[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13–11034

Non-Argument Calendar

________________________

D.C. Docket No. 3:09–cv–01174–MMH–JRK

ENOCH E. DINKENS, JR.,

 Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

FLORIDA ATTORNEY GENERAL,

 Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(February 19, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

Case: 13-11034 Date Filed: 02/19/2014 Page: 1 of 10 
2

Enoch Dinkens is currently serving a life sentence for sexual battery on a 

“mentally defective” woman in violation of Fla. Stat. § 794.011. After the Middle 

District of Florida denied his second amended habeas corpus petition pursuant to 

28 U.S.C. § 2254, this Court granted Dinkens a certificate of appealability (COA). 

The COA was limited to the question of whether the district court erred in denying 

Dinkens’s motion for a judgment of acquittal because the State failed to prove that 

the victim was “mentally defective” on the date of the incident and his appellate 

counsel was ineffective for not raising the argument that the trial court erred in 

doing so. After careful review, we affirm.

I.

When the mother of the victim testified at trial in April 2007, her daughter 

J.W. was eighteen years old. At the age of two, J.W. began having seizures that 

continued to the present and had stunted her mental development. J.W. cannot 

perform simple tasks: she is unable to brush her hair, tie her shoes, or bathe 

herself, and she wears adult diapers because she has no control of her bowels. 

Similarly, she can only count to ten, cannot read, and cannot tell right from left.

On September 17, 2006, J.W. was left by her mother with two cousins while 

she went shopping. When the mother returned she saw Dinkens, who was not at 

the house when she left, standing near one of the bedrooms, and then saw J.W. 

come out of one of the rooms. Dinkens was a distant relative who had known J.W. 

Case: 13-11034 Date Filed: 02/19/2014 Page: 2 of 10 
3

since she was a child. Previously, Dinkens had been around J.W., observed her 

behavior, and been unable to have a conversation with her because of her mental 

difficulties. Later, speaking with police, Dinkens stated that he had followed J.W. 

into the bedroom and had sex with her. When Dinkens heard J.W.’s mother pull 

up to the home, he hurried to put J.W.’s pants on. J.W.’s mother asked Dinkens 

what he had been doing, he told her, “and then [J.W.] told them I had done it to 

her.” Dinkens admitted to the police that “he knew that [J.W.] was mentally 

handicapped, which was what was—had been eating him up since it occurred.”

At trial, Dr. Alan Harris testified as an expert in the area of psychology. He 

met with J.W. on January 18, 2007. After administering an intelligence test, Harris 

found that J.W.’s IQ placed her between moderately and severely retarded. He 

concluded that she functioned at about the level of a three year old. Based on 

Harris’s evaluation, he believed that J.W. would not be able to give a knowing, 

voluntary, and intelligent consent to intercourse.

Through counsel, Dinkens moved for a judgment of acquittal based on the 

State’s failure to prove that (1) he had actual knowledge or reason to believe that 

J.W. was “mentally defective” and (2) J.W. was “mentally defective” at the time of

the incident. He asserted that the testimony as to J.W.’s mental disability only 

related to the time of testing by Harris, not the date of the incident. The court 

denied the motion for judgment of acquittal, and the jury found Dinkens guilty. 

Case: 13-11034 Date Filed: 02/19/2014 Page: 3 of 10 
4

The court sentenced Dinkens to life imprisonment because he was a habitual 

offender.

Through different counsel, Dinkens unsuccessfully appealed his conviction 

and sentence, but did not raise the argument that the trial court erred in denying his 

motion for a judgment of acquittal. Next proceeding pro se, Dinkens filed a 

petition for a writ of habeas corpus, arguing, in relevant part, that his appellate 

counsel was ineffective for not arguing that the trial court erred in denying his 

motion for a judgment of acquittal. The First District Court of Appeal issued a per 

curiam opinion denying Dinkens’s petition, stating, “[t]he petition alleging 

ineffective assistance of appellate counsel is denied on the merits.”

II.

We review de novo a district court’s denial of a habeas petition and review 

its factual findings for clear error. Sims v. Singletary, 155 F.3d 1297, 1304 (11th 

Cir. 1998). A habeas petition based on ineffective assistance of counsel presents a 

mixed question of law and fact that we review de novo. Id.

We may not grant habeas relief on claims that were adjudicated on the 

merits in state court unless the state court’s decision “was contrary to, or involved 

an unreasonable application of, clearly established Federal law, as determined by 

the Supreme Court of the United States” or “was based on an unreasonable 

determination of the facts in light of the evidence presented in the State court 

Case: 13-11034 Date Filed: 02/19/2014 Page: 4 of 10 
5

proceeding.” 28 U.S.C. § 2254(d). A state court’s summary adjudication of a 

petitioner’s claim without an accompanying statement of reasons is an adjudication 

on the merits and is entitled to deference. Harrington v. Richter, 562 U.S. ___, 131 

S. Ct. 770, 785 (2011); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 

(11th Cir. 2002). 

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the 

Supreme Court set out the now familiar two-part inquiry for ineffective assistance 

of counsel claims that examines both performance and prejudice. Id. at 687, 104 S. 

Ct. at 2064. To establish deficient performance, the petitioner must show his 

counsel’s performance was objectively unreasonable in light of prevailing 

professional norms at the time the representation occurred. Id. at 687–88, 104 S.

Ct. at 2064–65. In assessing an appellate attorney’s performance, we are mindful 

that the Sixth Amendment does not require counsel to raise non-frivolous issues. 

Heath v. Jones, 941 F.2d 1126, 1130–31 (11th Cir. 1991). Prejudice is a 

“reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. 

at 2068. In order to establish prejudice based on counsel’s failure to raise a claim 

on appeal, we must review the merits of the omitted claim. See Heath, 941 F.2d at 

1132. Counsel’s performance will be deemed prejudicial if we find that “the 

neglected claim would have a reasonable probability of success on appeal.” Id. 

Case: 13-11034 Date Filed: 02/19/2014 Page: 5 of 10 
6

The standard of review is “doubly deferential” when “a Strickland claim [is] 

evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 

111, 123, 129 S. Ct. 1411, 1420 (2009). “The question is not whether a federal 

court believes the state court’s determination under the Strickland standard was 

incorrect but whether that determination was unreasonable—a substantially higher 

threshold.” Id. (quotation marks omitted).

III.

“We start, as always, with the language of the statute.” Schwarz v. City of 

Treasure Island, 544 F.3d 1201, 1214 (11th Cir. 2008). Under Florida law, a 

person is “mentally defective” if she has a “mental disease or defect which renders 

[her] temporarily or permanently incapable of appraising the nature of . . . her 

conduct.” Fla. Stat. § 794.011(1)(b). It is a first degree felony for a person to 

commit sexual battery upon a “mentally defective” person who is 12 years of age 

or older when the offender knows or has reason to believe that the victim is 

“mentally defective.” Id. § 794.011(4)(e). 

When granting Dinkens’s COA, we cited the case of Mathis v. State, 682 So.

2d 175 (Fla. 1st DCA 1996). Mathis is instructive on the issue of how Dinkens’s 

sufficiency of the evidence claim would have been treated had his appellate 

counsel raised the issue on direct appeal. In that circumstance, the state appellate 

court would have determined “whether, viewing all of the evidence and inferences 

Case: 13-11034 Date Filed: 02/19/2014 Page: 6 of 10 
7

fairly to be drawn therefrom in a light most favorable to the state, a reasonable jury 

might have found that the alleged victim was ‘mentally defective,’ as that term is 

defined in [Fla. Stat.] section 794.011(1)(b), on the date of the alleged sexual 

battery.” Id. at 181.

In Mathis, Florida’s First District Court of Appeal considered whether the 

evidence presented at trial was legally sufficient to establish that the purported

victim was “mentally defective” at the time of the offense. Id. at 180–81. To 

establish that the alleged victim was “mentally defective,” the State presented the 

testimony of a school psychologist. Id. at 180. The psychologist testified that she 

had administered tests to the victim 15 months before the date of the alleged sexual 

battery in order to determine the victim’s IQ. Based on those test results, she

determined that the victim was at the upper end of the “trainable mentally 

handicapped range” and that the victim’s developmental age was between five and 

seven years old. Id. The psychologist was never “asked whether, on the date of 

the alleged sexual battery, the alleged victim was suffering from a mental disease 

or defect which rendered her temporarily or permanently incapable of appraising 

the nature of her conduct.” Id. (quotation marks and alterations omitted). The 

court noted that “no direct evidence whatsoever was offered on th[at] issue.” Id. 

The court rejected the State’s argument that a reasonable juror could infer from the 

alleged victim’s IQ and mental development age 15 months prior to alleged sexual 

Case: 13-11034 Date Filed: 02/19/2014 Page: 7 of 10 
8

battery that the victim was “mentally defective” on the date of the charged 

incident. Id. The court rejected this argument because the State had offered no 

evidence of any correlation “between IQ and ‘mental and developmental age,’ and 

the ability to understand ‘the nature’ of one’s ‘conduct.’” Id. at 180–81.

Applying the doubly deferential standard of review to Dinkens’s § 2254 

petition, the state court’s denial of Dinkens’s ineffective assistance of appellate 

counsel claim was not unreasonable. See Knowles, 556 U.S. at 123, 129 S. Ct. at 

1420. In light of Mathis, a reasonable attorney may have chosen to argue that the 

trial court erred in denying a judgment of acquittal on the grounds that the 

evidence was legally insufficient to show that the alleged victim was “mentally 

defective” at the time of the offense. However, based on the factual distinctions 

between Dinkens’s case and Mathis, the state court’s implicit finding that 

counsel’s performance was not deficient is not unreasonable.

In Mathis, the State sought to establish that the victim was “mentally 

defective” through the testimony of the school psychologist who examined the 

victim 15 months prior to the sexual battery. 682 So.2d at 180. In Dinkens’s case, 

the State presented significantly more evidence to establish that J.W. was 

“mentally defective” on the date of the offense, or at least reasonable inferences to 

be drawn from them. See id. at 181. The State presented the testimony of both 

Harris, a psychologist who examined J.W. four months after the incident, and 

Case: 13-11034 Date Filed: 02/19/2014 Page: 8 of 10 
9

J.W.’s mother. While Harris testified on cross-examination that he did not ask 

J.W. any questions to determine her mental state on the date of the alleged sexual 

battery, J.W.’s mother testified about J.W.’s mental capacity at the time of the 

incident. Also, Harris testified that J.W. had a previous diagnosis of moderate 

mental retardation. Additionally, the detective investigating the case testified that 

he was unable to communicate with J.W. despite efforts to do so.

Therefore, unlike in Mathis, there was evidence from which the jury could 

infer that the victim was “mentally defective” at the time of the crime. The jury 

did not have to rely solely on making inferences from expert testimony regarding 

IQ and developmental age, which were held to be insufficient in Mathis. As a 

result, Dinkens has not established that the state court’s determination that his 

appellate counsel’s performance was not deficient was contrary to or involved an 

unreasonable application of clearly established federal law. While it is conceivable 

that a Mathis-based appeal would have been successful, a reasonable jurist could 

conclude that Dinkens did not show a reasonable likelihood of success had his 

appellate counsel raised the claim on direct appeal.

IV.

Dinkens has not shown that the state court’s denial of his ineffective

assistance of counsel claim was contrary to, or an unreasonable application of, 

Case: 13-11034 Date Filed: 02/19/2014 Page: 9 of 10 
10

Strickland. Therefore, federal habeas relief is foreclosed. See 28 U.S.C. 

§ 2254(d). We affirm the district court’s denial of Dinkens’s § 2254 petition.

AFFIRMED.

Case: 13-11034 Date Filed: 02/19/2014 Page: 10 of 10