[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 20, 2006
THOMAS K. KAHN
No. 04-11911 CLERK
D. C. Docket No. 00-03608-CV-J-S
AARON LEE JONES,
Petitioner-Appellant,
versus
DONAL CAMPBELL, Commissioner,
Alabama Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(January 20, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
DUBINA, Circuit Judge:
An Alabama jury found petitioner Aaron Lee Jones (“Jones”) guilty of
capital murder and recommended that he be sentenced to death. After exhausting
his state court remedies, Jones filed a federal habeas corpus petition pursuant to 28
U.S.C. § 2254. The district court denied Jones’s habeas petition, but granted a
certificate of appealability (“COA”) on several claims of ineffective assistance of
counsel. After a thorough review of the record, and having the benefit of oral
argument and the parties’ briefs, we affirm the district court’s judgment denying
Jones habeas relief.
I. BACKGROUND
A. Facts
The facts are recited verbatim from the opinion of the Alabama Court of
Criminal Appeals on direct appeal from Jones’s conviction and sentence.
Tony Nelson testified that on the morning of November 10, 1978, he
was sleeping with his ten-year-old brother, Charlie, in one of the
bedrooms of his parents’ home in the Rosa community in rural Blount
County, Alabama. His thirteen-year-old sister, Brenda, was sleeping
with their parents, Willene and Carl Nelson, in another bedroom.
Tony’s grandmother was sleeping by herself in a third bedroom of the
home.
At 3:27 a.m. Tony was awakened by a disturbance inside the home.
When the light in his bedroom was turned on, he saw Arthur Lee
Giles, a former employee of his father, standing in the doorway of
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Tony’s bedroom. Tony’s father appeared and asked Giles to leave.
Tony got out of bed and followed Giles to make sure Giles left as
directed. As Tony stepped out the back door of the home Giles
shouted “here,” and shot him twice, once in the neck and once in the
chest. Giles, then, re-entered the Nelsons’ home. Tony made an
effort to go and get a gun, but was unable to do so due to his injuries.
Instead, he crawled to, and hid under, his father’s truck. Shortly,
thereafter, he heard Giles and another man exit his parents’ home. He
saw the men only from the waist down. He heard one of them say
that they needed to find Tony and that the other man should “get the
money.” After they left, Tony went back inside. In his parents’
bedroom he found his mother, his father, his sister, and his brother.
All four had been severely wounded and there was blood all over
them. Charlie and Brenda responded when Tony asked if anyone was
still alive. His parents were dead. Tony rushed Brenda and Charlie
to the hospital where all three, including Tony, were treated for their
wounds.
Charlie Nelson testified that he saw Giles when his father, Carl
Nelson, asked Giles to leave the home. He saw Tony leave and heard
two gunshots. Giles, then, reappeared and shot Charlie’s
grandmother, who was standing in the doorway to Charlie’s bedroom.
Giles proceeded to Charlie’s parents’ bedroom from where Charlie
heard more gunshots. Charlie ran to his parents’ bedroom, where he
saw Giles and another man, whom he positively identified at trial as
the appellant. He realized that his mother, his father and his sister
had all been shot. He jumped on top of his sister to protect her from
further harm. As he lay there, he saw the appellant stab his mother
and father with a knife. His mother and father were both moaning as
the appellant repeatedly stabbed them. The appellant turned and
stabbed Charlie’s sister Brenda, who had already been shot above one
eye. Charlie was hit in the head several times, after which the
appellant stabbed him twice in the back.
On cross-examination Charlie admitted that during appellant’s first
trial Charlie had stated that Giles and the appellant appeared to be
3
drunk. He also stated that Giles “ordered the appellant around” and
directed the appellant to stab his victims.
Brenda Nelson confirmed those parts of Tony’s and Charlie’s
testimony as to things she had witnessed. She identified the appellant
at trial as the man she saw repeatedly stabbing her mother. She stated
that Giles was the one that shot her, Brenda, in the head.
Dr. Joseph Embry of the Alabama Department of Forensic Science
testified that Willene Nelson died from multiple stab wounds that
damaged her heart, lungs, and kidneys. Her body received 29 knife
wounds (17 stab wounds and 12 slash wounds), numerous lacerations
and abrasions about the head from a blunt instrument, and one
gunshot wound to the left shoulder. Dr. Embry testified that Carl
Nelson died from a combination of gunshot wounds and stab wounds.
He was shot once through the heart and once in the left arm. He was
stabbed, approximately, eight times, including a stab wound in the
neck which severed his spinal cord. He also received numerous blunt
instrument abrasions about the head. Dr. Embry testified that Carl
Nelson was alive when he was stabbed in the neck.
Billy Irvin, an investigator with the Blount County Sheriff’s
Department, testified that he interviewed the appellant at 8:15 a.m. on
November 11, 1978. During this interrogation the appellant
confessed to his participation in the events at the Nelsons’ home the
previous night. Appellant’s confession was tape recorded and
transcribed. The appellant reviewed the transcript of his confession
and signed it, voluntarily. After the trial court conducted a hearing
and determined that appellant’s confession was, indeed, voluntary,
Irvin was permitted to read it to the jury.
In appellant’s statement, he admitted participating in the activities
that resulted in the deaths of Willene and Carl Nelson. According to
the appellant, although they never found any money, he and Giles
went to the Nelsons’ home to rob Carl Nelson. Giles had told the
appellant that Carl Nelson had not sufficiently paid Giles for work
Giles had done for Nelson in the past. Giles and the appellant had
4
been drinking rum and beer prior to their trip to the Nelson’s home.
They were both armed with .32 caliber pistols, but appellant’s pistol
would not fire at the Nelsons’ home because he lost the firing pin.
The appellant’s statement confirmed the gruesome details of the
attack on the Nelson family. He stated that by the time he entered the
back bedroom, Giles had already shot and stabbed “everyone.” In his
own words the appellant stated:
“I goes off in the other room where he [Giles] at . . . shot
and stabbed them all there, you know, the kids and . . . he
looks at me and tells me, you know, that I had to do
something and I told him that I didn’t have a knife so he
gave me one and I cut the mother and another man and
cut the boy and that’s all I did.”
The appellant further stated that he used a butcher knife that Giles
had, apparently, obtained from inside the Nelsons’ home. He also
said that the “little girl” at one point begged him not to do it, and that
the “woman” moved right before he stabbed her. The appellant
explained that when he stabbed the “woman” he “really was just so
gone, I just closed my eyes” and stabbed wildly.
Although his confession was admitted into evidence, the appellant did
not testify in his own behalf at trial, except during the suppression
hearing on the issue of the voluntariness of his confession. In
defense, he presented excerpts of the transcribed testimony, from his
first trial, of several state’s witnesses for impeachment purposes. He
also presented his alleged accomplice, Arthur Lee Giles, who invoked
his Fifth Amendment rights, and refused to testify. Appellant’s
theory in defense was that his participation in the double murder fell
short of capital murder because Giles did all the actual killing and he,
the appellant, only did what Giles instructed him to do.
The jury found the appellant “guilty as charged in the indictment” and
the trial court, in accordance with the jury’s recommendation,
sentenced the appellant to death by electrocution.
5
Jones v. State, 520 So. 2d 543, 545-46 (App. Crim. App. 1984).
B. Procedural History
In 1979, an Alabama jury found Jones guilty of murder made capital
because two or more human beings were intentionally killed by one or a series of
acts. See Ala. Code § 13-11-2(a)(10) (1979) (repealed in 1981). The jury
recommended a death sentence, and the judge agreed with the jury’s
recommendation. The Alabama Court of Criminal Appeals reversed the trial
court’s judgment and ordered a new trial pursuant to Beck v. Alabama, 447 U.S.
625, 100 S. Ct. 2382 (1980), and Ritter v. State, 403 So. 2d 154 (Ala. 1981). See
Jones v. State, 403 So. 2d 1 (Ala. Crim. App. 1981).
Following a retrial in 1982, a jury again found Jones guilty of capital murder
and recommended that he be sentenced to death. The trial court followed the jury’s
recommendation and sentenced Jones to death. On appeal, the Alabama Court of
Criminal Appeals remanded Jones’s case for the trial court to clarify its sentencing
order regarding the mitigating and aggravating circumstances. Following this limited
remand, the Alabama Court of Criminal Appeals affirmed Jones’s conviction and
death sentence. See Jones v. State, 520 So. 2d 543 (Ala. Crim. App. 1984). The
Alabama Supreme Court affirmed, see Ex parte Jones, 520 So. 2d 553 (Ala. 1988),
and the United States Supreme Court denied certiorari review. See Jones v.
Alabama, 488 U.S. 871, 109 S. Ct. 182 (1988).
6
In March 1990, Jones filed a petition for post-conviction relief pursuant to Rule
32, Ala. R. Crim. P., challenging his 1982 conviction and sentence. In May 1994,
Jones filed an amended Rule 32 petition, reiterating numerous claims of ineffective
assistance of counsel alleged in his original Rule 32 petition, and raising numerous
other claims for relief. In November 1995, the trial court conducted an evidentiary
hearing on Jones’s allegations of ineffective assistance of counsel. In March 1996,
Jones submitted several documents to support the allegations in his Rule 32 motion;
namely, affidavits or depositions from Dr. B. E. Blankenship, Dr. Richard Cooksey,
and Dr. James C. Thompson, who testified regarding Jones’s mental health and
childhood. In June 1996, the trial court entered an order denying Jones post-
conviction relief.
In January 1997, Jones petitioned the trial court to supplement the record on
appeal with an affidavit of Dr. Dave Davis, and the deposition of Dr. Scott Joseph.
Jones stated that he filed courtesy copies of these two documents with the trial court
in March 1996, but these documents were not part of the clerk’s record. Dr. Davis,
a psychiatrist, diagnosed Jones as suffering from paranoid schizophrenia. He also
opined that Jones was in a state of toxic psychosis on the night of the murders, and
due to this, Jones would have been unable to form the necessary intent to commit the
crimes. R. Supp. Vol. 3, p. 616-18. Dr. Joseph, a psychiatrist, stated in his deposition
that Jones had a history of psychosis and was taking Haldol to control his psychotic
7
symptoms. R. Supp. Vol. 2, p. 384. However, Dr. Joseph admitted that at the time
he evaluated Jones, Jones had no active psychotic features. Id. at 390. Dr. Joseph
also acknowledged that he relied on Jones’s prison medical charts to form his
opinion. Id.
The Alabama Court of Criminal Appeals affirmed the trial court’s order
denying Jones post-conviction relief, see Jones v. State, 753 So. 2d 1174 (Ala. Crim.
App. 1999), and the Alabama Supreme Court denied Jones’s petition for writ of
certiorari.
On December 15, 2000, Jones filed the present federal habeas petition. In his
§ 2254 petition, Jones alleged numerous claims of ineffective assistance of trial and
appellate counsel. In addition, Jones asserted that (1) the state trial and appellate
courts failed to consider adequately both statutory and non-statutory mitigating
circumstances; (2) the trial court erred in failing to hold a competency hearing; (3) the
evidence at trial was insufficient to show that he intended to kill anyone; (4) his
conviction and death sentence were racially tainted; (5) the practice of Alabama
appellate courts of limiting death penalty proportionality review to other death-
sentenced cases results in an arbitrary application of the death penalty; (6)
electrocution violates the Eighth and Fourteenth Amendments; (7) he was deprived
of a fair and impartial jury because a particular juror failed to disclose during voir dire
that he knew the sheriff, the deputies involved in the investigation, and the victims;
8
and (8) he was deprived of a fair trial because a juror injected improper information
into the jury deliberations. The district court denied Jones relief. The district court
also denied Jones’s motion to alter or amend the judgment, but did grant Jones a COA
on four claims of ineffective assistance of counsel.
II. ISSUES
1. Whether Jones was deprived of his Sixth Amendment right to effective
assistance of counsel with respect to sentencing counsels’ alleged failure to
investigate thoroughly and present properly mitigating evidence of Jones’s abusive
childhood, mental health problems, and intoxication.
2. Whether Jones was deprived of his Sixth Amendment right to effective
assistance of counsel because of counsels’ failure to object to the trial court’s jury
instructions relating to the burden of proving malice.
3. Whether Jones was deprived of his Sixth Amendment right to effective
assistance of counsel on appeal because of counsel’s failure to raise and argue on
appeal issues related to the jury instructions on proving malice.
4. Whether Jones was deprived of his Sixth Amendment right to effective
assistance of counsel because of counsel’s alleged racial bias against him.
9
III. STANDARD OF REVIEW
This court reviews for clear error the district court’s findings of fact and
reviews de novo both questions of law and mixed questions of law and fact. Nyland
v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). An ineffective assistance of counsel
claim is a mixed question of law and fact that the court reviews de novo. See Dobbs
v. Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998). Since Jones’s petition was filed
after the effective date of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), we, in essence, review the decisions of the state courts. Pursuant to
AEDPA,
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim –
(1) resulted in a decision that 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) resulted in a decision that 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)(1), (2). Furthermore, a state court’s factual findings are
presumed correct, unless rebutted by the petitioner with clear and convincing
evidence. Id. at 2254(e)(1).
A state court decision is “contrary to” clearly established federal
law if either (1) the state court applied a rule that contradicts the
10
governing law set forth by Supreme Court case law, or (2) when faced
with materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case. See Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000). A state court conducts an
“unreasonable application” of clearly established federal law if it
identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case. See
id. An unreasonable application may also occur if a state court
unreasonably extends, or unreasonably declines to extend, a legal
principle from Supreme Court case law to a new context. See id.
Notably, an “unreasonable application” is an “objectively unreasonable”
application.” See Williams [v. Taylor], 529 U.S. [362], 412, 120 S. Ct.
[1495], 1523 [(2000)].
Putman v. Head, 268 F.3d 1223, 1240-41 (11th Cir. 2001). Lastly, clearly established
federal law “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000).
IV. DISCUSSION
The petitioner’s burden to prove, by a preponderance of the evidence, that
counsel’s performance was unreasonable is a heavy one. See Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). In order to establish deficient
performance, the petitioner must show that, in light of all the circumstances, counsel’s
performance was outside the wide range of professional competence. See Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984). The court’s review
of counsel’s performance should focus on “not what is possible or what is prudent or
appropriate, but only [on] what is constitutionally compelled.” Chandler, 218 F.3d
11
at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3126 (1987)). The
court’s review of counsel’s performance must be highly deferential, and the court
must avoid second-guessing counsel’s performance. See Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. If the record is not complete regarding counsel’s actions, then the
courts should presume “that what the particular defense lawyer did at trial – for
example, what witnesses he presented or did not present – were acts that some
reasonable lawyer might do.” Chandler, 218 F.3d at 1314-15 n. 15. Moreover, the
courts make an objective inquiry into the reasonableness of counsel’s performance.
Id. at 1315. For a petitioner to show deficient performance, he “must establish that
no competent counsel would have taken the action that his counsel did take.” Id.
Lastly, there are no absolute rules dictating what is reasonable performance
because absolute rules would restrict the wide latitude counsel have in making
tactical decisions. See id. at 1317. “As such, at a sentencing proceeding, counsel is
not required to present all mitigation evidence, even if additional mitigation evidence
would have been compatible with counsel’s strategy.” Putman, 268 F.3d at 1244.
“Counsel’s complete failure to present mitigation evidence does not necessarily
constitute deficient performance, even if mitigation evidence is available.” Id.
In light of these precepts, we will consider each of Jones’s claims of ineffective
assistance of counsel.
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A. Investigation and presentation of mitigating evidence
Jones posits that his trial counsel, Jack G. Davis (“Davis”), who represented
Jones at both trials, and George M. Boles (“Boles”) were ineffective at sentencing
for failing to present evidence of his mental illness, his abusive and deprived
childhood, and his substance abuse and intoxication on the night of the murders.
Jones claims that this mitigation evidence would have established the existence of
three statutory mitigating factors and negated two of the aggravating factors argued
by the State, and the evidence would have cast substantial doubt on whether Jones
had the specific intent required under Alabama’s capital murder statute. Jones asserts
that his counsel did no mitigation investigation: they did not speak with his family,
friends or neighbors; they did not follow up on clear evidence of his mental illness;
and they did not request his medical, educational, employment, or correctional
records. Jones contends that this total failure to investigate available mitigation
evidence was unreasonable in light of local professional standards. Therefore, Jones
asserts that he did not receive the effective assistance of counsel guaranteed by the
Sixth Amendment.
1. mental illness
Jones claims that he is, and was at the time of the crime, psychotic, that he
suffers from organic brain damage, and that he is a dependent personality and easily
13
coerced. Jones asserts that numerous psychiatrists, psychologists and physicians have
diagnosed him as psychotic. Jones contends that because his counsel failed to
investigate his mental health history, the jury did not know about his psychosis.
With regard to this claim, the trial court made findings of fact following the
Rule 32 evidentiary hearing. The trial court noted that Jones presented the testimony
of Dr. Brad Fisher, an expert in clinical forensic psychology. Dr. Fisher testified that
Jones suffered at the time of the crime and continues to suffer from significant mental
conditions, such as dependency, multi-substance abuse, organic impairment, and
major thought disorder. In reaching this opinion, Dr. Fisher reviewed Jones’s prior
court records, family members’ affidavits, medical records, and prison records, which
consisted of depositions from Dr. Thomas L. Smith and Dr. James C. Thompson in
1979, and the 1979 evaluation by Drs. Thompson and Smith done at Bryce Hospital
for the Lunacy Commission. Dr. Fisher also personally evaluated Jones and
interviewed family members, such as Maritha Erby (mother), Glen Jones (sister),
Henry Erby (half-brother), Phyllis Faevers (half-sister), Johnny Wright (uncle), and
Barbara Jones (niece).
The trial court then made the following factual findings:
The record reflects that counsel for petitioner investigated and pursued
a mental health defense for the first trial. Petitioner had been evaluated
by the Lunacy Commission. Previous counsel, during the first trial, had
14
filed appropriate motions for mental evaluations and had conducted
depositions of the mental health experts who evaluated petitioner. The
trial court subsequently denied the motion for private psychiatric
examination and testing and funds for an expert witness in the field of
mental health to perform intelligence and personality tests on the
petitioner. Thereafter, petitioner was granted his right to refile his
motion for psychiatric examination and said motion was granted.
Subsequently, in preparation for the second trial, Jack Davis filed a
motion for expert witnesses including mental health experts and filed a
motion for private psychiatric examination and testing. That was denied
by the Court on December 7, 1982. This Court finds that counsel in the
1982 trial filed the appropriate motions requesting mental health experts
and the appropriate evaluations and tests to be performed upon
petitioner and was denied relief by the Court. Petitioner claims that
Davis and Boles did not adequately present the testimony available to
them as to the mental health of the petitioner and had they presented the
available information, they would have been allowed to present the
testimony before the jury.
This Court, after having reviewed the records that were reviewed by Dr.
Fisher, the testimony of witnesses and the depositions submitted by both
parties of the prison physicians that treated the petitioner, finds that the
basis for Dr. Fisher’s opinion is questionable.
The first area of doubt is the diagnosis of psychosis. It appears that the
original diagnosis was made by Dr. Richard Cooksey, a general
practitioner for inmates in the prison system. On October 17, 1991, he
examined the petitioner for weight loss. Petitioner had a weight-loss
problem and Dr. Cooksey, not finding a physical reason for the problem,
doubted an organic basis for weight loss and felt that the weight loss
was a result of the petitioner just not eating. Petitioner told him that he
would not eat anything on his tray if the tray came in contact with
anything “unclean.” Although in his records he wrote that petitioner
admitted auditory hallucinations, the doctor admitted that they were
poorly described at the time. The doctor could remember nothing about
the nature of the hallucinations. Admitting that he was not a
15
psychiatrist, the doctor stated, “If he is not eating, he’s psychotic. That’s
pretty much normal day-to-day functioning, eating.”. . . He made notes
reflecting his diagnosis of petitioner in the medical records of petitioner
and recommended that petitioner would be best served at Kilby
Correctional Institution where he would get treatment for his mental
health.
. . . Therefore, even though the medical records indicate some sort of
mental health history, including earlier records of the Lunacy
Commission, this Court concludes that there has been no reasonable
dependable diagnosis of psychosis to support the opinion of Dr. Fisher,
and indeed it appears to this Court that there is no evidence of psychosis.
Although Dr. Fisher states that his testing showed that there is some
organicity in the psychosis and other mental problems of the petitioner,
there is no evidence to support this opinion. . . . This Court notes that it
allowed the petitioner to be tested for any organic basis for mental
health problems. Petitioner was transported to a facility which could
perform the tests, but no test results or testimony was presented to this
Court as to the result of those tests. Therefore, this Court concludes that
there is no evidence of an organic basis for any mental health problems
the petitioner might have.
The diagnosis of low intelligence is rebutted by testimony of family
members who stated the petitioner did well in school and no evidence
was presented to contradict that. Although the petitioner quit school
before he graduated, he did later obtain his GED, which rebuts any
evidence of low intelligence to the point where it would have an effect
on the outcome of his trial or sentencing.
...
All the testimony as to drug use reflects that the drug use was voluntary
and there was no evidence or organic effects of his long-term drug use.
Voluntary drug use has never excused or mitigated a crime of this nature
in the State of Alabama nor does it in this case.
16
After considering the testimony of Dr. Fisher and examining the basis
from which he formed his opinion, this Court is of the opinion that there
is no credible evidence of significant mental health problems in
petitioner.
R. Vol. 8-9, ¶. 1050-1055.
On appeal, the Alabama Court of Criminal Appeals agreed with the trial court’s
findings.
We agree with the trial court that the evidence presented by Jones in
support of this claim, including the testimony of Dr. Fisher and the
depositions and affidavit of other expert witnesses, was not adequate
evidence of a mitigating circumstance and was refuted by other
testimony and evidence admitted at the hearing and at trial.
Jones v. State, 753 So. 2d at 1194. The court also found it significant that the trial
court provided Jones with an opportunity to be tested to determine an organic basis
for the alleged mental health problems, but Jones admitted no test results at his Rule
32 hearing and relied instead on opinion evidence. Id. The court also found
significant the finding of the Lunacy Commission that Jones was not suffering from
a mental illness at the time of the acts charged that would have prevented him from
distinguishing right from wrong. Id. at 1194-95. The court concluded that Jones had
failed to establish his burden with respect to this claim of ineffectiveness. Id. at 1195.
The state courts’ determination that Jones did not meet his burden on the claim
of ineffective assistance of counsel with regard to the presentation of mental illness
mitigation evidence is not an unreasonable application of clearly established law and
17
is not based on an unreasonable determination of the facts. See 28 U.S.C. §
2254(d)(2). As the district court noted, “[m]uch of the evidentiary basis for
petitioner’s current claim of mental illness arose after his trial, during his
imprisonment. Certainly, it was not objectively unreasonable for the state courts to
discount this evidence that did not exist at the time the trial occurred.” District Court
Record Vol. 2, Tab 27, p. 49. The information counsel had before them at the 1982
trial was the 1979 Lunacy Commission Report which indicated that Jones did not
suffer from a mental illness. Furthermore, Boles testified at Jones’s Rule 32 hearing1
that Jones did not have any problems communicating with him and Davis during trial.
Id. at 167. Boles stated that he and Davis talked to Jones extensively about the
sentencing, and they apparently concluded not to present any psychological or
psychiatric testimony at sentencing. Id. at 105, 146. Boles emphasized that he relied
heavily upon Davis’s knowledge of the case because Davis represented Jones at his
1979 trial. Id. at 68.
The factual determination made by the state courts is presumed to be correct
unless the petitioner can rebut the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); see also Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir.
1
Jones’s other counsel, Jack Davis, did not testify at the post-conviction hearing because
he is deceased.
18
2002), cert. denied, Robinson v. Crosby, 540 U.S. 1171, 124 S. Ct. 1196 (2004).
Jones presents no evidence to rebut the state courts’ finding that Boles and Davis
were not ineffective for failing to present at sentencing any evidence of Jones’s
alleged mental illness. At the time of trial, they did not have any evidence to indicate
any potential mental illness, and instead, had a Lunacy Commission Report that stated
to the contrary. Boles also stated that Jones had no problems communicating with
him and Davis during trial, and he and Davis discussed whether to present mental
health testimony at sentencing and concluded not to present such testimony. In light
of this, we cannot say that the state courts’ finding that Jones’s counsels’
performance was not deficient was an unreasonable determination of the facts.
2. abusive childhood
Jones contends that his counsel were ineffective because they did not present
in mitigation any evidence of his abusive childhood. Jones asserts that the state
courts’ determination that the evidence of abuse was negligible was an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings.
The trial court found as follows concerning Jones’s alleged abuse:
Petitioner’s sister, Glen Jones, testified to abuse by their father. She
testified that her father was rarely around but when he did come that he
would make petitioner and Glen take off their clothes, would tie them
19
to a door knob and beat them with a cord. She testified that the beatings
with a cord were so severe that wire from the extension cord was
embedded in their flesh. The Court concludes that this is an
exaggeration and that had this abuse occurred there would be some
obvious scarring from where such young children were beaten to the
point where the insulation of an extension cord was torn off and wire
was embedded in their skin. The other evidence of abuse is negligible.
The opinion of Dr. Fisher as to the effects upon petitioner of this
“abusive childhood” is rebutted by other family members that testified,
including Glen Jones. Their testimony suggests that, although petitioner
had to live with relatives and was beaten by his father and had other
problems with family members, he adjusted well. Petitioner made good
grades in school and had no trouble with teachers. He was helpful to
people and was polite and well behaved. He was able to maintain
employment and although he had a few problems with attendance, was
generally considered to be a good worker. Petitioner attended church
and played in the school band. He was not a violent person growing up.
R. Vol. 8-9, ¶. 1053-54.
The trial court further noted that seven of Jones’s family members testified at
the Rule 32 hearing regarding Jones’s childhood and upbringing. The trial court
concluded that the evidence presented by the family members did not establish any
mitigating circumstances that would have changed the outcome of Jones’s sentence.
In so concluding, the trial court noted that it was “easy to see why counsel would be
reluctant to call Glen Jones for the second trial after hearing her testimony from the
first trial.” R. Vol. 9, p. 1059.
The petitioner was at her house the night of the murders. The sister
testified that prior to leaving with Giles to go to the Nelsons, Jones was
20
shooting drugs in her house. She did not question or object to the use
of drugs by her brother in her house with her children present. She also
testified as to the extent that everybody was intoxicated or high, which
was inconsistent with her testimony that she allowed no one but her
brother to use drugs in her home. Her testimony as to how Giles talked
Jones, the petitioner, into going to the Nelsons, shows that there was not
much coercion utilized by Giles. He simply asked Jones more than once
to go and Jones agreed. This testimony would have seriously prejudiced
the petitioner in the trial of this case and since petitioner was convicted
in his 1979 trial, trial counsel in the 1982 trial had good reason to avoid
using Glen Jones as a witness.
Id. at 1059-60. The court provided further assessment of the family members’
testimony:
The mitigating evidence presented by the petitioner shows no more than
a child of a broken family that had positive and negative influences in
his life but chose to follow the friends that he grew up with that were
taking drugs. From the testimony of these witnesses it is apparent that
petitioner had the ability to do well in school, had people in whom he
could confide and by whom he could be advised, was involved in church
activities such as choir and other extracurricular activities such as
playing in the school band. The petitioner’s temperament was peaceful
and the only negative influence appears to be the influence of his friends
who used drugs.
Aaron Jones had the abilities and the opportunities to make the choices
that everyone has to make in life and made the incorrect choice. When
Aaron Jones started using drugs his life changed. His mitigation is that
the drugs made him commit the crime. Frequently this has been
interposed as a defense and as mitigation but it has never been accepted
as an excuse to mitigate this type of crime.
The testimony of these witnesses is unconvincing. Had it been
presented to the jury it would not establish mitigation for the acts of the
petitioner.
21
Id. at 1062.
After reviewing the testimony of Jones’s family members and friends, the
Alabama Court of Criminal Appeals agreed with the trial court’s finding. The court
concluded that “none of their testimony supported a finding of a mitigating
circumstance recognized by § 13A-5-51, Ala. Code 1975, and would not have
changed the balance of the mitigating and aggravating circumstances in Jones’s case.”
Jones v. State, 753 So.2d at 1196-97. The court further noted that because there was
no error in the trial court’s determination that the evidence would not have changed
the outcome of Jones’s trial, it could not say that Jones’s trial counsel were
ineffective for failing to present the testimony of Jones’s family members and friends.
Id. at 1197. “Jones has not established a reasonable probability that but for his
counsel’s failure to call these witnesses and present the alleged mitigating evidence
during the sentencing phase of his trial that the outcome of the sentencing proceeding
would have been different.” Id. Thus, the appellate court agreed with the trial court’s
ruling that Jones’s counsel were not ineffective in failing to call these family
members to testify at sentencing. Id.
Based upon our review of the entire record, we conclude that the Alabama
courts properly found that Jones’s attorneys were not ineffective in failing to present
evidence at sentencing about his abusive childhood and upbringing. The testimony
22
at the Rule 32 hearing indicates that other than Glenn Jones’s testimony, the evidence
of abuse was negligible. Additionally, Glen Jones’s testimony was contradictory and
potentially more harmful than helpful. Furthermore, Boles testified that he recalled
that Davis talked to family members and mentioned that there was some problem or
estrangement within the family. R. Vol. 1, p. 102. In light of this, we cannot say that
the Alabama courts’ determination is contrary to or involves an unreasonable
application of federal law as determined by the Supreme Court. Nor can we say that
the state courts’ decision is based on an unreasonable determination of the facts that
were presented during the state court proceedings.
3. substance and alcohol abuse
Jones asserts that his attorneys were ineffective because they failed to present
evidence that he was suffering from a toxic psychosis on the night of the murders and
was not able to appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law. The trial court noted Glen Jones’s testimony that
Jones had been drinking and doing drugs the night of the murder in its consideration
of the possible mitigation evidence counsel should have presented at sentencing. The
trial court, however, did not single out this issue as one of ineffectiveness, nor did the
Alabama Court of Criminal Appeals. The portion of the state court opinion that Jones
23
attacks deals with counsels’ failure to present intoxication as a defense during the
guilt phase of the trial. See Jones v. State, 753 So.2d at 1190-91.
The district court considered this issue and found that counsel were not
ineffective for failing to present evidence of Jones’s intoxication in mitigation. The
district court noted that evidence of Jones’s drug use was presented to the jury during
the guilt stage. Witnesses testified at the 1982 trial that Jones appeared drunk, and
Jones admitted in his confession that he had been drinking heavily the day of the
murder, and that he was “so far gone” that he stabbed wildly. The district court
concluded that there was no reason to believe that the jury failed to consider this guilt
stage testimony for whatever mitigating power it had during the sentencing stage.
District Court Record, Vol. 2, Tab 27, ¶. 41-42.
Because Jones did not raise this specific claim of ineffective assistance of
counsel in state court, the claim is procedurally barred. See Johnston v. Singletary,
162 F.3d 630, 634-35 (11th Cir. 1998). Assuming arguendo that Jones raised in state
court the specific claim that counsel were ineffective for failing to present evidence
of his toxic psychosis in mitigation, the claim lacks merit. The only evidence Jones
proffers to support his claim is the affidavit of Dr. Davis. Dr. Davis opined that Jones
was suffering from toxic psychosis on the night of the murders; however, Dr. Davis’s
affidavit was submitted after the Rule 32 hearing, and the State had no opportunity
24
to cross-examine him. Because Jones fails to present any credible evidence to
support his claim of toxic psychosis, he cannot show that his counsel were ineffective
for failing to present this alleged evidence in mitigation.
4. prejudice
Jones cannot demonstrate that his counsels’ performance at sentencing was
deficient. Nor can Jones demonstrate that he was prejudiced by counsels’ failure to
present the mitigating evidence of Jones’s alleged mental illness, his abusive
childhood, and his alleged toxic psychosis. As noted earlier, the Alabama state courts
correctly found that the evidence submitted by Jones during his state post-conviction
proceeding was not mitigation evidence that would have changed the outcome of his
sentencing. The Alabama Court of Criminal Appeals applied the proper prejudice
standard under Strickland and found that Jones did not establish “a reasonable
probability that but for his counsel[s’] failure to call these witnesses and present the
alleged mitigating evidence during the sentencing phase of his trial that the outcome
of the sentencing proceeding would have been different.” Jones v. State, 753 So.2d
at 1197. The court considered the totality of the alleged mitigation evidence and
concluded that “because we have determined that evidence of Jones’s alleged mental
illness, the forensic evidence, and the testimony of family and friends would not have
25
established a mitigating circumstance, we cannot hold that Jones’s trial counsel
[were] ineffective for failing to present this evidence.” Id.
Given the heinousness of the crime and the overwhelming evidence of Jones’s
guilt, there simply is no reasonable probability that counsels’ failure to present
evidence of Jones’s alleged mental health problems, his abusive childhood, and his
excessive drinking on the night of the murders prejudiced Jones. Jones, armed with
a gun, went with Giles to rob the Nelsons. Once inside the house, Jones stabbed three
of the four victims, two of whom died from these injuries. Moreover, Jones stabbed
the victims in front of their two children, while one child begged him to stop. Jones
also stabbed one of the children in the back. In light of this evidence, there is no
reasonable probability that the outcome of the sentencing proceeding would have
been different had counsel presented this mitigation evidence. Accordingly, Jones
is not entitled to relief on these claims of ineffective assistance of counsel.
B. Objection to malice instruction
Jones contends that his counsel were ineffective for failing to object to an
improper burden-shifting charge on malice. Jones asserts that the jury instruction on
the element of malice created a mandatory presumption that relieved the State of its
burden of persuasion and shifted the burden to him. The trial court instructed the jury
as follows:
26
Now, we have [a] statute which defines murder in the first degree. This
statute says that every willful, deliberate, malicious and premeditated
killing of a human being is murder in the first degree. Now I will
undertake to define these four terms for you in order that you may better
understand them, and in doing so, will use the language used by the
Supreme Court many years ago.
Willful means governed by the will without yielding to reason.
Deliberate means formed with deliberation in contradistinction to a
sudden and rash act. Malice means done with a fixed hate or wicked
intention or a motive, not the result of a sudden passion. That is the
definition of actual malice. But the word malice, as used in this statute
which defines murder, has a broader meaning than that. It includes, not
only actual malice, but includes what we call legal or implied malice.
And in the broader sense, it means the state or condition of the mind
which prompted a person to do an unlawful act without legal
justification or extenuation.
Now every intentional and unlawful killing of a human being is
presumed to be done with malice aforethought unless the circumstances
that surround the killing rebut the idea of malice. Every intentional and
unlawful killing of a human being with a deadly weapon, such as a
pistol or with a knife, is presumed to be done with malice unless the
evidence that proved the killing rebuts the presumption of malice.
R. Vol. 7, ¶. 683-85.
On appeal from the trial court’s denial of post-conviction relief, the Alabama
Court of Criminal Appeals concluded that the instruction did not require the jury to
infer or presume the element of malice aforethought in the absence of evidence from
Jones that such a presumption was unwarranted. See Jones v. State, 753 So.2d at
1189. In so concluding, the court noted that “the predicate fact supporting the
27
presumption is Jones’s intentional and unlawful killings of the victims with a deadly
weapon, i.e., a knife.” Id. at 1188. The jury was to presume from the proof of the
killings that Jones committed the murders with malice aforethought. “However, in
order for the jurors to reach that conclusion, the State had to prove that Jones killed
the victims intentionally and that the circumstances of the killings evidenced that
Jones acted with malice aforethought.” Id. The court found that the instruction did
not shift the State’s burden to establish the element of malice. Id. at 1188-89 (relying
on Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 1971 (1985)). The court
further noted that the trial court also gave a charge concerning Jones’s presumption
of innocence and the State’s burden of proof. Thus, the court found that in
considering the jury charge in its entirety, any error was cured by the additional
charges. Jones, 753 So.2d at 1189. Accordingly, the court concluded that “[b]ecause
Jones ha[d] failed to establish that the trial court’s instruction on malice constituted
error, he ha[d] failed to show that his trial counsel w[ere] ineffective for failing to
challenge this instruction.” Id.
The district court agreed with the Alabama Court of Criminal Appeals that the
instruction on malice did not relieve the State of its burden of proving every element
of capital murder. However, the district court expressed some concern with the state
appellate court’s reasoning in addressing this issue. In a footnote, the district court
28
stated that the state appellate court concluded that the instruction in this case involved
merely a permissive inference, not a mandatory presumption. In Sandstrom v.
Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979), and Francis v. Franklin, 471 U.S.
307, 105 S. Ct. 1965 (1985), the Supreme Court cautioned that the words “presume”
or “presumption” imply a mandatory finding, not merely a permissive inference the
jury may or may not draw. Francis, 471 U.S. at 316. Thus, the district court found
it difficult to say that the conclusion reached by the state appellate court was not
“contrary to” Francis. District Court Record Vol. 2, Tab 27, p. 83-84 n. 14.
Likewise, the district court noted that the state appellate court concluded that the
general instruction about the defendant’s presumption of innocence and the State’s
burden of proof cured any defect in this particular instruction on malice. The district
court noted that both Sandstrom and Francis rejected the notion that such general
instructions are adequate to cure a specific burden-shifting instruction. Thus, the
district court found that the state appellate court’s reasoning was “contrary to”
Francis. See id.
However, the district court agreed that Jones did not receive ineffective
assistance due to counsels’ failure to object to the malice instruction. The district
court concluded that the instruction did not really relieve the State of the burden of
proving all elements of the offense of capital murder; and second, if the instruction
29
was error, it was harmless error in light of the overwhelming evidence against Jones.
Thus, under either rationale, counsels’ failure to object to the instruction did not
prejudice Jones. The district court concluded:
Alabama law defines malice in this context as “the state or condition of
the mind which prompted a person to do an unlawful act without legal
justification or extenuation.” Under the court’s instruction, the jury
“presumed” malice, that is, that the murders were done with a
recognition that they were “without legal justification or extenuation,”
only after finding first that the killings were “intentional and unlawful.”
The state always retained the burden of proving both that the killings
were intentionally done by petitioner and that they were unlawfully done
by him. The jury’s finding that the killings were intentional and
unlawful was, in effect, a finding of malice, notwithstanding the
presumption contained in the instruction.
Finally, coupling the explicit placement of the burden of proving
intentional and unlawful killings on the state with the concluding phrase
of the instruction that malice is presumed “unless the evidence that
proved the killing rebuts the presumption of malice,” it becomes
apparent that the instruction always required the State’s evidence to
prove malice. If the “evidence that proved the killing,” that is, the
State’s evidence, failed to show malice, then the presumption was
rebutted. The instruction never required the petitioner to offer any
rebutting evidence; rather, it lay entirely in the State’s burden of proof.
Thus, the instruction did not shift the burden to the petitioner and,
therefore, was not objectionable.
Even if the instruction can be regarded as a burden-shifting instruction
in violation of Sandstrom and Francis, the error in this case was
harmless. See Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101 (1986). The
overwhelming evidence against petitioner showed that he went to the
Nelson home with Giles for the purpose of robbing them. He was armed
with a gun and, when the gun proved unusable, he stabbed the Nelsons
multiple times with a butcher knife retrieved from their kitchen. There
30
can be no reasonable doubt that petitioner acted with the requisite
malice, that is, recognition that he acted without legal justification or
extenuation. As the malice instruction constituted harmless error,
counsel’s failure to object to it does not undermine confidence in the
outcome of petitioner’s trial; his trial remained fundamentally fair,
despite this error. Thus, without prejudice, there was no ineffective
assistance of counsel, and petitioner is not entitled to relief on this
claim.
District Court Record Vol. 2, Tab 27, p. 85-87.
We agree with the district court that trial counsel did not render ineffective
assistance by failing to object to the jury charge on malice. The trial court’s charge
on malice meant an intentional killing. As the state appellate court noted, “the
predicate fact supporting the presumption is Jones’s intentional and unlawful killings
of the victims.” Jones, 753 So. 2d at 1188. Furthermore, even if the instruction was
error, any error was harmless in light of the overwhelming evidence of Jones’s guilt.
See Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101 (1986).
In Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 1892 (1991), the Supreme
Court described the nature of the harmless error analysis which must be applied to
Sandstrom errors:
To say that an error did not contribute to the verdict is . . . to find that
error unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record. Thus, to say that an
instruction to apply an unconstitutional presumption did not contribute
to the verdict is to make a judgment about the significance of the
31
presumption to reasonable jurors, when measured against the other
evidence considered by those jurors independently of the presumption.
111 S. Ct. at 1893.2 The Court then set forth two distinct steps for the reviewing
court to follow in performing this analysis: first, the court must analyze the jury
instructions, applying the customary presumption that jurors follow instructions;
second, the court must weigh the probative force of the evidence actually considered
by the jury against the probative force of the presumption standing alone. Id. The
Court then noted that conclusions of harmless error are not appropriate simply
because there is overwhelming evidence of the defendant’s guilt. This overwhelming
evidence must have been considered by the jury. Thus, a reviewing court must
determine “whether the force of the evidence presumably considered by the jury in
accordance with the instructions is so overwhelming as to leave it beyond reasonable
doubt that the verdict resting on that evidence would have been the same in the
absence of the presumption.” Id. at 1893-94.
Weighing the probative force of the evidence of guilt against the probative
force of the presumption standing alone, there is no doubt in our minds that the
verdict resting on that evidence would have been the same in the absence of the
2
We acknowledge that the Supreme Court has disapproved of some of the Yates
language, but the Yates harmless error analysis remains applicable. See Stevens v. Zant, 968 F.2d
1076, 1086 n.12 (11th Cir. 1992).
32
presumption. See id. The jury considered the testimony of the surviving victims, and
Jones’s confession to his participation in the crimes. Jones acknowledged that he
went to the Nelsons’ home armed with a gun with the intent to rob the victims. Jones
admitted that he stabbed the victims multiple times with a butcher knife. Jones also
acknowledged that one of the children begged him to stop, and that the female victim
moved before he stabbed her. There can be no doubt that “the verdict resting on [this]
evidence would have been the same in the absence of the presumption.” Id. at 405,
111 S. Ct. at 1893-94.
Therefore, we conclude that Jones cannot establish that his counsel were
deficient for failing to object to the trial court’s instruction or that counsels’ failure
to object to the instruction undermined confidence in the outcome of his trial.
Accordingly, Jones is not entitled to relief on this claim of ineffective assistance of
counsel.
C. Appellate counsel
The district court included within the COA the issue of whether Jones received
ineffective assistance of appellate counsel because counsel failed to raise on appeal
a challenge to trial counsels’ failure to object to the trial court’s malice instruction.
Neither Jones nor the State briefed this issue or argued it before the court. Thus, we
deem the argument abandoned. See Marek v. Singletary, 62 F.3d 1295, 1298 n.2
33
(11th Cir. 1995) (“Issues not clearly raised in the briefs are considered abandoned.”);
see also Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir.
2004) (“If an argument is not fully briefed (let alone not presented at all) to the
Circuit Court, evaluating its merits would be improper both because the appellants
may control the issues they raise on appeal and because the appellee would have no
opportunity to respond to it.”).
However, even if we considered the issue, we would not grant Jones relief on
this claim. As we stated previously, Jones’s trial counsel were not ineffective in
failing to object to the malice jury instruction. Thus, it is a fortiori that Jones’s
appellate counsel was not ineffective in failing to raise the issue on appeal.
D. Racial animus
Jones contends that Boles harbored racial animosity toward him that infected
his entire representation of Jones and deprived Jones of his Sixth Amendment right
to effective assistance of counsel. Our review of the record indicates that Jones did
not raise this claim as a specific, enumerated claim of ineffective assistance of
counsel in his federal habeas petition. Instead, he referenced the issue in the
introductory portion of his federal habeas petition. Additionally, Jones did not raise
this as an enumerated claim of ineffectiveness in state court in his Rule 32 petition.
Rather, during the Rule 32 hearing, Jones presented testimony from Ann Graham, the
34
legal secretary for Jones’s post-conviction counsel, that Boles told her in a phone
conversation something to the effect of “that nigger is going to fry.” R. Vol. 2, p.
378. In his “Proposed Findings of Fact and Conclusions of Laws” filed on May 14,
1996, after the trial court conducted the Rule 32 hearing, Jones stated that “[i]n
addition, attorney Boles’ general racial attitudes and, specifically, his racial attitudes
as to his client, the Petitioner, fatally impaired his ability to provide effective
assistance of counsel.” R. Vol. 4, p. 233. On appeal of the trial court’s denial of his
motion for post-conviction relief, Jones asserted that “the root of his ineffective-
assistance-of-counsel claims is what he says are Boles’s racist views.” See Jones, 753
So. 2d at 1182.
These general references to a “claim” of ineffectiveness based on Boles’s
alleged racial animosity do not fairly present the claim to the courts. Although Jones
presented limited testimony on this allegation in his Rule 32 proceeding, mentioned
it briefly in his post-Rule 32 filings, and noted the allegation in his introductory and
conclusory portions of his state appellate brief, there is absolutely no discussion by
any state court of the allegation. The state trial court did not address it in its Rule 32
order because Jones did not raise the allegation in his Rule 32 petition. Nor did the
state appellate court review the merits of this “claim” because Jones did not raise it
as a discrete claim of ineffective assistance of counsel on appeal from the trial court’s
35
denial of his Rule 32 petition. Rather, the state appellate court made one statement
mentioning Jones’s assertion that the root of his ineffectiveness claims was Boles’s
racial animosity. Because this “claim” was not fairly presented to the state courts, it
is procedurally defaulted, see Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512
(1971), and we will not consider it. See Teague v. Lane, 489 U.S. 288, 297-98, 109
S. Ct. 1060, 1068-69 (1989).
A petitioner may obtain federal review of a procedurally defaulted claim if he
can show both cause for the default and actual prejudice resulting from the default.
Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497 (1977). Additionally, in
extraordinary cases, a federal court may grant a habeas petition without a showing of
cause and prejudice to correct a fundamental miscarriage of justice. See Murray v.
Carrier, 477 U.S. 478, 106 S. Ct. 2639 (1986). Jones has not attempted to meet either
exception.
Furthermore, we decline to consider the merits of this claim because Jones did
not clearly present this issue to the district court as a specific, enumerated claim of
ineffective assistance of counsel. As a general rule, we will not address issues or
arguments on appeal that were not fairly presented to the district court. Depree v.
Thomas, 946 F.2d 784, 793 (11th Cir. 1991).
36
Assuming the issue was properly before us for consideration, we would
conclude that the claim is without merit. Boles’s alleged racial remarks occurred
almost 13 years after Jones’s trial. Jones did not present any evidence that Boles
made any racist statements to Jones during his representation. There is no evidence
that Boles ever made a derogatory racial remark to Jones. The alleged racial remark
was made to a legal secretary, not to Jones, and the alleged comment was made after
Boles’s representation of Jones. There is no evidence to support Jones’s allegation
that Boles’s alleged racist attitude toward him affected Boles’s representation to the
extent that Jones was denied the right to counsel guaranteed by the Sixth Amendment.
Accordingly, Jones is not entitled to relief on this claim.
V. CONCLUSION.3
Jones has not shown that his counsel rendered ineffective assistance to him at
either his trial or sentencing. Jones cannot establish that in light of all the
circumstances, his counsels’ performance was outside the wide range of professional
competence. Jones also cannot establish that his counsels’ alleged deficient
3
We note that in addition to his request for relief from his conviction and sentence, Jones
urges this court to remand his case with directions that the district court conduct an evidentiary
hearing on his mental health claims. Jones is not entitled to an evidentiary hearing because he
had ample opportunity to develop the factual basis of this claim in state court. See 28 U.S.C. §
2254(e)(2); see also Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317, 1337 (11th Cir. 2004).
37
performance prejudiced the outcome of his trial or sentencing. Accordingly, we
affirm the district court’s judgment denying Jones habeas relief.
AFFIRMED.
38