KING v. DIXON

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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
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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
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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
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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.
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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.
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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
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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.”).
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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
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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
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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).
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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
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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.
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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.
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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
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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).
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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).
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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.
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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.
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