IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ERIC KEITH LYNN,

Petitioner,

v. Case No.: 4:20cv229-MW/MJF

RICKY D. DIXON,

Respondent.

_________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge's Report and 

Recommendation, ECF No. 17, and has also reviewed de novo Petitioner’s

objections, ECF No. 20. Only one of Petitioner’s objections requires further 

comment. Namely, Petitioner asserts that he is entitled to habeas relief on Ground 

One because the First DCA failed to address an additional contention he made in his 

postconviction appellate brief, namely, that defense counsel’s performance with 

regard to the trial court’s response to the jury question was deficient for the 

additional reason that counsel failed to make a procedural objection based on the 

trial court’s responding “outside the presence of counsel and Appellant.” See Doc. 

11-7, Ex. W at 20-22 (Petitioner’s counseled state postconviction appellate brief). 

Petitioner’s state-court appellate brief argued that Petitioner was prejudiced by the 

Case 4:20-cv-00229-MW-MJF Document 21 Filed 04/12/22 Page 1 of 4
2

lack of a procedural objection because: “If counsel had objected to the trial court’s 

instruction made outside the presence of counsel and Appellant, the trial court would 

have been required to instruct the jury that it was possible to read-back specific 

portions of testimony.” Id. at 22. 

Petitioner’s argument does not demonstrate an entitlement to habeas relief. 

The First DCA is presumed to have resolved all aspects of Petitioner’s ineffectiveassistance claim. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal 

claim has been presented to a state court and the state court has denied relief, it may 

be presumed that the state court adjudicated the claim on the merits in the absence 

of any indication or state-law procedural principles to the contrary); Id. at 100 (“This 

Court now holds and reconfirms that § 2254(d) does not require a state court to give 

reasons before its decision can be deemed to have been ‘adjudicated on the 

merits.’”); see also Johnson v. Williams, 568 U.S. 289, 300-01 (2013) (holding that 

for purposes of § 2254(d), when a state court rules against a defendant in an opinion 

that rejects some of the defendant’s claims but does not expressly address a federal 

claim, a federal habeas court must presume, subject to rebuttal, that the federal claim 

was adjudicated on the merits).

The First DCA ruled that Petitioner’s ineffective-assistance claim failed as a 

whole because it was grounded in the faulty premise that the trial court’s response 

to the jury was incorrect under Florida law. The First DCA determined, as a matter 

Case 4:20-cv-00229-MW-MJF Document 21 Filed 04/12/22 Page 2 of 4
3

of state law, that the trial court’s response to the jury’s question was correct. This 

Court will not second-guess the First DCA’s determination of that state-law issue. 

See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005); 

Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough ‘the 

issue of ineffective assistance—even when based on the failure of counsel to raise a 

state law claim—is one of constitutional dimension,’ we ‘must defer to the state’s 

construction of its own law’ when the validity of the claim that [trial] counsel failed 

to raise turns on state law.”) (citation omitted). 

The First DCA’s underlying ruling—that the trial court’s response to the 

jury’s question was correct—forecloses Petitioner’s ability to establish prejudice 

under Strickland. In other words, Petitioner cannot establish that he was prejudiced 

by counsel’s lack of objection—whether substantive, procedural, or both—because 

neither objection would have changed the trial court’s response to the jury, or the 

outcome of Petitioner’strial. “The likelihood of a different result must be substantial, 

not just conceivable.” Richter, 562 U.S. at 112.

Because Petitioner failed to establish that the First DCA’s denial of his 

ineffective-assistance claim raised in Ground One was contrary to or an 

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), he is not 

entitled to habeas relief.

Case 4:20-cv-00229-MW-MJF Document 21 Filed 04/12/22 Page 3 of 4
4

Accordingly,

IT IS ORDERED:

The report and recommendation, ECF No. 17, is accepted and adopted, over

the Petitioner’s objections, as this Court’s opinion. The Clerk shall enter judgment 

stating, “Petitioner’s petition for writ of habeas corpus, ECF No. 1, challenging the 

judgment of conviction and sentence in State of Florida v. Eric K. Lynn, Leon 

County Circuit Court Case No. 2010-FC-1041, is DENIED.” A certificate of 

appealability is DENIED. The Clerk shall close the file. 

SO ORDERED on April 12, 2022.

s/Mark E. Walker ____

Chief United States District Judge

Case 4:20-cv-00229-MW-MJF Document 21 Filed 04/12/22 Page 4 of 4