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Cases No. 5:03cr41-RH/GRJ and 5:14cv331-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 5:03cr41-RH/GRJ

 5:14cv331-RH/GRJ

DEXTER LANOYD DICKENS,

Defendant.

__________________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Dexter Lanoyd Dickens has moved under 28 U.S.C. § 2255

for relief from his judgment of conviction. The motion is before the court on the 

magistrate judge’s report and recommendation, ECF No. 104, and the objections, 

ECF No. 107. I have reviewed de novo the issues raised by the objections. This 

order accepts the report and recommendation and denies the § 2255 motion, with 

this additional note.

Mr. Dickens pleaded guilty to offenses involving five or more kilograms of 

cocaine. He admitted he committed the offenses. The presentence report 

concluded, based on Mr. Dickens’ four prior drug felony convictions, that the

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statutory minimum mandatory sentence was life in prison. Neither side filed 

timely objections.

At the first sentencing hearing, however, Mr. Dickens asserted for the first 

time that the offense of conviction was related to prior offenses, making it 

improper to impose the enhanced life sentence. Although the objection was

untimely, I agreed (without objection from the government) to consider the 

objection on the merits. I preliminarily rejected Mr. Dickens’ position, but I said 

(with both sides’ explicit consent) that I would research the issue further before 

entering the written judgment and conduct a new sentencing if necessary.

As it turned out, the record was insufficient to establish whether the prior 

convictions should result in an enhanced sentence. I vacated the original sentence 

before entering a written judgment—a procedure that was proper because both 

sides had consented to it in advance. The order vacating the sentence explained:

The law of the circuit on this issue is set forth in United States 

v. Rice, 43 F.3d 601 (11th Cir. 1995). In Rice, a defendant with three 

prior drug felony convictions was convicted under §841 of offenses 

involving more than five kilograms of cocaine. The district court 

sentenced the defendant to a minimum mandatory term of life in 

prison. An issue on appeal was whether the three prior convictions 

were sufficiently distinct to be counted separately for purposes of the 

§841 minimum mandatory. 

As in the case at bar, the prior convictions at issue in Rice were 

obtained in courts of three separate sovereignties. Indeed, in both 

Rice and the case at bar, the prior convictions were obtained in courts 

of the same three sovereignties: North Carolina state court, Florida 

state court, and federal court. The Eleventh Circuit did not, however, 

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conclude that the involvement of three separate sovereignties was 

sufficient to allow the three convictions to be counted separately. 

Instead, the court concluded “that if prior convictions resulted from 

acts forming a single criminal episode, then they should be treated as 

a single conviction for sentence enhancement under section 

841(b)(1)(A).” The court went on to conclude that “convictions are 

not related if they are temporally distinct.” Rice, 43 F.3d at 606.

Rice thus makes clear that (1) the mere fact that Mr. Dickens 

has multiple convictions obtained in courts of different sovereignties 

does not alone mean that the convictions should be counted separately 

for purposes of the §841 minimum mandatory provision, (2) 

convictions do not count separately if they are part of a “single 

criminal episode,” and (3) convictions for acts that are temporally 

distinct are not part of a “single criminal episode” and thus count 

separately.

This record includes scant information about the underlying 

facts that led to Mr. Dickens’ prior convictions. The Florida state 

court convictions both arose from a cocaine sale that occurred on 

November 21, 1986, presumably in Florida. (Presentence Report 

¶48.) The North Carolina conviction arose from a cocaine sale or 

delivery, presumably in North Carolina, but the record in the case at 

bar gives no date of the transaction, other than that the date must have 

been, at the latest, April 23, 1987 (the date of Mr. Dickens’ arrest on 

that charge). While it seems unlikely that the North Carolina case 

arose from the same transaction as the Florida state court cases, this 

record does not rule out the possibility that it did; a single drug 

transaction sometimes involves elements in two or more states and 

could lead to prosecutions in each, and it would not be unusual for an 

arrest to occur five months after the date of an offense. The federal 

conviction was for conspiracy to possess with intent to distribute 

cocaine, and the place and period of the alleged conspiracy included 

the date and place of the transaction that led to the Florida state court 

convictions. The record thus does not refute the possibility that all of 

Mr. Dickens’ prior drug felony convictions were part of a single 

criminal episode.

Order of November 17, 2004, ECF No. 74, at 3-5. 

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So a new sentencing hearing was conducted. Based on the record at that 

point, the prior convictions were properly used to enhance the sentence. The 

mandatory sentence was life in prison. Any other sentence would have been 

illegal.

Now, 10 years later, Mr. Dickens asserts he was “actually innocent.” But he 

does not, and could not reasonably, deny that he committed the cocaine offenses he 

pleaded guilty to in this case. Nor does he deny that he had four prior drug felony 

convictions. Instead, he says his attorney should have done more to challenge the 

use of those offenses. But his attorney raised this issue, and the issue was 

considered—with great care—on the merits. Still to this day, Mr. Dickens has 

asserted no ground on which the result could properly have been different. Mr. 

Dickens received a life sentence not because this issue was improperly resolved, 

not because his attorney rendered ineffective assistance, and not because he is 

“actually innocent.” Mr. Dickens received this sentence because that is what the 

law required, based on the facts of this case and the prior convictions.

Even more clearly, Mr. Dickens has asserted no basis for raising this issue 

now, in a § 2255 motion filed many years after expiration of the one-year statute of 

limitations. The § 2255 motion is untimely, unfounded on the merits, and must be 

denied. 

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A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to 

obtain a certificate of appealability when dismissal is based on procedural grounds, 

a petitioner must show, “at least, that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right and 

that jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Id. at 484. 

The defendant has not made the required showing. This order thus denies a 

certificate of appealability. Because the defendant has not obtained—and is not 

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entitled to—a certificate of appealability, any appeal by the defendant will not be 

taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that 

any appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal. Accordingly,

IT IS ORDERED:

1. The clerk must enter a judgment stating, “The defendant’s motion for 

relief under 28 U.S.C. § 2255 is DENIED.

2. A certificate of appealability is DENIED.

SO ORDERED on December 26, 2014.

s/Robert L. Hinkle

United States District Judge

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