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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DOMINICK L REDDICK,

Petitioner,

v. CASE NO. 1:10-cv-213-MP-GRJ

SECRETARY, DEPT. OF

CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Doc. 1. The Petition stems from Petitioner’s 2006

Alachua County conviction of violating the conditions of his probation for previous felony

convictions. Petitioner received a life sentence at the conclusion of the violation-ofprobation (VOP) proceedings. Respondent filed a response and an appendix (“App.”)

with relevant portions of the state-court record, and Petitioner filed a reply. Docs. 21,

22, 23. Upon due consideration of the Petition, the Response, the Reply, and the statecourt record, the undersigned recommends that the Petition be denied.1

State-Court Proceedings

The relevant portions of the record may be summarized as follows. Petitioner

pleaded guilty in three Alachua County criminal cases charging him with grand theft,

fleeing or attempting to elude (Case Number 2002-CF-136), burglary with battery (a first

1

, Because the Court may resolve the Petition on the basis of the record, the

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.
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degree felony punishable by life imprisonment) and false imprisonment (Case Number

2001- CF-4887), and with violating the conditions of probation in a prior case (Case

Number 2001-CF-2732). App. Exh. C at 27-31; Exh. D at 23-28. In case number

2002-CF-136, Petitioner was sentenced to two years imprisonment followed by three

years of probation, with a recommendation for boot camp. App. Exh. C at 33-42. In

case number 2001- CF-4887, Petitioner was sentenced to two years imprisonment

followed by four years of probation, with a recommendation for boot camp. App. Exh.

C. at 33-42; Exh. D. at 29-41.

In November 2004, Petitioner was charged with violating the terms of his

probation in case number 2001- CF-4887 and case number 2002-CF-136 by, inter alia,

committing new Alachua County offenses including aggravated assault with a deadly

weapon, aggravated battery with a firearm, being a felon in possession of a concealed

weapon, aggravated fleeing and eluding, and escape. He was charged in other

jurisdictions with escape, attempted first degree murder, being a felon in possession of

a firearm, and resisting arrest with violence. App. Exh. C at 79-80; Exh. D at 79-80. In

addition to the new law offenses, Petitioner was charged with technical probation

violations. Id. 

Following an evidentiary hearing, the trial court found Petitioner guilty of violating

the terms of probation by possessing a firearm. The evidence adduced at the lengthy

VOP hearing included the testimony of a police officer that Petitioner pulled a gun and

pointed it at the officer during the course of an arrest, and testimony by multiple

eyewitnesses that Petitioner threatened several people at a Halloween party with a gun

during a fight, including forcing the gun into the mouth of one of the partygoers. App.

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Exh. E at 12-183. The court found that Petitioner had engaged in conduct that posed a

serious risk of injury or death to others, and that the evidence that Petitioner violated the

terms of probation was “overwhelming.” App. Exh. E. at 180-83. The court sentenced

Petitioner to life imprisonment on the burglary with battery count and a consecutive fiveyear sentence on the false imprisonment count in Case Number 2001-CF-4887. The

court sentenced Petitioner to five year consecutive sentences for each of the two counts

in Case Number 2002-CF-136. App. Exh. C at 87-90; Exh. D. at 92-95. The First DCA

affirmed per curiam in a consolidated appeal. App. Exh. M.

Petitioner filed a motion for postconviction relief from the VOP conviction

pursuant to Fla. R. Crim. P. 3.850. Petitioner alleged that trial counsel was ineffective

for failing to argue for a continuance of the VOP hearing; that the trial court abused its

discretion in denying his motion for continuance; that trial counsel was ineffective for

failing to prepare for the violation hearing; that trial counsel was ineffective for failing to

object to the presentation of evidence of a crime that was not relevant to the

proceedings; and that counsel was ineffective for failing to object when the trial court

sentenced Petitioner to imprisonment beyond a six-year youthful-offender sentence. 

App. Exh. N. at 3-37. The trial court summarily denied relief on the merits, except with

respect to the claim that trial counsel did not prepare adequately for the violation

hearing. App. Exh. N. at 77-80. The court permitted Petitioner to file an amended

postconviction motion on that ground, and then also summarily denied relief on the

merits of that claim. Id. at 119-22. The First DCA affirmed per curiam without written

opinion. App. Exh. O.

The instant federal habeas petition, which Respondent concedes is timely,

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followed. Petitioner asserts four claims for relief: (1) trial counsel was ineffective for

failing to properly move the trial court for a continuance of the VOP hearing; (2) counsel

was ineffective for failing to investigate Petitioner’s case prior to the VOP hearing; (3)

counsel was ineffective for failing to object to a sentence that was outside the

guidelines; and (4) trial counsel was ineffective for failing to object to “false” testimony at

the VOP hearing. Doc. 1. 

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes limitations

on the scope of this Court's review. Under 28 U.S.C. § 2254(d)(2), a federal court may

not grant a state prisoner's application for a writ of habeas corpus based on a claim

already adjudicated on the merits in state court unless that adjudication “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.” Under § 2254(e)(1), “a

determination of a factual issue made by a State court shall be presumed to be correct,”

and the petitioner “shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different

conclusion in the first instance.’” Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4

(2013)(quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).

 As to legal findings, a petitioner is entitled to federal habeas relief only if the state

court's adjudication of the merits of the federal claim “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.” § 2254(d)(1); see Burt, 2013

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WL 5904117, *4 (standard for reviewing claims of legal error by state courts is “highly

deferential”). This standard “recognizes a foundational principle of our federal system:

State courts are adequate forums for the vindication of federal rights.” Id. This highly

deferential standard carries special force in habeas cases asserting ineffective

assistance claims: “Especially where a case involves such a common claim as

ineffective assistance of counsel under Strickland2—a claim state courts have now

adjudicated in countless criminal cases for nearly 30 years—‘there is no intrinsic reason

why the fact that a man is a federal judge should make him more competent, or

conscientious, or learned . . . than his neighbor in the state courthouse.’” Id. (quoting

Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037 (1976). 

In view of the deference afforded to the state courts’ adjudication of constitutional

claims, “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires ‘a state prisoner [to]

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 . . . beyond any possibility for fairminded

disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770,

786–787 (2011). “‘If this standard is difficult to meet’—and it is—‘that is because it was

meant to be.’” Id. (quoting Harrington, 131 S.Ct. at 786). “We will not lightly conclude

that a State's criminal justice system has experienced the ‘extreme malfunction’ for

2

Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that to prevail on a

constitutional claim of ineffective assistance of counsel, a defendant must demonstrate

(1) that his counsel’s performance was below an objective and reasonable professional

norm, and (2) that he was prejudiced by this inadequacy. A court may dispose of the

claim if a defendant fails to carry his burden of proof on either the performance or the

prejudice prong).

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which federal habeas relief is the remedy.” Id. (quoting Harrington, 131 S.Ct. at 786). 

Claim 1: Continuance of VOP Hearing

Petitioner contends that his appointed counsel for the VOP hearing “knew next to

nothing” about his case and did not advise Petitioner regarding possible defenses until

immediately prior to the hearing, effectively leaving Petitioner with no counsel at the

VOP hearing. Doc. 1.

Respondent contends that this claim is unexhausted because although Petitioner

argued in his Rule 3.850 motion that counsel should have sought a continuance

because his new criminal charges were still pending, he did not assert that counsel

should have moved for a continuance because he did not have time to adequately

advise Petitioner. Doc. 22.3

Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction, either on direct

appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion

requires that prisoners give the state courts a “full and fair opportunity” to resolve all

3

 Respondent further contends that Petitioner did not have a Sixth Amendment

right to counsel at his probation revocation proceeding. Doc. 22 at 41. That argument

has been rejected. See Ford v. Buss, 2011 WL 3293509 *2 (N.D. Fla. 2011). While the

Supreme Court held in Gagnon v. Scarpelli, 411 U.S. 778 (1973) that there is not a

federal constitutional right to counsel in all probation revocation hearings, there is a

presumptive right that counsel should be provided when the probationer requests

counsel and has a colorable claim that he has not committed the alleged violations. 

Gagnon, 411 U.S. at 790. State rules require appointment of counsel absent an

informed waiver, Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), as does Fed. R.

Crim. P. 32.1(a)(3)(B) in federal revocation proceedings. In this case, Petitioner

contested the VOP charges and the trial court held an evidentiary hearing on the

violations, at which Petitioner and several witnesses testified. Under these

circumstances, Petitioner “presumptively had a federal due process right to counsel in

that proceeding,” pursuant to the guidance of Gagnon. Ford, 2011 WL 3293509 *2.

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federal constitutional claims by “invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To

properly exhaust a federal claim, a petitioner must “fairly present” the claim in each

appropriate state court, thereby affording the state courts a meaningful opportunity to

“pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (quotation omitted). 

When a petitioner fails to properly exhaust a federal claim in state court, and it is

obvious that the unexhausted claim would now be procedurally barred under state law,

the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir.

1999). Federal habeas courts are precluded from reviewing the merits of procedurally

defaulted claims unless the petitioner can show either (1) cause for the failure to

properly present the claim and actual prejudice from the default, or (2) that a

fundamental miscarriage of justice would result if the claim were not considered. Id. at

1302, 1306. A fundamental miscarriage of justice exists “where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.” Ward

v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). To state a credible claim of actual

innocence, a petitioner must present new reliable evidence that was not presented at

trial showing that “it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

Petitioner contends that he exhausted this claim because he stated in his Rule

3.850 motion that he did not speak to counsel until five minutes prior to the hearing, that

counsel told the court he was unable to develop a defense, and Petitioner alleged that

counsel did not have an opportunity to advise Petitioner of potential defenses. R. 23. 

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A review of the record reflects that although Petitioner did mention those points in

his motion, the main thrust of his claim (Claim One in the Rule 3.850 motion) was that

counsel should have moved for a continuance pending the conclusion of the new

criminal charges, and that is how the state court addressed the claim. App. Exh. E. at

93-99. Moreover, Petitioner was provided an opportunity to file an amended

postconviction motion on his claim that counsel did not adequately prepare for the

hearing, and these arguments could have been raised in connection with that claim. 

See id. at 143-50. Under these circumstances, the Court agrees that Petitioner failed to

exhaust the specific claim that he now seeks to assert as Claim 1 in the instant petition. 

Petitioner makes no argument that he can establish cause or prejudice sufficient to

overcome the procedural default. 

To the extent that the Petition may liberally be construed as asserting the same

claim that was raised as Claim One in his Rule 3.850 motion, Petitioner has not shown

that he is entitled to relief. In rejecting this claim on postconviction review, the trial court

explained that under Strickland a defendant must establish both deficient performance

and resulting prejudice to prevail. App. Exh. E. at 123. The court then explained as

follows:

Prior to the start of the violation hearing, trial counsel twice

informed the Court that he was not prepared for the hearing and

requested a continuance. See VOP hearing, dated February 8, 2006, at 2-

5; Violation of Probation Hearing, dated February 8, 2006, 2:38 pm, at 6-

11. A lengthy discussion was held on the record and the Court denied the

motion. See Violation of Probation Hearing, dated February 8, 2006, 2:38

pm, at 6-11. Defendant now claims that trial counsel should have argued

that because the new criminal charges were still pending, a continuance

was necessary to determine Defendant’s innocence on those charges. 

The actual outcome of Defendant’s pending criminal charges was

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not necessarily relevant to his violation of probation. An acquittal on new

criminal charges does not prohibit a court from considering those same

allegations in a violation of probation proceeding. See Hill v. State, 890

So. 2d 485, 486 (Fla. 5th DCA 2004). In order to prove that a defendant

has violated his probation, the prosecutor merely has to prove that he has

done so by a preponderance of the evidence. Stewart v. State, 926 So. 2d

413 (Fla. 1st DCA 2006); Cowart v. State, 754 So. 2d 813 (Fla. 1st DCA

2000). The standard of proof at violation of probation hearing is lower than

the burden at a criminal trial. Id. Even if the Court had granted the

continuance until after Defendant’s new criminal charges had been

resolved, there is no reason to assume that the outcome would have been

any different. The Court still could have found Defendant in violation of his

probation based on the evidence presented at the violation hearing.

Defendant has failed to show how trial counsel’s failure to argue this point

prejudiced the outcome of his violation hearings. This claim is without

merit.

App. Exh. N at 77-80. 

Petitioner does not argue that the state court erred in stating that Petitioner could

be convicted in the VOP case on a preponderance-of-the-evidence standard

notwithstanding the outcome of his new criminal charges. See Doc. 1. On this record,

Petitioner has made no showing that the state court’s rejection of this ineffectiveassistance claim on the prejudice prong of Strickland was “so lacking in justification that

there was an error . . . beyond any possibility for fairminded disagreement.” Burt, 2013

WL 5904117, *4. Accordingly, Petitioner is not entitled to federal habeas relief on this

claim.

Claim 2: Counsel’s Pretrial Investigation

Petitioner contends that counsel failed to investigate his case prior to the VOP

hearing. He asserts that he had alibi witnesses who were not contacted by counsel,

and a different suspect had been identified by a witness in a photo lineup in connection

with the firearm-possession charge. Petitioner contends that when he pleaded to the

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underlying criminal charge of burglary with battery, he believed that he could receive no

more than six years imprisonment if he violated probation, but that his VOP counsel

failed to investigate whether his plea was knowing and voluntary. Doc. 1.

Respondent contends that this claim is also unexhausted because Petitioner did

not argue in his amended Rule 3.850 motion that counsel failed to contact alibi

witnesses and failed to argue that another person was identified in a lineup. Doc. 21. 

Although phrased somewhat differently in the state court, Petitioner did assert that he

was unaware he could receive a life sentence for a probation violation, and also

asserted that counsel should have cross-examined a witness, Mr. Baraybar, about the

fact that the witness did not identify Petitioner in a photo lineup but did identify someone

else. App. Exh. E. at 144-49. The Court concludes that these claims were therefore

exhausted in the state court. With respect to the claim that counsel failed to contact

alibi witnesses, Petitioner provides no explanation in the Petition as to the identity of

such witnesses or how counsel’s failure to contact such witnesses prejudiced Petitioner. 

Such conclusional, unsupported assertions are insufficient to support a claim for federal

habeas relief. 

In rejecting the analogous claim on postconviction review of Petitioner’s

amended Rule 3.850 motion, the state court explained as follows:

In the first claim it appears that Defendant is alleging that the

original plea which resulted in him being placed on probation was not

voluntarily entered. According to Defendant, when he originally entered his

plea of nolo contendere on January 6, 2003, he was not informed that if he

violated his probation he could be sentenced to life in prison. Without this

knowledge, Defendant claims that any subsequent violation of probation

was not willful. 

During the plea colloquy Defendant was informed three different

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times that he was facing a life sentence if he violated his probation. See

Change of Plea, dated January 6, 2003, at 6; 7; 9. Defendant indicated

that he understood those maximum possible sentences and potential

consequences of a violation. Id. at 8; 9. Although this information may

have been misstated in the Petition to Enter Plea of Nolo Contendere, the

information was sufficiently clarified on the record. Therefore, Defendant’s

claim that he was not aware of this potential consequence is conclusively

refuted by the record.

Defendant next claims that trial counsel should have asked witness

Baraybar if he was able to identify Defendant in the line up administered

by the police. According to Defendant, if trial counsel had raised this issue

during the hearing, then the Court would have had reason to question

Baraybar’s credibility, and it would have provided the Court with reason to

doubt Defendant’s guilt. 

Although trial counsel did not ask Baraybar about his ability to

identify Defendant in a lineup, he did ask Detective Senn. Senn testified

that Baraybar was unable to pick Defendant out of a lineup. See Violation

of Probation Hearing, dated February 8, 2006, at 112-13.4

 Therefore, the

Court was able to consider that Baraybar could not identify Defendant,

and weigh this information in determining Defendant’s guilt. Defendant

was not prejudiced by trial counsel’s failure to present this information.

This claim is without merit.

Finally, Defendant claims that trial counsel was ineffective for failing

to investigate the facts surrounding the incident in Orlando. One of the

allegation that was the basis for the violation of probation, was that

Defendant was a convicted felon in possession of a firearm. In the instant

motion Defendant claims that he had the firearm because he “[took] it

away from the person who had initially pulled it out to do harm to a

bystander.” Defendant claims that therefore his possession was an act of

heroism, and should not be considered a willful violation of his probation.

According to Defendant, trial counsel should have brought this to

the attention of the Court. Defendant himself discussed his possession of

the firearm in great lengths with the Court during the violation of probation

hearing. Id. at 171-179. Therefore Defendant did not suffer any prejudice

as a result of trial counsel not raising this issue. This claim is without merit.

4

The Respondent points out that this testimony was actually provided by a

different detective, Detective Schiboula. Doc. 22 at 61. The court’s error in identifying

the witness in the postconviction decision has no bearing on the court’s ultimate

conclusions.

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(Ex. N at 119-22).

App. Exh. N at 119-22.

To summarize the state court’s disposition of the claim, the court rejected

Petitioner’s contention that his counsel was ineffective for not investigating the

voluntariness of his plea with respect to maximum sentencing exposure because the

plea colloquy reflected that Petitioner was advised that the burglary-with-battery charge

carried a possible life sentence. The court rejected Petitioner’s claim that counsel was

ineffective regarding witness Baraybar because the information that Petitioner wanted

counsel to investigate – Baraybar’s failure to identify Petitioner in a photo lineup – was

explored during the VOP hearing in the testimony of Detective Senn. Defendant

himself testified during the VOP hearing as to his asserted defense (heroism) in

possessing the firearm. The state court rejected each of these claims on the prejudice

prong of Strickland because even if VOP counsel did not explore them at the hearing in

the manner suggested by Petitioner, they were either refuted by the underlying criminal

record or otherwise sufficiently addressed during the VOP hearing by other means. 

App. Exh. N at 119-22. Petitioner has made no showing that there is a reasonable

probability that the outcome of the VOP hearing would have been different but for these

asserted errors by counsel. He has not shown that the state court’s rejection of this

ineffective-assistance claim on the prejudice prong of Strickland was “so lacking in

justification that there was an error . . . beyond any possibility for fairminded

disagreement.” Burt, 2013 WL 5904117, *4. Accordingly, Petitioner is not entitled to

federal habeas relief on this claim.

Claim 3: Counsel’s Failure to Object to VOP Sentence

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Petitioner contends that his VOP counsel was unaware of the terms of his

underlying plea agreement, which did not state that he faced a maximum sentence of

life imprisonment for the burglary-with-battery charge, and therefore VOP counsel

performed deficiently by failing to object to the VOP life sentence. Doc. 1. Petitioner

does not argue, however, that the state court on postconviction review erred in its

factual finding that the record of the plea colloquy reflected that Petitioner was clearly

advised that the charge carried a maximum sentence of life imprisonment. See App.

Exh. N at 119-22. As explained above, in view of the lack of factual support for

Petitioner’s claim regarding the voluntariness of his underlying plea, the state court on

postconviction review rejected the claim on the prejudice prong of Strickland. Petitioner

has made no showing that the state court’s assessment of this claim under Strickland

was “so lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.” Burt, 2013 WL 5904117, *4. Accordingly, Petitioner is not

entitled to federal habeas relief on this claim.

Claim 4: Failure to Object to Evidence at VOP Hearing

Petitioner contends that his VOP counsel was ineffective for failing to object to

alleged “false testimony” at the VOP hearing because counsel did not understand that

Baraybar never identified Petitioner in a photo lineup. Petitioner again conclusionally

contends, without factual support, that he had “alibi witnesses” who were not contacted

by counsel. He contends that VOP counsel should have contacted his counsel in the

underlying criminal case to discuss the terms of Petitioner’s plea agreement with

respect to sentencing exposure. Doc. 1. These claims are repetitive of the claims

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addressed and rejected above. For the reasons explained above, Petitioner has made

no showing that the state court’s assessment of these claims under Strickland was “so

lacking in justification that there was an error . . . beyond any possibility for fairminded

disagreement.” Burt, 2013 WL 5904117, *4. Accordingly, Petitioner is not entitled to

federal habeas relief.

Certificate of Appealability

Section 2254 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct the

parties to submit arguments on whether a certificate should issue.” Thus, if there is an

objection to this recommendation by either party, that party may bring this argument to

the attention of the district judge in the objections permitted to this report and

recommendation.

In light of the foregoing, it is respectfully RECOMMENDED that the petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254, Doc. 1, should be DENIED and a

COA should be DENIED.

IN CHAMBERS this 7th day of February 2014. 

áBZtÜç eA ]ÉÇxá 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with

a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

Case No:1:10-cv-213-MP-GRJ