Opinion

Jones v. Secretary, Department of Corrections (Putnam County)

Court: District Court, M.D. Florida
Filed: Dec 5, 2022
Cited by: 0 cases
Authority: More cited than 19.9%

holding counsel cannot be ineffective for failing to raise a meritless argument

How later courts described this case

holding counsel cannot be ineffective for failing to raise a meritless argument
“The question is whether some reasonable lawyer at the trial could have acted as defense counsel acted in the trial at issue and not what ‘most good lawyers’ would have done.”
stating that “perfection is not the standard of effective assistance”
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOHNNY L. JONES,

Petitioner,

v. Case No. 3:19-cv-1134-MMH-JBT

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Johnny L. Jones, an inmate of the Florida penal system,

initiated this action on October 3, 2019, by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Doc. 1). He filed an Amended Petition (Doc. 6)

on December 12, 2019.1 In the Amended Petition, Jones challenges a 2012 state

court (Putnam County, Florida) judgment of conviction for burglary while

armed with a firearm and grand theft. He raises five claims. See Amended

Petition at 5-16. Respondents have submitted a memorandum in opposition to

the Amended Petition, see Response to Petition (Response; Doc. 11), with

exhibits, see Docs. 11-1 through 11-4. Jones filed a brief in reply. See Reply

(Doc. 16). His Amended Petition is ripe for review.

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

II. Relevant Procedural History

On April 13, 2009, the State of Florida charged Jones with burglary while

armed with a firearm (count one) and grand theft (count two) in Putnam

County case number 2009-CF-534. Doc. 11-2 at 6. On November 2, 2012, Jones

filed two counseled motions to suppress statements he made to law

enforcement during a recorded interview on November 29th and 30th, 2008. In

the motions, he alleged that Detective Mike Kelly ignored his request for an

attorney, id. at 8, and that he was under the influence of drugs and intoxicants

at the time of his interview and was coerced by threats that his mother would

be prosecuted, id. at 10.2 The court held a hearing on November 20, 2012, id.

at 504-60, and denied the motions, id. at 562. At the conclusion of a trial on

November 20, 2012, the jury found Jones guilty of burglary (with special

findings that the structure was a dwelling, and that he was armed, armed

himself within the dwelling with a firearm, or helped another person or

persons arm themselves within the dwelling with a firearm) and grand theft.

Doc. 11-3 at 167-68, 184-85. That same day, the court sentenced Jones to life

imprisonment for count one and a term of imprisonment of five years for count

two. Id. at 187, Amended Judgment.

2 In response, the State argued that the claims were litigated and denied in

Jones’s other state-court criminal case (Putnam County case number 2008-CF-2437)

after a pretrial hearing on February 10th and 11th, 2010. Doc. 11-2 at 12-13.

On direct appeal, Jones, with the benefit of counsel, filed an Anders3

brief. Id. at 210. The State filed a notice that it did not intend to file a response.

Id. at 222. Jones filed a pro se brief, arguing that the trial court erred when it

denied his 2009 motion to suppress (ground one), 2012 motions to suppress

(grounds two and five), and motion to dismiss (ground four); instructed the jury

on an offense and theory not charged in the Information (ground three); and

sentenced him to life imprisonment (ground eight). Id. at 225-63. He also

argued that the State’s notice to seek prison releasee reoffender sentencing

(ground six) and the court’s defective verdict form (ground seven) violated his

due process rights. Id. The State filed a notice that it did not intend to file a

supplemental response. Id. at 265. The Fifth District Court of Appeal (Fifth

DCA) affirmed Jones’s conviction and sentence per curiam without issuing a

written opinion on April 1, 2014, id. at 268, and issued the mandate on April

25, 2014, id. at 270.

On June 9, 2014, Jones filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 272. In the request

for postconviction relief, Jones asserted that his trial counsel was ineffective

because he failed to: call Jones’s mother (Sandra L. Royal) and her boyfriend

(Lonnie Burt or Berr) as witnesses at the suppression hearing to impeach

3 Anders v. California, 386 U.S. 738 (1967).

Officer Kelly’s testimony (ground one), id. at 274-77; file a motion for change of

venue and question each prospective juror about preconceived notions (ground

two), id. at 277; call Assistant State Attorney Christopher Ferebee as a witness

at the suppression hearing (ground three), id. at 278-81; properly investigate

and prepare for the suppression hearing (ground four), id. at 281-83; hire an

expert videographer to determine if the interview DVD had been tampered

with (ground six), id. at 287-88; request an “independent act” jury instruction

(ground seven), id. at 288; request a jury instruction on trespassing as a lesser

included offense of burglary (ground eight), id. at 289; file a motion to

reconsider related to the illegal detention and arrest based on Garcia v. State,

88 So. 3d 394 (Fla. 4th DCA 2010) (ground nine), id. at 289-96; file a motion to

suppress related to Jones’s incriminating statements (ground ten), id. at 296-

300; and refer to Jones’s statement (that he told his co-defendant that no guns

would be taken or used) in closing argument (ground twelve), id. at 304-06. He

also argued that trial counsel was ineffective because he filed a boilerplate

motion to suppress (ground five), id. at 283-86, and misadvised and coerced

Jones not to testify at trial (ground eleven), id. at 300-04. The State responded,

id. at 316, and asked that the court set an evidentiary hearing on ground

eleven, id. at 319, and Jones replied, id. at 321. The court set an evidentiary

hearing on grounds two and eleven, and denied Jones’s postconviction motion

as to the remaining grounds. Id. at 329-35. On February 5, 2016, the court held

an evidentiary hearing, at which Jones represented himself and trial counsel

(Kevin R. Monahan) testified. Doc. 11-4 at 4-32. On March 29, 2016, the court

denied Jones’s Rule 3.850 motion as to ground two, and granted Jones’s request

to dismiss ground eleven. Id. at 34-36.

On appeal, Jones filed a pro se amended initial brief, id. at 92-137, and

the State filed an answer brief, id. at 139-51. On August 25, 2017, the Fifth

DCA, in a written opinion, reversed the trial court’s summary denial of grounds

three and seven, remanded the case for further proceedings as to those

grounds, and affirmed “without discussion” the trial court’s denial as to the

remaining grounds. Jones v. State, 226 So. 3d 1012 (Fla. 5th DCA 2017); Doc.

11-4 at 153-57. The court issued the mandate on September 20, 2017. Doc. 11-

4 at 159.

On remand, the State filed a response to the claims raised in grounds

three and seven, id. at 175-80, and Jones replied, id. at 312-16. The court

denied the Rule 3.850 motion as to these claims on February 6, 2019, id. at

318-21, and denied Jones’s pro se motion for rehearing on February 27, 2019,

id. at 468. On appeal, Jones filed an initial brief, id. at 474-88, and the State

declined to file an answer brief, id. at 490. The Fifth DCA per curiam affirmed

the trial court’s denial of the Rule 3.850 motion on July 2, 2019, id. at 493, and

issued the mandate on July 26, 2019, id. at 495.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Jones’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see Teasley v.

Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). Also,

deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v.

Pinholster, 563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)

“requires an examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”

on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92). Thus,

to the extent that a petitioner’s claims were adjudicated on the merits in the

state courts, they must be evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners 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).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the

constitutionality of a state prisoner’s conviction and

sentence are guided by rules designed to ensure that

state-court judgments are accorded the finality and

respect necessary to preserve the integrity of legal

proceedings within our system of federalism. These

rules include the doctrine of procedural default, under

which a federal court will not review the merits of

claims, including constitutional claims, that a state

court declined to hear because the prisoner failed to

abide by a state procedural rule. See, e.g., Coleman,[4]

supra, at 747-748, 111 S. Ct. 2546; Sykes,[5] supra, at

84-85, 97 S. Ct. 2497. A state court’s invocation of a

procedural rule to deny a prisoner’s claims precludes

federal review of the claims if, among other requisites,

the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is

firmly established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. 307, 316, 131 S. Ct. 1120,

1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,

558 U.S. 53, 60-61, 130 S. Ct. 612, 617-618, 175

L.Ed.2d 417 (2009). The doctrine barring procedurally

defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman,

501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

4 Coleman v. Thompson, 501 U.S. 722 (1991).

5 Wainwright v. Sykes, 433 U.S. 72 (1977).

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[6]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

6 Murray v. Carrier, 477 U.S. 478 (1986).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131

S.Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “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.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As ground one of the Amended Petition, Jones asserts that the trial court

erred when it denied his motion to suppress because the police illegally

detained and arrested him in violation of his federal constitutional rights.

Amended Petition at 5. Jones argued this issue, as ground one, in his pro se

brief on direct appeal, Doc. 11-3 at 235-38; the State notified the court that it

did not intend to file a response, id. at 265-66; and the Fifth DCA affirmed

Jones’s conviction per curiam, id. at 268.

Respondents contend that Jones’s Fourth Amendment claim is barred

because he had a full and fair opportunity to litigate it in the state courts.

Response at 15. The United States Supreme Court has held that “where the

State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976).

The Eleventh Circuit has explained:

An “opportunity for full and fair litigation”

means just that: an opportunity. If a state provides the

processes whereby a defendant can obtain full and fair

litigation of a fourth amendment claim, Stone v.

Powell bars federal habeas corpus consideration of

that claim whether or not the defendant employs those

processes.

Lawhorn v. Allen, 519 F.3d 1272, 1288 (11th Cir. 2008) (quoting Caver v.

Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)).

The laws and criminal rules of the state of Florida provide an

opportunity for the full and fair litigation of a Fourth Amendment claim. See

Fla. R. Crim. P. 3.190(g), (h). Jones availed himself of this opportunity when

he filed a motion to suppress, arguing in relevant part that the police illegally

detained and arrested him. The circuit court held an evidentiary hearing on

February 10th and 11th, 2010, Doc. 11-2 at 15-502, and ultimately denied the

motion to suppress and denied a request for reconsideration, id. at 562. Jones

also raised the issue on appeal in his pro se brief before the appellate court,

Doc. 11-3 at 235, and the appellate court issued a ruling, id. at 268. Given this

record, this Court cannot review the Fourth Amendment claim included in

ground one because Jones had a full and fair opportunity to litigate this Fourth

Amendment challenge before the state court. See Stone, 428 U.S. at 494;

Lawhorn, 519 F.3d at 1288. Therefore, Jones is not entitled to federal habeas

relief on the claim raised in ground one.

Alternatively, assuming that the claim is not barred, Jones,

nevertheless, is not entitled to relief on the basis of this claim. He raised this

issue on direct appeal. To the extent that the appellate court decided Jones’s

claim on the merits, the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications. After

a review of the record and the applicable law, the Court concludes that the

state court’s adjudication of the claim was not contrary to clearly established

federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings. Thus, Jones

is not entitled to relief on the basis of the claim in ground one.

B. Ground Two

As ground two, Jones asserts that the trial court erred when it denied

his motions to suppress statements he made to law enforcement on November

29th and 30th, 2008. Amended Petition at 7. He asserts that when he refused

to comply with law enforcement, they told him that his mother had been

arrested and would be charged if he did not make a statement. Id. Additionally,

he stated that he requested an attorney, but the officers erased that portion of

the recorded interview. Id. Jones argued these issues, as grounds two and five,

in his pro se brief on direct appeal, Doc. 11-3 at 239-49 (ground two), 255

(ground five); the State notified the court that it did not intend to file a

response, id. at 265-66; and the Fifth DCA affirmed Jones’s conviction per

curiam, id. at 268.

To the extent that the appellate court decided Jones’s claim on the

merits, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications. After a review of

the record and the applicable law, the Court concludes that the state court’s

adjudication of the claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Thus, Jones is not entitled

to relief on the basis of the claim in ground two.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Jones’s claim is without merit because the record

fully supports the trial court’s denial of Jones’s motions to suppress.7 Doc. 11-

2 at 15-502 (2010 hearing), 504-60 (2012 hearing), 562 (order denying motion

to suppress/reconsider).8 Accordingly, Jones is not entitled to federal habeas

relief on his trial court error claim in ground two.

C. Ground Three

As ground three in the Amended Petition, Jones asserts that counsel

(Kevin R. Monahan, Florida Bar #348546) was ineffective because he failed to

7 In relying on the factual findings made at the 2010 hearing, the trial court

stated that “Judge Hedstrom’s ruling was lawful” based on “over a day of testimony.”

Doc. 11-2 at 560.

8 Jones raised similar issues in his Rule 3.850 motion (grounds one, five, and

six), Doc. 11-3 at 274-77, 283-88; the postconviction court denied his motion as to the

ineffectiveness claims, id. at 329, and the Fifth DCA affirmed the postconviction

court’s denial as to the claims, see Jones, 226 So. 3d at 1013; Doc. 11-4 at 153 (“We

affirm the denial of the remaining grounds without discussion.”).

call a witness who would have provided favorable testimony at the suppression

hearing. Amended Petition at 8. According to Jones, an Assistant State

Attorney testified at deposition that investigators told him that Jones would

make a statement “to get relief or immunity for his relative.” Id. Jones

maintains that the Assistant State Attorney would have provided similar

testimony at the suppression hearing if counsel had called him as a witness.

Id.

Jones raised the claim in his Rule 3.850 motion (ground three), stating

that counsel was ineffective because he failed to call Assistant State Attorney

Ferebee as a witness at the suppression hearing. Doc. 11-3 at 278-81. The

postconviction court denied his request for postconviction relief with respect to

the claim, stating that “[a] review of the deposition of ASA Chris Ferebee

clearly refutes Defendant’s claims that he was coerced into making his

statements.” Id. at 332. On appeal, the Fifth DCA reversed the postconviction

court’s summary denial of the claim, stating in pertinent part:

In ground three, Jones argued his trial counsel

provided ineffective assistance by failing to call

Assistant State Attorney Chris Ferebee during a

suppression hearing. A facially sufficient claim of

ineffective assistance for failure to call a witness must

allege: “the identity of the potential witness, the

substance of the witness’ testimony, an explanation of

how the omission of the testimony prejudiced the

outcome of the case, and a representation that the

witness was available for trial.” Spellers v. State, 993

So. 2d 1117, 1118 (Fla. 5th DCA 2008) (citing Leftwich

v. State, 954 So. 2d 714 (Fla. 1st DCA 2007)). Jones

alleged that Ferebee would have testified that law

enforcement communicated to him that they also

arrested Jones’s mother, resulting in Jones’s

cooperation in exchange for the possibility of her

immunity.

In its order denying ground three, the

postconviction court noted that the trial court denied

the motion to suppress without a hearing and attached

the relevant motion and order. On appeal, Jones

challenges the postconviction court’s findings by

asserting that a suppression hearing actually did

occur, referring to it as the “hearing held on November

12, 2012,” which coincides with his trial date. A review

of the transcript in Jones’s direct appeal demonstrates

that the trial court heard the motion to suppress

before proceeding to trial, considering argument from

both sides. The State presented two witnesses, and

Jones testified on his own behalf. Thus, the

postconviction court incorrectly stated that no hearing

occurred.

The postconviction court further found that

Ferebee’s deposition, purportedly attached to the

order, refuted Jones’s claim of coercion. However, the

record does not include the deposition as an

attachment. Although the postconviction court

described “Appendix D” as containing Ferebee’s

deposition, the appendix, perhaps mistakenly,

contains only Jones’s mother’s deposition, not

Ferebee’s. Thus, because the order does not include

record attachments conclusively refuting ground

three, we reverse and remand for the postconviction

court to “attach the correct records or address the

claim on the merits.” See Hunter v. State, 187 So. 3d

1265, 1265 (Fla. 5th DCA 2016) (citing Fla. R. Crim. P.

3.850(f)(4)).

Jones, 226 So. 3d at 1013-14 (footnote omitted); Doc. 11-4 at 154-55. On

remand, the postconviction court denied Jones’s request for postconviction

relief with respect to the claim, stating in pertinent part:

On Ground Three, Defendant claims that Trial

Counsel was ineffective by failing to call State

Attorney Chris Ferebee as a witness at the

Suppression hearing.

As noted in the appellate opinion, the Trial

Court Order signed on July 6, 2015, incorrectly stated

that no suppression hearing occurred[,] and that

potential witness ASA Ferebee’s deposition was

attached as Appendix D. Apparently, the suppression

hearing was held immediately before trial on

November 12, 2012. The Court now attaches[,] as

Appendix A[,] a transcript of ASA Ferebee’s

deposition.[9]

After a review of Appendix A, the Court is not

convinced that testimony provided by Ferebee would

have been favorable to Defendant, nor would it have

supported Defendant’s assertion that he was coerced

into making his statements. Ground Three is denied.

Doc. 11-4 at 319 (emphasis deleted). The Fifth DCA affirmed the postconviction

court’s denial of relief.

To the extent that the appellate court decided Jones’s ineffectiveness

claim on the merits,10 the Court will address the claim in accordance with the

9 Doc. 11-4 at 323 (Deposition of Assistant State Attorney Ferebee).

10 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.

deferential standard for federal court review of state court adjudications. After

a review of the record and the applicable law, the Court concludes that the

state court’s adjudication of the claim was not contrary to clearly established

federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings. Thus, Jones

is not entitled to relief on the basis of the ineffectiveness claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Jones’s ineffectiveness claim is without merit because

the record supports the postconviction court’s conclusion. There is a strong

presumption in favor of competence when evaluating the performance prong of

the Strickland ineffectiveness inquiry. See Anderson v. Sec’y, Fla. Dep’t of

Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is “whether, in light of

all the circumstances, the identified acts or omissions were outside the wide

range of professionally competent assistance.” Strickland, 466 U.S. at 690.

“[H]indsight is discounted by pegging adequacy to ‘counsel’s perspective at the

time’ . . . and by giving a ‘heavy measure of deference to counsel’s judgments.’”

Rompilla v. Beard, 545 U.S. 374, 381 (2005). Thus, Jones must establish that

no competent attorney would have taken the action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

have done more nor whether the best criminal defense attorneys might have

done more; in retrospect, one may always identify shortcomings. Waters v.

Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (stating that “perfection is not the

standard of effective assistance”) (quotations omitted). Instead, the test is

whether what counsel did was within the wide range of reasonable professional

assistance. Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is

whether some reasonable lawyer at the trial could have acted as defense

counsel acted in the trial at issue and not what ‘most good lawyers’ would have

done.”) (citation omitted).

At a 2010 deposition, Ferebee testified that Investigator Middleton

called him because “Jones wanted [to] talk to a prosecutor to -- in order to gain

some sort of immunity or some sort of release for his relative.” Doc. 11-4 at 327.

According to Ferebee, Jones “basically said he was willing to cooperate in the

murder investigation, but he wanted to be promised something in return,” and

Ferebee responded that he would not promise Jones anything. Id. at 328.

Ferebee testified that his conversation with Jones lasted less than thirty

seconds, and he never spoke with Jones again. Id. At the 2012 suppression

hearing, the State called Detective Michael Kelly and Detective John Merchant

as witnesses. Doc. 11-2 at 504-22. Jones testified on his own behalf, stating

that he was never promised anything in return for his statements. Id. at 535,

540-41.

On this record, Jones has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonable professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Jones has not shown any resulting prejudice. He has not shown that a

reasonable probability exists that the outcome of the case would have been

different if counsel had called Ferebee as a witness at the 2012 suppression

hearing. His ineffectiveness claim is without merit since he has shown neither

deficient performance nor resulting prejudice. Accordingly, Jones is not

entitled to federal habeas relief on his ineffectiveness claim in ground three.

D. Ground Four

As ground four, Jones asserts that counsel was ineffective because he

failed to investigate and prepare for the 2012 suppression hearing and trial.

Amended Petition at 10. He states:

Trial counsel did no investigation. Spoke with no

witnesses for Defendant and did not speak with any

State listed witnesses. Attempted to impeach an

officer with the wrong deposition that was taken by

prior counsel.[11] Failed to read through everything

given to him by prior counsel.

Id. Respondents argue that Jones did not properly exhaust a portion of ground

four (pertaining to counsel’s failure to investigate and prepare for trial) in the

11 Docs. 11-2 at 290 (Detective Ruiz’s testimony at the 2010 suppression

hearing), 518-22 (Detective Merchant’s testimony at the 2012 suppression hearing);

11-4 at 414-15 (Detective Ruiz’s fishing analogy during the 2008 recorded interview).

state courts, and therefore the claim is procedurally barred. Response at 12.

The Court agrees that the claim has not been exhausted, and is therefore

procedurally barred since Jones failed to raise the claim in a procedurally

correct manner. Jones has not shown either cause excusing the default or

actual prejudice resulting from the bar.12 Moreover, he has failed to identify

any fact warranting the application of the fundamental miscarriage of justice

exception.

Notably, it appears that Jones intends to proceed with the

ineffectiveness claim as it relates to the suppression hearing. Reply at 7. As to

that portion of the claim pertaining to the 2012 suppression hearing, Jones

raised the claim in his Rule 3.850 motion, as ground four. Doc. 11-3 at 281-83.

The postconviction court summarily denied his request for postconviction relief

with respect to the claim, id. at 332, and the Fifth DCA affirmed the

postconviction court’s denial of relief.

To the extent that the appellate court decided Jones’s ineffectiveness

claim on the merits,13 the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications. After

12 “To overcome the default, a prisoner must also demonstrate that the

underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is

to say that the prisoner must demonstrate that the claim has some merit.” Martinez,

132 S. Ct. at 1309. As discussed in the alternative merits analysis that follows, this

ineffectiveness claim lacks any merit. Therefore, Jones has not shown that he can

satisfy an exception to the bar.

13 Wilson, 138 S. Ct. at 1192.