaluate her prior to trial. (Doc. 1 at 22–23; Doc.
14 at 5-6). She concedes that her lawyer retained one psychologist, Dr. Stephan
Bloomfield, who found that Vickers suffered from neither post-traumatic stress
disorder nor battered partner syndrome and did not meet the requirement for
intellectual disability. (Doc. 14 at 5). But she asserts that her lawyer should
have had two more psychologists evaluate her, who may have found that she
has mental health issues that cause her to make irrational decisions and leave
her easily susceptible to undue influences. (Id. at 6). That finding, according to
Vickers, would have been “a potentially successful defense.” (Doc. 1 at 22).
Vickers raised this claim in her Rule 3.850 motion. (Doc. 12-1 at 1161).
After holding an evidentiary hearing, the state post-conviction court denied the
claim as follows:
In Ground III, Defendant asserts that trial counsel was
26
ineffective for failing to have three court-appointed psychologists
investigate her psychiatric impairments in order to pursue a
defense based upon those impairments. She argues that had trial
counsel “brought up” the fact that she had not been properly
evaluated by three court-appointed psychologists and had her
psychiatric impairments been investigated she “may” have had a
different outcome.
In appointing experts to determine the mental condition of a
defendant, the present rule provides that the court shall appoint
no more than three experts to evaluate the defendant’s mental
health. § 916.115(1). Fla. Stat. (2012); Fla. R. Crim. P. 3.210(b)
(2012); see Tita v. State, 42 So. 3d 838, 840 (Fla. 4th DCA 2010).
Section 916.115 of the Florida Statutes was amended in 2005 to
remove the language that required a court to appoint no fewer than
two experts. Tita, 42 So. 3d at 840.
A defendant’s right to a fair trial includes the right [to] not be tried
or convicted while incompetent. Dougherty v. State, 149 So. 3d 672,
676 (Fla. 2014) (citing Drope v. Missouri, 420 U.S. 162, 172, 95
S.Ct. 896, 43 L.Ed.2d 103 (1975)). A defendant’s right to be tried
while competent is to ensure that the defendant is able to assist
counsel in preparing the best defense possible to the crime with
which he is charged. Daniels v. O’Connor, 243 So. 2d 144, 147 (Fla.
1971). “In determining competency, the test is whether the
defendant has ‘sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding-and whether
he has a rational as well as factual understanding of the
proceedings against him.’” Mairena v. State, 6 So. 3d 80, 85 (Fla.
5th DCA 2009) (Hill v. State, 473 So. 2d 1253, 1257 (Fla. 1985)).
In the instant case, the record reflects that the trial judge
only appointed one expert, Dr. Bloomfield, to examine and
evaluate Defendant’s mental health to aid in her defense. See
Appendix E, Order for Mental Evaluation. The Court finds that
this was in accordance with the present statute and rule that no
longer require that a trial judge appoint a specific number of
experts to evaluate the mental condition of a defendant
§ 916.115(1), Fla. Stat.; Fla. R. Crim. P. 3.210(b). Thus, trial
27
counsel is not deficient for not obtaining more than one expert to
examine Defendant before proceeding to trial. Accordingly,
Ground III is refuted as a matter of law.
Additionally, even if Defendant’s argument was not refuted
as a matter of law, Ground III would still be denied. Dr.
Bloomfield’s assessment indicated that he did not diagnosis (sic)
Defendant with a mental health disorder, and therefore Defendant
did not have a diagnosis that brought her competency into question
nor aid her in her defense. Appendix F, Assessment. Defendant
participated in her case throughout the proceedings, and showed
that she had a rational and factual understanding of the case.
Furthermore, trial counsel did exactly what he was supposed to do
by finding out if there was a good faith basis to make a defense
based on the best evidence that he had, including the totality of
the circumstance presented to him. Dr. Bloomfield informed trial
counsel that Defendant did not have any issues that would aid in
a sexual psychological defense. Dr. Bloomfield also informed trial
counsel that there was a conflict in that the test scores were above
average in that regard. Additionally, Dr. Bloomfield indicated that
Defendant is a follower, which is exactly what trial counsel
testified to and used in mitigation. Trial counsel engaged with
Defendant during the process and Defendant was not confused in
any way throughout the case. Trial counsel concluded that there
were no grounds that he could bring to support a defense based on
psychological factors. The Court finds that trial counsel did
everything he was required to do, and then some.
(Id. at 1207–09) (emphasis in original) (alteration added). The Fifth DCA per
curiam affirmed the denial of the claim without a written opinion. (Id. at 1521).
Because the Fifth DCA affirmed without a written opinion, the Court
presumes the affirmance was based on the state post-conviction court’s
findings. See Wilson, 584 U.S. at 125–26. As the state post-conviction court
decided the claim on the merits, the Court addresses it in accordance with the
28
deferential standard for federal court review of state court adjudications. Upon
thorough review of the record and the applicable law, the Court concludes that
the state court’s adjudication of the 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. (See, e.g., Doc. 12-1 at 1328,
1375–93, 1426–42).
Considering Dr. Bloomfield was a very experienced psychologist whom
Vickers’s lawyer had used many times before, and considering Dr. Bloomfield
was unable to provide any psychological defenses that Vickers’s lawyer could
use, Vickers’s lawyer was not deficient for failing to obtain additional
psychologists to evaluate Vickers. See Elledge v. Dugger, 823 F.2d 1439, 1447
n.17 (11th Cir.), opinion withdrawn in part on denial of reh’g, 833 F.2d 250
(11th Cir. 1987) (“We emphasize that the duty is only to conduct a reasonable
investigation. Counsel is not required to ‘shop’ for a psychiatrist who will
testify in a particular way.”); Walls v. Bowersox, 151 F.3d 827, 835 (8th Cir.
1998) (“Counsel is not required to continue looking for experts just because the
one he has consulted gave an unfavorable opinion.” (quotation marks and
citation omitted)). Also, Vickers fails to demonstrate prejudice because she fails
to show a reasonable probability that an expert would have found Vickers had
29
a psychological defense that would have changed the outcome of the trial. See
Duran v. Walker, 223 F. App’x. 865, 875 (11th Cir. 2007) (“Duran’s claim that
an expert witness would have prompted the jury to believe his testimony and
disregard the statements he made during the police interview is conclusory
and speculative, and does not amount to a showing of prejudice.”). Ground
Sixteen is denied.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and this
action is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment dismissing this action
with prejudice, terminate any pending motions, and close the file.
3. If Vickers appeals this Order, the Court denies a certificate of
appealability. 7 Because the Court has determined that a certificate of
appealability is not warranted, the Clerk of the Court shall terminate from the
pending motions report any motion to proceed on appeal as a pauper that may
7 The court should issue a certificate of appealability only if a petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
this substantial showing, a 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)). Upon due consideration of the record as a whole, this Court denies a
certificate of appealability.
30
be filed in this case. Such termination shall serve as a denial of the motion.
DONE and ORDERED at Jacksonville, Florida on September 10, 2026.
JORDAN E. PRATT
UNITED STATES DISTRICT JUDGE
SA: TpaP-3
Copies to: Erin Vickers, pro se
Counsel of Record
31