SOLIS v. MCNEIL

Filing 29

ORDER adopting 24 Report and Recommendation. Signed by CHIEF JUDGE M CASEY RODGERS on 5/2/2012. The petition for writ of habeas corpus filed by Jose L. Solis pursuant to 28 U.S.C. § 2254 challenging his convictions for se cond degree murder of Willie Joe Stanford and aggravated battery with great bodily harm upon Joe Shiver, case number 03-00808CFA, in the Circuit Court of the Second Judicial Circuit, in and for Gadsden County, Florida, is DENIED WITH PREJUDICE and a certificate of appealability is DENIED pursuant to § 2254 Rule 11(a). (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JOSE L. SOLIS,
Petitioner,
v.

CASE NO. 4:09cv312-MP-WCS

KENNETH S. TUCKER,
Respondent.
_____________________________/
ORDER
This cause comes on for consideration upon the magistrate judge's Report and
Recommendation dated . (Doc. 24). The parties have been furnished a copy of the Report
and Recommendation and have been afforded an opportunity to file objections pursuant
to Title 28, United States Code, Section 636(b)(1). The defendant filed an objection at
Doc. 27, of which I have made a de novo review. Having considered the Report and
Recommendation, and any objections thereto timely filed, I have determined that the
Report and Recommendation should be adopted.
In his objections regarding Ground Three in his Amended Petition, the petitioner
argues for the first time that his counsel was ineffective for failing to investigate and call
witnesses who would have supported the self-defense instruction. Plaintiff's Amended
Petition (doc. 7), however, does not contain this newly minted ineffectiveness claim. The
text of Ground Three in his Amended Petition is as follows:
The trial court abused its discretion in limiting the jury charge. The trial court
should have allowed an instruction on come to the aid to another; trial court
improperly determined that the evidence did not support the inclusion in the
instruction. However, the failure to give a requested jury instruction
constitutes prejudicial error when there is a reasonable possibility that it was
misleading by the failure to give instruction. The instruction was necessary
to allow jury to properly resolve all issues in this case. The trial court in its
denial, denied the requested instruction which violated Petitioner Solis's
Constitutional right under the Eighth Amendment to the United States
Constitution in a way that prevented consideration of constitutionally relevant
evidence.

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Like Ground Three in the Amended Petition, the fourth argument raised in petitioner's state
post-conviction motion did not involve ineffectiveness of counsel, petitioner merely argued
that the trial court abused its discretion in not giving a jury instruction on defense of others.
(Doc. 20, p. 12).

Because petitioner failed to previously present this claim as an

ineffectiveness argument, he has failed to exhaust his state remedies with regard to the
new argument raised in his objections.

Accordingly, this newly minted ineffectiveness

claim will not be considered by this Court.
Accordingly, it is now ORDERED as follows:
1.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this order.
2. The petition for writ of habeas corpus filed by Jose L. Solis pursuant to 28 U.S.C.
§ 2254 challenging his convictions for second degree murder of Willie Joe Stanford and
aggravated battery with great bodily harm upon Joe Shiver, case number 03-00808CFA,
in the Circuit Court of the Second Judicial Circuit, in and for Gadsden County, Florida, is
DENIED WITH PREJUDICE and a certificate of appealability is DENIED pursuant to §
2254 Rule 11(a).
DONE and ORDERED this 2nd day of May, 2012.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 4:09cv312-MP-WCS