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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CANTON OMAR DISMUKES

Petitioner,

vs. CASE NO.: 3:10cv295/MCR/MD

KENNETH S. TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

This case is before the court on petitioner’s petition for habeas corpus filed

pursuant to 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant

portions of the state court record (doc. 28). Petitioner then filed a response (doc.

33). The matter was referred to the undersigned magistrate judge for a report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After

careful consideration of all issues raised by petitioner, it is the opinion of the

undersigned that no evidentiaryhearing is required for the disposition of this matter,

Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District

Courts. It is further the opinion of the undersigned that the pleadings and

attachments before the court show that petitioner is not entitled to relief, the petition

is without merit and should be denied.

Kenneth S. Tucker became Secretary of the Florida Department of Corrections on August 24, 2011,

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and is substituted as respondent.

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BACKGROUND AND PROCEDURAL HISTORY

Petitioner, Canton Omar Dismukes (“Mr. Dismukes”), was charged with

attempted first degree premeditated murder with a firearm in case number 2006-CF004810A in the Circuit Court of Escambia County, Florida, in violation of Sections

777.04, 782.04 and 775.087, Florida Statutes (doc. 28, ex. B, p. 2). Mr. Dismukes was 2

tried by a jury and found guilty of the charge on October 30, 2007 (ex. B, p. 29). On

the same day, the court adjudicated him guilty under Florida law (ex. B, p. 32) and

sentenced him to a term of 20 years imprisonment with 413 days of credit time (ex.

B, p. 37).

Mr. Dismukes appealed the conviction and sentence to the First District Court

of Appeal (“First DCA”) (ex. D). On May 1, 2009, the First DCA per curiam affirmed

the conviction and sentence without a written opinion. Dismukes v. State of Florida,

7 So. 3d 537 (Fla. 1 DCA 2009) (Table) (ex. F). st

On September 1, 2009, Mr. Dismukes filed a motion for post-conviction relief

pursuant to Rule 3.850, Florida Rules of Criminal Procedure (ex. G, pp. 1-41). He

presented three grounds for relief based on ineffective assistance of counsel. Id.

The Rule 3.850 court denied all of Mr. Dismukes ’ grounds for relief and entered a

written order on December 31, 2009 (ex. G, pp. 42-75).

Mr. Dismukes filed a notice of appeal on February 1, 2010. He again raised

ineffective assistance from counsel for (1) arguing a ‘boilerplate’ motion for

judgment of acquittal; thus, not preserving the same for appellate review; (2) failing

to present expert testimony regarding state of mind during the shooting; and (3)

failing to object to improper comments bythe prosecution during closingstatements

(ex. H). On May 6, 2010, the First DCA per curiam affirmed the Rule 3.850 court’s

decision (ex. J). The mandate issued on June 2, 2010 (ex. K).

Hereafter all references to exhibits will be to doc. 28 unless otherwise noted.

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On August 10, 2010, Mr. Dismukes filed the instant petition for writ of habeas

corpus (doc. 1). A response was filed in opposition (doc. 28, p. 3) and Mr. Dismukes

replied as to Ground 1 (doc. 33). The respondent does not contend that the petition

is untimely (doc. 28, p. 3). 

STANDARD OF REVIEW 

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19

(1996). In relevant part, Section 2254 provides:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings 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) (2006).

The Supreme Court explained the framework for Section 2254 review in

Williams v. Taylor, 529 U.S. 362 (2000). Section 2254(d)(2) must be divided into two

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separate inquiries: 

Unless otherwise noted, references to Williams are to the majority holding, written by Justice

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Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts

I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and Justice O’Connor for the Court (joined by

Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at

403–13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg, and

Breyer.

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Under the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached

by this court on a question of law or if the state court decides a case

differently than this 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 this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

Id. at 412–13 (O’Connor, J., concurring). The federal habeas court “determining

whether [it] should overturn the state courts’ [sic] rejection of the claim at issue”

should “review the highest state court decision disposing of the claim.” Harvey v.

Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see also Knowles v.

Mirzayance, 556 U.S. 111 (2009).

Following the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a formal state

court proceeding, the federal court should first ascertain the “clearly established

Federal law,” namely, “the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72 (2003). The law is “clearly established” only when the Supreme

Court’s holding embodies the legal principle; dicta in opinions is not controlling. 

Thaler v. Haynes, __ U.S. __, 130 S. Ct. 1171, 1173 (2010); Bowles v. Sec’y for Dep’t

of Corr., 608 F.3d 1313, 1315 (11th Cir. 2010). Furthermore, a federal court of appeals

decision, “even a holding directly on point,” cannot clearly establish federal law for

Section 2254 purposes. Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __,

130 S. Ct. 1855, 1866 (2010)).

After identifying the governing legal principle, the court determines whether

the state court adjudication is “contrary to” clearly established Supreme Court case

law, either because the state court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases,” or because it “confronts a set of facts that is

materially indistinguishable from a decision of [the] Court but reaches a different

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result.” Brown v. Payton, 544 U.S. 133, 141 (2005); see 28 U.S.C. § 2254(d)(1). The

state court does not need to cite to Supreme Court cases or even be aware of them,

“so long as neither the reasoning nor the result of the state-court decision

contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). If the state court decision

is contrary to clearly established federal law, the federal habeas court must

independently consider the merits of petitioner’s claim.

If the state court decision is not contrary to clearly established federal law, the

federal habeas court must then determine whether the state court “unreasonably

applied” the governing legal principles set forth in the Supreme Court’s cases. 28

U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412–13. The federal court defers to the

state court’s reasoning unless the state court’s application of the legal principle was

“objectively unreasonable” in light of the record the court had before it. Williams,

529 U.S. at 409; see Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1400 (2011)

(holding new evidence introduced in federal habeas court has no bearing on Section

2254(d)(1) review, rejecting dicta in Holland v. Jackson, 542 U.S. 649, 652 (2004) (per

curiam)). A state court’s application of federal law is objectively unreasonable when

the state court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably

extends, or unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.” Brown, 544 U.S. at 141. However, a state court may

“decline to apply a specific legal rule that has not been squarely established by [the

Supreme Court]” without running afoul of the “unreasonable application” clause.

Knowles, 556 U.S. at 261. Notably, even a state court’s incorrect application of law

will not warrant federal habeas relief unless it is also objectively unreasonable. See

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86 (2011).

Section 2254(d) also allows federal habeas relief for a claimadjudicated on the

merits in state court where that adjudication “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

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the State court proceeding.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

application” clause, the Supreme Court applies the “objectively unreasonable” test

to the state court’s factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324

(2003) (dictum). Petitioner must advance clear and convincing evidence that the

state court’s factual determination was “objectively unreasonable” to rebut the

presumption that the determination was correct. Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011); 28 U.S.C. § 2254(e)(1).

The Eleventh Circuit in Gill clarified how the federal habeas court should

address the “unreasonable application of law” and the “unreasonable determination

of facts” tests. Id. at 1288-89. Mr. Gill’s petition alleged he was denied his Sixth

Amendment right to counsel. Id. at 1288. The Eleventh Circuit granted a limited 4

Certificate of Appealabilityto determine the precise issue of the validityof “summary

affirmance by a state appellate court of a trial court’s decision based on potentially

flawed reasoning.” Id. at 1286.

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The Gill court acknowledged the well-settled principle that summary

affirmances, such as the Second DCA’s, are presumed adjudicated on the merits and

warrant deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85 and Wright v.

 Mr. Gill twice moved the trial court in pretrial hearings to allow him to waive his Sixth Amendment

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right to counsel. Gill, 633 F.3d at 1275-84; U.S. Const. amend. VI. The trial court denied the first

motion concluding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633 F.3d

at 1278; see Faretta v. California, 422 U.S. 806, 835 (1975) (accused must “knowingly and intelligently”

waive representation). The trial court also denied the second motion, but allowed Mr. Gill to act as

co-counsel for himself only for determining trial strategy. Gill, 633 F.3d at 1284. After Mr. Gill was

convicted and timely requested post-conviction relief, the Florida Second District Court of Appeal

(“Second DCA”) affirmed without opinion the trial court’s denial of said relief. Id. at 1284-85. Mr. Gill

then filed a petition in federal court, which the district court denied with prejudice. Id.

The Eleventh Circuit reviewed Mr. Gill’s claims that the district court erred in its habeas corpus

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analysis as to two issues. First, Mr. Gill argued that the habeas court erred by “failing to review on

the merits the ‘legally and factually unsupported rationale’ articulated by the state trial court.” Gill,

633 F.3d at 1288. Second, Mr. Gill argued the habeas court’s decision was per se erroneous because

it “relied on a finding that the state court did not make.” Id. Specifically, Mr. Gill averred that the trial

court denied relief by finding that his Sixth Amendment waiver was not knowing and intelligent, while

the federal district court denied relief by finding that he “never clearly and unequivocally” waived his

right to counsel. Id.

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Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)). “A judicial decision

and a judicial opinion are not the same thing,” and the Supreme Court has confirmed

that determining whether the state court unreasonably applied the law or

unreasonably determined the facts requires only a decision, not an opinion. Id. at

1291 (citing Harrington, 131 S. Ct. at 784). Yet, the Supreme Court has never

squarely addressed whether under the “unreasonable application” test a federal

habeas court “looks exclusively to the objective reasonableness of the state court’s

ultimate conclusion or must also consider the method by which the state court

arrives at its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244-45

(5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit in Gill

concluded that district courts must apply the plain language of Section 2254(d) and

answer the “precise question” raised in a claim based on the state court’s ultimate

legal conclusion, and should not “evaluate or rely upon the correctness of the state

court’s process of reasoning.” Id. at 1291 (agreeing with the Fifth Circuit court in

Neal, 286 F.3d at 244-45). In short, the Eleventh Circuit held that “the statutory

language focuses on the result, not on the reasoning that led to the result.” Id.6

In light of Gill, the “unreasonable determination of facts” standard plays a

limited role in habeas review because the district court considers the

reasonableness of the trial court’s fact finding only to the extent that the state

court’s ultimate conclusion relied on it. Id. at 1292. A federal habeas court can

consider the full record before it in order to answer “the only question that

matters[:]” whether the state court’s decision was objectively unreasonable.

Lockyer, 538 U.S. at 64; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

 Applying this analysis, the Eleventh Circuit rejected Mr. Gill’s claim that the district court erred by

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relying on different grounds than the trial court because Mr. Gill’s basic premise—the Second DCA’s

summary affirmance relied on the trial court’s statements from the bench—was not dispositive. Id.

at 1288.

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Under §2254, a habeas court must determine what arguments or

theories supported or . . . could have supported [ ] the state court’s

decision; and then it must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s

conclusion.” Id. (internal quotations omitted)

The federal habeas court will take the final step of conducting an independent

review of the merits of petitioner’s claims only if it finds that petitioner satisfied

AEDPA and Section 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54 (2007). 

The writ will not issue unless petitioner shows that he is in custody “in violation of

the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a). 

When performing its review under Section 2254(d), the federal court must resolve

all claims for relief regardless of whether habeas relief is granted or denied. Clisby

v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see also Puiatti v. McNeil, 626

F.3d 1283, 1307 (11th Cir. 2010). The federal court must also bear in mind that state

court factual determinations are presumed to be correct, and petitioner bears the

burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); see also Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (AEDPA

provides for a “highly deferential standard of review” for factual determinations

made by a state court); Jackson v. Anderson, 112 F.3d 823, 824-25 (noting petitioner

has heavier burden to overcome the presumption of factual correctness). “If this

standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.

Ct. at 786. 

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OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel

Petitioner contends in his grounds for relief before this court that he was

denied his constitutional right to the effective assistance of counsel. The

Constitution provides that: “[i]n all criminal prosecutions, the accused shall enjoy

the right. . .to have the Assistance of Counsel for his defence.” U.S. Const. amend.

VI. To prevail on a claim of ineffective assistance of counsel, petitioner must prove

that: (1) “counsel’s representation fell below an objective standard of

reasonableness;” and (2) “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 677-78 (1984); see also Berghuis v.

Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65 (2010). Reasonableness of

representation does not implicate whatispossible, prudent, or even appropriate, but

only what is “constitutionally compelled.” Chandler v. United States, 218 F.3d 1305,

1313 (11th Cir. 2000) (citing Burger v. Kemp, 483 U.S. 776, 794 (1987)).

In evaluating counsel’s performance, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable,

professional assistance. Chandler, 218 F.3d at 1314. Courts must make “every

effort. . .to eliminate the distorting effects of hindsight” and must evaluate the

reasonableness of counsel’s performance “from counsel’s perspective at the time.” 

Strickland, 466 U.S. at 689; see also Chandler, 218 F.3d at 1314 (the Strickland

standard compels courts to “avoid second-guessing counsel’s performance”). The

Eleventh Circuit has summarized the standard and the burden:

Even if many reasonable lawyers would not have done as defense

counsel did at trial, no relief can be granted on ineffectiveness grounds

unless it is shown that no reasonable lawyer, in the circumstances,

would have done so. This burden, which is petitioner’s to bear, is and

is supposed to be a heavy one. And, “[w]e are not interested in grading

lawyers’ performances; we are interested in whether the adversarial

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process at trial . . . worked adequately.” See White v. Singletary, 972

F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also Waters v. Thomas, 46 F.3d

1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done more);

Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“. . .the Constitution requires

a good deal less than maximum performance.”)

In order to meet the prejudice prong of the Strickland standard, petitioner

must allege more than that the unreasonable conduct might have had “some

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693;

see also Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). 

Petitioner must show a reasonable probability exists that the outcome would have

been different. Frazier v. Bouchard, 661 F.3d 519, 532 (11th Cir. 2011); Marquard, 429

F.3d at 1305 (petitioner’s burden under the prejudice prong is high); Strickland, 466

U.S. at 694. In applying Strickland, the court may dispose of an ineffective

assistance claim if petitioner fails to carry his burden on either of the two prongs. 

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice. . .that course should be followed.”).

The Strickland standard exists to prevent petitioners from abusing the posttrial process by escaping rules of waiver or presenting new issues; it should be

“applied with scrupulous care” to protect the integrity of the adversary process. 

Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the

Supreme Court emphasized:

The standards created by Strickland and § 2254(d) are both “highly

deferential,” and when the two apply in tandem, review is “doubly” so.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The

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question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. (citations omitted); Knowles, 556 U.S. at 262 (Strickland claims evaluated under

§ 2254(d)(1) require “doubly deferential” judicial review).

Finally, when a district court considers a habeas petition, the state court’s

findings of historical facts in the course of evaluating an ineffectiveness claim are

subject to the presumption of correctness, while the performance and prejudice

components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier

v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “‘The pivotal question is whether the

state court's application of the Strickland standard was unreasonable, [which] is

different from asking whether defense counsel's performance fell below Strickland's

standard.’” Jones v. Sec’y, Dep’t of Corr., 644 F.3d 1206, 1209 (11th Cir. 2011)

(quoting Harrington, 131 S. Ct. at 785). Habeas claims of ineffective assistance of

counsel require “doubly deferential” judicial review under Section 2254(d) and

Strickland, and petitioners only rarely prevail on this ground. See Rogers, 13 F.3d

at 386.

Exhaustion of state remedies and procedural default

A petitioner defaults on an issue unless the petitioner first exhausts available

state court remedies so the state has the “‘opportunity to pass upon and correct’

alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365 (1995) (per curiam); see 28 U.S.C. § 2254(b)(1)(A) (applicant must exhaust

available state court remedies); 28 U.S.C. § 2254(b)(3) (state may rely on exhaustion

requirement unless it expressly waives the right). But see 28 U.S.C. § 2254(b)(2)

(application may be denied on the merits even when applicant fails to exhaust state

remedies). To satisfy the exhaustion requirement, petitioner must “fairly present”

his claim in each appropriate state court, alerting that court to the federal nature of

the claim. Duncan, 513 U.S. at 365-66; see O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (same). This affords the state courts “one full opportunity to resolve any

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constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan, 526 U.S. at 845.

“Fair presentation” requires that, in each claim for relief, petitioner include a

reference to a specific federal constitutional guarantee and a statement of the facts

that entitle petitioner to relief. Picard v. Connor, 404 U.S. 270, 278 (1971). To satisfy

the exhaustion requirement, petitioner must present the same facts and claims in

state court about which he petitions the federal court. Id. Appeals to a broad,

general constitutional guarantee also fail to present the “substance” of such a claim

to the state court. See Anderson v. Harless, 459 U.S. 4, 7 (1982) (petitioner cited

federal authority only by referring to a state court decision in which “the defendant.

. . asserted a broad federal due process right to jury instructions that properly

explain state law” (internal quotation marks omitted)). Astate prisoner’s claim is not

fairly presented if the state court “must read beyond a petition or a brief (or a similar

document) that does not alert it to the presence of a federal claim in order to find

material. . ..” Baldwin v. Reese, 541 U.S. 27, 32 (2004). However, when a petitioner

squarely raises a federal constitutional claim in state court, the “failure of a state

court to mention a federal claim does not mean the claim was not presented to it.” 

Dye v. Hofbauer, 546 U.S. 1, 3 (2005). And, simply labeling the claim “federal” may

be sufficient to fairly present the claim. Baldwin, 541 U.S. at 32 (dictum).

The Eleventh Circuit requires specific reference to the United States

Constitution and favors citations to federal cases. Zeigler v. Crosby, 345 F.3d 1300,

1307-08 and n.5 (11th Cir. 2003) (“Cursory and conclusional sentences

(unaccompanied by citations to federal law) . . . did not present to the Florida courts

the federal claim asserted to us.”). This stricter standard requires petitioner to

differentiate a claim under the United States Constitution from one under a state

constitution. Id. at n.5; McNair v. Hall, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (“a

habeas applicant [must] do more than scatter some makeshift needles in the

haystack of the state court record” (internal citations omitted)). If state and federal

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constitutional law overlap in their applicability to petitioner’s claim, he must raise

his issue in terms of the federal right in state court to obtain federal review of the

issue. Duncan, 513 U.S. at 366; see also Anderson, 459 U.S. at 7 and n.3 (petitioner’s

citation to a state-court decision predicated solely on state law is probably

insufficient to fairly apprise a reviewing court of a potential federal claim merely

because the defendant in the cited state case advanced a federal claim). 

A claim is procedurally defaulted and barred from federal review in two

instances: (1) if it was raised in state court and rejected on the independent and

adequate state ground of procedural bar or default; or (2) if it was not properly

raised in state court and can no longer be litigated under state procedural rules.

Coleman v. Thompson, 501 U.S. 722, 734-35 and n.1 (1991); Bailey v. Nagle, 172 F.3d

1299, 1302-03 (11th Cir. 1999); see also Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001) (state court’s rejection of petitioner’s constitutional claim on state procedural

grounds generally precludes subsequent federal habeas review of that claim). 

Unless the federal court determines the state court “clearly and expressly” relied on

independent and adequate state grounds, the federal court may address the

petition. Coleman, 501 U.S. at 735. However, when any future attempt to exhaust 7

state remedies would be futile under the state’s procedural default doctrine, the

default is per se adequate state grounds independent of the federal question. Id. at

735 n.1; Harris v. Reed, 489 U.S. 255, 263 n.9 (1989) (federal habeas court need not

require a federal claim be presented to a state court if the state court would hold the

claim procedurally barred).

The adequacy of a state procedural bar to the assertion of a federal question

is itself a federal question. Lee, 534 U.S. at 375. To foreclose federal review, the

state procedural bar must be firmly established and regularly followed, that is, not

applied in an arbitrary or unprecedented fashion. Ford v. Georgia, 498 U.S. 411,

The “adequate and independent state grounds” rule applies equally to procedural and substantive

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state-law grounds. Lee v. Kemna, 534 U.S. 362, 375 (2002).

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423-24 (1991). A state procedural bar is firmly established and regularly followed

when the state has put litigants on notice of the rule, and the state has a legitimate

interest in the rule’s enforcement. Maples v. Allen, 586 F.3d 879, 888 (11th Cir. 2009)

(citing Lee, 534 U.S. at 385-88) (cert. granted by Supreme Court, 131 S. Ct. 1718

(2011)) .

To overcome a procedural default so that the federal habeas court may reach

the merits of a claim, petitioner must show either “cause for the default and actual

prejudice resulting therefrom,” or a fundamental miscarriage of justice. Kelley v.

Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v. Head, 209

F.3d 1257, 1261 (11th Cir. 2000). Cause exists when an external impediment, such

as governmental interference or the reasonable unavailability of the factual basis for

the claim, prevented petitioner from raising the claim. McCleskey v. Zant, 499 U.S.

467, 497 (1991) (superseded by AEDPA statute, but holding is still good law as cited

and followed by the Eleventh Circuit in High, 209 F.3d at 1262-63). To meet the

miscarriage of justice exception, petitioner must show that “a constitutional

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

because “it is more likely than not that no reasonable juror would have convicted

him.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (superseded by AEDPA statute, but

holding is still good law as cited and followed by the Eleventh Circuit in High, 209

F.3d at 1270). Further:

[A] substantial claim that constitutional error has caused the conviction

of an innocent person is extremely rare. To be credible, such a claim

requires [a] petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial.

Id. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

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Deference to state court findings of fact

Federal habeas courts defer to the state court’s findings of fact, unless

petitioner shows by clear and convincing evidence that it was unreasonable. See

28 U.S.C. § 2254(d)(2); 28 U.S.C. § 2254(e)(1); Callahan v. Hall, 427 F.3d 897, 926 (11th

Cir. 2005) (quoting the statute’s language) (“[Section] 2254(d)(2) allows for relief

where the state court 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 the AEDPA, the state court does not have to

explicitly state its findings of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72

(11th Cir. 2008). State court findings of fact can be implied from the opinion and the

record when they are necessary to the Rule 3.850 court’s rejection of a petitioner’s

claim. Id. These implicit findings are entitled to deference. Id. As explained in the

Standard of Review, supra, the state court is not required to cite or be aware of the

relevant Supreme Court precedent as long as its conclusion is not contradictory. 

Early, 537 U.S. at 8. A summary adjudication with a brief, or total lack of, statement

of reasons is still an adjudication on the merits. Harrington, 131 S. Ct. at 780, 784;

see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an ‘adjudication on the

merits’ is best defined as any state court decision that does not rest solely on a state

procedural bar.”)

Under Eleventh Circuit precedent, the habeas court will “‘look through’ a

summary decision to the ‘last reasoned decision’ on the issue.” McGahee v. Ala.

Dep’t of Corr., 560 F.3d 1252, 1262 n.12 (11th Cir. 2009) (quoting Sweet v. Sec’y,

Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006)); see also Ylst v. Nunnemaker, 501

U.S. 797, 802 (1991) (quoting Coleman, 501 U.S. at 740) (the Harris presumption only

applies after the habeas court determines that “‘the relevant state court decision. .

.fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal]

law.’”) 

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PETITIONER’S GROUNDS FOR RELIEF

Ground One Ineffective Assistance of Counsel for Failure to File a Sufficient 

Motion for Judgment of Acquittal 

Mr. Dismukes’ alleges that his trial attorney’s argument on premeditation

during his motion for a judgment of acquittal was “boilerplate” and thus, insufficient

to preserve the issue for appellate review (ex. G, p. 6-16). Mr. Dismukes’ avers that

his counsel failed to argue that evidence of premeditation was solely circumstantial,

which would have entitled him to a special standard of review on the issue pursuant

to the Florida circumstantial rule. Id. 

State Court Decision

The Rule 3.850 court did not hold a hearing and issued an opinion explaining

that the special standard of review was not applicable to the case at bar due to the

direct evidence presented at trial (ex. G, p. 44-45). It further stated that “‘[t]he law

is clear that a trial court should rarely, if ever, grant a motion for judgment of

acquittal on the issue of intent’” as is the case with premeditation. Id. at 45 (quoting

Washington v. State, 737 So. 2d 1208, 1215-16 (Fla. 1 DCA 1999)). The Rule 3.850

st

court concluded that because “the evidence was sufficient to present a question for

the jury” defendant failed to show that his trial counsel’s performance was deficient

or prejudicial. Id. at 46.

Federal Review of State Court Decision

In his Rule 3.850 motion for post-conviction relief, Mr. Dismukes raised this

claim strictly in state law grounds, failing to cite any federal case, or even mention

the United States’ Constitution in support of his arguments (ex. G, p. 6-16). In fact,

it is in his reply to the state’s response to the writ of habeas corpus that Mr.

Dismukes asserts for the first time his Fourteenth Amendment right to due process

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in relation to his counsel’s fiduciary duty to represent him “with the utmost degree

of ‘honesty,’ ‘forthrightness,’ ‘loyality’ (sic), and ‘fidelity’” as discussed by the

Supreme Court in Strickland (doc. 33, pp. 9-10). 

However, respondent does not argue that Mr. Dismukes failed to put the state

on notice as to the federal nature of his ineffective assistance of counsel claim. 

Likely because Mr. Dismukes based his motion for post conviction relief on that

claim, but simplydivided the same pursuant to three different reasons. He also cited

federal case law and the U.S. Constitution throughout the rest of his arguments.

Therefore, the state court was put on notice of Mr. Dismukes’ federal claim, and it

is not procedurally defaulted.

The trial court was required to apply the following standard, enunciated bythe

Florida Supreme Court, in evaluating defense counsel’s motion for judgment of

acquittal:

A defendant, in moving for a judgment of acquittal, admits not only the

facts stated in the evidence adduced, but also admits every conclusion

favorable to the adverse party that a jury might fairly and reasonably

infer from the evidence. The courts should not grant a motion for

judgment of acquittal unless the evidence is such that no view which

the jury may lawfully take of it favorable to the opposite party can be

sustained under the law. Where there is room for a difference of

opinion between reasonable men as to the proof or facts from which an

ultimate fact is sought to be established, or where there is room for

such differences as to the inferences which might be drawn from

conceded facts, the Court should submit the case to the jury for their

finding, as it is their conclusion, in such cases, that should prevail and

not primarily the views of the judge. The credibility and probative force

of conflicting testimony should not be determined on a motion for

judgment of acquittal.

Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) (citations omitted).

Under Florida law in effect at the time of Mr. Dismukes’ offense, attempted

first degree premeditated murder with a firearm was defined, in pertinent part, as

follows:

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A person who attempts to commit an offense prohibited by law and in

such attempt does any act toward the commission of such offense, but

fails in the perpetration or is intercepted or prevented in the execution

thereof, commits the offense of criminal attempt, ranked for purposes

of sentencing as provided in subsection (4). Fla. Stat. §777.04(1) (1998).

The unlawful killing of a human being [w]hen perpetrated from a

premeditated design to effect the death of the person killed or any

human being is murder in the first degree and constitutes a capital

felony, punishable as provided in s. 775.082. Fla. Stat. § 782.04(1)(a)(1)

(2005).

Thus, to prove the crime, the state had to establish beyond a reasonable doubt

that Mr. Dismukes with premeditated design attempted yet failed to murder the

victim using a firearm. Viewed in a light most favorable to the state, Mr. Dismukes

shot an unarmed man in the back while he was running away (ex. C, pp. 82, 96-98,

111-114, 129-130, 143-145, 152, 158, 160-167, 173, 195, 201-207). The physical and

testimonial evidence presented by the state was sufficient to permit a rational juror

to conclude that Mr. Dismukes committed the crime as charged. Id. Since a rational

trier of fact could have found guilt beyond a reasonable doubt, there was no legal

basis for the trial court to grant a judgment of acquittal even if Mr. Dismukes’ trial

counsel had argued more specific grounds in her motion, including any argument

of the Florida circumstantial evidence rule. Belcher v. State, 961 So.2d 239, 254-55

(Fla. 2007) (concluding that due to the sufficient and substantial evidence presented

to support the conviction, failure to argue a successful motion for judgment of

acquittal and obtain a special jury instruction on the circumstantial evidence rule did

not constitute ineffective assistance of counsel). Mr. Dismukes fails to demonstrate

a reasonable probability that the trial court would have granted the motion if his trial

counsel would have argued the same more effectively, or that the Florida

circumstantial evidence rule applies to his case.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

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based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. Dismukes is not

entitled to federal habeas relief, and the writ should not issue.

Ground Two Denial of Sixth Amendment Right to Effective Assistance of 

Counsel Due to Failure to Call Expert to Testify as to Human 

Perception and Memory Under High Stress Situations

Mr. Dismukes contends that trial counsel’s failure to present expert testimony

regarding his state of mind during the incident constitutes ineffective assistance of

counsel in violation of his Sixth Amendment rights (ex. G, pp. 16-24). He asserts that

his trial counsel failed to research and prepare because if she had, she would have

found the research of combat stress experts to explain his state of mind at the time

of the shooting. Id. Expert testimony would have allegedly aided the jury in its

determination of whether Mr. Dismukes shot Mr. Cooper with premeditation or

whether he merely reacted or even overreacted to the stressful and dangerous

situation that transpired. Id.

State Court Decision

The Rule 3.850 court held that “[p]ure speculation cannot support

postconviction relief” as is Mr. Dismukes’ argument that expert testimony would

have swayed the jury’s verdict (ex. G, pp. 46-47 (citing Bass v. State, 932 So. 2d

1170, 1172 (Fla. 2d DCA 2006))). It further reasoned that Mr. Dismukes failed to

demonstrate prejudice because the facts of the case were undisputed: he shot the

victim in the back as the victim was fleeing. Id. at 47. Thus, the Rule 3.850 court

concluded that Mr. Dismukes failed to show how an expert could have proffered

testimony regarding his perceptions in order to justify that he reasonably felt

threatened by a fleeing victim. Id.

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Federal Review of State Court Decision

As discussed in detail above, this court owes deference to the state courts’

rulings, and cannot disturb them so long as there was a “satisfactory conclusion.” 

Williams, 529 U.S. at 410-12; see also Crawford, 311 F.3d at 1295 (explaining that

AEDPA provides for a “highly deferential standard of review” for factual

determinations made by a state court).

The fatal defect in Mr. Dismukes’ position is his failure to offer any persuasive

evidence that the combat stress expert would have made a difference. The Rule

3.850 court held that it would not. Several facts support this finding. As the Rule

3.850 court noted, the facts in this case were undisputed. Mr. Dismukes shot a

fleeing unarmed man in the back several times. There was extensive witness

testimony and physical evidence to establish this (ex. C, pp. 82, 96-98, 111-114, 129-

130, 143-145, 152, 158, 160-167, 173, 195, 201-207). Mr. Dismukes does not deny his 8

actions, but merely contests his state of mind at the time of the shooting, alleging

that he felt threatened by the fleeing victim.

Mr. Dismukes speculates that it would have been easy to find a combat stress

expert, but he offers no evidence to support this, or that the expert would have

supported his claim. This court will not “‘blindly accept speculative and inconcrete

claims . . . .’” Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) (quoting

Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir. 1981)). Absent evidence in the

record, a court cannot consider a habeas petitioners’ bald assertions on a critical

issue in his petition (in state and federal court), unsupported and unsupportable by

anything else contained in the record, to be of probative evidentiary value. Woodard

v. Beto, 447 F.2d 103, 104-05 (5th Cir. 1971). Thus, mere conclusory allegations do 9

Mr. Dismukes did not testify in his trial. This statement is based on his trial strategy according to

8

the transcript, as well as his numerous pleadings in the state courts and this court.

Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30,

9

1981 are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th

Cir.1981) (en banc).

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not raise a constitutional issue in a habeas proceeding. United States v. Jones, 614

F.2d 80, 82 (5th Cir. 1980).

The Rule 3.850 court’s holding that Mr. Dismukes’ claim is pure speculation

and lacks proof of prejudice is not an unreasonable application of Strickland. Trial

counsel’s performance is not deficient merely because it is not perfect. 

“[J]udicial scrutiny of counsel’s performance must be highly

deferential.” Because retrospective evaluation of a lawyer’s

performance can be difficult, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance . . . . In light of the “strong

presumption in favor of competence,” we have held that in order to

prove deficient performance, “a petitioner must establish that no

competent counsel would have taken the action that his counsel did

take.”

Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting Strickland, 466 U.S.

at 687, 689-90 and Chandler v. United States, 218 F.3d at 1315). Here, trial counsel

had a strategy, which she discussed with Mr. Dismukes via letter, and he agreed

with the same even going on the record and stating that he was satisfied with her

services. Ex. C, pp. 211-213. It is not unreasonable for the Rule 3.850 court to find

that trial counsel’s performance was not deficient or prejudicial to Mr. Dismukes.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. Dismukes is not

entitled to federal habeas relief, and the writ should not issue.

Ground Three Ineffective Assistance of Counsel Due to Failure to Object to 

Improper Prosecutorial Comments

Mr. Dismukes’ final claim is that his counsel was ineffective in failing to object

to impermissible comments bythe state during closing statements (ex. G, pp. 25-29). 

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The prosecutor’s comments referenced the unknown location of the gun used byMr.

Dismukes in the shootings. Id. He argues that the prosecutor’s inquiry “Where is

the gun?” referred to his post-arrest silence. Id., ex. C p. 222. He also argues that

the prosecutor inappropriately pointed out the details of the justifiable homicide he

committed immediately prior to shooting the victim of the crime that he was charged

and convicted of, the subject of this petition for writ (ex. G, pp. 25-29). He asserts

that this was highly prejudicial because the jury could convict him based on the

justifiable killing as opposed to the crime charged, and therefore, his counsel should

have objected in order to obtain a curative instruction by the trial court. Id.

State Court Decision

The Rule 3.850 court held that comments by the prosecution on

uncontradicted evidence is permissible (ex. G, p. 48). The fact that the gun used by

Mr. Dismukes was never recovered was uncontroverted. Id. The Rule 3.850 court

reasoned that he was not the only person that could provide the gun’s whereabouts,

and thus, the prosecutor’s rhetorical question did not relate to Mr. Dismukes’ postarrest silence. Id. The court further noted the well-established principle under

Florida law that fleeing the scene of a crime can be considered as circumstantial

evidence of guilt. Id. at 49. Therefore, the prosecutor’s discussion of Mr. Dismukes

actions after the shooting was not improper. Id. The Rule 3.850 court also

repudiated Mr. Dismukes’ allegation that he was convicted because the jurybelieved

he got away with murder as pure speculation, which cannot support his postconviction relief. Id. It concluded that Mr. Dismukes’ counsel was not ineffective for

failure to object because the comments were unobjectionable, and he failed to prove

counsel’s performance was either deficient or prejudicial. Id. 

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Federal Review of State Court Decision

In order to succeed on this claim, petitioner must show, first, that the

prosecutor’s behavior was improper. If the prosecution’s behavior was not

improper, there was no basis upon which counsel could object. It is long

established Supreme Court law that prosecutors must refrain from improper

methods calculated to produce a wrongful conviction; they may strike hard blows

but are not at liberty to strike foul ones. Berger v. United States, 295 U.S. 78, 88

(1935). “A lawyer shall not . . . state a personal opinion as to . . . the credibility of a

witness . . . or the guilt or innocence of an accused” and shall not “use arguments

calculated to inflame the passions or prejudices of the jury.” Darden v. Wainwright,

477 U.S. 168, 181 (1986) (citing Model Rules of Professional Conduct, Rule 3.4(e)

(1984); Code of Professional Responsibility, DR 7-106(C)(4) (1980); ABA Standards

for Criminal Justice: 3-5.8(b) (2d Ed. 1980)). 

In applying the various professional standards to the conduct of attorneys

who appear before them, courts must not lose sight of the reality that “[a] criminal

trial does not unfold like a play with actors following a script.” United States v.

Young, 470 U.S. 1, 10 (1985) (quoting Geders v. United States, 425 U.S. 80, 86 (1976)). 

“[I]n the heat of argument, counsel do occasionally make remarks that are not

justified by the testimony, and which are, or may be, prejudicial to the accused.” Id.

(citing Dunlop v. United States, 165 U.S. 486, 498 (1897)). 

Challenges to allegedlyimproper prosecutorial comments are not infrequent. 

However, in evaluating a prosecutorial indiscretion:

it is not enough that the prosecutors’ remarks were undesirable or even

universally condemned. 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, 477 U.S. at 181 (internal citations omitted); Donnelly v. DeChristoforo, 416

U.S. 637, 647 (1974); United States v. Young, 470 U.S. at 10. Inappropriate

prosecutorial comments, standing alone, do not justify a reviewing court to reverse

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a criminal conviction obtained in an otherwise fair proceeding. Instead, the remarks

must be examined within the context of the trial. Young, 470 U.S. at 11.

Furthermore, not every remark that stings is improper. “In closing argument, a

prosecutor is not prohibited from making ‘colorful and perhaps flamboyant’ remarks

if they relate to the evidence adduced at trial.” United States v. Mock, 523 F.3d 1299,

1302 (11th Cir. 2008) (quoting United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir.

1992). 

The undersigned has carefully read the entire trial transcript. Within the

context of the entire trial, the prosecutor’s comments concerning the unknown

location of the gun used by Mr. Dismukes and his fleeing the scene and hiding for

three weeks after the shooting were not improper. As respondent correctly notes,

the state is allowed to argue consciousness of guilt, which is what the prosecutor

did during closing argument. The Rule 3.850 court found that these comments did

not refer to Mr. Dismukes’ post-arrest silence, but instead to uncontroverted

evidence in the record and consciousness of guilt. This was not an unreasonable

finding. 

Nothing the prosecutor said infected the trial with unfairness such that the

resulting conviction constituted a denial of due process to Mr. Dismukes. Even if

the comments were considered improper, which this court does not find, Mr.

Dismukes bases this ineffective assistance of counsel solely on speculation - that

because of these comments he was convicted of the justifiable killing and not the

charged premeditated first degree murder. Post-conviction relief cannot be

premised on such conjecture. Bass, 932 So. 2d at 1172. Mr. Dismukes failed to

prove his trial counsel’s performance was deficient, or that he suffered prejudice for

her failure to object to the prosecutor’s comments. 

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

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presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. Dismukes is not

entitled to federal habeas relief, and the writ should not issue.

CONCLUSION

The undersigned has carefully reviewed the trial transcript, post-conviction

motions, orders, records on appeal, and all submissions in this proceeding. Mr.

Dismukes’ claims are without merit and he is not entitled to federal habeas relief.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” If a certificate is

issued, “the court must state the specific issue or issues that satisfy the showing

requiredby28 U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Cases. 

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)

(explaining how to satisfy this showing) (citation omitted). Therefore, it is

recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” 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.

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Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Dismukes in the

Circuit Court of Escambia County, Florida, case no. 06-4810, be DENIED and the

clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 10 day of January, 2012. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does

not control. A copy of any objections shall be served upon any other parties. 

Failure to object may limit the scope of appellate review of factual findings. See

28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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