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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TOMMY LEE JONES,

Petitioner,

v. Case No. 8:20-cv-2357-WFJ-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Tommy Lee Jones, a Florida prisoner, timely filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a response opposing the

petition. (Doc. 15). Mr. Jones filed a reply. (Doc. 18). Upon consideration, the petition is

DENIED.

I. Procedural History

A state-court jury convicted Mr. Jones of first-degree murder, attempted second-

degree murder, and aggravated battery with a deadly weapon. (Doc. 15-2, Ex. 7). The trial

court sentenced Mr. Jones to concurrent terms of life imprisonment for first-degree murder,

thirty years’ imprisonment for attempted second-degree murder, and fifteen years’

imprisonment for aggravated battery. (Id., Exs. 8, 13, 14). The state appellate court per

curiam affirmed the convictions and sentences. (Id., Ex. 18). Mr. Jones unsuccessfully

sought postconviction relief under Florida Rule of Criminal Procedure 3.850, (id., Exs. 25,

26), and the state appellate court per curiam affirmed the denial of relief, (id., Ex. 30). Mr.

Jones also filed a petition alleging ineffective assistance of appellate counsel, which was

summarily denied. (Id., Exs. 21, 22). This federal habeas petition followed. (Doc. 1).

II. Facts; Trial Testimony

This case arises from Mr. Jones’s fatal stabbing of his wife, Juanita Jones. The

Joneses lived in Haines City, Florida with Mrs. Jones’s three children (Joaquin Jackson,

Floyd O’Hara, and Justin McCain), Mr. O’Hara’s girlfriend (Arius Mitchell), and Mr.

Jackson’s father (Charles Bruce).1 (Doc. 15-2. Ex. 5, at 435-36, 447).

On July 20, 2013, Mr. O’Hara arrived at the house at around 4:00 p.m. (Id. at 545).

Mr. and Mrs. Jones were out; the other residents were home. (Id.) Mr. O’Hara called his

mother “30 to 40 times,” but she did not answer. (Id.) When the Joneses got home that

evening, Mr. O’Hara asked Mrs. Jones why she had not answered his calls. (Id. at 547).

She explained that Mr. Jones had thrown her cellphone “out the window” while they were

driving. (Id.) Mr. O’Hara noticed that Mrs. Jones “was trying to keep her distance” from

Mr. Jones, but he did not observe any “arguing” or “physical altercations” between the two.

(Id. at 548).

Around 11:00 p.m., Mr. O’Hara told his mother that his “jaw hurt,” so she decided

to take him to a nearby Wal-Mart to buy medicine. (Id. at 549-51). As the two pulled out

of the driveway and headed down the street, Mr. Jones ran behind the car. (Id. at 550). Mrs.

Jones told Mr. O’Hara to “let him in,” explaining that she did not want any “argument” or

1 Mr. O’Hara and Mr. Jackson were adults at the time of the stabbing; Mr. McCain was seventeen years

old. (Doc. 15-2, Ex. 5, at 446, 504, 542).

“fighting” because she planned to attend church the next day. (Id.) Mr. Jones got in the car,

and three went to Wal-Mart. (Id.)

When they returned home, the Joneses retired to their bedroom, and Mr. O’Hara

began to play a video game in the living room. (Id. at 558-59). Ms. Mitchell (Mr. O’Hara’s

girlfriend) was lying on a pull-out bed in the living room. (Id. at 412). At some point, Mrs.

Jones left the bedroom and began cooking in the kitchen. (Id. at 559). Mr. Jones followed

her to the kitchen, prompting Mr. O’Hara to “pause [his] game,” but Mrs. Jones told her

son, “[I]t’s okay.” (Id. at 561). As Mr. O’Hara was turning off the TV and the video game

console, he heard his mother “make a noise.” (Id.) Mr. O’Hara got up, ran to the kitchen,

and saw Mr. Jones stabbing Mrs. Jones with a knife. (Id. at 563-64). Ms. Mitchell likewise

observed Mr. Jones making a “swinging motion” toward Mrs. Jones with a “butcher knife.”

(Id. at 414-15).

Mr. O’Hara tried to help his mother; Mr. Jones responded by stabbing him in his

left arm. (Id. at 564). Mr. O’Hara ran to the front door to get help, but before he could leave

the house, Mr. Jones came up from behind, “cut” him with the knife, and “locked the door

back.” (Id. at 567, 569). Mr. O’Hara screamed, “[H]e stabbed mama.” (Id. at 570). Hearing

the commotion, Mr. Jackson (Mr. O’Hara’s brother) jumped out of bed, ran to the living

room, and saw Mr. Jones standing next to Mr. O’Hara with a knife in his hand. (Id. at 513-

17). Mr. Jackson “charged” at Mr. Jones and, along with Mr. O’Hara, wrestled him to the

ground. (Id. at 517). During the struggle, Mr. Jones stabbed Mr. Jackson “in the top of [his]

head.” (Id.) The brothers were ultimately able to subdue Mr. Jones and call 911. (Id. at

520).

By the time law enforcement and paramedics arrived, Mrs. Jones had passed away.

(Id. at 379-80). The medical examiner who conducted the autopsy testified that Mrs. Jones

had been stabbed nine times, that most of the wounds were “consistent with an assailant

reaching around [] and stabbing her” from behind, and that Mrs. Jones “[m]ost likely” died

from a stab wound to her “heart sac.” (Id. at 482, 495-98). The only injury Mr. Jones

sustained was a “laceration” between his “thumb and index finger.” (Id. at 362-63). The

medical examiner testified that such injuries are frequently found on persons who commit

stabbings because “[b]lood is slippery,” and “if an assailant is holding a knife and is

inflicting stab wounds, . . . . the hand will come off of the handle, slide down on to the

blade[,] and there will be cuts either on palm of the hand, the web of the thumb, middle

finger[,] or at the base of the fingers where the knife is being gripped.” (Id. at 498-99).

III. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal

habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

A decision is “contrary to” clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves

an “unreasonable application” of clearly established federal law “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.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,

562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”).

The state appellate court affirmed Mr. Jones’s convictions and sentences, as well as

the denial of postconviction relief, without discussion. These decisions warrant deference

under § 2254(d)(1) because “the summary nature of a state court’s decision does not lessen

the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When

a state appellate court issues a silent affirmance, “the federal court should ‘look through’

the unexplained decision to the last related state-court decision that does provide a relevant

rationale” and “presume that the unexplained decision adopted the same reasoning.”

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

B. Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before presenting

them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act

on his claims before he presents those claims to a federal court in a habeas petition.”). The

exhaustion requirement is satisfied if the petitioner fairly presents his claim in each

appropriate state court and alerts that court to the federal nature of the claim. Picard v.

Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which

will bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th

Cir. 2001). A fundamental miscarriage of justice occurs in an extraordinary case where a

constitutional violation has probably resulted in the conviction of someone who is actually

innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson v. Campbell, 353 F.3d 880,

892 (11th Cir. 2003). To establish cause for a procedural default, a petitioner “must

demonstrate that some objective factor external to the defense impeded the effort to raise

the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).

A petitioner demonstrates prejudice by showing that “there is at least a reasonable

probability that the result of the proceeding would have been different” absent the

constitutional violation. Henderson, 353 F.3d at 892.

C. Ineffective Assistance of Counsel

Mr. Jones alleges ineffective assistance of trial and appellate counsel. Ineffective-

assistance-of-counsel claims are analyzed under the test established in Strickland v.

Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance

by counsel and resulting prejudice. Id. at 687. Deficient performance is established if, “in

light of all the circumstances, the identified acts or omissions [of counsel] were outside the

wide range of professionally competent assistance.” Id. at 690. However, “counsel is

strongly presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” Id.

Mr. Jones must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at

691. To demonstrate prejudice, Mr. Jones must show “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.

The Strickland standard applies to claims of ineffective assistance of appellate

counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130

(11th Cir. 1991). To establish a claim of ineffective assistance of appellate counsel, Mr.

Jones must show that appellate counsel’s performance was objectively unreasonable, and

that there is a reasonable probability that, but for this performance, he would have prevailed

on his appeal. Robbins, 528 U.S. at 285-86.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal

habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at

105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702

F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of AEDPA

deference, the resulting standard of review is doubly deferential.”). “The question [on

federal habeas review of an ineffective-assistance claim] ‘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 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).

IV. Discussion

A. Ground One—Denial of Motion for Mistrial

Mr. Jones contends that the trial court violated his federal constitutional rights by

“refusing to grant his motion for a mistrial after the prosecutor made inappropriate remarks

during closing arguments.” (Doc. 1 at 4). The prosecutor began her closing argument as

follows:

It was just after 1:00 in the morning, July 21, 2013. Juanita Jones, 57 years

old at the time[,] lay dying on her floor bleeding to death from the nine stab

wounds inflicted on her during his brutal attack. This man, Tommy Jones, is

the one that committed that attack on Juanita. And as she lay there dying the

last thing she saw were her two sons, Floyd O’Hara and Joaquin—

(Doc. 15-2, Ex. 5, at 613-14). At this point, Mr. Jones’s counsel objected. (Id. at 614). The

court sustained the objection, instructing the jury to “disregard that comment.” (Id.) During

the ensuing bench conference, counsel “ask[ed] for a mistrial.” (Id.) The court denied the

motion but instructed the prosecutor to avoid “attribut[ing] anything to what [Mrs. Jones]

saw, heard, felt at that point.” (Id.)

According to Mr. Jones, the prosecutor’s remarks “invited the jury to reach its

verdict based on sympathy or emotion.” (Doc. 1 at 4). Thus, Mr. Jones argues, the denial

of his motion for mistrial “violated his constitutional due process right to a fair trial before

an impartial jury.” (Id.)

Respondent correctly contends that this claim is unexhausted and procedurally

defaulted. (Doc. 15 at 10). Proper exhaustion requires a petitioner to “make the state court

aware that the claims asserted present federal constitutional issues.” Jimenez v. Fla. Dep’t

of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007). “A litigant wishing to raise a federal issue

can easily indicate the federal law basis for his claim in a state-court petition or brief, for

example, by citing in conjunction with the claim the federal source of law on which he

relies or a case deciding such a claim on federal grounds, or by simply labeling the claim

‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must do more, however,

than “scatter some makeshift needles in the haystack of the state court record.” McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). Moreover, a petitioner “does not ‘fairly

present’ a claim to a state court if that court must read beyond a petition or a brief” to find

the “federal claim.” Baldwin, 541 U.S. at 32.

Mr. Jones failed to present his federal constitutional claim on direct appeal. In his

initial brief, Mr. Jones argued that the trial court “erred by refusing to grant [his] motion

for mistrial” because the prosecutor’s allegedly improper remarks “may have influenced

the jury to reach a more severe verdict than it would have otherwise reached.” (Doc. 15-2,

Ex. 15, at 10). But Mr. Jones did not cite the United States Constitution or any other source

of federal law. Nor did he “label[] the claim ‘federal.’” Baldwin, 541 U.S. at 32. Instead,

Mr. Jones relied entirely on Florida caselaw to support his argument that a mistrial should

have been declared. (Doc. 15-2, Ex. 15, at 10-13). Because Mr. Jones did not “make the

state court aware that the claim[] present[ed] federal constitutional issues,” he failed to

exhaust his state-court remedies as to Ground One. Jimenez, 481 F.3d at 1342; see also

O’Brien v. Sec’y, No. 1:10-cv-189-MP-GRJ, 2013 WL 5460578, at *7 (N.D. Fla. Sept. 27,

2013) (holding that petitioner failed to exhaust “federal constitutional claim” concerning

improper closing argument because “appellate counsel cited only state cases in support of

the appellate arguments, and there is no mention in the brief of any federal constitutional

claim with respect to this issue”).

Mr. Jones cannot return to state court to present his unexhausted claim in a second,

untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal must

be filed within thirty days of the rendition of a sentence). As a result, Ground One is

procedurally defaulted. See Smith, 256 F.3d at 1138 (“If the petitioner has failed to exhaust

state remedies that are no longer available, that failure is a procedural default which will

bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.”). Mr. Jones seeks to excuse the default on

the ground that his appellate counsel was ineffective for failing to “federalize [his] claims

at the [s]tate level.” (Doc. 18 at 7). But a “claim of ineffective assistance” must “be

presented to the state courts as an independent claim before it may be used to establish

cause for a procedural default.” Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Because

Mr. Jones did not “raise his ineffective-assistance-of-appellate-counsel claim in state court,

he has failed to exhaust (and thus cannot now press) his only argument for cause.” Ledford

v. Warden, Ga. Diagnostic Prison, 975 F.3d 1145, 1161 (11th Cir. 2020). Accordingly,

Mr. Jones has not shown that an exception applies to overcome the default, and Ground

One is barred from federal habeas review.

B. Ground Two—Jury Instructions on First-Degree Murder

Mr. Jones contends that the trial court violated his federal constitutional rights “by

presenting fundamentally flawed instructions to the jury on the offense of first[-]degree

murder.” (Doc. 1 at 5). In particular, the instructions allegedly (1) “failed to instruct the

jury that it was the State’s burden to demonstrate the killing of Mrs. Jones was not done in

the heat of passion,” and (2) failed to set forth “the proper standard for evaluating the heat

of passion issue.” (Id.)

Respondent is correct that this claim is unexhausted and procedurally defaulted.

(Doc. 15 at 11-12). On direct appeal, Mr. Jones argued that the first-degree-murder

instructions were “fundamentally flawed” for the reasons identified in Ground Two. (Doc.

15-2, Ex. 15, at 15). But he did not contend that, as a result of the allegedly flawed

instructions, his federal constitutional rights were violated. Nor did he cite the United States

Constitution or any other source of federal law. (Id. at 14-24). “Under these circumstances,

[Mr. Jones] cannot be said to have fairly apprised the state court of his federal . . . claim.”

Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 459 (11th Cir. 2015); see also Jones

v. Buss, No. 3:09-cv-12-MCR-EMT, 2011 WL 2784607, at *20 (N.D. Fla. June 13, 2011)

(“If Petitioner wished to claim that the trial court’s jury instructions denied him the due

process of law guaranteed by the Fifth, Sixth, and Fourteenth Amendments, he should have

said so in his state court brief.”), adopted by 2011 WL 2746316 (N.D. Fla. July 14, 2011).

Mr. Jones cannot return to state court to present his unexhausted claim in a second,

untimely direct appeal. See Fla. R. App. P. 9.140(b)(3). Thus, Ground Two is procedurally

defaulted. See Smith, 256 F.3d at 1138. Mr. Jones again seeks to excuse the default on the

ground that appellate counsel was ineffective for “fail[ing] to cite federal case law in his

[s]tate appellate brief, or to mention ‘federal’ within . . . the claim.” (Doc. 18 at 7). But, as

explained above, “[a] showing of ineffective assistance of appellate counsel in failing to

raise a claim on direct appeal can constitute ‘cause’” only if “the ineffective-assistance

claim itself is both exhausted and not procedurally defaulted.” Sealey v. Warden, Ga.

Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir. 2020). Mr. Jones never raised his

ineffective-assistance-of-appellate-counsel claim in state court. Accordingly, he cannot

overcome the default of his claim of instructional error, and Ground Two is barred from

review.

C. Ground Three—Failure to Challenge Attempted-Manslaughter

Instructions on Direct Appeal

Mr. Jones contends that appellate counsel was ineffective for failing to argue on

direct appeal that the jury instructions on attempted manslaughter were “fundamentally

erroneous.” (Doc. 1 at 6). The instructions stated that, to “prove the crime of attempted

manslaughter by act, the State must prove . . . beyond a reasonable doubt” that Mr. Jones

“intentionally committed an act that would have resulted in the death of Joaquin Jackson

except that someone prevented [him] from killing Joaquin Jackson or he failed to do so.”2

(Doc. 15-2, Ex. 5, at 650). Mr. Jones’s trial counsel did not object to the instructions, and

appellate counsel did not raise the issue on direct appeal.

In his federal habeas petition, Mr. Jones contends that the attempted-manslaughter

instructions erroneously required the jury to find that he “intended to kill the victim.” (Doc.

1 at 6). Mr. Jones raised this claim in his petition alleging ineffective assistance of appellate

counsel. Specifically, he argued that appellate counsel “rendered ineffective assistance” by

failing to argue that “the trial court committed fundamental error by charging the jury with

the erroneous attempted[-]manslaughter jury instruction.” (Doc. 15-2, Ex. 21, at 5). The

state appellate court rejected Mr. Jones’s claim without explanation. (Id., Ex. 22).

Mr. Jones is not entitled to relief on Ground Three. As noted above, Mr. Jones’s

trial counsel did not object to the attempted-manslaughter instructions. Thus, the claim for

ineffective assistance of appellate counsel turns on whether the alleged error was

“fundamental” under Florida law. If the alleged error was “not fundamental, then [Mr.

2 As described above, Mr. Jones stabbed Mr. Jackson in the head while the latter attempted to subdue him.

Jones’s] appellate counsel would have been procedurally barred from raising it on appeal,

and so he could not have been ineffective for failing to raise it.” Scott v. Sec’y, Dep’t of

Corr., 857 F. App’x 548, 551 (11th Cir. 2021); see also State v. Delva, 575 So. 2d 643,

644 (Fla. 1991) (“Instructions . . . are subject to the contemporaneous objection rule, and,

absent an objection at trial, can be raised on appeal only if fundamental error occurred.”).

By rejecting Mr. Jones’s ineffective-assistance claim in an unelaborated order, the

state appellate court “implicitly” determined that the attempted-manslaughter instructions

were not fundamentally erroneous. See Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th

Cir. 2017) (holding that, “[b]ecause the Florida Second District Court of Appeal denied

[petitioner’s] state habeas petition” without explanation, “the Florida court has already

determined, albeit implicitly, that the error was not fundamental error”). “[T]he

fundamental error question is an issue of state law, and state law is what the state courts

say it is.” Id. at 1299. Accordingly, this Court “must defer to the [state] court’s underlying

determination[]” that the attempted-manslaughter instructions were not fundamentally

erroneous. Id. at 1297-98. Because the instructions did not constitute fundamental error,

“appellate counsel would have been procedurally barred from [challenging them] on

appeal.” Scott, 857 F. App’x at 551. Counsel “will not be held to have performed

deficiently” where, as here, he “fail[s] to perform a futile act, one that would not have

gotten his client any relief.” Pinkney, 876 F.3d at 1297.

Even if the issue of fundamental error were the Court’s to decide, Mr. Jones would

not be entitled to relief. “Fundamental error in a jury instruction requires that the error

reach down into the validity of the trial itself to the extent that a verdict of guilty could not

have been obtained without the assistance of the alleged error.” Victorino v. State, 23 So.

3d 87, 101 (Fla. 2009). Mr. Jones fails to show any error in the attempted-manslaughter

instructions, much less fundamental error.

Contrary to Mr. Jones’s assertion, the trial court did not instruct the jury that

attempted manslaughter requires an intent to kill. Mr. Jones cites Williams v. State, 123 So.

3d 23 (Fla. 2013), a Florida Supreme Court case that rejected an earlier pattern instruction

for attempted manslaughter. (Doc. 1 at 6). The instruction in Williams required the jury to

find that the defendant “committed an act which was intended to cause the death of” the

victim. Williams, 123 So. 3d at 25. But the trial court in Mr. Jones’s case did not give that

erroneous instruction. Instead, it tracked the post-Williams pattern instruction, which

correctly requires an intentional act, not an intent to kill. See In re Standard Jury

Instructions In Crim. Cases--Instruction 6.6, 132 So. 3d 1124, 1125-26 (Fla. 2014)

(authorizing, in light of Williams, the use of an attempted-manslaughter instruction that

requires a finding that defendant “intentionally committed an act” that “would have

resulted in the death of” the victim). Because the attempted-manslaughter instructions in

this case were proper, appellate counsel was not ineffective for failing to challenge them

on direct appeal. Thus, Ground Three is denied.

D. Ground Four—Failure to Impeach Witnesses with Prior Inconsistent

Statements

Mr. Jones argues that trial counsel was ineffective for failing to impeach Mr. O’Hara

with his “prior inconsistent statements.” (Doc. 1 at 8). Specifically, Mr. Jones contends that

Mr. O’Hara testified inconsistently at his deposition and at trial as to whether he saw Mr.

Jones stab Mrs. Jones. (Doc. 15-2, Ex. 25, at 9-10). According to Mr. Jones, Mr. O’Hara

stated at his deposition that he did not witness the stabbing, whereas at trial he claimed to

“have seen [Mr. Jones] in a ‘stabbing motion’ toward his mother.” (Id.)

The state postconviction court rejected this claim, explaining that it rested on “a

mischaracterization” of Mr. O’Hara’s deposition testimony. (Id., Ex. 26, at 9). During his

deposition, Mr. O’Hara initially testified that, when Mr. Jones “[w]alk[ed] toward” Mrs.

Jones, he did not “see [Mr. Jones] stab at that time.” (Id.) But on cross-examination, Mr.

O’Hara clarified that he did see Mr. Jones make a “lunging motion” toward Mrs. Jones

with a knife. (Id. at 9-10). The court concluded that Mr. O’Hara’s deposition testimony

was “consistent with the testimony given at trial, where [he] stated: ‘I hear my mom make

a noise and I ran over there, and like—as—like when I got up and I ran I seen him—I seen

him in a stabbing motion and I was like—” (Id. at 10). Accordingly, because the

“statement[s] [were] consistent,” the court held that “[t]rial counsel had no grounds to

impeach” Mr. O’Hara. (Id.)

The rejection of this claim was reasonable. Whether Mr. O’Hara’s deposition

testimony qualified as a “prior inconsistent statement is an issue of state law, and a state

court’s determination of state law receives deference in federal court.” Miller v. Sec’y,

Dep’t of Corr., No. 8:17-cv-2815-TPB-AEP, 2020 WL 7318967, at *34 (M.D. Fla. Dec.

11, 2020), aff’d, No. 21-10077, 2022 WL 3452468 (11th Cir. Aug. 18, 2022); see also

Pinkney, 876 F.3d at 1295 (“[A]lthough the issue of ineffective assistance . . . is one of

constitutional dimension,” a court “must defer to the state’s construction of its own law

when the validity of the [ineffective-assistance] claim . . . turns on state law.”). The state

postconviction court reasonably concluded that, both at trial and during his deposition, Mr.

O’Hara testified that he saw Mr. Jones make a stabbing motion toward Mrs. Jones with a

knife. (Doc. 15-2, Ex. 26, at 10). Because Mr. O’Hara’s statements were consistent, he

could not have been impeached on this basis. As a result, the state postconviction court

reasonably rejected Mr. Jones’s ineffective-assistance claim. See Bolender v. Singletary,

16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise

nonmeritorious issues does not constitute ineffective assistance.”); Stratis v. Sec’y, Dep’t

of Corr., No. 8:16-cv-141-CEH-AAS, 2019 WL 1330835, at *6 (M.D. Fla. Mar. 25, 2019)

(“[C]ounsel was not ineffective in failing to impeach [state witness] on this issue because

her trial testimony was not inconsistent with her deposition testimony.”).

Mr. Jones separately contends that trial counsel was ineffective for failing to

impeach Ms. Mitchell with her “prior inconsistent statements.” (Doc. 1 at 8). According to

Mr. Jones, Ms. Mitchell testified inconsistently at her deposition and at trial as to whether

she could tell that Mr. Jones was drinking alcohol on the night of the stabbing. (Doc. 15-2,

Ex. 25, at 6-9). During her deposition, Ms. Mitchell testified that, on the night in question,

she could not “tell” whether Mr. Jones had been drinking. (Id., Ex. 26, at 6). She explained

that, when she “thought about it[] afterwards,” she came to believe that he “probably” had

been “drinking.” (Id. at 7). At trial, however, Ms. Mitchell claimed that, on the night of the

stabbing, she could “smell” alcohol on Mr. Jones. (Id.)

The state postconviction court rejected this claim. It acknowledged that Ms.

Mitchell’s testimony was “inconsistent” on this point. (Id.) The court found, however, that

Mr. Jones failed to establish “prejudice” from counsel’s failure to impeach Ms. Mitchell.

(Id.) The court noted that Ms. Mitchell’s testimony was “largely consistent” and “supported

by the forensic evidence.” (Id.) Moreover, Mr. O’Hara “testified that while he did not

observe [Mr. Jones] drinking that night, he could smell alcohol on his person.” (Id. at 8).

Thus, according to the court, “even if [Ms. Mitchell’s] credibility as to this singular issue

was questioned, the jury was still presented with the same unrefuted testimony from” Mr.

O’Hara. (Id.) The court also observed that, during closing argument, Mr. Jones’s counsel

“attempted to use the fact that evidence indicated [he] had been drinking for the purpose

of arguing [he] could not have formed the intent to commit premeditated murder.” (Id.) As

a result, “[i]mpeaching [Ms. Mitchell] as to this point would undermine this defense.” (Id.)

The state postconviction court reasonably rejected this claim for lack of prejudice.

To show prejudice under Strickland, Mr. Jones must “establish a reasonable probability

that, but for counsel’s [failure to impeach Ms. Mitchell], the outcome at trial would have

been different.” Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014);

see also Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001) (“Absent a showing of a

single specific instance where cross-examination arguably could have affected the outcome

of either the guilt or sentencing phase of the trial, the petitioner is unable to show prejudice

necessary to satisfy the second prong of Strickland.”). Mr. Jones failed to meet his burden.

First, even apart from Ms. Mitchell’s testimony, the prosecution presented

overwhelming evidence of Mr. Jones’s guilt. The evidence included testimony from Mr.

O’Hara, who witnessed the stabbing, and from the medical examiner, who explained that

Mrs. Jones was stabbed multiple times from behind. Given the substantial evidence of Mr.

Jones’s guilt, “there is not a reasonable probability that the outcome of the trial would have

been different had [] counsel impeached [Ms. Mitchell] with her prior” statements.

Broadwater v. United States, 347 F. App’x 516, 520 (11th Cir. 2009). Second, even if the

jury had disbelieved Ms. Mitchell’s testimony that Mr. Jones was drinking on the night of

the stabbing, the effect would have been minimal because Mr. O’Hara separately

“testif[ied] to the[] same fact[].” Ortiz v. Sec’y, Dep’t of Corr., No. 8:06-cv-1021-JDW-

TGW, 2009 WL 2224074, at *6 (M.D. Fla. July 23, 2009). Third, counsel argued in closing

that Mr. Jones should be acquitted of first-degree murder because he “had been drinking”

that night and thus could not form the required intent. (Doc. 15-2, Ex. 5, at 628). Had

counsel sought to impeach Ms. Mitchell on this topic, he would have undermined a key

component of his defense. Thus, the state postconviction court reasonably concluded that

Mr. Jones was not prejudiced by counsel’s failure to impeach Ms. Mitchell with her prior

inconsistent statements.

Ground Four is denied.3

E. Ground Five—Failure to Present Expert Witness

Mr. Jones contends that trial counsel was ineffective for “failing to present an expert

witness to prove [his] knife wounds were created while acting in self[-]defense.” (Doc. 1

at 10). Mr. Jones asserts that “[a] forensic expert in knife wounds would have conclusively

demonstrated that the injuries incurred by [him] were the direct result of defending himself

3 In his Rule 3.850 motion, Mr. Jones also argued that Ms. Mitchell testified inconsistently as to whether

Mr. Jones “reside[d]” at the house “while she was staying there.” (Doc. 15-2, Ex. 25, at 8). The state

postconviction court correctly rejected this claim as resting on “a mischaracterization” of Ms. Mitchell’s

“actual testimony.” (Id., Ex. 26, at 8). Specifically, both at her deposition and at trial, Ms. Mitchell testified

that, although Mr. Jones did not live in the house when she first moved in, he eventually came to share the

residence with her and several other people. (Id.)

and not a result of his hand sliding down the knife during the stabbing of the victim as

alleged by” the State’s medical examiner. (Id. at 10-11). According to Mr. Jones, the failure

to “present an expert in forensic knife wounds deprived [him of] an opportunity to refute

the testimony offered by the State’s expert witness, as well as an opportunity to

demonstrate that he did act in self[-]defense.” (Id. at 11).

The state postconviction court rejected this claim. It began by noting that “the trial

was devoid of any evidence that [Mr. Jones] might have acted in self-defense.” (Doc. 15-

2, Ex. 26, at 11). Specifically, the evidence showed that (1) Mrs. Jones “did not make any

noise until after [Mr. Jones] began stabbing her,” (2) Mr. Jones stabbed the victim multiple

times, “with all wounds in a direction consistent with [him] reaching around from behind

[her],” and (3) Mr. Jones subsequently stabbed Mr. O’Hara, “locking the door and

preventing him from leaving the residence.” (Id.) The court also highlighted the medical

examiner’s testimony that Mr. Jones’s “injury was caused while he stabbed others, and not

as a defensive wound.” (Id. at 11-12). In the court’s view, Mr. Jones’s “unfounded claim

that some unknown expert would contradict the testimony of the witnesses and all of the

evidence [was] based entirely on his hopeful speculation.” (Id. at 12).

The rejection of this claim was reasonable. The burden of establishing prejudice

under Strickland “is particularly heavy where the petitioner alleges ineffective assistance

in failing to call a witness because often allegations of what a witness would have testified

to are largely speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1365

(11th Cir. 2021). For that reason, “a petitioner’s own assertions about whether and how a

witness would have testified are usually not enough to establish prejudice from the failure

to interview or call that witness.” Id. Here, Mr. Jones merely speculates that a forensic

expert in “knife wounds” would have testified that the physical evidence supported his

claim of self-defense. (Doc. 1 at 10-11). Significantly, he does not identify “a single []

expert who was prepared to come into court and say that.” Cardona v. Dixon, No. 19-

81567-CIV, 2022 WL 2158715, at *13 (S.D. Fla. June 14, 2022). Because there is no basis

to conclude that an expert would have provided helpful testimony, the state postconviction

court reasonably rejected Mr. Jones’s ineffective-assistance claim. See Duran v. Walker,

223 F. App’x 865, 875 (11th Cir. 2007) (“[Petitioner’s] claim that an expert witness would

have prompted the jury to believe his testimony . . . is conclusory and speculative, and does

not amount to a showing of prejudice.”). Thus, Ground Five is denied.

F. Ground Six—Failure to Present “Any Defense”

Mr. Jones argues that trial counsel “rendered ineffective assistance by failing to

subject the State’s case to any meaningful adversarial testing.” (Doc. 1 at 12). According

to Mr. Jones, counsel conducted “no pretrial investigation” and presented “no defense” at

trial, opting instead for a “do[-]nothing strategy.” (Id. at 12-13). In addition, Mr. Jones

faults counsel for failing to pursue a claim of self-defense. (Id.)

The state postconviction court rejected this claim. It noted that Mr. Jones had failed

to describe the “specific ways trial counsel failed to test the State’s case.” (Doc. 15-2, Ex.

26, at 12). Instead, Mr. Jones relied on United States v. Cronic, 466 U.S. 648 (1984), “to

claim trial counsel’s alleged failures in this ground amount[ed] to presumptive prejudice.”

(Id.) The court noted that Cronic “is reserved for situations where the assistance of counsel

has been denied entirely or withheld during a critical stage of the proceeding such that the

likelihood that the verdict is unreliable is so high that a case-by-case inquiry is

unnecessary.” (Id. (citation omitted)). Applying this standard, the court held that Mr. Jones

“was not deprived of the assistance of counsel during trial.” The court pointed out that

counsel “cross-examined several witnesses, lodged objections, and made both opening and

closing arguments.” (Id.) Moreover, “[d]uring closing arguments, trial counsel argued it

could be possible [Mr. Jones] suffered the injury to his hand by grabbing the knife away

from [Mrs. Jones]; that [Mr. Jones] did not act with premeditation due to a moment of heat

of passion; that [Mr. Jones] did not form premeditation as he was intoxicated; and that [Mr.

Jones] did not act with ill will, hatred, spite, or evil intent.” (Id. at 12-13). Thus, the court

concluded that Mr. Jones could not “rely upon any presumptive prejudice [under Cronic],

and must sufficiently allege both deficiency and prejudice in accordance with Strickland.”

(Id. at 13).

The court also found that “[a]ny failure on the part of trial counsel to present a

further defense was clearly based on [Mr. Jones’s] decision” not to testify at trial, “and not

through any fault of trial counsel.” (Id.) In support, the court cited the following colloquy

between Mr. Jones and the trial court:

THE COURT: Okay. When we left just before the noon hour I had gone over

with Mr. Jones his right to take the stand and his equal right not to take the

stand. I wanted to give him the opportunity to thin[k] about it, talk to his

attorney about it, but again, it’s ultimately your decision, Mr. Jones. Have

you made a decision as to how you want to proceed, sir?

THE DEFENDANT: Yes. Not take it. I’m not taking the stand.

THE COURT: You’re not going to testify?

THE DEFENDANT: No.

THE COURT: And as a result of that what I will do is I will advise the jury

that that is your right and they cannot use that against you in any way as I’ve

been doing through the course of the trial. Let me just ask this. Has anybody

threatened, coerced or forced you into making the decision you’ve made not

to testify?

THE DEFENDANT: I think—I think personally it’s in my best interest.

THE COURT: Okay. So—

THE DEFENDANT: Due to some things me and him talked about.

THE COURT: But this is your ultimate decision.

THE DEFENDANT: Yes, sir.

THE COURT: This is one of those instances that it’s ultimately your decision

as to whether or not you want to take the stand.

THE DEFENDANT: I understand.

. . .

[DEFENSE COUNSEL]: I’ve advised too—I’ve advised Mr. Jones that it

would in his better interest in taking the stand notwithstanding the fact that

there would be testimony regarding felony—being a felony offender and

having 11 priors. In order to put on our defense, it would be essential for Mr.

Jones to testify, however, as the Court knows ultimately it is Mr. Jones’

decision and this is his decision, and it’s against the advice of counsel.

THE COURT: Okay. Again, Mr. Jones, I know you’ve had an opportunity

to talk to your attorney, and under our system this is one of those areas that

it’s ultimately the person’s specific personal decision and it’s my

understanding that your decision is that you are not taking the stand.

THE DEFENDANT: Yes.

(Id., Ex. 5, at 597-99). Later in the colloquy, the trial court explained to Mr. Jones that if

he declined to testify, the self-defense instruction would not “be given to the jury.” (Id. at

602-03).

The state postconviction court acted reasonably in rejecting Mr. Jones’s allegations

of ineffective assistance. First, the court correctly declined to apply Cronic to Mr. Jones’s

claim. As relevant here, Cronic “applies only where counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.” Castillo v. Fla., Sec’y of DOC, 722

F.3d 1281, 1287 (11th Cir. 2013) (emphasis omitted). In other words, Cronic is “reserved

for situations in which counsel has entirely failed to function as the client’s advocate by

failing to meaningfully oppose the prosecution’s case.” Id. (emphasis omitted). Thus, under

Cronic, “counsel’s failure to test the prosecution’s case must be complete.” Id. Here, as the

state postconviction court explained, counsel “cross-examined several witnesses, lodged

objections, and made both opening and closing arguments.” (Doc. 15-2, Ex. 26, at 12).

Counsel also urged the jury to find that Mr. Jones did not act with the intent required for

first-degree murder or attempted second-degree murder. (Id.) Because “counsel did not

entirely fail to subject the prosecution’s case to meaningful adversarial testing,” Cronic is

inapplicable here. Castillo, 722 F.3d at 1287; see also Rogers v. Sec’y, Dep’t of Corr., No.

8:17-cv-2680-VMC-SPF, 2019 WL 2646544, at *11 n.11 (M.D. Fla. June 27, 2019)

(holding that “Cronic [was] inapplicable” because counsel “made opening and closing

arguments, cross-examined witnesses, challenged the States’ proposed jury instructions,

moved for a judgment of acquittal, and made objections during the trial”), aff’d, 829 F.

App’x 437 (11th Cir. 2020).

Second, the state postconviction court reasonably found that, to the extent counsel

did not “present more of a defense” at trial, the cause was Mr. Jones’s decision not to testify

rather than “any fault of trial counsel.” (Doc. 15-2, Ex. 26, at 13). As the colloquy quoted

above makes clear, Mr. Jones chose not to testify against the advice of counsel, who

believed that his client’s testimony was necessary “[i]n order to put on our defense.” (Id.,

Ex. 5, at 598-99). In his reply, Mr. Jones maintains that counsel “had ample opportunity to

present” other “evidence and testimony to support this avenue of defense,” but “entirely

failed” to do so. (Doc. 18 at 16). Yet Mr. Jones offers no specifics about the “evidence and

testimony” that allegedly would have supported his claim of self-defense. “[I]neffective

assistance of counsel cannot be proven via conclusory assertion.” Wilson v. Sec’y, Fla.

Dep’t of Corr., 769 F. App’x 825, 827 (11th Cir. 2019); see also Moss v. United States,

No. 8:06-cr-464-EAK-TGW, 2010 WL 4056032, at *11 (M.D. Fla. Oct. 15, 2010)

(rejecting ineffective-assistance claim because petitioner failed to “reveal what

investigation should have been conducted by his counsel nor d[id] he discuss any details

about what . . . would have been revealed had an investigation been conducted”).

For all these reasons, Ground Six is denied.

G. Ground Seven—Failure to Object to “Golden Rule” Violation

Mr. Jones contends that trial counsel was ineffective for failing to object to the

prosecutor’s “golden rule violation” during opening statements. (Doc. 1 at 14). Florida law

prohibits golden-rule arguments, defined as “requests that the jurors place themselves in

the victim’s position, that they imagine the victim’s pain and terror, or that they imagine

that their relative was the victim.” Pagan v. State, 830 So. 2d 792, 812 (Fla. 2002). Toward

the beginning of her opening statement, the prosecutor made the following remarks: “And

as she lay there dying likely the last thing that she saw was her two sons, Floyd O’Hara

and Joaquin Jackson fighting Tommy Jones, struggling with him trying to get that knife

away from Tommy Jones so that he couldn’t hurt anybody else in that house that night, and

that’s last—likely the last thing she saw as she lay there taking her last breaths.” (Doc. 15-

2, Ex. 5, at 208-09). Mr. Jones’s counsel did not object, but when the prosecutor made

similar remarks during her closing statement, counsel objected and unsuccessfully sought

a mistrial. (Id. at 613-14).

Mr. Jones contends that the prosecutor’s remarks during her opening statement

“should have triggered an immediate objection as a golden rule violation,” and that had

counsel objected, the court “would have had no choice but to seat another jury in order to

ensure that [Mr. Jones] would have received a fair trial.” (Doc. 1 at 15).

The state postconviction court rejected this claim. It first found that the challenged

remarks were “proper” and did not constitute a “‘golden rule’ violation.” (Doc. 15-2, Ex.

26, at 14). The court reasoned that, based on the “testimony presented at trial, it was fair

for the prosecutor to have believed the evidence would have established this was the last

thing [Mrs. Jones] saw before she died.” (Id.) The court also explained that the comments

did not “invite[]” the jurors “to place themselves in [Mrs. Jones’s] position.” (Id.)

Furthermore, the court held that Mr. Jones’s “claim of prejudice” from the alleged golden-

rule violation was “based purely on speculation,” and that he had “not offered any

substantive reason as to why a mistrial would have been granted during opening statements,

when the same request was denied during closing arguments.” (Id. at 15).

The rejection of this claim was reasonable. “[A]lthough the issue of ineffective

assistance . . . is one of constitutional dimension,” a court “must defer to the state’s

construction of its own law when the validity of the [ineffective-assistance] claim . . . turns

on state law.” Pinkney, 876 F.3d at 1295. Here, the state court found that no objection was

warranted because, as a matter of Florida law, the challenged statements were not a golden-

rule violation. (Doc. 15-2, Ex. 26, at 14). Thus, the state court “already has told us how the

issues would have been resolved under state law had [counsel] done what [Mr. Jones]

argues he should have done.” Herring v. Sec’y. Dep’t of Corr., 397 F.3d 1338, 1354-55

(11th Cir. 2005). This Court is bound to defer to that determination. See Mansell v. Sec’y,

Dep’t of Corr., No. 8:18-cv-1307-KKM-SPF, 2021 WL 4340419, at *15 (M.D. Fla. Sept.

23, 2021) (“The state court determined that no objection was warranted because the

statement was not a golden rule violation under state law. This Court must defer to that

determination of state law.”).

Even assuming that the challenged remarks constituted a golden-rule violation, the

ineffective-assistance claim still fails because Mr. Jones cannot show prejudice. As

explained above, the prosecution presented overwhelming evidence of Mr. Jones’s guilt.

And when the prosecutor made similar remarks during closing argument, the court denied

defense counsel’s motion for a mistrial. As a result, even if counsel had objected to the

allegedly improper remarks, there is not “a reasonable probability” that “the outcome at

trial would have been different.” Reed, 767 F.3d at 1261; see also Elrod v. Sec’y, Dep’t of

Corr., No. 8:11-cv-1777-JDW-MAP, 2014 WL 3687243, at *7 (M.D. Fla. July 24, 2014)

(holding that, “[i]n light of the overwhelming evidence” of petitioner’s guilt, he had “not

shown a reasonable probability that the result of the trial would have been different had

counsel objected to the [golden-rule] comment”). Accordingly, Ground Seven is denied.

H. Ground Eight—Failure to Present Evidence of Self-Defense

Mr. Jones contends that trial counsel was ineffective for “failing to present any

evidence and testimony to support a theory of self[-]defense.” (Doc. 1 at 16). Specifically,

he complains that counsel “wholly failed to present any witnesses (expert or factual) or any

evidence (physical or testimonial) to support” a claim of self-defense. (Id.) As a result, Mr.

Jones says, counsel “simply allowed the State to present their case and then sit back and

watch the jury return a guilty verdict.” (Id. at 17). The state postconviction court rejected

this claim, reasoning that (1) Mr. Jones failed to “cite what evidence or testimony trial

counsel should have presented,” and (2) “trial counsel was unable to present a theory of

self-defense based on [Mr. Jones’s] decision—against trial counsel’s advice—to not

testify.” (Doc. 15-2, Ex. 26, at 16).

The rejection of this claim was reasonable. As noted above, “ineffective assistance

of counsel cannot be proven via conclusory assertion.” Wilson, 769 F. App’x at 827. Mr.

Jones fails to provide any information about the “witnesses” or “evidence” that he claims

counsel should have presented at trial. (Doc. 1 at 16). Because Mr. Jones “has not stated

with specificity what evidence or witnesses . . . defense counsel should have presented,”

his “assertion that defense counsel was ineffective for failure to introduce unidentified

evidence and witnesses . . . is purely speculative.”4 Borden v. United States, No. 6:09-cv-

481-GAP-DAB, 2010 WL 2803969, at *9 (M.D. Fla. July 15, 2010); see also Aldrich v.

4 Mr. Jones elsewhere contends that counsel should have retained a forensic expert on “knife wounds.”

(Doc. 1 at 11). As explained above, however, Mr. Jones fails to establish that such an expert would have

testified favorably to the defense.

Wainwright, 777 F.2d 630, 636 (11th Cir. 1985) (“[S]peculation is insufficient to carry the

burden of a habeas corpus petitioner as to what evidence could have been revealed by

further investigation.”). Furthermore, as explained above, counsel could not pursue a claim

of self-defense because Mr. Jones—against counsel’s advice—waived his right to testify

at trial. In these circumstances, the state postconviction court reasonably concluded that

counsel did not perform deficiently with respect to any potential claim of self-defense.

Ground Eight is denied.

I. Ground Nine—Failure to Seek Stand-Your-Ground Hearing

Mr. Jones argues that trial counsel was ineffective for failing to file a “pretrial

motion” for a stand-your-ground “immunity hearing.” (Doc. 1 at 18). Shortly before Mr.

Jones’s trial, the Florida legislature amended the stand-your-ground statute. The law

previously required defendants to “to prove ‘by a preponderance of the evidence’ that [they

were] immune from prosecution.” State v. Gallo, 76 So. 3d 407, 409 & n.2 (Fla. 2d DCA

2011). Under the amended statute, “a defendant is no longer required to prove that he or

she acted in self-defense by a preponderance of the evidence at an immunity hearing;

instead, a defendant need only make a prima facie showing at that point.” Boston v. State,

326 So. 3d 673, 675 (Fla. 2021). Then, “[t]o defeat the claim of immunity, the State must

prove by clear and convincing evidence that the defendant did not act in self-defense.” Id.

Mr. Jones contends that counsel should have taken advantage of this “favorable

change” in the law by “fil[ing] a pretrial motion” for a stand-your-ground immunity

hearing. (Doc. 1 at 18). Counsel’s failure to do so allegedly “deprived [Mr. Jones] of a

legitimate opportunity to be acquitted before the start of trial and simply amounted to

nothing more than his inattention to a favorable defense opportunity for his client.” (Id.)

The state postconviction court rejected this claim on the ground that Mr. Jones “would not

have been able to prevail on such a motion.” (Doc. 15-2, Ex. 26, at 16). The court reasoned

that “[t]he State would have met its burden by presenting the same testimony and evidence

presented at trial,” and there was “no reason to conclude [Mr. Jones] would have testified

at a pre-trial hearing, contrary to his decision made during trial.” (Id.)

The rejection of this claim was reasonable. As noted above, “although the issue of

ineffective assistance . . . is one of constitutional dimension,” a court “must defer to the

state’s construction of its own law when the validity of the [ineffective-assistance] claim .

. . turns on state law.” Pinkney, 876 F.3d at 1295. Here, the state court found that counsel

was not ineffective for failing to file a stand-your-ground motion because, under Florida

law, Mr. Jones “would not have been able to prevail on such a motion.” (Doc. 15-2, Ex.

26, at 16). This Court must defer to the state court’s determination that a stand-your-ground

motion would have been unsuccessful. See McCoy v. Inch, No. 5:20-cv-283-TKW-EMT,

2021 WL 4507481, at *14 (N.D. Fla. Aug. 2, 2021) (“Here, the state court already answered

the question of whether a motion to dismiss, based upon ‘Stand Your Ground’ immunity,

would have been successful under Florida law—it would not have been. This court must

defer to the state court’s determination of state law.”), adopted by 2021 WL 4503366 (N.D.

Fla. Oct. 1, 2021); Garcia v. Sec’y, Dep’t of Corr., No. 8:17-cv-2374-KKM-AAS, 2021

WL 1516070, at *7 (M.D. Fla. Apr. 16, 2021) (“The underlying question of whether a

motion to dismiss under Florida’s Stand Your Ground law would have succeeded is a

matter of state law. This Court must defer to the state court’s determination that a motion

to dismiss would not have been granted.”). Accordingly, because a stand-your-ground

motion had no chance of success, counsel was not ineffective for failing to file one. Ground

Nine is denied.

J. Ground Ten—Failure to Request Additional Instructions on Heat-of-

Passion Defense

Finally, Mr. Jones contends that trial counsel was ineffective for failing to “request

that the trial court advise the jury that the State was required to carry the burden of proof”

on the heat-of-passion defense. (Doc. 1 at 20). The court instructed the jury that “[a]n issue

in this case [is] whether [Mr. Jones] did not act with premeditated design to kill because he

acted in the heat of passion based on adequate provocation.” (Doc. 15-2, Ex. 5, at 643).

After setting out the elements of the heat-of-passion defense, the court explained that, “[i]f

you have a reasonable doubt about whether [Mr. Jones] acted with premeditated design to

kill because he acted in the heat of passion based on adequate provocation, you should not

find him guilty of first-degree premeditated murder.”5 (Id. at 643-44).

During deliberations, the jury sent back the following questions: (1) “Could we have

a definition of ‘heat of passion’?” and (2) “Is it the state bured has to prove [sic]?” (Id., Ex.

6). The prosecutor proposed “just sending a note back advising them [to] see” the relevant

portions of “the jury instructions.” (Id., Ex. 5, at 672). Mr. Jones’s counsel said he had “no

objection to that.” (Id.) The court thus advised the jury that “the instruction concerning heat

5 The court gave similar instructions on the heat-of-passion defense as it applied to second-degree murder

and attempted second-degree murder. (Doc. 15-2, Ex. 5 at 645-46, 648-49).

of passion is contained in the latter portion of the instructions on murder first-degree,

attempted second-degree murder and the lesser of murder, second-degree.” (Id. at 676).

Mr. Jones contends that counsel “should have objected and argued insistently for

the court to answer the jury’s questions effectively and instruct the jury properly.” (Doc. 1

at 20). According to him, the instructions were “fundamentally flawed” because they

suggested that “the State carried no burden with respect to the heat of passion issue.” (Id.

at 21).

The state postconviction court rejected this claim, finding that “[t]he jury was

properly instructed regarding heat of passion.” (Doc. 15-2, Ex. 26, at 17). The court

determined that the trial court’s answer to the jury’s questions “was not improper” because

the instructions “properly informed the jury on the definition of heat of passion, and who

carrie[d] the burden.” (Id.) The court also noted that the jury was “properly instructed” that

Mr. Jones was “not required to present evidence or prove anything.” (Id.) Finally, the court

rejected as “speculat[ive]” Mr. Jones’s “claim that an alternative proposed instruction

would have resulted in a different” outcome at trial. (Id.)

The state postconviction court reasonably rejected this claim. Its determination that

counsel was not ineffective rested on a finding that the jury instructions were proper under

Florida law. “[S]tate courts are the final arbiters of state law, and federal habeas courts

should not second-guess them on such matters.” Agan v. Vaughn, 119 F.3d 1538, 1549

(11th Cir. 1997). Thus, this Court must defer to the state court’s conclusion that the jury

instructions were proper. See Bilotti v. Fla. Dep’t of Corr., No. 22-cv-62068, 2023 WL

3159729, at *15 (S.D. Fla. Apr. 5, 2023) (“It is significant whether the state court’s basis

for denying postconviction relief was that the jury instructions were correct as a matter of

Florida law . . . because, if that was the basis for the state court’s ruling, this Court would

be required to defer to that ruling.”), adopted by 2023 WL 3159301 (S.D. Fla. Apr. 29,

2023). And because the instructions were correct as a matter of Florida law, counsel was

not ineffective for failing to propose alternative instructions in response to the jury’s

questions.

In any event, the heat-of-passion instructions tracked Florida’s pattern instructions

on that defense. (Compare Doc. 15-2, Ex. 5, at 643-46, 649, with Fla. Std. Jury Instr.

(Crim.) §§ 6.4, 7.2). Counsel is not ineffective for declining to object to jury instructions

that are consistent with the standard instructions approved by the Florida Supreme Court.

See Conrad v. Sec’y, Fla. Dep’t of Corr., 663 F. App’x 746, 753 (11th Cir. 2016) (finding

that petitioner failed to satisfy Strickland’s prejudice prong because “Florida precedent

indicates that trial counsel’s failure to object to standard jury instructions that had not been

invalidated by the Florida Supreme Court do[es] not render counsel’s performance

deficient.”); see also Griffin v. State, 866 So. 2d 1, 15 (Fla. 2003) (“[I]t is not deficient

performance when counsel fails to object to a standard instruction which has not been

invalidated by [the Florida Supreme] Court.”).

For all these reasons, Ground Ten is denied.6

6 Mr. Jones seeks an evidentiary hearing on his claims. (Doc. 1 at 24). The Court concludes that an

evidentiary hearing is not warranted. See Schriro, 550 U.S. at 474 (stating 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”); Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015) (“[B]efore a habeas

petitioner may be entitled to a federal evidentiary hearing on a claim that has been adjudicated by the state

court, he must demonstrate a clearly established federal-law error or an unreasonable determination of fact

on the part of the state court, based solely on the state court record.”).

Accordingly, the Court ORDERS:

1. Mr. Jones’s petition (Doc. 1) is DENIED.

2. The CLERK is directed to enter judgment against Mr. Jones and to CLOSE this

case.

3. Mr. Jones is not entitled to a certificate of appealability. A prisoner seeking a writ

of habeas corpus has no absolute entitlement to appeal a district court’s denial of his

petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability may issue . . . only

if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Mr. Jones

must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues he seeks to raise. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Mr. Jones has not made the requisite showing.

Because Mr. Jones is not entitled to a certificate of appealability, he is not entitled

to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on November 8, 2023.

litho,

UNITED STATES DISTRICT JUDGE

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