HARTLEY v. JONES

Filing 41

ORDER ADOPTING 39 REPORT AND RECOMMENDATION. Signed by JUDGE ALLEN C WINSOR on 3/22/2021. The clerk will enter a judgment that says, "The § 2254 petition is denied on the merits without an evidentiary hearing." A certificate of appealability is DENIED. The clerk will close the file. (kdm)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JOHN E. HARTLEY,
Petitioner,
v.

Case No. 1:18-cv-5-AW-GRJ

SECRETARY, FLORIDA DEP’T OF
CORRECTIONS,
Respondent.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
John E. Hartley initiated this case with his § 2254 petition attacking his state
conviction and sentence. ECF No. 1. The magistrate judge issued a report and
recommendation concluding the petition should be denied without an evidentiary
hearing. ECF No. 39. Hartley responded with objections, but rather than challenge
specific portions of the report and recommendation, the objections reiterated the
arguments in Hartley’s petition and reply. See ECF No. 40 at 1-2 (“The Petitioner is
not going to waste this honorable court’s valuable time with a lot of wording and
case law, Petitioner[’s] habeas corpus and reply to the Attorney General’s response
speak for [themselves].”).
I have carefully considered the petition, the response, the reply, the report and
recommendation, and Hartley’s objections. I now conclude that the report and
recommendation should be adopted.

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Hartley’s first claim is that appellate counsel was ineffective. Hartley testified
at his first trial, and at his second trial, the state introduced his recorded testimony
from the first trial. According to Hartley’s petition, the introduction of this testimony
let the jury know there had been a first trial because of an isolated reference in a
question—“give the jury an idea of what that work comprised of . . . .” ECF No. 1
at 15. I agree with the magistrate judge that Hartley did not show deficient
performance or prejudice. And he certainly did not show that the state court’s
conclusion on that score was an unreasonable application of Strickland. Cf.
Harrington v. Richter, 562 U.S. 86, 103 (2011).
Hartley’s second claim is that trial counsel was ineffective for not objecting
to the use of the recorded testimony at the second trial because the testimony (from
the first trial) was involuntary. ECF No. 1 at 17. Hartley argues that he was
misadvised at the first trial about the consequences of his testifying. Again, I agree
with the magistrate judge. There was no showing that the testimony from the first
trial was involuntary. Indeed, the record includes part of the first trial’s transcript, in
which Hartley told the judge that he had discussed with counsel the pros and cons of
testifying, that he understood he could be impeached as to his convictions, that he
was making the decision to testify freely, and that he would not likely be permitted
to use the fact that he testified in any postconviction proceeding about ineffective

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assistance of counsel. ECF No. 29-27 at 200-03. At any rate, Hartley has not shown
that the state court’s rejection of this claim was an unreasonable application of law.
Hartley’s third claim is that his trial counsel was ineffective for not objecting
to impeachment of one of his witnesses. ECF No. 1 at 18. As the magistrate judge
concluded, the objection would have been futile, so there was no deficient
performance. Again, Hartley has not shown that the state court’s decision was an
unreasonable application of law.
Finally, Hartley contends trial counsel was ineffective for not objecting to the
jury instructions. Part of the Stand-Your-Ground instruction said “[i]f the defendant
was not engaged in an unlawful activity and was attacked in any place where he had
a right to be, he had no duty to retreat and had the right to stand his ground.” ECF
No. 29-12 at 107. According to Hartley, the “not engaged in an unlawful activity”
language meant the jury would have to reject the defense because he was unlawfully
using crack cocaine. But the instruction was a standard instruction, and it faithfully
tracked the language of the then-applicable Stand-Your-Ground law. Counsel did
not perform deficiently by not objecting. And the state court’s rejection of this claim
was not an unreasonable application of Strickland.
For these reasons, I conclude the petition must be denied. The last question is
whether to grant a certificate of appealability. I find that Hartley has not “made a

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substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
so I will deny a certificate of appealability.
It is now ORDERED:
1.

The Report and Recommendation (ECF No. 39) is adopted and

incorporated into this order.
2.

The clerk will enter a judgment that says, “The § 2254 petition is denied

on the merits without an evidentiary hearing.”
3.

A certificate of appealability is DENIED.

4.

The clerk will close the file.

SO ORDERED on March 22, 2021.
s/ Allen Winsor
United States District Judge

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