Opinion

Jones v. Secretary, Florida Department of Corrections (Duval County)

Court: District Court, M.D. Florida
Filed: Sep 25, 2024
Cited by: 0 cases
Authority: More cited than 31.3%

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

How later courts described this case

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
determining that counsel was not ineffective for failing to raise a meritless motion to suppress
determining that improper comments were brief and did not constitute fundamental error

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RASHANE JONES,

Petitioner,

v. Case No. 3:21-cv-440-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

___________________________________

ORDER

I. Status

Petitioner Rashane Jones, an inmate of the Florida penal system,

initiated this action on April 19, 2021 (mailbox rule), by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1).1 Jones is proceeding

on an Amended Petition (Amended Petition; Doc. 5). He challenges a 2014 state

court (Duval County, Florida) judgment of conviction for three counts of

attempted second-degree murder and one count of possession of a firearm by a

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.

convicted felon. Jones raises ten grounds for relief.2 Respondents submitted a

memorandum opposing the Amended Petition. See Answer to Amended

Petition for Writ of Habeas Corpus (Doc. 10). They also submitted exhibits. See

Docs. 11-1 to 11-45. Jones filed multiple replies. See Docs. 14, 25, 26. This

action is ripe for review.

II. Relevant Procedural History

On July 8, 2013, the state of Florida charged Jones by information with

three counts of attempted second-degree murder (counts one, two, and three)

and one count of possession of a firearm by a convicted felon (count four)

stemming from Jones’s actions on June 4, 2012. Doc. 11-1 at 32-33. Jones filed

a motion to dismiss the information, and after a hearing, the trial court denied

Jones’s request. Id. at 57-58 (motion), 61 (order); Doc. 11-2 at 189-217 (hearing

transcript). The state filed a notice of intent to offer evidence of other crimes,

wrongs, or acts, which included evidence of, inter alia, Jones fleeing police

approximately three weeks following the shooting. Doc. 11-1 at 49-50. The trial

court held a hearing, at the conclusion of which, it found the evidence to be

admissible. Doc. 11-2 at 89-179 (hearing transcript).

2 In the Amended Petition, Jones initially raised seventeen grounds, but he

voluntarily dismissed or withdrew Grounds Two, Three, Seven, Ten, Fifteen, Sixteen,

and Seventeen. See Orders (Docs. 18, 24).

The case proceeded to a bifurcated jury trial—the attempted second-

degree murder charges were tried first, followed by the felon in possession of a

firearm charge. See Doc. 11-2 at 312-979; Doc. 11-3. The jury found Jones guilty

as charged on all four counts. Doc. 11-1 at 330-36. The trial court sentenced

Jones to thirty years on each of the attempted second-degree murder counts,

with a twenty-year mandatory minimum, and fifteen years on the felon in

possession count, with a three-year mandatory minimum with counts two

through four to run consecutive to count one. Doc. 11-2 at 24-33 (judgment),

294-307 (sentencing transcript).

With help from appellate counsel, Jones filed a direct appeal. Doc. 11-6.

The First District Court of Appeal per curiam affirmed Jones’s convictions

without comment, but reversed and remanded for resentencing based on a

change in the law. Doc. 11-9. On remand, the trial court resentenced Jones to

thirty-years imprisonment each on counts one, two, and three, with a twenty-

year mandatory minimum on each count, and fifteen-years imprisonment on

count four, with a three-year mandatory minimum to run concurrent with the

mandatory minimum imposed on count one. Doc. 11-17. The trial court further

instructed that the sentences on counts two, three, and four each run

consecutive to the sentence on count one. Id. Effectively, Jones received the

same term of incarceration as he did in the original sentence.

On July 5, 2016 (mailbox rule), Jones filed in state court a pro se petition

alleging ineffective assistance of appellate counsel. Doc. 11-22. He

subsequently filed an amended petition. Doc. 11-23. The state filed a response,

Doc. 11-24, and Jones filed a reply, Doc. 11-25. On September 25, 2017, the

First DCA per curiam denied the petition “on the merits.” Doc. 11-26. The First

DCA also denied Jones’s request for rehearing. Doc. 11-27 (motion); Doc. 11-28

(order).

Jones filed a postconviction motion pursuant to Florida Rule of Criminal

Procedure 3.850 on June 19, 2017, and several amendments. Doc. 11-35 at 6-

159, 171-93. The postconviction court held an evidentiary hearing on certain

grounds, id. at 287-416, and thereafter denied Jones’s properly filed

postconviction claims, id. at 230-55.3 Jones appealed the postconviction court’s

denial of his Rule 3.850 motion, and filed an initial brief. Doc. 11-37. The state

filed a response, Doc. 11-38, and the First DCA per curiam affirmed the

postconviction court’s denial without issuing a written opinion. Doc. 11-40.

The instant case followed.

3 The postconviction court did not address Jones’s third supplemental amended

motion. Doc. 11-35 at 231-32 (“[T]his Court will not consider the enlargements on

Defendant’s timely raised claims contained in” the third supplemental motion filed

on August 1, 2018, because Jones filed the third supplement after the postconviction

court ordered the state to respond to certain grounds and Jones failed to obtain the

court’s leave to further amend his claims).

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), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘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)). As such,

federal habeas review of final state court decisions is “greatly circumscribed

and highly deferential.” Id. (internal quotation marks omitted) (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

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, 584 U.S. 122, 125 (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 125–26, 132.

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). 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.” Titlow, 571 U.S.

at 19. “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. Thus, to the extent that the 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. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 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,

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]

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

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

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

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).

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 and Appellate 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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

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.

Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland. See Tuomi v. Sec’y,

Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has instructed:

In assessing an appellate attorney’s performance, we

are mindful that “the Sixth Amendment does not

require appellate advocates to raise every non-

frivolous issue.” Id. at 1130-31.3 Rather, an effective

attorney will weed out weaker arguments, even

though they may have merit. See id. at 1131. In order

to establish prejudice, we must first review the merits

of the omitted claim. See id. at 1132. Counsel’s

performance will be deemed prejudicial if we find that

“the neglected claim would have a reasonable

probability of success on appeal.” Id.

Philmore, 575 F.3d at 1264. Thus, appellate counsel’s performance is

prejudicial if the omitted claim would have a reasonable probability of success

on appeal. Id. at 1265.

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, Jones alleges his trial counsel was ineffective for

entering a not guilty plea at arraignment without consulting him. Amended

Petition at 5. He argues that his counsel failed to obtain his consent to enter

the plea, “which resulted [in] her not holding the state to its burden of taking

the grand jury process when filing informations, and further waiving legal and

other constitutional rights.” Id.; see also Doc. 14 at 2-16.

Jones raised a substantially similar claim in his Rule 3.850 motion. The

postconviction court summarily denied the claim as follows:

Defendant claims counsel was ineffective for

entering a “not guilty” plea at arraignment without his

consent. He contends that counsel did not consult with

or speak to Defendant before entering a plea.

Counsel’s actions resulted in prejudice because she did

not effectively reserve the right to attack the

information’s legal sufficiency on direct appeal.

Defendant claims the plea lacked a proper basis

because the State did not receive sworn testimony

from a material witness prior to filing the information.

During arraignment, counsel told this Court

that Defendant wanted to attack the legal sufficiency

of the information prior to arraignment and reserved

the right to bring that claim. Defendant insisted that

counsel had “pled to the merits” without his consent

because he sought to attack the information’s

sufficiency. This Court explained to Defendant that

even if counsel stood silent and refused to enter a plea,

the law required this Court to enter a “not guilty” plea

on his behalf. Accordingly, even if Defendant had

refused to enter a plea or pled evasively, this Court

would have entered the same plea as counsel entered

on Defendant’s behalf. Fla. R. Crim. P. 3.170(c).

Defendant also was not prejudiced by counsel’s

actions because this Court ultimately found the

information had a sufficient factual basis. Counsel

filed a motion to dismiss the information on the ground

that the State did not receive sworn testimony from a

material witness. After a hearing, this Court denied

the defense’s motion:

[B]ut rather looking to the merits of the

motion under [Weinberg7] and other cases,

the matters presented based upon the

detective’s testimony, the nature of his

involvement in this case, the nature of his

interviews, the substance of those

witnesses, what he personally observed as

it pertains to those identification

statements, things of that sort, this Court

finds sufficient to defeat the defendant’s

motion to dismiss.

Therefore, Defendant was not prejudiced by counsel’s

alleged failure to contest the information’s sufficiency

at arraignment.

7 State of Florida v. Weinberg, 780 So. 2d 214 (Fla. 5th DCA 2001).

In addition, Defendant alleges prejudice in that

counsel failed to preserve this issue for appeal.

“[F]ailure to preserve issues for appeal does not show

the necessary prejudice under Strickland.” Strobridge

v. State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009).

Prejudice must be assessed “based upon its effect on

the results of the trial, not on its effect on appeal.” Id.

(citing Carratelli v. State, 961 So. 2d 312,323 (Fla.

2007)). To the extent Defendant argues prejudice on

direct appeal, such a claim does not have merit.

Accordingly, this Court denies Ground Four.

Doc. 11-35 at 238-40 (internal record citations omitted). On September 25,

2020, the First DCA per curiam affirmed without opinion the postconviction

court’s denial, and on October 23, 2020, issued the mandate. Doc. 11-40 at 2;

Doc. 11-41 at 2.

To the extent that the First DCA decided this issue on the merits,8 the

Court addresses 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 this 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 given the evidence

8 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, 584 U.S. at 128-30.

presented in the state court proceedings. Jones is therefore not entitled to relief

on the basis of this claim.

Even if the state court’s decision is not entitled to deference, the claim

has no merit. Assuming, arguendo, Jones’s trial counsel was deficient for

entering a plea without discussing it with Jones, Jones has not shown

prejudice. Under the Florida Rules of Criminal Procedure, even if Jones had

refused to enter a plea at the arraignment, the trial court would have

automatically entered a not guilty plea on his behalf. See Fla. R. Crim. P.

3.170(c) (“If a defendant stands mute, or pleads evasively, a plea of not guilty

shall be entered.”). Indeed, the trial court explained to Jones during the

arraignment that the court would have entered a not guilty plea on Jones’s

behalf even if his lawyer had said nothing:

THE DEFENDANT: I want to know - - she pled

to the merits without my consent. I want to know if my

rights are reserved to challenge that charge.

THE COURT: Yes, sir. Your rights are reserved

to challenge the legal sufficiency, to challenge the

charge, all of that. Those are your rights that have

been reserved. If there is something - - frankly, you can

stand there and say nothing and your lawyer, but it

has occurred in the past where the lawyer would stand

there and acknowledge receive [sic] the information

and say nothing and the court will enter a plea of not

guilty on the defendant’s behalf.

So you will have ample time to talk to your

lawyer if there is a legal basis to attack the sufficiency

of the charges in the information filed, certainly there

will be time to do that, to contest the charges. That is

entirely what the judicial process is about.

So you have not forfeited any of your rights and

I’m expressly saying I’ve required the arraignment.

She has tendered that plea and I’m reserving

whatever rights are available to you under Florida

law.

Doc. 11-2 at 59-60.

The entry of the not guilty plea did not prejudice Jones. Indeed, Jones’s

trial counsel filed a motion to dismiss the information, arguing that the state

did not receive sworn testimony from a material witness prior to filing the

information. See Doc. 11-1 at 57-58. Thus, counsel did challenge the

information, even after entering a not guilty plea on Jones’s behalf. And

appellate counsel raised the issue on direct appeal. See Doc. 11-6 at 40-42 (“The

trial court erred in denying Mr. Jones’ motion to dismiss because the

information was not based on the sworn testimony of a material witness.”).

Considering the record, the Court finds that Jones fails to show a reasonable

probability exists that but for his counsel’s alleged ineffectiveness, the outcome

of the proceeding would have been different. As such, the Court denies relief

on the claim in Ground One.

B. Ground Four

As Ground Four, Jones maintains the trial court erred in admitting

evidence about Jones assaulting and fleeing police weeks after the incident.

Amended Petition at 10; see Doc. 14 at 17-21; Doc. 25.

Jones, with the assistance of appellate counsel, raised a substantially

similar claim on direct appeal. See Doc. 11-6 at 32. Jones argued that the

probative value of the evidence was substantially outweighed by the danger of

unfair prejudice. Id. Jones further argued that “the evidence at trial failed to

establish any nexus between Jones’[s] flight and the crimes for which he was

being tried.” Id. at 34. In making his arguments, Jones only cited to state law.

See id. at 32-36. In its answer brief, the state argued that because trial counsel

failed to object to this evidence at trial, the issue was not preserved for appeal.

Doc. 11-7 at 20-21. Nevertheless, the state alternatively addressed the merits

of the issue. Id. at 21-27. In doing so, the state cited some federal law in support

of its arguments. See id. The First DCA affirmed Jones’s convictions without

comment. Doc. 11-9 at 2.

The appellate court may have affirmed Jones’s convictions based on the

state’s merits argument. If the appellate court addressed the federal nature of

Jones’s claim on the merits, Jones would not be entitled to relief because the

state court’s adjudication of this claim is entitled to deference under AEDPA.

After a careful review of the record and the applicable law, the Court concludes

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

established federal law and did not involve an unreasonable application of

clearly established federal law. Nor was the state court’s adjudication 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 this claim.

Assuming this Court did not apply deference to the state court’s

adjudication and Jones exhausted the federal nature of this claim, the Court

finds the claim has no merit. The trial court held a pretrial hearing to address

the admissibility of this evidence. See Doc. 11-2 at 89-179. After hearing

testimony from Morris McClendon and the three officers present during the

incident involving Jones’s flight, as well as considering argument from trial

counsel and the state, the trial court ruled the evidence of Jones’s flight was

admissible at trial, reasoning as follows:

The State of Florida, having considered the

matters presented, the State of Florida will be

permitted to present the evidence that is subject to the

State’s first notice of other crimes, wrongs or acts

evidence filed December 4th, 2013, because, number

one, to find such evidence the Court finds that such

evidence is relevant to the subject of this case and,

number two, to the extent necessar[y] the Court does

find, by clear and convincing evidence, that sufficient

evidence has been presented to establish that the

defendant committed the acts that are the subject of

the State’s first notice.

Specifically, the Court has considered

McClendon’s testimony, not only within a vacuum and

not only in the light of the fact that he has pending

charges, his prior record, things of that sort, but in

considering his testimony with that of the law

enforcement officers who were present that day who

were the subject of the conduct that they testified to,

particularly, number one, that McClendon testified

that the defendant was aware that these were law

enforcement officers, by whatever pathetic jargon is

used to identify his awareness but, number two, that

McClendon’s testimony is entirely consistent with the

testimony of the law enforcement officers, both as to

the defendant’s conduct before he got into the car,

looking in one law enforcement officer’s direction,

looking at another vehicle behind, looking back to the

law enforcement officer and then jumping back into

the vehicle, not only before he got into the vehicle, but

while he was in the vehicle, the high rate of speed, the

fast acceleration, the heading directly at cars that are

on the road that are law enforcement officers, the

running through stop signs, the being wrecked into

another vehicle.

So you have his conduct consistent with

McClendon’s testimony, and McClendon’s testimony

he’s aware of their presence and aware that they’re

looking for him, for whatever reason, a warrant or as

a person of interest. McClendon’s testimony is

consistent with the defendant’s conduct before he gets

in the car, while he was in the car and after he gets out

of the car there is immediate contact after 15 to 20

seconds, in a hastily and a hasty exit, for lack of a

better word from the vehicle, all of those factors are

consistent from amongst the law enforcement officers’

testimony themselves from what they observed and

they are - - and that is consistent with McClendon’s

testimony.

So the Court finds, frankly, I’m not entirely sure

and I would question if it’s Williams Rule, but that’s

for another day, if it’s not Williams Rule it certainly

has relevance to the case if it - - and it’s not simple

character evidence for propensity purposes, which we

all know is rankly inadmissible, but to the extent it is

considered Williams Rule, the Court finds that clear

and convincing - - that evidence has been presented to

establish, by a clear and convincing burden of proof,

that the defendant committed these acts that’s

relevant to the case, that is not excluded by 403, and I

expressly considered that as well, and for the reasons

stated the evidence subject to the notice will be

admitted during the course of trial.

Doc. 11-2 at 176-79.

Although McClendon did not testify at trial,9 three of the law

enforcement officers present during Jones’s flight did testify. See Doc. 11-3 at

50-77 (Douglas Howell, Jr.), 80-95 (James Brennock), 97-119 (Jim Walters).

Sergeant Walters testified that after he used a PIT (precision intervention

technique) on Jones’s vehicle, Jones wrecked his car and eventually stopped.

Id. at 108-09. Walters exited his vehicle along with the detectives riding with

him, and they attempted to apprehend Jones while yelling, “Police, get down,

police, get down, stop, stop, police,” but Jones continued to try to struggle to

“flee from [them].” Id. at 109.

9 Mr. Moody, the prosecutor on Jones’s case, testified at the postconviction evidentiary

hearing that he did not call McClendon at trial because he had the testimony of the

officers, Daryl Williams, and Jones’s son’s mother, and he “had made the

determination at that point in time that there was more baggage than it was worth

and [he] had better evidence” with Williams and Jones’s son’s mother. Doc. 11-35 at

351, 376.

Additionally, multiple eyewitnesses testified and identified Jones as the

shooter. See Doc. 11-2 at 666-67 (Larry Andrews), 835-39 (Maurice Miller),

769-70 (James Russell). The state also presented evidence that Jones asked his

son’s mother to relay a message to another inmate, asking that inmate “to take

some time.” Doc. 11-3 at 196-200, 214. Further, the state presented testimony

from Daryl Williams, an inmate at the jail, who said that Jones asked Williams

to contact one of the victims (Larry Andrews), so Jones could ask Andrews if

Andrews was going to testify against him. Doc. 11-3 at 129-32. According to

Williams, Jones told him about the shooting and stated that if Andrews

testified, Jones would “lose [at] trial.” Id. at 133-34.

Insofar as Jones complains about the trial court’s evidentiary rulings,

“federal courts will not generally review state trial courts’ evidentiary

determinations.” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295 (11th

Cir. 2014). “[I]t is not the province of a federal habeas court to reexamine state-

court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). “Habeas relief is warranted only when the error ‘so

infused the trial with unfairness as to deny due process of law.’” Taylor, 760

F.3d at 1295 (quoting Lisenba v. People of State of California, 314 U.S. 219,

228 (1941)). Here, the trial court’s alleged error in admitting the evidence of

Jones’s subsequent flight from police did not affect the fundamental fairness

of Jones’s trial. Considering the record, the Court finds Jones is not entitled to

federal habeas relief on Ground Four.

C. Ground Five

As Ground Five, Jones raises a Giglio10 violation. Amended Petition at

52; see Doc. 14 at 21-34. He contends that the prosecutor knowingly used the

false testimony of Morris McClendon to establish the nexus between Jones’s

flight from police and the subject shooting. Amended Petition at 52. He submits

that the prosecutor knew McClendon lied during his pretrial testimony, and

thus the prosecutor did not present McClendon as a witness at trial. Id. He

also argues that his trial counsel was ineffective for failing to raise this Giglio

violation. Doc. 14 at 29.

In his Rule 3.850 motion, Jones argued that his trial counsel was

ineffective for failing to raise a Giglio violation. After holding an evidentiary

hearing, the postconviction court denied the claim, reasoning as follows:

Defendant claims counsel was ineffective for not

challenging a Giglio violation. The prosecutor

allegedly told defense counsel that the State would not

call Morris McClendon (“McClendon”) as a witness at

trial because he gave false testimony at a pretrial

hearing pursuant to Williams v. State, 110 So. 2d 654

(Fla. 1959). Defendant argues that counsel should

have moved to suppress McClendon’s testimony.

Defendant claims that if counsel moved to suppress

10 Giglio v. United States, 92 S. Ct. 763 (1972).

McClendon’s testimony, then the jury would not have

heard evidence of Defendant’s flight from law

enforcement.

At the evidentiary hearing held on December 6,

2018, Defendant testified the prosecutor told defense

counsel that McClendon would not testify at trial

because he gave false testimony at a pretrial hearing.

Defendant also claimed he never discussed his case

with McClendon. Jeffrey Moody (“Mr. Moody”)

testified that he would not use false testimony, and he

did not believe McClendon provided false information.

Mr. Moody also stated he did not call McClendon as a

witness at trial because he used other witnesses to

demonstrate Defendant’s consciousness of guilt. These

witnesses did not have McClendon’s “baggage,”

including felony convictions and prior inconsistent

statements.

Regina Wright (“Ms. Wright”[11]) testified that

she could not recall Mr. Moody making the alleged

statement about McClendon. Ms. Wright did not know

the reason for Mr. Moody’s decision to not call

McClendon as a witness during trial. However, she

testified to investigating and deposing McClendon

before the Williams Rule hearing. During the hearing,

she questioned McClendon about his prior convictions

and statements, as well as argued to this Court that it

should discount McClendon’s testimony due to his lack

of credibility. The record confirms that Ms. Wright

took these actions.

Having had the opportunity to observe the

witnesses’ demeanors and the manners in which they

testified, in conjunction with the record, this Court

finds Ms. Wright and Mr. Moody’s testimony to be

more credible and more persuasive than Defendant’s

testimony. Mr. Moody did not have any basis to believe

McClendon gave false testimony and never told Ms.

11 Ms. Wright was Jones’s trial counsel.

Wright that McClendon testified falsely at the pretrial

hearing. Ms. Wright could not recall Mr. Moody

making the alleged statement. Therefore, Ms. Wright

had no basis to object on the basis that Mr. Moody

offered false testimony. Counsel was not ineffective for

failing to make a meritless argument. Schoenwetter v.

State, 46 So. 3d 535, 546 (Fla. 2010). Accordingly, this

Court denies Ground One.

Doc. 11-35 at 234-35 (internal record citations omitted). The First DCA per

curiam affirmed without opinion the postconviction court’s denial. See Doc. 11-

40 at 2; Doc. 11-41 at 2.

To the extent that Jones is now raising the same claim that he did in his

Rule 3.850 proceeding12 and the First DCA decided this issue on the merits,

the Court addresses 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 this 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 given the evidence

presented in the state court proceedings. Jones is therefore not entitled to relief

on the basis of this claim.

12 Jones acknowledges that he raised this Ground in his Rule 3.850 motion but

not on direct appeal. Amended Petition at 53.

Insofar as Jones is raising a freestanding Giglio claim, his claim is

procedurally barred. Jones failed to raise such a claim in state court, and the

time in which to do so has now passed. He has neither shown cause and

prejudice to excuse his procedural default, nor has he shown a fundamental

miscarriage of justice would result if the Court does not address his claim on

the merits. As such, any freestanding Giglio claim is procedurally defaulted

and due to be denied.

D. Ground Six

As Ground Six, Jones alleges trial counsel was ineffective for failing to

request a hearing pursuant to Richardson v. State, 246 So. 2d 771 (Fla. 1971),13

with respect to the 911 call made by Maurice Miller. Amended Petition at 54;

see Doc. 14 at 34-39. According to Jones, Miller testified during trial that he

called 911 after running from the scene of the shooting. Amended Petition at

54. Miller’s trial testimony was the first time that Jones became aware of the

911 call. Id.

Jones raised a substantially similar claim in his Rule 3.850 motion. The

postconviction court summarily denied the claim as follows:

Defendant alleges counsel was ineffective for

failing to request a Richardson hearing. He claims

Maurice Miller (“Miller”) called law enforcement after

13 “A Richardson hearing is a proceeding under Florida law by which a criminal

defendant can challenge a discovery violation.” Taylor v. Sec’y, Fla. Dep’t of Corr., 64

F.4th 1264, 1272 (11th Cir. 2023).

the shooting. The recording of the call would

demonstrate that Miller gave inconsistent

descriptions of the shooter. Defendant contends

counsel should have brought this Court’s attention to

the State’s failure to comply with Florida Rule of

Criminal Procedure 3.220. If counsel had requested a

Richardson hearing, then the defense might have

obtained the recording and used it to impeach Miller.

When a party does not comply with Florida Rule

of Criminal Procedure 3.220, a court will hold a

Richardson hearing to determine whether, considering

the totality of the circumstances, a party’s

noncompliance has prejudiced its opponent.

Richardson, 246 So. 2d at 775. Initially, a court

considers whether a party violated a rule of discovery.

Cuny v. State, 1 So. 3d 394, 397 (Fla. 1st DCA 2009).

If a party violated a discovery rule, then a court

evaluates the nature of the violation and any effect on

the opposing party’s preparation for trial. Id.

Counsel did not perform deficiently because she

had no basis for requesting a Richardson hearing. At a

hearing on August 19, 2014, counsel brought this

Court’s attention to Defendant’s concerns about the

existence of a recording. Counsel indicated that she

previously requested the recording from the State, but

law enforcement did not find a recording. The State

also requested the recording from law enforcement

and received a similar response. This Court accepted

the State’s assertions.

Defendant again referenced the recording at a

hearing on August 20, 2014. This Court explained to

Defendant that it addressed the matter during the

August 19th hearing, and the recording would not

provide “a basis . . . to delay or declare a mistrial or

delay the trial further.” In turn, counsel did not have

a basis to request a Richardson hearing, since no

evidence indicated that the State violated a discovery

rule or law enforcement even had the recording.

Counsel did not perform ineffectively when she failed

to pursue a meritless claim. State v. Knight, 866 So.

2d 1195, 1204 (Fla. 2003).

In addition, Defendant only assumes that Miller

made a call to law enforcement during which he gave

a description of the shooter that differed from his

description of the shooter at trial. This Court will not

grant Defendant postconviction relief based purely

upon speculation. Maharaj, 778 So. 2d at 95.

Accordingly, this Court denies Ground Eleven.

Doc. 11-35 at 246-47 (internal record citations omitted). The First DCA per

curiam affirmed without opinion the postconviction court’s denial. See Doc. 11-

40 at 2; Doc. 11-41 at 2.

To the extent that the First DCA decided this issue on the merits, the

Court addresses 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 this 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 given the evidence

presented in the state court proceedings. Jones is therefore not entitled to relief

on the basis of this claim.

Assuming the state court’s adjudication is not entitled to deference, as

noted by the postconviction court and confirmed by the record, trial counsel

had no basis to request a Richardson hearing. Thus, trial counsel cannot be

deemed ineffective for failing to do so. Regardless, even assuming trial counsel

was deficient in the manner Jones suggests, Jones has not shown prejudice.

He has not shown a reasonable probability exists that but for counsel’s alleged

ineffectiveness, the outcome of his trial would have been different. As such, the

Court finds that Jones is not entitled to federal habeas relief on Ground Six.

E. Ground Eight

As Ground Eight, Jones maintains trial counsel was ineffective for

failing to file a motion to suppress the police report authored by Detective

Haines, which stated that Jeffery Tyndal advised officers that he had

information on a shooting. Amended Petition at 57; see Doc. 14 at 39-43; Doc.

26 at 1-12. According to Jones, “Tyndal’s information was how the detective

developed [the] photospread with [Jones’s] photo in it.” Amended Petition at

57.

In Jones’s Rule 3.850 motion, he raised a substantially similar claim.

The postconviction court denied it:

Defendant argues counsel was ineffective for not

filing a motion to suppress his Arrest and Booking

Report (“Report”). The Report contained allegations

that a detective interviewed Jeffery Tyndal (“Tyndal”),

who stated that Defendant admitted to being involved

in the shooting. Defendant argues that this

information led law enforcement to create a photo

spread that included Defendant’s photograph. He also

claims counsel should have investigated Tyndal’s

statement to determine if the information had been

falsified by law enforcement. Defendant contends that

if counsel had filed a motion to suppress, then this

Court would have granted the motion.

The record refutes Defendant’s claim that

counsel was deficient for not moving to suppress the

Report. This Court initially notes that the State did

not introduce the Report as evidence or call Tyndal as

a witness at trial. Nevertheless, the interview with

Tyndal did not provide the basis for law enforcement’s

photo spread. Detective Kevin Haines (“Detective

Haines”) testified that the initial photo spread shown

to Miller did not include Defendant’s photograph.

After failing to identify anyone as the shooter, Miller

told law enforcement that he recently learned the

shooter’s street nickname, “Tootie Boy.” Law

enforcement discovered through further investigation

that Defendant identified as Tootie Boy and created a

second photo spread that included Defendant’s

photograph. Therefore, Miller’s information prompted

law enforcement to include Defendant in the photo

spread. Counsel did not have a basis to file a motion to

suppress the Report or to investigate Tyndal. Banks v.

State, 219 So. 3d 19, 26-28 (Fla. 2017) (determining

that counsel was not ineffective for failing to raise a

meritless motion to suppress). Accordingly, this Court

denies Ground Thirteen.

Doc. 11-35 at 248-49 (internal record citations omitted). The First DCA per