Jones v. Secretary, Florida Department of Corrections et al

Filing 29

ORDER denying 5 Amended Petition and dismissing case with prejudice; directions to the Clerk. Signed by Judge Marcia Morales Howard on 9/24/2024. (JLD)

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

For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
1

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).

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).
2

2

The case proceeded to a bifurcated jury trial—the attempted seconddegree 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 twentyyear 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.

3

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 6159, 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.

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).
3

4

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.

5

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:
6

[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
7

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”).

8

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).
9

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

10

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).
11

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
12

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.
13

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 nonfrivolous 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
14

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
15

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.

16

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).
17

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

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.
8

18

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
19

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.

20

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
21

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.

22

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
23

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.

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.
9

24

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 statecourt 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
25

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).
26

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.
27

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. 1140 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.

Jones acknowledges that he raised this Ground in his Rule 3.850 motion but
not on direct appeal. Amended Petition at 53.
12

28

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
“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).
13

29

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.
30

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. 1140 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
31

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
32

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
curiam affirmed without opinion the postconviction court’s denial. See Doc. 1140 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

33

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.
Alternatively, Jones’s claim has no merit. The state did not introduce the
police report or call Tyndal as a witness at trial. At the trial, Detective Haines
testified that during his investigation, Miller advised Haines that Miller had
seen one of the shooters several days after the incident in the same area of the
shooting; the individual was shooting a handgun in the air “kind of in a ‘I’m
here, come and get me if you want me’ type of mentality.” Doc. 11-3 at 284-85.
Miller was also able to provide the nickname of the individual: “Tootie Boy.”
Id. at 285-86. With Miller’s information, Haines was then able to identify
Jones, and create a photospread including Jones’s photo. Id. at 286.
Given the record, trial counsel was not ineffective for failing to file a
motion to suppress the police report. The photospread including Jones’s
photograph was created from Miller’s information, not Tyndal’s information.
Regardless, Jones has not established prejudice. He fails to show a reasonable
probability exists that had counsel filed a motion to suppress, the outcome of
his trial would have been different. The Court denies Ground Eight.

34

F. Ground Nine
As Ground Nine, Jones alleges trial counsel was ineffective for failing to
move for a mistrial after objecting to the state’s inappropriate comment on
Jones’s appearance regarding his gold teeth. Amended Petition at 59; see Doc.
26 at 12-16.
In Jones’s Rule 3.850 motion, he raised a substantially similar claim.
The postconviction court denied the claim as follows:
Defendant asserts counsel was ineffective for
not moving for a mistrial based on improper closing
arguments from the prosecutor. Specifically, he refers
to the following comment:
I almost forgot. You want to talk about
another action that speaks louder than
words? You heard from James Russell.
You saw the booking photo, the booking
photo of this man. He goes into jail with
gold teeth. You want to talk about actions
speaking louder than words? He stood
before you. He’s been here all week. This
man pulled the gold teeth right out of his
mouth not to look like this.
Defendant claims that if counsel had moved for a
mistrial based on the above comment, then this Court
would have granted the motion.
Where a defendant alleges counsel was
ineffective for failing to move for a mistrial, in order to
satisfy the prejudice prong of Strickland, a defendant
must demonstrate that the trial court would have
granted a motion for mistrial. Middleton v. State, 41
So. 3d 357, 360 (Fla. 1st DCA 2010). “A motion for
mistrial should be granted only when the error is
35

deemed so prejudicial that it vitiates the entire trial,
depriving the defendant of a fair proceeding.” Floyd v.
State, 913 So. 2d 564, 576 (Fla. 2005).
Counsel’s failure to move for a mistrial did not
prejudice Defendant because this Court would not
have granted such a motion. The prosecutor’s
comment “did not permeate the closing argument.”
Smith v. State, 818 So. 2d 707, 711 (Fla. 5th DCA
2002); see also Simpson v. State, 3 So. 3d 1135, 114647 (Fla. 2009) (determining that improper comments
were brief and did not constitute fundamental error).
The prosecutor made this comment at the end of his
rebuttal to defense counsel’s closing arguments.
Further, this Court instructed the jurors that closing
arguments do not constitute evidence or instruction on
the law. In conjunction with the significant evidence
against Defendant, including three victims who
identified Defendant as the shooter, this Court would
not have a basis for granting a mistrial. Accordingly,
this Court denies Ground Sixteen.
Doc. 11-35 at 253-54 (internal record citations omitted). The First DCA per
curiam affirmed without opinion the postconviction court’s denial. See Doc. 1140 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
36

presented in the state court proceedings. Jones is therefore not entitled to relief
on the basis of this claim.
Alternatively, the Court addresses Jones’s claim on the merits. “The
statements of a prosecutor will justify reversal of a conviction if they
undermined the fairness of the trial and contributed to a miscarriage of justice.
Furthermore, a prosecutor’s statements during closing argument require
reversal only if the comments are both improper and prejudicial to a
substantial right of the defendant.” United States v. Jacoby, 955 F.2d 1527,
1541 (11th Cir. 1992) (internal quotations and citations omitted).
After the prosecutor made the statements as quoted above regarding
Jones’s gold teeth, Jones’s trial counsel objected. Doc. 11-3 at 676 (“I’m going
to object to that as improper and not in evidence.”). At a sidebar with the trial
judge, the prosecutor described the witness testimony on which his statement
relied: “James Russell specifically testified in his examination, either in direct
- - I think it was during my direct or it was - - ‘cause I asked him if he had gold
teeth, and his answer was, yeah, Tootie pulled them all out while he was in
jail . . . .” Id. at 677. The trial judge overruled trial counsel’s objection. Id.
During his direct examination, Russell testified that at the time of the
shooting, Jones had gold teeth. Doc. 11-2 at 777-78. Russel clarified, “He ain’t
got no teeth right now. He had some gold teeth in his mouth” at the time of the

37

shooting. Id. at 778. Russell did not specifically testify that Jones pulled out
his gold teeth.
Despite the prosecutor’s somewhat mischaracterized explanation of
Russell’s testimony, the Court finds that the prosecutor’s comments on Jones’s
appearance did not undermine the fairness of the trial or contribute to a
miscarriage of justice. There was testimony presented that Jones had gold
teeth at the time of the shooting and the state admitted into evidence a booking
photo from around the time Jones was apprehended by police, which also
showed that he had gold teeth. See Doc. 11-3 at 301-02. Then at trial, Jones
did not have gold teeth. The prosecutor’s statement during closing argument
was a fair comment on the evidence presented. Additionally, the trial judge
instructed the jury that what the lawyers say is not evidence and the jury is
required to base its verdicts solely on the evidence presented during the trial.
See Doc. 11-3 at 599, 694, 700. Considering the record, the Court finds that
trial counsel was not ineffective for failing to move for a mistrial after the trial
court overruled her objection. Accordingly, Jones is not entitled to federal
habeas relief on Ground Nine.
G. Ground Eleven
As Ground Eleven, Jones alleges appellate counsel was ineffective for
failing to raise on direct appeal a claim of prosecutorial misconduct and trial
counsel’s ineffective assistance for failing to object to the prosecutor’s
38

inappropriate comments. Amended Petition at 63; see Doc. 26 at 16-17
(arguing

that

appellate

counsel

should

have

raised

trial

counsel’s

ineffectiveness because it was apparent from the record). Jones contends that
the prosecutor asked Detective Haines, a state witness, “to comment on” the
work of defense witness Detective McClain. Amended Petition at 63.
Specifically, the prosecutor said, “Would you agree with me as a lead detective
for 13 years, that probably the ‘DUMBEST’ thing you could ever do is try and
write a report going by memory alone?” Id. According to Jones, the prosecutor
was attacking McClain’s character before McClain even took the stand. Id.
Additionally, Jones complains that the prosecutor attacked McClain’s
character through his cross-examination of Detective Overholser, another
defense witness, and then through cross-examination of Detective McClain
himself. Id.
In Jones’s pro se petition alleging ineffective assistance of appellate
counsel, he raised a substantially similar issue with respect to appellate
counsel’s alleged ineffectiveness for failing to raise the issue of prosecutorial
misconduct. Doc. 11-23 at 38-44.14 The state responded on the merits. Doc. 11-

Jones did not present argument to the state court regarding appellate
counsel’s alleged ineffectiveness for failing to raise an ineffective assistance of trial
counsel claim with respect to this issue. See Doc. 11-23 at 38-44. Because Jones failed
to present this issue to the state court, his claim is unexhausted and procedurally
barred. Nevertheless, the claim has no merit because Jones fails to show prejudice.
14

39

24 at 30-37. Jones filed a pro se reply. Doc. 11-25 at 23-24. The First DCA per
curiam denied the petition “on the merits.” Doc. 11-26 at 2.
Because 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. Preliminarily, the Court notes that
Jones’s appellate counsel had no duty to raise every non-frivolous issue on
appeal, and it was reasonable for counsel to weed out weaker arguments. See
Overstreet, 811 F.3d at 1287. To overcome the presumption that appellate
counsel was effective, Jones must demonstrate that appellate counsel ignored
issues that were clearly stronger than those presented. See id. In addition,
Jones must show a reasonable probability that, but for the deficient
performance, the outcome of the appeal would have been different. See Black,
373 F.3d at 1142.
Jones’s appellate counsel challenged his convictions and sentences on
eight grounds, including that the trial court erred in admitting certain
evidence and allowing the state to insinuate a defense witness was a member
of an inmate gang when the state failed to prove that impeaching fact, as well
as erred in denying Jones’s motion to dismiss and in sentencing Jones. See Doc.
11-6 at 3. For the reasons that follow, the First DCA’s decision is not an

He has not shown that had appellate counsel raised such a claim, there exists a
reasonable probability of success on appeal.
40

unreasonable application of Strickland because appellate counsel could have
weeded out the issues about which Jones now complains as weaker or
meritless,15 and it is not reasonably probable that these issues would have
succeeded on appeal.
First, Jones’s trial counsel did not object to several of the prosecutor’s
comments with which Jones takes issue. Indeed, defense counsel did not object
when the prosecutor asked Detective Haines to comment on Detective
McClain’s work, see Doc. 11-3 at 334-35, or when he asked Detective Haines:
“And would you also agree with me, as a lead detective for 13 years, that
probably the dumbest thing you could ever do is try and write a report going
by memory and memory alone?” Doc. 11-3 at 338. Because trial counsel did not
object, the issues were not preserved for appeal and do not present an issue of
fundamental error. Thus, appellate counsel cannot be deemed ineffective for
failing to raise issues that were not preserved.
Second, as to the prosecutor’s cross-examination of Detective Overholser,
trial counsel lodged several objections, all of which were sustained except one.
See Doc. 11-3 at 482-88. The one objection that the trial court overruled
stemmed from the following exchange between the prosecutor and Detective
Overholser:

Jones indicates that he notified his appellate counsel of these issues, but
appellate counsel refused to raise the issues. Doc. 11-23 at 39.
15

41

Q
The consensus description given of the
person shooting was a black male in his mid 20s with
gold teeth, five-eight inches tall and had a baseball
cap. That sound right?
A
Well, with the gold teeth consensus - because I think there was several people that he had
spoken to as well as what I had given him as a
description based on the person that I spoke with.
Q

So you think the gold teeth - [Trial Counsel]: I’m going to object to that.
. . . Hearsay. He has no personal
knowledge.
THE COURT: Let me hear the question
first. Go ahead.

....
Q
So to clarify what I was trying to get to is
you just said Detective McClain put in his notes gold
teeth because of people he spoke with, not because of
people you spoke with.
A

Correct.
THE COURT: The objection’s overruled.

Doc. 11-3 at 482-83. Jones fails to explain how this line of questioning violated
his federal constitutional rights. And given that the trial court sustained the
remainder of trial counsel’s objections on the subject testimony, there was
nothing for appellate counsel to argue on appeal. Thus, appellate counsel
cannot be deemed ineffective for failing to raise an issue on direct appeal based
on the prosecutor’s examination of Detective Overholser.
42

Third, Jones challenges the prosecutor’s cross-examination of Detective
McClain. Amended Petition at 63. In his state court habeas petition, Jones
referred to the prosecutor’s line of questioning as “improper, insulting, and
unprofessional.” Doc. 11-23 at 40. Jones specifically pointed to the following
exchange:
Q
Would you find it interesting to know that
Detective Overholser just said that he never heard
gold teeth; you must have got that from someone else?
[Trial Counsel]: Your Honor, I’m going to
object.
THE COURT: Overruled.
Did you need to state an initial ground?
[Trial Counsel]: Mischaracterization of
what Detective Overholser said.
THE COURT: Overruled.
Doc. 11-23 at 40 (quoting Doc. 11-3 at 502). Jones fails to show how the
prosecutor’s cross-examination of Detective McClain violated Jones’s federal
constitutional rights. Thus, there was no issue for appellate counsel to raise on
direct appeal.
After a review of the record and the applicable law, the Court concludes
that the state court’s adjudication of Jones’s ineffective assistance of appellate
counsel claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal law, and was

43

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.
H. Ground Twelve
As Ground Twelve, Jones alleges his appellate counsel was ineffective
for failing to raise a claim of prosecutorial misconduct with respect to the
prosecutor “coaching the jurors as to what crime to find [him] guilty of.”
Amended Petition at 64; see Doc. 14 at 44-49; Doc. 26 at 19-21.
In the prosecutor’s closing argument, he summarized the facts for the
jury, the instructions that the trial judge would provide, and then he applied
the facts to the law as viewed by the state. See Doc. 11-3 at 600-04, 609-21,
660-78. In discussing the lesser-included offenses, the prosecutor stated:
As you know, the State of Florida has charged
Mr. Jones with three separate counts of attempted
second-degree murder. But what you guys are going to
hear is that’s not the only charge you’re going to hear
from the judge because basically whenever we have
trials, there are things called “lesser-included crimes.”
And they’re kind of like a ladder. You work your way
up. You have - - in this situation you’re going to have,
if I remember correctly, the first prong down on the
ladder is attempted voluntary manslaughter. Second
will be aggravated battery. And then third, you work
your way up to attempted second-degree murder.
....
This, where two people run out on the street and
open fire nine, ten times, hitting three different
44

people, this is not manslaughter. This is attempted
murder.
If you work you way up the ladder, the other way
to look at it, too, is the next one you’re going to hear
about is aggravated battery. Okay?
....
It speaks for itself. All you have to do is figure
out whether or not you believe he’s the one who did it.
We’re not talking about - - this isn’t an attempted
manslaughter case. This isn’t an aggravated battery
case. It’s all or nothing, ladies and gentlemen. You
either believe that he was one of those shooters that
night or you walk him. That’s what it comes down to.
Doc. 11-3 at 613-14, 616, 621 (emphasis added to highlight the statements
specifically challenged by Jones).
In Jones’s petition alleging the ineffective assistance of appellate
counsel, he raised a substantially similar claim, arguing that his appellate
counsel was ineffective for failing to raise on direct appeal a claim of
prosecutorial misconduct based on the state’s closing argument. The state
responded, arguing that appellate counsel was not ineffective for failing to
raise a nonmeritorious claim, see Doc. 11-24 at 37-38, and Jones replied, see
Doc. 11-25 at 24-26. The First DCA per curiam denied the petition “on the
merits.” Doc. 11-26 at 2.
This Court applies AEDPA’s deferential standard of review of state court
adjudications to the First DCA’s decision. A review of the prosecutor’s closing

45

argument reflects that he argued the state’s position and asserted the state’s
view that the evidence showed Jones was guilty of attempted second-degree
murder. The prosecutor’s closing argument, considered on the whole, did not
warrant an objection, and as such, appellate counsel was not ineffective for
failing to raise on direct appeal a claim of prosecutorial misconduct with
respect to the closing argument.
Upon review of the record and the applicable law, the Court concludes
that the state court’s adjudication of Jones’s ineffective assistance of appellate
counsel 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.
I. Ground Thirteen
As Ground Thirteen, Jones alleges trial counsel was ineffective for failing
to object at trial to the admission of evidence of his flight from law enforcement.
Amended Petition at 65; see Doc. 26 at 21-25. He recognizes that trial counsel
filed a pretrial motion seeking to exclude this evidence, but then trial counsel
failed to object when the state admitted this evidence at trial without
establishing a nexus between the attempted murders and Jones’s subsequent
fleeing from law enforcement such that the jury could infer consciousness of
46

guilt. See Amended Petition at 65. Specifically, Jones contends that at the
pretrial hearing, the trial court found that witness Morris McClendon’s
testimony provided the nexus between the flight and the attempted murders.
Doc. 26 at 22-23. McClendon, however, did not testify at trial; thus, Jones
argues that the nexus was not present and counsel was ineffective for failing
to object on that basis. Id.
Jones raised a substantially similar claim in his Rule 3.850 motion. The
postconviction court denied it, reasoning as follows:
Defendant contends counsel was ineffective for
not objecting to the admission of evidence that
Defendant fled from law enforcement several days
after the shooting. Counsel’s inaction resulted in
prejudice because, by failing to object at trial, she
waived the issue for appellate review.
A defendant’s claim that counsel failed to
preserve an issue for appeal does not demonstrate
sufficient prejudice.[] Strobridge, 1 So. 3d at 1242.
Rather, counsel’s actions must affect a defendant’s
trial, not his or her appeal. Id. A failure to object may
amount to prejudice at trial, where, “if the issue had
been properly challenged at trial, the . . . court could
have ruled appropriately” and cured any prejudice. Id.
at 1243.
Here, counsel’s inaction did not prejudice
Defendant. Prior to trial, this Court held an extensive
hearing on the issue and ruled that evidence of
Defendant’s flight from law enforcement was
admissible. Even if counsel had objected at trial, no
prejudice occurred because this Court would not have
changed its ruling at trial. Further, counsel requested
that this Court read the Williams Rule instruction,
47

which directed the jury to consider the evidence “for
the limited purposes of establishing the defendants
[sic] consciousness of guilt.” Counsel objecting to the
evidence’s admission during trial likely would not
have changed the trial’s outcome. Accordingly, this
Court denies Ground Five.
Doc. 11-35 at 240-41 (internal record citations omitted). The First DCA per
curiam affirmed without opinion the postconviction court’s denial. See Doc. 1140 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.
Even if this Court did not defer to the state court’s adjudication, Jones’s
claim has no merit. Prior to trial, the trial court held a hearing on the state’s
notice of other crimes, wrongs, or acts which advised of Jones’s attempt to flee
from law enforcement officers approximately three weeks after the shooting.
See Doc. 11-2 at 89-179. After hearing testimony and considering the parties’

48

arguments, the trial court specifically found that the evidence was admissible
at trial. Id. at 176-79. When the law enforcement officers testified at trial
regarding Jones’s flight, defense counsel asked the trial judge for a sidebar so
that she could request the trial judge instruct the jury regarding this
testimony. Doc. 11-3 at 62-63. The trial judge did so:
[T]he evidence you have just received from the
testimony of Detective Doug Howell as to other crimes,
wrongs or acts allegedly committed by the defendant
will be considered by you for the limited purpose of
establishing the defendant’s consciousness of guilt,
and you shall consider it only as it relates to that issue.
However, the defendant is not on trial for a crime,
wrong or act that is not included in the information.
That instruction applies not only to the
testimony of Detective Doug Howell but also to the
testimony of Detective James Brennock and Detective
Jim Walters, when offered by the State of Florida.
Id. at 78-79. Then again, in the trial court’s final instructions to the jury, it
stated: “The evidence which has been admitted in this trial to show other
crimes, wrongs or acts allegedly committed by the defendant will be considered
by you only as that evidence relates to proof of flight of the defendant having a
consciousness of guilt.” Id. at 697-98. The evidence highlighted in Ground Four
supra shows that there was sufficient evidence presented at trial that would
allow the jury to infer Jones’s consciousness of guilt.
Even if trial counsel had objected at trial, the state could have called
McClendon as a witness, and the jury would have heard McClendon’s negative
49

testimony about Jones. Although trial counsel had grounds to attack
McClendon’s credibility, as she did at the pretrial hearing, the jury still would
have heard McClendon’s testimony that Jones told him he knew law
enforcement wanted to question him about the shooting and that is why Jones
fled. At the evidentiary hearing in Jones’s Rule 3.850 proceeding, trial counsel
testified that her strategy with respect to the “flight evidence” was the same
with or without McClendon testifying at trial—her argument was that Jones
did not know the individuals chasing him were police officers. See Doc. 11-35
at 335; see also id. at 316 (“But our whole theory was that you didn’t know they
were police, so you couldn’t have been running from them as consciousness of
guilt because you didn’t know who they were in the first place.”).
Considering the record, the Court finds that counsel was not ineffective
for failing to object at trial. And even if she was, Jones fails to show that the
admission of this evidence prejudiced him in light of all the other evidence of
his guilt, including eyewitness testimony from three individuals. Moreover, on
direct appeal, Jones, through appellate counsel, argued that the trial court
erred by admitting this evidence. See Doc. 11-6 at 32-36. The state initially
argued that the issue was not preserved, but also addressed the claim on the
merits. See Doc. 11-7 at 20-27. Considering the record, the Court denies federal
habeas relief on Ground Thirteen.

50

J. Ground Fourteen
As Ground Fourteen, Jones maintains trial counsel was ineffective for
failing to depose and properly interview the state’s key witness, Maurice
Miller. Amended Petition at 67; see Doc. 26 at 25-28.
In Jones’s Rule 3.850 motion, he raised a substantially similar claim.
The postconviction court denied it:
Defendant contends counsel was ineffective for
not deposing Maurice Miller (“Miller”). Although
counsel interviewed Miller before trial, she did not
take a formal deposition. Defendant alleges that if
counsel had deposed Miller, then she would have
discovered that Miller called law enforcement
immediately after the shooting and saw Defendant
involved in another incident with a firearm several
days after the shooting. If the defense had been aware
of this information prior to trial, then counsel could
have obtained the recording of Miller’s call, as well as
prevented the jury from hearing any testimony about
the firearm incident.
Reasonable strategic or tactical decisions by
counsel do not constitute ineffective assistance of
counsel. Thompson v. State, 174 So. 3d 453, 456 (Fla.
1st DCA 2015). While a court generally must conduct
an evidentiary hearing to determine whether counsel’s
decisions derived from strategy, when the record
reveals that counsel made strategic decisions, a court
need not conduct an evidentiary hearing. State v.
Williams, 797 So. 2d 1235, 1239 (Fla. 2001) (quoting
McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.
1984)).
Here, the record demonstrates that counsel
made a conscious and strategic decision to proceed
with Miller’s interview. During trial, Defendant
51

brought this Court’s attention to his claim that counsel
was ineffective for interviewing, but not deposing,
Miller. Counsel conceded that she did not conduct a
deposition of Miller. She did interview Miller prior to
trial, and counsel, as a result, learned the substance of
Miller’s potential testimony. At various times before
trial, counsel subpoenaed Miller. However, he could
not attend these depositions. Counsel scheduled
Miller’s deposition on the day of his interview, but the
court reporter unexpectedly could not attend the
appointment. She told Defendant about these events,
and counsel ultimately decided to interview Miller
because of Defendant’s desire to proceed with trial.
Therefore, counsel made a considered decision to
proceed without Miller’s deposition in order not to
delay trial.
Assuming
arguendo
counsel
performed
deficiently, Defendant was not prejudiced by counsel’s
actions. Counsel indicated that Miller’s testimony did
not depart from the substance of his interview, only as
to the location of gold teeth in the shooter’s mouth.
Further, while Defendant claims that counsel would
have discovered the existence of a 911 call during a
deposition, she would not have been able to obtain the
recording. Counsel previously requested the
recordings of Miller’s call from the State, but law
enforcement did not find any recordings.
Lastly, even if a deposition had revealed that
Miller would testify to another incident involving
Defendant, this Court would have denied a motion in
limine from counsel. During trial, counsel objected to
the relevancy of Miller’s testimony about witnessing
Defendant brandish a firearm several days after the
shooting. This Court ruled that it had relevance “for
the purpose of the weight to be afforded the witness’s
identification of the defendant as the shooter.” Miller’s
testimony “as to the details by which [he] observed the
defendant four or five days later” also proved relevant
“to the nature or cause of the observation.” Defendant
52

was not prejudiced by counsel’s failure to depose Miller
because even if counsel had moved to exclude Miller’s
testimony about the firearm incident, this Court would
not have granted such a motion. Accordingly, this
Court denies Ground Ten.
Doc. 11-35 at 244-46 (internal record citations omitted). The First DCA per
curiam affirmed without opinion the postconviction court’s denial. See Doc. 1140 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.
Alternatively, even assuming trial counsel was deficient for not deposing
Miller prior to trial, Jones fails to show prejudice. Considering the record,
Jones fails to show a reasonable probability exists that had his counsel deposed
Miller prior to trial, the outcome of his trial would have been different. As such,
the Court denies Ground Fourteen.

53

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Jones seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The 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). To make
this substantial showing, Jones “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.
See Slack, 529 U.S. at 484. 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. Upon

54

consideration of the record as a whole, the Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 5) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.
3.

If Jones appeals the denial of the Amended Petition, the Court

denies a certificate of appealability. Because the 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 is directed to close this case and terminate any pending

motions.
DONE AND ORDERED at Jacksonville, Florida, this 24th day of
September, 2024.

55

JAX-3 9/24
c:
Rashane Jones
Counsel of Record

56