Jackson v. McNeil, et.,al

Filing 23

ORDER denying the Petition and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 10/11/2011. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MARCUS E. JACKSON,
Petitioner,
v.

Case No. 3:09-cv-18-J-34MCR

SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Jackson initiated this action by filing a pro se
Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28
U.S.C. § 2254 on December 1, 2008, pursuant to the mailbox rule.
He challenges a 2003 state court (Duval County, Florida) judgment
of conviction for second degree murder and attempted first degree
murder on five grounds. Respondents have submitted a memorandum in
opposition to the Petition.

See Respondents' Response to Habeas

Petition (Response) (Doc. #16); Exhibits (Resp. Ex.) (Doc. #18).
On March 4, 2009, the Court entered an Order to Show Cause and
Notice to Petitioner (Doc. #9), admonishing Petitioner regarding
his obligations and giving Petitioner a time frame in which to
submit a reply.

On June 27, 2011, Petitioner notified the Court

that he does not intend to reply, but will rely on the grounds, as

asserted in the Petition.
Response (Doc. #22).

See Petitioner's Reply to Respondents'

This case is ripe for review.
II. Procedural History

On March 20, 2003, the State of Florida charged Marcus Elliott
Jackson with first degree murder, attempted first degree murder
(three counts), and shooting at, within, or into an occupied
vehicle.

Resp. Ex. C, Indictment.

Jackson entered a negotiated

plea of guilty to second degree murder and attempted first degree
murder in exchange for a sentence between twenty and forty years of
imprisonment with a twenty-year minimum mandatory sentence under
the 10/20/life statute.1

As part of the plea, Jackson agreed to

"give truthful testimony in any future deposition, hearing, or
trial regarding the facts of this case." Accordingly, Jackson gave
a statement to the State Attorney's Office on May 29, 2003, see
Resp. Ex. J at 258-67, deposition testimony on July 24, 2003, and
then testified at the August 2003 trial of co-defendant John
Patterson, see Resp. Ex. L, Transcript of the Trial of Co-Defendant
John Patterson (Tr.), at 389-482.
At the May 29, 2003 plea hearing, the trial judge found
Jackson's plea to be freely and voluntarily entered.

Resp. Ex. J

at 122-37, Transcript of the Plea Proceeding (Plea Tr.).

On

September 18, 2003, the trial court sentenced Jackson to forty
years of imprisonment on count one with a twenty-year minimum

1

See Fla. Stat. § 775.087 (2000).
2

mandatory for discharge of the firearm and fifteen years of
imprisonment on count two, to run concurrently to count one. Resp.
Ex. J at 138-249.

On December 15, 2003, at the request of the

State and the defense due to Jackson's cooperation with the State,
the trial judge reduced Jackson's sentence on count one to twentyfive years of imprisonment with a twenty-year minimum mandatory.
Id. at 250-56; Resp. Exs. G; H, Judgment.

Jackson did not appeal.

On January 16, 2004, the court entered an order quashing and
striking a December 31, 2003 motion for post conviction relief and
a January 7, 2004 motion to correct illegal sentence since Jackson
had failed to sign them.

See Resp. Ex. I.

Jackson filed a pro se

motion for post conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 on February 11, 2004.
13.

Resp. Ex. J at 1-

Subsequently, Jackson amended the post conviction motion and

then filed the final amended motion (Rule 3.850 motion) on July 6,
2006, pursuant to the mailbox rule.

Id. at 14-33, 34-47, 48-89.

In the request for post conviction relief, Jackson asserted that
his counsel was ineffective because she: failed to object to the
trial court's failure to formally accept Jackson's plea (ground
one); induced Jackson to accept the plea when the State's factual
basis was inadequate to support the convictions (ground two);
failed to fulfill her promise that Jackson would receive a twentyyear sentence in exchange for a negotiated guilty plea (ground
three); failed to communicate with Jackson and comply with his

3

request for information and potential defenses for trial (ground
four); and misinterpreted the law and failed to request that
Jackson be sentenced as a youthful offender under Florida law
(ground five).

On December 4, 2007, the circuit court denied

Jackson's Rule 3.850 motion.

Id. at 106-21.

Jackson appealed the denial, but did not file a brief.
Ex. M.

Resp.

On June 17, 2008, the appellate court affirmed the denial

per curiam, see Jackson v. State, 987 So.2d 82 (Fla. 1st DCA 2008);
Resp. Ex. K, and the mandate issued on August 19, 2008, see Resp.
Ex. K.
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of
limitations.

See 28 U.S.C. § 2244(d); Response at 3-4.
IV. Evidentiary Hearing

"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) (citation omitted).
"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."

Id.

The

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

Because this Court can "adequately assess

4

[Petitioner's]

claim[s]

without

further

factual

development,"

Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be
conducted.
V.

Standard of Review

The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d).

This standard is described as follows:
As explained by the Supreme Court, the
phrase
"'clearly
established
Federal
law' . . . refers to the holdings . . . of
[the Supreme Court's] decisions as of the time
of
the
relevant
state-court
decision."
Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We
have held that to be "contrary to" clearly
established federal law, the state court must
either (1) apply a rule "that contradicts the
governing law set forth by Supreme Court case
law," or (2) reach a different result from the
Supreme Court "when faced with materially
indistinguishable facts." Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2003).
As regards the "unreasonable application"
prong of § 2254(d)(1), we have held as
follows:
A state court decision is an
unreasonable application of clearly
established law if the state court
unreasonably extends or fails to
extend a clearly established legal
principle to a new context.
An
application of federal law cannot be
considered
unreasonable
merely
because it is, in our judgment,
incorrect or erroneous; a state
court
decision
must
also
be
unreasonable. Questions of law and
mixed questions of law and fact are
reviewed de novo, as is the district
5

court's conclusion regarding the
reasonableness of the state court's
application of federal law.
Jennings v. McDonough, 490 F.3d 1230, 1236
(11th
Cir.
2007)
(quotation
marks
and
citations omitted). In sum, "a federal habeas
court making the 'unreasonable application'
inquiry should ask whether the state court's
application of clearly established federal law
was objectively unreasonable." Williams, 529
U.S. at 409, 120 S.Ct. at 1521. Finally, 28
U.S.C. § 2254(e)(1) commands that for a writ
to issue because the state court made an
"unreasonable determination of the facts," the
petitioner must rebut "the presumption of
correctness [of a state court's factual
findings] by clear and convincing evidence."[2]
28 U.S.C. § 2254(e)(1).
Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir.), cert. denied, 131
S.Ct. 647 (2010).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Harrington v. Richter, 131 S.Ct. 770,
785 (2011) (holding that § 2254(d) does not require a state court
to give reasons before its decision can be deemed to have been
adjudicated on the merits); Wright v. Sec'y for the Dep't of Corr.,

2

This presumption of correctness applies equally to factual
determinations made by state trial and appellate courts." Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
6

278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S. 906
(2003).

Thus,

to

the

extent

that

Petitioner's

claims

were

adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance of counsel.
counsel's

performance

That right is denied when a defense
falls

below

an

objective

reasonableness and thereby prejudices the defense."

standard

of

Yarborough v.

Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment."
Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been

7

different.[3] 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.
Harrington, 131 S.Ct. at 787-88.
The two-part Strickland test applies to ineffective assistance
claims concerning both the decision to accept a guilty plea offer
and the decision to forgo a plea offer and stand trial.

Hill v.

Lockhart, 474 U.S. 52, 58-59 (1985). Since both prongs of the twopart 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." Ward,
592 F.3d at 1163 (citation omitted).
high bar is never an easy task."

"Surmounting Strickland's

Harrington, 131 S.Ct. at 788

(quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010)).
A state court's adjudication of an ineffectiveness claim is
accorded great deference. "The standards created by Strickland and
§ 2254(d) are both 'highly deferential,' [Strickland], at 689, 104
S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.

3

In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, Petitioner must show
there is a "reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going
to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
8

2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem,
review is 'doubly' so, Knowles[4], 556 U.S., at ----, 129 S.Ct. at
1420."

Harrington, 131 S.Ct. at 788.
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." Schriro, supra, at 473, 127 S.Ct.
1933. And, because the Strickland standard is
a general standard, a state court has even
more latitude to reasonably determine that a
defendant has not satisfied that standard.
See Yarborough v. Alvarado, 541 U.S. 652, 664,
124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)
("[E]valuating whether a rule application was
unreasonable requires considering the rule's
specificity. The more general the rule, the
more leeway courts have in reaching outcomes
in case-by-case determinations").

Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009); see also
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) ("In
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.").
VII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Jackson claims counsel was ineffective because
she failed to object to the trial court's failure to formally
accept Jackson's plea.
4

As acknowledged by the parties, Petitioner

Knowles v. Mirzayance, 129 S.Ct. 1411 (2009).
9

raised this ground in his Rule 3.850 motion. Ultimately, the court
denied the motion on the merits as to this claim, stating in
pertinent part:
The defendant pled guilty to one count of
Second Degree Murder and one count of
Attempted First Degree Murder on May 29, 2003.
The negotiations were for a minimum of twenty
years
and
a
maximum
of
forty
years
imprisonment, to run concurrently, with twenty
years being treated as a minimum mandatory
under the 10-20-Life statute. The defendant
and his co-defendant pled guilty to murdering
a twenty-three year old Marine Sergeant home
on leave from the war on terror.
Subsequently, the defendant and his codefendant cooperated with the State and
testified against a third co-defendant who was
the actual shooter in the death of the Marine
Sergeant. Because of their conduct in this
phase of the litigation, and because of the
victim's
family's
recommendations,
this
defendant and his co-defendant were back in
court on December 15, 2003, whereupon the
Court granted [a] Motion for Reduction of
Sentence on both defendants, following the
recommendation of the State.
The defendant
was
resentenced
to
twenty-five
years
imprisonment with a minimum mandatory twenty
year term at this time. The defendant was
represented throughout these proceedings by
Judy Groover, Esquire. No evidentiary hearing
can be held regarding communications between
the defendant and his court-appointed counsel,
because Ms. Groover has conveniently (for the
defendant), but tragically and prematurely
died at a very young age.
Fortunately, for the sake of justice and
in the interest of a fair, lawful, and correct
conclusion to this litigation, all of the
allegations of the motion are conclusively
refuted by the record herein, the majority of
which is comprised of the defendant's own
sworn statements under oath. The defendant
10

testified under oath at his plea hearing,[5]
his sentencing hearing,[6] and his resentencing
hearing. He also gave a sworn statement, a
deposition, and testimony in the case of the
State of Florida v. John Patterson, the third
co-defendant. His own sworn words, inter alia,
conclusively refute every allegation in the
motion.
In Ground I, the defendant alleges
ineffective assistance of counsel for failing
to object to the trial court's failure to
formally accept the defendant's plea of
guilty. The transcript of court proceedings on
May 29, 2003, reveal that the judge who
accepted the defendant's plea conducted a
complete, thorough, and exhaust[ive] plea
inquiry which is memorialized on pages 6-15 of
the transcript of May 29, 2003. A copy of this
plea colloquy is attached hereto as Exhibit
"A".
At the conclusion of this exhaustive
plea colloquy, the Court made the following
findings:
"Based on the questions asked and
responses given the Court finds the
defendant has the intelligence to
understand
his
constitutional
rights, the plea he's entered, the
plea agreement form he's executed,
and these proceedings.
I further find the plea has been
entered freely and voluntarily and
the defendant is not under the
influence of any substances or
suffers from any mental illness that
would
interfere
with
his
understanding and appreciation of
the plea he's entered and the
consequences thereof." (T p. 15.)

5

See Plea Tr.

6

See Resp. Ex. J at 202-05.
11

The Court, based upon diligent inquiry,
made all of the findings required by Florida
Rules of Criminal Procedure 3.170(k)(1), (2),
and (3), and 3.172(a), (b), (c)(1), (2), (3),
(4), (5), (6), (7), (8), and (9). (d) was not
in the rule at the time of entry of this plea.
The Court also made the requisite findings of
(e) of this Rule.
These inquiries and findings are the
mandatory requirements of rules concerning
accepting guilty pleas. There is no specific
requirement that the judge state the words "I
accept the plea of guilty." No magic words are
required; the rule simply sets forth that
until the judge does accept the defendant's
plea of guilty, it is not binding, and may be
withdrawn
by
either
party
without
any
necessary justification. Here, the judge
clearly went through the complete required
colloquy of questions, answers and findings.
Also, clearly here, the judge satisfied
himself as to the findings and accepted the
defendant's plea, because he ordered a PreSentence Investigation Report and set the case
for a sentencing hearing. Further, the Court,
on
the
appointed
date,
conducted
the
sentencing hearing and sentenced the defendant
on these pleas. No magic words were used, but
none are required. Had the defendant chosen to
withdraw his plea at any time up until his
sentencing, he could have under this rule.
However, he did not. He also never requested
to withdraw his plea at or before the second
sentencing hearing, which was not conducted
until December 15, 2003. At no time was the
issue of the defendant wanting to go to trial
ever raised on this record. Certainly a record
indicates that a court has accepted a guilty
plea when the court has sentenced the
defendant twice on that same guilty plea.
Further, the rule itself states that
failure to follow any of the procedures set
forth in the rule shall not render a plea void
absent a showing of prejudice. Florida Rules
of Criminal Procedure 3.1720(j). No prejudice

12

is demonstrated
motion.

or

even

mentioned

in

the

Ground I is conclusively refuted by the
record herein.
Resp. Ex. J at 106-09.

Upon Jackson's appeal, the appellate court

affirmed the denial per curiam.
Assuming the appellate court affirmed the denial of the Rule
3.850 motion on the merits, there are qualifying state court
decisions.

Therefore, this claim will be addressed applying the

deferential standard for federal court review of state court
adjudications required by AEDPA.

After a thorough review of the

record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
established

federal

law

and

did

not

involve

application of clearly established federal law.

an

unreasonable
Nor were the

adjudications based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings.
Thus, Petitioner is not entitled to relief on the basis of this
claim.
Alternatively, if the state courts' adjudications of this
claim are not entitled to deference under AEDPA, Petitioner's claim
is, nevertheless, without merit.

The record fully supports the

trial court's findings. In evaluating the performance prong of the
Strickland ineffectiveness inquiry, there is a strong presumption
in favor of competence.

The inquiry is "whether, in light of all

13

the circumstances, the identified acts or omissions were outside
the

wide

range

of

professionally

competent

assistance."

Strickland, 466 U.S. at 690. "[H]indsight is discounted by pegging
adequacy to 'counsel's perspective at the time' . . . and by giving
a 'heavy measure of deference to counsel's judgments.'"

Rompilla

v. Beard, 545 U.S. 374, 381 (2005) (citations omitted).

Thus,

Petitioner must establish that no competent attorney would have
taken the action that counsel, here, chose.

United States v.

Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003).
Jackson has failed to establish that counsel's performance was
deficient by not objecting to the trial court's failure to formally
accept Jackson's plea.

The transcript of the May 29, 2003 plea

hearing reflects that the judge conducted a thorough inquiry to
ensure

that

Jackson

understood

his

options

and

intelligently and voluntarily entered the guilty plea.
Tr. at 6-15.
found

that

freely,
See Plea

At the conclusion of the plea colloquy, the court
Jackson

constitutional

"has

rights,

the

the

intelligence

plea

he

[has]

to

understand

entered,

the

agreement form he [has] executed, and these proceedings."
15.

his
plea

Id. at

Additionally, the court concluded that Jackson entered the

plea "freely and voluntarily" and neither was under the influence
of any substances nor suffered from any mental illness that would
interfere with his understanding and appreciation of the plea and

14

its consequences. Id. Given the record, counsel's performance was
within the wide range of professionally competent assistance.
Even

assuming

arguendo

deficient

performance

counsel, Petitioner has not shown prejudice.

by

defense

Petitioner has not

shown a "reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to
trial."

Hill, 474 U.S. at 59.

Petitioner acknowledged that he

pled guilty because he was in fact guilty.

Additionally, Jackson

testified under oath, at co-defendant Patterson's trial, that he
had bought a nine millimeter automatic gun a few days before the
shooting, decided to bring the gun and store it underneath the
driver's seat of his car that night, and then fired six shots into
a neighboring vehicle; he also saw co-defendant Patterson bring a
.380 gun and co-defendant Ward bring a sawed-off shotgun to his
car.

Tr. at 394-96, 408-09, 456-63.

Undoubtedly, the State's

evidence against Jackson was overwhelming.

Notably, a jury found

his co-defendant Patterson guilty of second degree murder and three
counts of attempted second degree murder, for which Patterson is
now serving life imprisonment.
As part of the plea negotiations, the State agreed to a reduced
charge of second degree murder (count one), a concurrent sentence
on count two, and a sentence between twenty and forty years of
imprisonment.

The State also agreed to enter a nolle prosequi as

to two counts of attempted first degree murder (counts three and

15

four) and shooting at, within, or into an occupied vehicle (count
five).

See Resp. Exs. C, Indictment; D, Plea of Guilty and

Negotiated Sentence.

If Jackson had proceeded to a trial and the

jury had found him guilty of the original charges (first degree
murder, three counts of attempted first degree murder, and shooting
at, within, or into an occupied vehicle), he would have faced a term
of life imprisonment.7

However, due to Jackson entering a guilty

plea as well as cooperating with the State in the prosecution of codefendant Patterson and persuading co-defendant Ward to enter a
guilty plea, the trial judge ultimately sentenced Jackson to twentyfive years of imprisonment for the second degree murder charge (with
a twenty-year minimum mandatory sentence)8 and fifteen years of

7

After a jury found co-defendant John Patterson guilty of
second degree murder (count one) and three counts of attempted
second degree murder, the trial judge sentenced Patterson to life
imprisonment on count one and fifteen-year terms of imprisonment
for the remaining three counts, to run concurrently to count one.
Resp. Ex. J at 245-46; see http://www.dc.state.fl.us/ActiveInmates.
After co-defendant DeWayne Ward entered a guilty plea, the trial
judge sentenced him to the same terms of imprisonment as Jackson:
twenty-five years of imprisonment for second degree murder (count
one) with a twenty-year minimum mandatory for discharge of the
firearm and fifteen years of imprisonment for attempted first
degree murder, to run concurrently to count one. Id. at 255-56.
8

Under the 10/20/life provision of Florida Statutes § 775.087
(2000), possession of a firearm carries a ten-year minimum
mandatory sentence, discharging a firearm imposes a twenty-year
minimum mandatory sentence, and discharging a firearm resulting in
death or great bodily harm to any person carries a minimum
mandatory sentence of twenty-five years to life imprisonment.
However, as part of the plea agreement, the State agreed not to
seek the twenty-five years to life minimum mandatory sentence, but
agreed to a twenty-year minimum mandatory sentence for discharge of
the firearm.
See Resp. Ex. D, Plea of Guilty and Negotiated
16

imprisonment for one count of attempted first degree murder, to run
concurrently to count one.

Accordingly, Jackson has an estimated

release date in 2027. See http:///www.dc.state.fl.us/ActiveInmates
(current

estimated

release

date).

Therefore,

Jackson's

ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice.
B. Ground Two
As ground two, Petitioner claims counsel was ineffective
because she induced him to enter a plea to an offense that he did
not commit and for which the State had not provided a sufficient
factual basis.

As acknowledged by the parties, Petitioner raised

this ground in his Rule 3.850 motion.

The court ultimately denied

the motion on the merits as to this claim, stating in pertinent
part:
In Ground II, the defendant complains of
ineffective assistance of counsel for inducing
the defendant to enter a plea of guilty. During
the plea colloquy, the defendant made the
following statements under oath:
"THE COURT: Has anybody threatened,
coerced or intimidated you in any way
to get you to plead guilty?
DEFENDANT JACKSON: No, Sir." (T pp.
7-8.)
"THE
COURT:
Mr.
Jackson,
you
understand by pleading guilty you're
admitting your [sic] guilty to those
facts and that the State can prove

Sentence; Plea Tr. at 125-26.
17

beyond a reasonable doubt that you're
guilty of this offense?
DEFENDANT JACKSON: Yes, sir." (T p.
10.)
"THE COURT: Now, have you had
sufficient time to discuss this case
with your counsel - DEFENDANT JACKSON: Yes, sir.
THE COURT: - - Miss Groover? Have you
told her everything you know about
your case?
DEFENDANT JACKSON: Yes, sir.
THE COURT: And has she answered all
questions that you have put to her
about your case?
DEFENDANT JACKSON: Yes, sir.
THE COURT: And at least to this point
in the proceedings you're satisfied
with the services she's rendered on
your behalf?
DEFENDANT JACKSON: Yes, sir." (T pp.
12-13.)
In this ground, the defendant states that
he told his counsel he was innocent of these
crimes and wanted to go to trial. However, this
perjurous
statement
is
repeatedly
and
conclusively refuted by the record herein. The
defendant under oath gave a sworn statement to
the State Attorney's Office on May 29, 2003. In
this sworn statement (attached hereto as
Exhibit "B"), the defendant twice promised to
tell the truth:
"Have you discussed your sworn
statement with your attorney this
morning?
A

Yes, sir.
18

Q
And do you agree to tell the
truth today?
A

Yes, sir." (Stmt. p. 5.)

"Q
So now you've been sworn to tell
the truth and you agree to tell the
truth in response to my questions?
A

Yes, sir.

MS. GROOVER: And everything that
you said previously was the truth?
THE DEFENDANT: Yes." (Stmt. p.
6.)
"Q
Were shots fired from your
vehicle into the silver Mercedes
vehicle that the young men were
inside?
A

Yes, sir.

Q
And at the time the shots were
fired was your car parked next to the
silver Mercedes?
A

Yes, sir.

Q
And you were still the driver at
that point?
A

Yes, sir.

Q
Do you know who fired shots from
inside your vehicle?
A

Yes, sir.

Q

Who was that?

A
I did, Dwayne Ward, and John
Patterson.
Q
And where were you seated in the
vehicle?

19

A
In the driver's seat." (Stmt.
pp. 8-9.)
"Q
And what weapons were fired into
the silver Mercedes from your Dodge
Intrepid?
A
Nine millimeter, .380, and a
shotgun.
Q
And
who
millimeter?

fired

the

nine

A

I did.

Q

And who fired the .380?

A

John.

Q

John Patterson?

A

Yes, sir.

Q

And who fired the shotgun?

A

Dwayne Ward." (Stmt. p. 9.)

Subsequently,
the
defendant
gave
a
deposition in the case of the State of Florida
v. John Patterson, and testified consistently
with that deposition during the trial of John
Patterson. This deposition was taken on July
24, 2003, before Court Reporter M. Kim Simms,
with Mose Floyd, Esquire, Frank Tassone,
Esquire,
Judy
Groover,
Esquire,
Amanda
Estabrook, Esquire, and Adam Sichta, Esquire,
present. The defendant gave the following
testimony under oath:
"Q
At the time you left your house,
were there any weapons in your car?
A

Yes.

Q

What was in your car?

A

A 9-millimeter.

20

Q
And who did that 9-millimeter
belong to?
A

Me.

Q

Where was the weapon in the car?

A

Under the driver's seat.

Q

How long had it been in the car?

A

About three or four days.

Q

Where did it come from?

A

I bought it from somebody.

Q
Do you know who you bought it
from?
A

I don't know him, no, sir.

Q

Somebody you met on the street?

A

Yes.

Q

And did it come with shells too?

A

Yes.

Q

Was it loaded?

A
No, not at the time. Not when I
bought it.
Q
Not at the time - - you bought
it, it was not loaded?
A

No, sir.

Q

Did you ever load it from the -

A

Yes.

Q
- - the time you bought it until
your graduation?
A

Yes.
21

Q
Do you remember the make of the
9-millimeter?
A

No, sir.

Q
How many did it hold in the
clip?
A

I think about six or seven.

Q

And then one in the chamber?

A

I'm not sure.

Q

Did you load it yourself?

A

Yes," (Depo. pp. 15-16.)

"Q
When you picked up - - when you
went to DeWayne's house, did DeWayne
put any weapons in the car?
A

Yes.

Q
Was that with your consent? That
is, did you agree to it?
A
He didn't ask really, he just
brought it.
Q

And what did he bring?

A

A shotgun.

Q

A sawed-off shotgun?

A

Yes.

Q
Where did he put that sawed-off
shotgun?
A

In the trunk.

Q
And you had to open the trunk,
didn't you?
A

Yes," (Depo. p, 27.)

22

"Q

What happens next?

A
Then I think that's when I had
got the 9 from under the seat and
then John got the .380 then.
Q
Well, you're getting armed, what
are you getting armed for? These are
supposed to be friendly people you're
going to meet, right?
A

Yes.

Q
So why - - I mean, do you always
pull out a gun when your friends meet
you?
A

No.

Q
Why did you pull out a gun this
time?
A

I don't know.

Q
Was there any discussion that
you guys were in any danger?
A

No, sir.

Q

Did someone threaten you?

A

No, sir.

Q
And, sir, even as we sit here
today, you don't know why you got out
your weapon?
A

No, sir," (Depo. p. 45.)

"Q
So, it's pretty much you guys
can talk and both cars can hear what
the other car is saying, right?
A

Yes.

Q
So,
Brionne?

Wayne

says

23

something

to

A

Uh-huh.

Q
Is Wayne the first person to
speak or is Brionne?
A

Wayne.

Q

And he says what?

A

He said, what's up now?

Q

Okay. Does Brionne answer?

A
Yeah. He said, it's whatever."
(Depo. p. 50.)
"A
And like, he threw his hands up
and saying like, it's whatever.
Q

Did that mean anything to you?

A
Like, after that, like Wayne had
fired the first shot and then me and
John started shooting.
Q
My question is this: If I'm
sitting on a car and you ask me a
question, what's going, and I answer,
whatever, is that, like this, and I
raise my hand as you described, is
that a threatening gesture to you?
A

No.

Q
Did you feel in fear when you
were next to that car?
A

No.

Q
Were you comfortable being next
to that car?
A

I wouldn't say comfortable.

24

Q
Was anybody in
person who hit you?
A

that

car

the

No.

Q
Was anybody in that car a friend
of the person who hit you?
A

Yes.

Q

Who?

A

All of them.

Q

How do you know that?

A
They were all together in the
club.
Q
Okay. So after Wayne throws up
his hands and says whatever?
A

Brionne.

Q
I'm
sorry,
Brionne,
correct. What happens next?

you're

A
Wayne fired the first shot and
then me and John started shooting.
Q
So, Wayne fires, does he fire
directly out the window?
A

Yes.

Q

He doesn't get out of the car?

A

No.

Q
All right. And then who fired - and he fires one shotgun blast or
more?
A

One.
25

Q

Then who fires next?

A
Like me and John, we fired like
at the same time.
Q
Where do you fire, through the
front passenger window or the back
window or what?
A

Front. Front passenger window.

Q
And where does - - where does - where does John fire from?
A

The front passenger window.

Q

Do you leave your seat?

A

No.

Q

Do you even stretch?

A

Stretch my arm?

Q

Yes, sir.

A

Yes, sir." (Depo. pp. 51-53.)

"Q

And how many shots do you fire?

A

I think about six or seven.

Q
And what are you firing - - who
are you firing at or what are you
firing at?
A

At the car." (Depo. p. 54.)

As a part of this deposition, the
defendant made a drawing of his car, showing
the positions of himself and the other four
occupants at the time of the shooting.
(Attached
hereto
as
Exhibit
"C".)
The
defendant's testimony at the trial of Mr.
26

Patterson mirrored
deposition.

his

testimony

on

this

Clearly, the truth of the matter is that
the defendant was not innocent, and was eager
to plead guilty, help the State prosecute his
co-defendant, and get a lesser sentence for
himself. Only after the untimely death of Ms.
Groover
does
he
suddenly
proclaim
his
innocence. Ground II is conclusively refuted by
the
record
herein,
principally
by
the
defendant's own sworn statements.
Resp. Ex. J at 109-17 (emphasis added).

On appeal, the appellate

court affirmed the trial court's denial per curiam.
Assuming

the

appellate

court

affirmed

the

denial

of

Petitioner's post conviction motion as to this claim on the merits,
there are qualifying state court decisions.

Thus, this claim will

be addressed applying the deferential standard for federal court
review of state court adjudications.

Following a review of the

record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
established federal law, did not involve an unreasonable application
of clearly established federal law, and were not based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Thus, Petitioner is not

entitled to relief on the basis of this ineffectiveness claim.
Moreover, assuming that the state courts' adjudications of this
claim are not entitled to deference under AEDPA, Petitioner's claim
is without merit. Petitioner has failed to establish that counsel's

27

performance was deficient.

The plea transcript is instructive and

reflects the voluntary, non-coercive nature of Jackson's guilty
plea. Jackson affirmed that no one had threatened, coerced or
intimidated him to persuade him to plead guilty.
28.

Plea Tr. at 127-

Upon request by the trial judge, the State provided the

following factual basis for the guilty plea:
Your Honor, had the matter proceeded to
trial the State would have proven beyond a
reasonable doubt that on the 23rd of May, 2002,
in the county of Duval and in the state of
Florida that Marcus Jackson did unlawfully by
an act imminently dangerous to another and
evincing a depraved mind regardless of human
life, although without any premeditated design
to effect the death of any particular
individual, kill Timotheus Stamper, a human
being, by shooting the said Timotheus Stamper,
and during the commission of the aforementioned
second degree murder the said Marcus Jackson
did discharge a firearm, as a result of the
discharge death or great bodily harm was
inflicted
upon
any
person
contrary
to
provisions of section[s] 782.04(1)(a) and
7[75].087, that's as to Count I the lesser
included.
As to Count II, the State would have
proven Marcus Jackson on the 23rd of May, 2002,
in the county of Duval and State of Florida did
attempt to unlawfully kill Tremayne Stamper, a
human being, by shooting the said Tremayne
Stamper with a shotgun -- with a gun, with a
premeditated design to effect the death of
Tremayne Stamper, a human being, and during the
commission of the aforesaid attempted first
degree murder, the said Marcus Jackson did
discharge a firearm and as a result of the
discharge death or great bodily harm was
inflicted upon any person, contrary to the
provisions of section[s] 782.04(1)(a) and
777.01 and 775.087 Florida Statutes.

28

Id. at 129-30.

Jackson acknowledged that he understood that, by

pleading guilty, he admitted he was guilty of the above-cited facts
and that the State could prove beyond a reasonable doubt that he was
guilty of the offenses.

Id. at 130.

Moreover, Jackson confirmed

that he understood that, by pleading guilty, he was giving up his
right to proceed to trial and require the State to prove his guilt
beyond a reasonable doubt.

Id. at 133-34.

When the trial judge inquired as to counsel's representation,
Jackson affirmed that he was satisfied with her representation. Id.
at

132-33.

At

the

plea

hearing,

counsel

clarified

Jackson's

involvement in the crimes, stating: "He's charged as a principal to
Count I to second degree murder. His gun did not cause the person's
death but he is a principal in the matter, that's all I wanted to
make clear."

Id. at 131.

Given the record and Jackson's answers

to the trial judge's inquiries, there was no coercion on the part
of counsel.

Notably, at the September 18, 2003 sentencing hearing,

the trial judge complimented counsel on her representation of
Jackson, stating that she, along with other defense counsel, was "a
credit to our profession . . . ."
record,

counsel's

performance

Resp. Ex. J at 243.
was

professionally competent assistance.

29

within

the

Based on the

wide

range

of

Even

assuming

arguendo

deficient

performance

counsel, Petitioner has not shown prejudice.9

by

defense

Jackson acknowledged

that he pled guilty because he was in fact guilty of the offenses.
Additionally, as previously discussed, the State's evidence against
Jackson was substantial and included witnesses who had observed
Jackson shooting into the other vehicle.

In Jackson's May 29, 2003

sworn statement to the State Attorney's Office (see Resp. Ex. J at
265-66), his July 24, 2003 deposition, and his August 19, 2003
testimony at co-defendant Patterson's trial (Tr. at 408-09, 456),
Jackson admitted that he had fired shots with a nine millimeter gun
at the neighboring vehicle. If Jackson had proceeded to a trial and
the jury had found him guilty of either first degree or second
degree murder, he would have faced a term of life imprisonment as
well as the State's prosecution on three counts of attempted first
degree murder and shooting at, within, or into an occupied vehicle.
Therefore, Jackson's ineffectiveness claim is without merit since
he has shown neither deficient performance nor resulting prejudice.
C. Ground Three
As ground three, Petitioner claims counsel was ineffective
because she coerced him to enter the guilty plea and failed to
fulfill

her

promise

that

Jackson

9

would

receive

a

twenty-year

See Hill, 474 U.S. at 59 (requiring that petitioner show a
"reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to
trial").
30

sentence.

Petitioner raised this ground in his Rule 3.850 motion.

Ultimately, the post conviction court denied the motion on the
merits with respect to this claim, stating in pertinent part:
Ground III complains of ineffective
assistance of counsel by coercing the defendant
to plead and failing to fulfill a promise that
the defendant would receive a twenty-year
sentence. During the plea colloquy, the Court
asked the defendant the following question and
received the following answer:
"THE COURT: You understand, though,
Mr. Jackson, I'm still going to
sentence you somewhere between 20 and
40, you understand that?
DEFENDANT JACKSON: Yes, sir." (T p.
12.)
The Court had previously advised the
defendant and received the following sworn
responses:
"THE COURT: Your counsel has entered
pleas of guilty on your behalf to the
two offenses, the first is the crime
of second degree murder which carries
normally because a firearm was
involved - - is he alleged to be a
shooter?
MR. FLOYD: Yes, Your Honor.
THE COURT: Okay. A minimum mandatory
of 25 years up to life imprisonment.
And in the second count of attempted
first degree murder it requires a
sentence of what, Mr. Floyd?
MR. FLOYD: That would be 20 to life,
Your
Honor,
20
year
minimum
mandatory.
THE COURT: On attempted first degree
which
also
carries
a
minimum
31

mandatory sentence of 25 years up to
life imprisonment, but because there
is a plea agreement I have agreed
that your sentence will not be less
than 20 years nor more than 40 years
incarceration, do you understand
that?
DEFENDANT JACKSON: Yes, sir." (T p.
7.)
"THE COURT: Has anybody promised you
[that]
you
would
receive
any
particular sentence in this case
other than somewhere between 20 and
40 years?
DEFENDANT JACKSON: No, sir." (T p.
8.)
The record is abundantly clear that the
defendant's own sworn answers to the Court
indicate that he informed the judge that he
knew he could receive a sentence anywhere from
twenty years imprisonment to forty years
imprisonment. The issue involving coercion by
his counsel has already been exhaustively
covered
in
Ground
II.
Ground
III
is
conclusively refuted by the record herein.
Resp. Ex. J at 117-19 (emphasis added).

Upon Jackson's appeal, the

appellate court affirmed the trial court's denial per curiam.
Assuming

the

appellate

court

affirmed

the

denial

of

Petitioner's post conviction motion as to this claim on the merits,
there are qualifying state court decisions.

Thus, this claim will

be addressed applying the deferential standard for federal court
review of state court adjudications.

Following a review of the

record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
32

established federal law, did not involve an unreasonable application
of clearly established federal law, and were not based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Thus, Petitioner is not

entitled to relief on the basis of this ineffectiveness claim.
Additionally, assuming that the state courts' adjudications of
this claim are not entitled to deference under AEDPA, Petitioner's
claim is, nevertheless, without merit.

Given the record, counsel's

performance was within the wide range of professionally competent
assistance.

At no time did Jackson indicate that he believed the

agreement was for anything other than a twenty to forty-year range.
In fact, the plea agreement and the plea hearing reflect that he
fully understood the agreement, and the trial judge confirmed that
Jackson understood the terms of the plea agreement and that he could
sentence him within that range.

Even assuming arguendo deficient

performance by defense counsel, Petitioner has not shown prejudice.
See Hill, 474 U.S. at 59.
claim

is

without

merit

Therefore, Jackson's ineffectiveness

since

he

has

shown

neither

deficient

performance nor resulting prejudice.
D. Ground Four
As ground four, Petitioner claims that counsel was ineffective
because she failed to communicate with him.

Petitioner raised this

ground in his Rule 3.850 motion, and the post conviction court

33

ultimately denied the motion on the merits as to this claim, stating
in pertinent part:
In
Ground
IV
the
motion
alleges
ineffective assistance of counsel for failure
to communicate with the defendant. Again, this
allegation is conclusively refuted by the
defendant's sworn answers to the judge during
the plea colloquy:
"THE COURT: Now, have you had
sufficient time to discuss this case
with your counsel - DEFENDANT JACKSON: Yes, sir.
THE COURT: - - Miss Groover?
you told her everything you
about your case?

Have
know

DEFENDANT JACKSON: Yes, sir.
THE COURT: And has she answered all
questions that you have put to her
about your case?
DEFENDANT JACKSON: Yes, sir.
THE COURT: And at least to this point
in the proceedings you're satisfied
with the services she's rendered on
your behalf?
DEFENDANT JACKSON: Yes, sir." (T pp.
12-13.)
Ground IV is conclusively refuted by the
record herein.
Resp. Ex. J at 119.

Upon Petitioner's appeal, the appellate court

affirmed the denial per curiam.
Assuming the appellate court affirmed the denial of the Rule
3.850 motion on the merits, there are qualifying state court
34

decisions.

Therefore, this claim will be addressed applying the

deferential

standard

for

federal

adjudications required by AEDPA.

court

review

of

state

court

After a review of the record and

the applicable law, the Court concludes that the state courts'
adjudications of this claim were not contrary to clearly established
federal law and did not involve an unreasonable application of
clearly established federal law.

Nor were the adjudications based

on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Petitioner
is not entitled to relief on the basis of this claim.
Alternatively, if the state courts' adjudications of this claim
are not entitled to deference under AEDPA, Petitioner's claim is,
nevertheless, without merit.

Petitioner has failed to establish

that counsel's performance was deficient in the investigation and
preparation for trial.

Petitioner has not alleged any particular

investigative tactic that trial counsel should have conducted that
would have resulted in a different outcome.
has

not

asserted

how

further

Additionally, Jackson

communications

with

counsel

and

additional visits to the jail would have resulted in a different
outcome.
Moreover, as previously stated, the evidence against Jackson
was substantial.

Jackson acknowledged that he bought the gun and

ammunition a few days before the shooting and decided to bring the
gun with him in his car that evening.

35

Tr. at 395-96.

He also

admitted that he knew his cousin (co-defendant DeWayne Ward) had
placed a sawed-off shotgun in the trunk of Jackson's car and then,
later in the evening, retrieved it and moved it into the passenger
compartment of the car.

Id. at 394, 441-42, 456-57.

Jackson also

stated that he saw co-defendant Patterson bring a gun into the car
that night and place it underneath the front passenger seat.
at 394-95.

Id.

Moreover, Greg Almon, who was riding in the backseat of

Jackson's car, testified that Jackson celebrated the kill after the
shooting. Id. at 940-41. Counsel's performance was within the wide
range of professionally competent assistance.10

Even assuming

arguendo deficient performance by defense counsel, given the strong
evidence of guilt, Petitioner has not shown prejudice.
474 U.S. at 59.

See Hill,

Accordingly, Petitioner's ineffectiveness claim is

without merit since he has shown neither deficient performance nor
resulting prejudice.
E. Ground Five
As ground five, Petitioner claims that counsel was ineffective
because she failed to request that the trial court sentence Jackson
as a youthful offender.

As acknowledged by the parties, Petitioner

raised this ground in his Rule 3.850 motion.

10

The court ultimately

The trial judge complimented counsel, the prosecutors, and
other defense attorneys on their diligence and hard work in what he
described as "an extremely difficult case" and "[p]robably the
hardest case" he has seen in his thirty years on the bench. Resp.
Ex. J at 242, 243.
36

denied the motion on the merits as to this claim, stating in
pertinent part:
In Ground V, the defendant complains of
ineffective assistance of counsel for failure
to request that the defendant be sentenced as
a youthful offender. This contention is not
only conclusively refuted by the record herein,
but by any application of common sense and
reason. The defendant and his co-defendants
were charged with murdering a 23 year old
Marine Corps Sergeant home on leave and
attempting to murder his cousin, by firing
three firearms at them from a distance of
approximately eight feet in the parking lot of
an
Amoco
station
crowded
with
students
celebrating their graduation from high school.
The defendant was subject to Florida Statute
775.087(2)(a)2,
the
so-called
"10-20-Life
statute."
This
statute
disqualifies
the
defendant for a youthful offender sentence.
The defendant's contention through his bare
allegation that, if his counsel had asked the
judge to give him a youthful offender sentence,
he probably would have, is preposterous. The
defendant actually fired seven shots into a car
full of teenagers. Such a sentence would not
only
have
violated
Florida
Statute
775.087(2)(a)2, it defies common sense to think
that such a proposal would have been accepted
by the State or the judge in light of the
horrendous nature of the defendant's criminal
conduct. Ground V is conclusively refuted by
the record herein and by all common sense and
logic.
Resp. Ex. J at 119-20 (emphasis added).

Upon Jackson's appeal, the

appellate court affirmed the denial per curiam.
Assuming the appellate court affirmed the denial of the Rule
3.850 motion on the merits, there are qualifying state court
decisions.

Therefore, this claim will be addressed applying the

deferential

standard

for

federal
37

court

review

of

state

court

adjudications required by AEDPA.

After a review of the record and

the applicable law, the Court concludes that the state courts'
adjudications of this claim were not contrary to clearly established
federal law and did not involve an unreasonable application of
clearly established federal law.

Nor were the adjudications based

on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Petitioner
is not entitled to relief on the basis of this claim.
Alternatively, if the state courts' adjudications of this claim
are not entitled to deference under AEDPA, Petitioner's claim is,
nevertheless, without merit.

Petitioner has failed to establish

that counsel's performance was deficient for not requesting youthful
offender sentencing.

With the seriousness of the charges (first

degree murder, three counts of attempted first degree murder, and
shooting at, within, or into an occupied vehicle), counsel worked
diligently

with

the

State

to

negotiate

a

plea

agreement

sentencing range of twenty to forty years of incarceration.
Resp. Ex. D.

and
See

Thus, in accordance with the plea agreement, Jackson

entered a guilty plea to second degree murder (count one, a reduced
charge) and attempted first degree murder (count two), and the State
dropped the remaining charges (counts three, four, and five). Resp.
Exs. C, Indictment; D, Plea of Guilty and Negotiated Sentence; H,
Judgment.

38

Second degree murder is a first degree felony punishable by
imprisonment for a term of years not exceeding life, see Fla. Stat.
§ 782.04(2); however, because Jackson used a firearm during the
commission of the offense, the offense was reclassified as a life
felony, see Fla. Stat. § 775.087(1)(a); Robinson v. State, 37 So.3d
921 (Fla. 2nd DCA 2010).

Additionally, section 782.04(1)(a) states

that first degree murder "constitutes a capital felony . . . ."
Section 777.04(4)(b) provides that, if the crime that is attempted
is classified as a capital felony, then the attempted crime is a
felony of the first degree.

And, with the use of a firearm, the

first degree felony (attempted first degree murder) is reclassified
as a life felony pursuant to section 775.087(1)(a).

See Malone v.

State, 50 So.3d 60, 61 (Fla. 2nd DCA 2010) ("We find the trial court
erred in sentencing Malone to six years' prison as a youthful
offender

because

Malone

pleaded

no

contest

to

a

life

felony

[(attempted first degree murder with use of a firearm)], making him
ineligible for youthful offender sentence."); McKinney v. State, 27
So.3d 160, 161 (Fla. 1st DCA 2010) ("The trial court has discretion
to sentence as a youthful offender a defendant who is at least 18
years old and has been found guilty of a felony (except for a
capital or life felony) committed before the defendant's 21st
birthday.").
Moreover, section 958.04(1)(c) provides that "a person who has
been found guilty of a capital or life felony may not be sentenced

39

as a youthful offender under this act." Thus, since Jackson entered
a plea of guilty to life felonies, counsel's performance was within
the wide range of professionally competent assistance when she
failed to request youthful offender sentencing.

Even assuming

arguendo deficient performance by defense counsel, Petitioner has
not shown prejudice.

See Hill, 474 U.S. at 59.

Therefore,

Jackson's ineffectiveness claim is without merit since he has shown
neither deficient performance nor resulting prejudice.
VIII. Conclusion
Upon consideration of the foregoing, the undersigned finds that
"[u]nder the doubly deferential judicial review that applies to a
Strickland claim evaluated under the § 2254(d)(1) standard, see
Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1
(2003) (per curiam)," Petitioner's ineffective assistance claims
fail.

Knowles, 129 S.Ct at 1420.

claims

are

without

merit.

In the alternative, Petitioner's

Accordingly,

for

the

above-stated

reasons, the Petition will be denied, and this case will be
dismissed with prejudice.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Petitioner seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted.

This Court should issue a certificate of appealability

only if the Petitioner makes "a substantial showing of the denial
of a constitutional right."

28 U.S.C. §2253(c)(2).
40

To make this

substantial showing, Petitioner "must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

district

court

has

rejected

a petitioner's

constitutional claims on the merits, the petitioner must demonstrate
that reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong.
U.S. at 484.

See Slack, 529

However, when the district court has rejected a claim

on procedural grounds, the petitioner must show that "jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling."

Id.

record

will

as

a

whole,

this

Court

Upon consideration of the
deny

a

certificate

of

appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. #1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
41

2.

The Clerk of the Court shall enter judgment denying the

Petition and dismissing this case with prejudice.
3.

If Petitioner appeals the denial of the Petition, the

Court denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted, the
Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case.

Such

termination shall serve as a denial of the motion.
4.

The Clerk of the Court shall close this case.

DONE AND ORDERED at Jacksonville, Florida, this 11th day of
October, 2011.

sc 10/11
c:
Marcus E. Jackson
Ass't Attorney General (Hill)

42