1:25-cv-00140•KING v. DIXON
Full text
1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION PATRICK BOSS KING, Petitioner, vs. Case No.: 1:25cv140/AW/ZCB RICKY D. DIXON, Respondent. ____________________________/ REPORT AND RECOMMENDATION Petitioner, Patrick King, filed an amended habeas corpus petition under 28 U.S.C. § 2254. (Doc. 7). Respondent has moved to dismiss, arguing that three of Petitioner’s claims are unexhausted and his fourth claim is either not cognizable or procedurally defaulted. (Docs. 14, 19). Petitioner concedes that his petition is a “mixed” petition that includes exhausted and unexhausted claims. (Doc. 21). He requests that the Court stay this case while he exhausts his unexhausted claim in state court. (Id.). For the reasons below, Petitioner’s motion for a stay should be denied and Respondent’s motion to dismiss should be granted. I. Background A jury in the Alachua County Circuit Court found Petitioner guilty of attempted first degree premeditated murder and use of a firearm Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 1 of 18
2 during the commission of a felony. (Doc. 14-9). The same day of the jury’s verdict, Petitioner pleaded guilty to possession of a weapon by a convicted felon. (Doc. 14-10). The trial court sentenced Petitioner to thirty-five years in prison. (Doc. 14-12). Petitioner appealed, and the First District Court of Appeal (“First DCA”) affirmed on June 3, 2025. (Doc. 14-17). Petitioner did not seek further direct appellate review. Nor did Petitioner seek postconviction relief in state court under Rule 3.850. Petitioner filed his federal habeas petition while his direct appeal was pending in the First DCA. (Doc. 1). Petitioner then filed an amended habeas petition. (Doc. 7). According to Petitioner, he did not exhaust state court remedies with respect to Grounds One, Two, and Three. (Id. at 9-15). Petitioner states he exhausted Ground Four by presenting it on direct appeal. (Id. at 15-16). Respondent has moved to dismiss the amended habeas petition. (Docs. 14, 19). Respondent agrees that Grounds One, Two, and Three are unexhausted and argues that Petitioner still has available procedural vehicles to present those claims in state court. (Doc. 14 at 6-10). Respondent argues that Ground Four does not state a cognizable habeas Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 2 of 18
3 claim, and even if it did, it must be dismissed because it is procedurally defaulted. (Doc. 19). For his part, Petitioner agrees that his amended petition is a “mixed” petition that includes both exhausted and unexhausted claims. (Doc. 21 at 1-2, 5). Petitioner asks the Court to stay the case, rather than dismiss his petition, while he exhausts his unexhausted claims in state court. (Id. at 1-6). II. Discussion A. Standards governing exhaustion, mixed petitions and stays The exhaustion requirement for § 2254 habeas cases is found in § 2254(b)(1), which provides that 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 unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This means that a state prisoner must give the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Only then Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 3 of 18
4 may a prisoner present claims to a federal court in a habeas petition.1 If a petitioner has not exhausted all claims presented in his § 2254 petition and he has not satisfied one of the exceptions to exhaustion, then “the district court should dismiss the petition without prejudice to allow exhaustion.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). Years ago, the Supreme Court recognized that the AEDPA’s one- year statute of limitation for federal habeas petitions multiplied the consequences of the complete exhaustion requirement and presented a risk that “petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 272-73, 275 (2005). In those circumstances, the Court may stay the case and hold the petition in abeyance to allow the petitioner to return to state court to exhaust the unexhausted claims. Id. at 277-78. 1 There are two exceptions to the exhaustion requirement. One is where “there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i). The second is where “circumstances exist that render such process ineffective to protect the [petitioner’s] rights.” Id., § 2254(b)(1)(B)(ii). Petitioner does not argue that either exception applies here. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 4 of 18
5 A stay and abeyance is permitted only in the following limited circumstances: (1) there is good cause for the petitioner’s failure to exhaust his claims first in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-78. The stay and abeyance procedure is limited to these extraordinary circumstances because of the potential to (1) frustrate “AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings”; and (2) undermine “AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his federal petition.” Id. at 277.2 For the reasons that follow, the Court finds that Petitioner’s amended § 2254 petition is indeed a mixed petition containing both unexhausted and exhausted (or “technically exhausted”) claims. The 2 In Rhines, the Court affirmed a stay of the petition because “if the District Court had dismissed Rhines’ mixed petition at that point, he would have been unable to refile in federal court after exhausting the unexhausted claims” because the federal statute of limitations expired while the federal petition was pending. 544 U.S. at 272-73. As the Court will explain later, that is not the case here. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 5 of 18
6 Court further finds that Petitioner has not shown good cause for failing to exhaust his unexhausted claims prior to filing this habeas case, and that dismissing his habeas petition will not unreasonably impair Petitioner’s ability to return to federal court after exhausting his claims. Thus, this case should be dismissed without prejudice. B. Petitioner’s amended petition is a “mixed” petition. Petitioner’s amended petition is a mixed petition because it includes both unexhausted and exhausted claims. The Court will go through each of Petitioner’s claims and explain which ones are unexhausted and which ones are exhausted. 1. Grounds One and Two are unexhausted. Grounds One and Two are claims of ineffective assistance of trial counsel. (Doc. 7 at 9, 11). Respondent argues these claims are unexhausted because they are properly raised by motion under Rule 3.850 of the Florida Rules of Criminal Procedure, and Petitioner has not filed one. (Doc. 14 at 8-10).3 3 As Respondent notes, Petitioner raised several claims of ineffective assistance of trial counsel in his pro se brief on direct appeal. (Doc. 14 at 8-9; Doc. 14-16). Regardless of whether Grounds One and Two were raised in Petitioner’s brief, he still could raise them in a Rule 3.850 motion. (Doc. 14 at 9-10). That is because the First DCA did not issue a Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 6 of 18
7 Respondent is correct. In Florida, claims of ineffective assistance of trial counsel are exhausted by presenting them to the trial court in a Rule 3.850 motion and, if unsuccessful, appealing to the First DCA. See Fla. R. Crim. P. 3.850; Fla. R. App. P. 9.141(b); see also Nieves v. Sec’y, Fla. Dep’t of Corr., 770 F. App’x 520, 521 (11th Cir. 2019). Petitioner does not dispute that Grounds One and Two have not been presented in a Rule 3.850 motion. (Doc. 14 at 9-11). The next question is whether Petitioner still has time to file a Rule 3.850 motion. The answer is yes―Petitioner still has time. A Rule 3.850 motion must be filed not more than two years after the judgment and sentence become final on direct review. Fla. R. Crim. P. 3.850(b). In cases like Petitioner’s, where the appellate court renders written opinion expressly addressing any issue of ineffective assistance of counsel, so Petitioner is not procedurally barred from presenting ineffective assistance of counsel claims in a Rule 3.850 motion. See Bruno v. State, 807 So. 2d 55, 63, 65, 67 & n.14 (Fla. 2001) (explaining that a claim of ineffective assistance of counsel generally can be raised in a Rule 3.850 motion but not on direct appeal and holding that the trial court erred by concluding that defendant’s ineffectiveness claims were procedurally barred); see also Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002) (explaining that “unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.”). Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 7 of 18
8 a decision without an opinion or citation, the judgment becomes final when the appellate court issues its mandate. Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997) (holding that two-year period for filing Rule 3.850 motion begins to run when the district court of appeal issues the mandate on direct appeal in cases where the appellate court’s decision was without an opinion or citation). The mandate in Petitioner’s direct appeal issued on July 1, 2025, so his judgment became final on that date. (Doc. 14-17). Petitioner has two years from that date, until July 1, 2027, to file a Rule 3.850 motion. Because Petitioner has not presented Grounds One or Two in state court, and he still has time to do so, Grounds One and Two are unexhausted. 2. Ground Three does not clearly present a claim for habeas relief, and to the extent Petitioner brings claims of ineffective assistance of counsel, those claims are unexhausted. Next up is Ground Three. Petitioner alleges: “Jurisdiction…The Court lacks jurisdiction to consider the instant petition as it challenges trial court decisions and issues which gave rise to the Defendant’s conviction and sentence.” (Doc. 7 at 13). Petitioner alleges he did not Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 8 of 18
9 raise this claim on direct appeal or in a Rule 3.850 motion due to his counsel’s deficiency. (Id. at 13, 15). It is not clear what habeas claim Petitioner is presenting in Ground Three. A claim for habeas relief must be clearly presented to the Court in order for the Court to address it. See Barritt v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020). On its face, Ground Three asserts that this Court lacks jurisdiction to consider his habeas petition. That is not a basis for habeas relief. If Petitioner’s references to counsel’s deficiency mean that he is presenting a claim of ineffective assistance of counsel (either trial counsel or appellate counsel) based on counsel’s failure to challenge the trial court’s jurisdiction to convict and sentence him, then those claims are unexhausted. As previously discussed, claims of ineffective assistance of trial counsel are properly raised in a Rule 3.850 motion. Petitioner has not filed a Rule 3.850 motion, and he still has time to do so. If Petitioner is claiming ineffective assistance of appellate counsel, that claim is exhausted by presenting it to the First DCA in a petition alleging ineffective assistance of appellate counsel under Fla. R. App. P. 9.141(d). Florida’s deadline for filing that type of petition is the same as Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 9 of 18
10 the Rule 3.850 deadline―it must be filed not more than two years after Petitioner’s judgment and sentence become final. Fla. R. App. P. 9.141(d)(5). As previously discussed, Petitioner’s judgment became final on July 1, 2025, so he has two years from that date to present a claim of ineffective assistance of appellate counsel. The only possible cognizable claim presented in Ground Three is ineffective assistance of counsel. Petitioner has not presented any ineffective assistance of counsel claims in state court, and he still has the opportunity to do so. For these reasons, Ground Three is unexhausted. 3. Ground Four is exhausted. In Ground Four, Petitioner alleges, “No probable cause.” (Doc. 7 at 15). Petitioner alleges there was “no probable cause…to support his arrest and conviction and no lawful basis to imprison the petitioner.” (Id.). Petitioner states he presented this claim on direct appeal. (Id. at 15-16). Respondent argues that Ground Four does not state a federal constitutional claim―as opposed to a state law claim―and even if it did, the federal claim is procedurally defaulted because Petitioner did not fairly present it as a federal claim on direct appeal. (Doc 19 at 3-8). Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 10 of 18
11 Regardless of whether Petitioner fairly presented a federal challenge to the sufficiency of the evidence on direct appeal, the claim is exhausted―if not actually exhausted, then technically exhausted. That is because if Petitioner fairly presented a federal claim on direct appeal, then the First DCA’s per curiam affirmance would be presumed an adjudication on the merits and exhausted for federal habeas purposes. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (explaining that when a state court summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits in the absence of any indication or state-law procedural principles to the contrary). If Petitioner did not fairly present a federal claim on direct appeal, then it would be procedurally defaulted and “technically exhausted” for federal habeas purposes. That is because challenges to the sufficiency of the evidence can be, and should be, raised on direct appeal. Jones v. State, 699 So.2d 809, 810 (Fla. 1st DCA 1997) (explaining that a challenge to the sufficiency of the evidence used to convict a defendant is an issue Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 11 of 18
12 for direct appeal). And because such claims are properly raised on direct appeal, Petitioner would be procedurally barred from raising it today in a state postconviction proceeding. See Howell v. State, 877 So.2d 697, 704 n.3 (Fla. 2004) (holding that defendant was procedurally barred from raising a sufficiency-of-the-evidence claim in a postconviction proceeding if the claim either was, or could have been, raised on direct appeal). Procedurally barred or defaulted claims are deemed “technically exhausted” for federal habeas purposes. See Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (explaining that in the habeas context, state court remedies are exhausted when they are no longer available, regardless of the reason for their unavailability). For these reasons, Ground Four is exhausted. Because Petitioner’s amended § 2254 petition includes unexhausted claims (Grounds One, Two, and any ineffective assistance of counsel claim in Ground Three) and an exhausted claim (Ground Four), the petition is a “mixed” one. The remaining question is whether Petitioner qualifies for a stay. For the reasons discussed below, the answer is no. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 12 of 18
13 C. Petitioner does not qualify for a stay of his mixed petition under Rhines. Petitioner argues that the Court should stay, rather than dismiss, his mixed amended habeas petition under Rhines. The Court disagrees because Petitioner has not satisfied Rhines’ “good cause” requirement, and dismissal of the amended petition will not impair Petitioner’s ability to return to federal court after he exhausts in state court. According to Petitioner, the reason he did not exhaust before he filed his federal petition is that he wanted to ensure he met the one-year federal filing deadline under 28 U.S.C. § 2244(d). (Doc. 21 at 1-2, 6). Under that statute, a petitioner generally must file his § 2254 petition within one year of the date the state court judgment became final. 28 U.S.C. § 2244(d)(1). Petitioner’s judgment became final, for purposes of § 2244(d), when the ninety-day window to seek review in the Supreme Court of the United States closed.4 Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006). That ninety-day period began on June 3, 2025—the date the First DCA affirmed Petitioner's judgment. (Doc. 14-17 at 2-3). Petitioner’s conviction became final ninety days later, 4 The “finality” date is calculated differently under federal law than Florida state law. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 13 of 18
14 on September 1, 2025. See Chavers, 468 F.3d at 1275 (finding that the one-year period began to run ninety days from the date the state appellate court issued its judgment and not from the date the mandate issued). The federal limitations clock started running the next day, September 2, 2025. See Fed. R. Civ. P. 6(a) (stating that when computing a time period for the occurrence of an event specified by the law, the Court should “exclude the day of the event that triggers the period”). The limitations period will not expire until September 2, 2026. The federal limitations clock is paused while a state postconviction motion is pending. 28 U.S.C. § 2244(d)(2). That means the clock would pause if Petitioner filed a Rule 3.850 motion (for claims of ineffective assistance of trial counsel) or a Rule 9.141(d) petition (for claims of ineffective assistance of appellate counsel). Because the federal clock would pause if Petitioner properly exhausted his ineffective assistance of counsel claims in state court, Petitioner had no good reason for filing his federal petition before he exhausted. And because Petitioner still has time on his federal limitations clock, dismissing his mixed petition will not unreasonably impair his ability to obtain federal habeas relief so long as Petitioner acts diligently by promptly filing his claims in state court Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 14 of 18
15 and then immediately re-filing his federal habeas petition when the state court proceedings have concluded. Petitioner has not shown good cause for his failure to exhaust his claims first in state court. And dismissing his amended petition will not impair his ability to come back to federal court once he exhausts. For these reasons, all of the qualifying circumstances for a stay and abeyance under Rhines are not present. III. Conclusion For the reasons discussed, Respondent’s motion to dismiss should be granted, and Petitioner’s amended petition dismissed without prejudice for failure to exhaust.5 See, e.g., Wharton v. Sec’y Fla. Dep’t of Corr., No.1:21cv181-AW-GRJ, 2022 WL 2992892, at *2-3 (N.D. Fla. June 17, 2022), adopted 2022 WL 2982479, at *1 (N.D. Fla. July 28, 2022) (dismissing mixed petition without prejudice where a stay was not appropriate and dismissal would not impair petitioner’s right to obtain federal relief after he exhausted his unexhausted claims); Wagner v. Inch, 5 A district court will rarely be found to have abused its discretion in dismissing without prejudice because the petitioner/plaintiff is ordinarily permitted to simply refile. McNair v. Johnson, 143 F.4th 1301, 1306 (11th Cir. 2025) (citation omitted). Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 15 of 18
16 No. 3:20cv5219, 2020 WL 4018613, at *2 (N.D. Fla. June 18, 2020), adopted 2020 WL 4018282, at *1 (N.D. Fla. July 16, 2020) (same).6 IV. 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,” 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).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must 6 The Court recognizes that if dismissal of the entire petition would unreasonably impair Petitioner’s right to obtain federal relief, then the Court should give Petitioner the option of deleting the unexhausted claims and proceeding on only the exhausted claim. Rhines, 544 U.S. at 278; see also Thompson v. Sec’y, Dep’t of Corr., 425 F.3d 1364 (11th Cir. 2005). That is not the case here because dismissal will not impair Petitioner’s right to come back to federal court so long as he acts promptly in both state and federal court. Having said that, Petitioner may file a second amended § 2254 petition that removes his unexhausted claims of ineffective assistance of counsel. If he chooses to do that, he should be aware that he risks forever losing the opportunity to bring those claims in federal court because a subsequent federal petition will be subject to “rigorous procedural obstacles,” such as being deemed a second or successive petition. See Burton v. Stewart, 549 U.S. 147, 155 (2007); see also Blackmon v. Sec’y, Dep’t of Corr., 803 F. App’x 232, 235 (11th Cir. 2020). Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 16 of 18
17 still be filed, even if the Court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b). “Section 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his [or her] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327). The petitioner here cannot make that showing. Therefore, the undersigned recommends that the district 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.” 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. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 17 of 18
18 Accordingly, it is respectfully RECOMMENDED that: 1. Petitioner’s motion for stay (Doc. 21) be DENIED. 2. Respondent’s motion to dismiss (Doc. 14) be GRANTED. 3. The amended petition under 28 U.S.C. § 2254 (Doc. 7) be DISMISSED without prejudice for failure to exhaust state remedies. 4. A certificate of appealability be DENIED. At Pensacola, Florida, this 26th day of February 2026. /s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge Notice to the Parties Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court’s internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 1:25-cv-00140-AW-ZCB Document 22 Filed 02/26/26 Page 18 of 18
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.