HOPE v. DEPARTMENT OF CORRECTIONS et al

Filing 50

FINAL ORDER ADOPTING REPORT AND RECOMMENDATION re: 36 Report and Recommendation. The § 2254 petition is denied on the merits without an evidentiary hearing. A certificate of appealability is DENIED signed by JUDGE ALLEN C WINSOR on 4/23/21. (bkp)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
AARON HOPE,
Petitioner,
v.

Case No. 1:18-cv-144-AW-EMT

DEPARTMENT OF CORRECTIONS,
Respondent.
_______________________________/
FINAL ORDER
A Florida jury convicted Aaron Hope of attempted first-degree murder,
aggravated battery with a deadly weapon, and three counts of aggravated assault
with a deadly weapon. The state court imposed a life sentence as to the attempted
murder and shorter concurrent sentences as to the rest.
The First DCA affirmed in large part, but it concluded the aggravated battery
conviction could not stand. Hope v. State, 68 So. 3d 366 (Fla. 1st DCA 2011)
(Mem.). On remand, the trial court reimposed the same sentences as to all remaining
counts, and Hope is still serving his life sentence. Hope later filed a motion to correct
illegal sentence. The trial court amended the mandatory-minimum portion of his
sentences.
After numerous unsuccessful state postconviction proceedings and appeals,
Hope petitioned for § 2254 relief. The magistrate judge issued a detailed and
comprehensive Report and Recommendation (ECF No. 36—“R&R”), which
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concludes Hope is not entitled to relief. Hope filed pro se objections, ECF No. 44—
“Obj.”), which I have considered de novo.1
Hope also moved for leave to file an amended petition. ECF No. 45. The
magistrate judge denied that motion, correctly concluding that the new proposed
claims would not relate back to Hope’s timely petition, making the new claims
untimely—and thus making the proposed amendment futile. ECF No. 49.
I now conclude that the Report and Recommendation should be adopted in
large part and that the § 2254 petition must be denied.
The operative petition is the amended petition (ECF No. 5—“Pet.”). It
presents five enumerated claims, and this order will address each in turn.
GROUND ONE
Hope’s first claim is that trial counsel was ineffective because he did not
ensure the jury understood Florida’s stand-your-ground defense was available. There
is no question that Hope shot the victim; the issue was whether he acted in self
defense. In Hope’s view, counsel’s errors precluded him from succeeding with this
defense.
As the R&R recognizes, Hope breaks this claim into multiple subparts. R&R
at 13 & n.3. For the first subpart, Hope asserts that counsel was ineffective for not

Counsel filed the petition and reply on Hope’s behalf. But the court granted
counsel leave to withdraw, ECF No. 39, and Hope represented himself from there.
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objecting to a question about whether he was a convicted felon who shouldn’t be
around guns and to a similar argument in closing. I agree with the magistrate judge
that reasonable jurists could agree with the state court’s conclusion that Hope has
not shown Strickland prejudice and that this subpart therefore does not present
grounds for relief.2
The second subpart (presented in the amended petition as the second and third
subparts) argues counsel was ineffective for not objecting to the SYG jury
instruction and not proposing an SYG instruction. I agree with the magistrate judge’s
conclusion that Hope has not shown the state court unreasonably applied Strickland
in rejecting this claim.

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Although of little importance here, I note I cannot agree with the magistrate
judge’s conclusion that this “is a very close call.” R&R at 63. And although the
prejudice prong alone is enough to decide this point, see Lee v. GDCP Warden, 987
F.3d 1007, 1019 (11th Cir. 2021) (“[W]here it is easier to avoid assessing counsel’s
performance and resolve the petitioner’s claim on the ground that he has not made a
sufficient showing of prejudice, courts are encouraged to do so.”), I also note that
Hope has not shown deficient performance. The issue is not whether the prosecutor
should have asked the question or made the closing argument. Hope has presented
this as an ineffective-assistance claim, so the question is whether by not objecting,
counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984). This is, of course, a tough showing to make, and there are
reasons why a reasonable attorney would let the short question and one-line
argument go—for example, to avoid drawing attention to Hope’s felon status. And
the benefit of objecting would be minimal; the jury already knew of Hope’s felon
status because he brought it up during his direct examination, ECF No. 17-2 at 155,
and it was covered during his cross examination as a proper impeachment matter,
ECF No. 17-2 at 161.
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In his objection, Hope takes issue with the magistrate judge’s noting that a
certain case he relied on came out long after his trial. Obj. at 8-9; see also R&R at
76 (“And although possession of a firearm by a convicted felon did not preclude a
defendant from claiming immunity under 776.012(1), the law on that point was not
clarified until after Hope’s trial.”). He points out that Novak v. State, 974 So. 2d 520
(Fla. 4th DCA 2008), came out before his trial. But Novak did not address the issue
raised here—whether Hope’s possessing a gun unlawfully was “unlawful activity”
that precluded any SYG defense.
In Novak, the court found “well-taken” the argument “that the jury instruction
imposing a ‘duty to retreat’ on a defendant who employs self-defense while ‘engaged
in unlawful activity’ was confusing under the circumstances because the defendant
was not engaged in any unlawful activity other than the crimes for which he asserted
the justification.” Id. at 522. It concluded that “a jury charged with the ‘unlawful
activity’ instruction might confuse the charged crimes with ‘unlawful activity’ that
precludes the justification of self-defense unless the defendant has retreated.” Id.
Here, there is no indication that the jury could have confused the charge—
attempted murder—with the “unlawful activity” that precluded the SYG defense.
More importantly, Hope made no such argument in his petition.
It is true that since his trial, Florida courts have held that a felon in possession
of a firearm can still benefit from Florida’s SYG law. As the Second DCA explained
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in Dooley v. State, there are two relevant SYG statutory provisions, and “while the
defendant’s status of being a felon in illegal possession of a firearm may have
precluded him from availing himself of the protection of section 776.013(3) in his
second-degree murder trial, he could still seek immunity based on section
776.012(1).” 268 So. 3d 880, 886 (Fla. 2d DCA 2019).
Hope contends that although Dooley (and the Little decision it cited) issued
long after his trial, the principles they discuss “are not new or novel.” Obj. at 12. But
I cannot conclude that these cases—or the principles they established—were settled
at the time of Hope’s trial. Indeed, Dooley noted that “[a]s the Florida Supreme Court
aptly observed in [State v.] Floyd, ‘the justifiable use of force is recognized as a
somewhat complex area of law that will necessarily yield complex jury
instructions.’” Id. at 887 (quoting Floyd, 186 So. 3d 1013, 1022 (Fla. 2016)). It also
noted that “[t]he trial court did not have the benefit of our decision in Little when it
gave this instruction in Mr. Dooley’s case.” Id. Hope’s counsel likewise did not have
the benefit of these decisions. See Black v. United States, 373 F.3d 1140, 1144 (11th
Cir. 2004) (“If the legal principle at issue is unsettled, . . . counsel will not have
rendered deficient performance for an error in judgment.”).
GROUND TWO
The next claim is that counsel was ineffective for failing to call certain defense
witnesses. I agree with the magistrate judge’s conclusion that Hope has not shown
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an unreasonable application of Strickland. I have considered de novo the issues
raised in the objection, but none is persuasive.3
GROUND THREE
Next, Hope contends he was denied Due Process when resentenced outside
his presence. As noted above, the First DCA vacated one of the convictions, and the
trial court resentenced Hope to the same sentences as to the remaining counts. Then,
the state court granted a motion to correct an illegal sentence. Hope says he should
have been there for the last resentencing. Pet. at 29.
Hope pursued this claim in state court, which rejected it. On appeal, the State
contended that Hope should have been present but that any error was harmless, and
the First DCA affirmed without opinion. I agree with the magistrate judge: Hope has
not shown the state court’s adjudication turned on an unreasonable determination of
the facts or was contrary to or an unreasonable application of clearly established
federal law.
GROUND FOUR
Hope’s fourth claim is that newly discovered evidence undermines his
conviction. The magistrate judge correctly concludes that this claim is not

Hope’s objection lists the two Ground 1 subparts as Grounds 1 and 2, so its
numbering does not match the numbering in this order. The objection to this ground
is listed as “Ground Three,” the objection to the next one is listed as “Ground Four,”
and so on.
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cognizable. See Swindle v. Davis, 846 F.2d 706, 707 (11th Cir. 1988) (“Newly
discovered evidence which goes only to the guilt or innocence of the petitioner is
not sufficient to require habeas relief.”).
GROUND FIVE
Finally, I agree with the magistrate judge that Hope’s fifth claim—that the
orally pronounced life sentence was invalid because the state judge did not orally
pronounce the statute on which the sentence was based—is meritless.
CONCLUSION
The magistrate judge’s Report and Recommendation (ECF No. 36) is adopted
and incorporated into this order, except to the extent of the disagreements noted
above in note 2. Hope’s objections are overruled.
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.
SO ORDERED on April 23, 2021.
s/ Allen Winsor
United States District Judge

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