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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13448
Non-Argument Calendar
____________________
MARK A. JONES,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-00538-GKS-GJK
____________________
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2 Opinion of the Court 21-13448
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Mark Jones, a counseled state prisoner, appeals the district
court’s dismissal with prejudice of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. We granted a certificate of appeal-
ability (“COA”) on the single issue of “[w]hether the district court
erred in finding that Jones’s underlying ineffective-assis-
tance-of-trial-counsel claim for failure to convey a plea offer was
not ‘substantial’ to overcome procedural default under Martinez v.
Ryan, 566 U.S. 1 (2012)?” Jones argues that his underlying ineffec-
tive-assistance-of-counsel claim is substantial because his trial coun-
sel failed to inform him of the plea-deal-deadline extension, did not
use the alternate contact numbers in his file, and did not seek an-
other extension when he could not reach Jones. Jones argues that
this failure to inform him was deficient and prejudiced him because
he would have accepted the plea deal after the original expiration
date but within the extension. 1 After carefully reviewing the rec-
ord before us, we affirm the district court’s dismissal of Jones’s ha-
beas petition.
1 Jonesalso contends that the state court’s decision was an inadequate proce-
dural ground on which to deny his successive post-conviction petition and that
his procedural default should be excused due to newly discovered evidence.
Both issues are outside the scope of the COA, so we decline to address
them. See Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1180 (11th Cir.
2010).
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21-13448 Opinion of the Court 3
When evaluating a district court’s denial of a § 2254 petition,
we review questions of law and mixed questions of law and fact de
novo, and findings of fact for clear error. Tanzi v. Sec’y, Fla. Dep’t
of Corr., 772 F.3d 644, 651 (11th Cir. 2014).
Before bringing a federal habeas action, a petitioner must ex-
haust all state court remedies available for challenging his convic-
tion, either on direct appeal or in a state post-conviction motion.
28 U.S.C. § 2254(b), (c). A federal claim is subject to procedural
default where: (1) the state court concludes that the petitioner’s
claim is barred because of an independent and adequate ground of
state procedure; or (2) the petitioner never raised the claim in state
court, and it is obvious that the unexhausted claim would now be
procedurally barred under state procedural rules. Bailey v. Nagle,
172 F.3d 1299, 1302–03 (11th Cir. 1999). Under the procedural-de-
fault doctrine, “[i]f the petitioner has failed to exhaust state reme-
dies that are no longer available, that failure is a procedural default
which will bar federal habeas relief.” Smith v. Jones, 256 F.3d 1135,
1138 (11th Cir. 2001).
The Florida Court of Appeals held that Jones’s ineffective as-
sistance of counsel claim was procedurally barred as successive.
His claim is thus subject to the procedural default rule. Id. A pro-
cedural default may be excused if the movant establishes (1) “cause
for not raising the claim of error on direct appeal and actual preju-
dice from the alleged error,” or (2) a fundamental miscarriage of
justice, meaning actual innocence. McKay v. United States, 657
F.3d 1190, 1196 (11th Cir. 2011) (emphasis omitted).
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4 Opinion of the Court 21-13448
In Martinez v. Ryan, the Supreme Court created a “narrow
exception” to procedural default in ineffective-assistance-of-coun-
sel contexts. 566 U.S. at 9. This narrow exception allows a state
prisoner to obtain federal habeas review of unexhausted, procedur-
ally defaulted claims of ineffective assistance of trial counsel when
the state does not allow ineffective assistance of counsel claims on
direct review and the initial collateral-review counsel performs in-
effectively. Id. at 17. But to overcome procedural default under
Martinez, a petitioner must show that his underlying ineffective as-
sistance-of-trial-counsel claim is “substantial,” meaning that the
claim “has some merit.” Id. at 14. The Supreme Court compared
the substantiality requirement to the standard required for a COA.
Id. at 16. Under the COA standard, a defaulted claim is substantial
if the resolution of its merits would be debatable among reasonable
jurists. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
To make out a successful claim of ineffective assistance of
counsel, a defendant must show both that (1) his counsel’s perfor-
mance was deficient and (2) the deficient performance prejudiced
him. Strickland v. Washington, 466 U.S. 668, 687 (1984). When
analyzing a claim of ineffective assistance under § 2254(d), our re-
view is “doubly” deferential to counsel’s performance. Harrington
v. Richter, 562 U.S. 86, 105 (2011). So “the question is not whether
counsel’s actions were reasonable. The question is whether there
is any reasonable argument that counsel satisfied Strickland’s def-
erential standard.” Id. Deficient performance “requires showing
that counsel made errors so serious that counsel was not
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21-13448 Opinion of the Court 5
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. We presume that coun-
sel’s conduct was reasonable, and a petitioner seeking to overcome
the presumption must establish “that no competent counsel would
have taken the action that his counsel did take.” Chandler v.
United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Prej-
udice occurs when, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. Strickland,
466 U.S. at 694. Failure to establish either prong is fatal. Id. at 697.
The Supreme Court has held that “defense counsel has the
duty to communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the ac-
cused.” Missouri v. Frye, 566 U.S. 134, 145 (2012) (“When defense
counsel allowed the offer to expire without advising the defendant
or allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires.”). Thus, an attor-
ney’s failure to convey a plea agreement at all is deficient perfor-
mance, satisfying the first element of Strickland. Id. at 145, 147.
To satisfy the prejudice prong, a petitioner must show a rea-
sonable probability that, but for counsel’s ineffectiveness: (1) he
would have accepted the plea offer; (2) the prosecution would not
have cancelled or withdrawn the offer; (3) the court would have
accepted the plea offer; and (4) the conviction or sentence, or both,
would have been less severe than what he actually received. See
id. at 147 (requiring the first three); Lafler v. Cooper, 566 U.S. 156,
168 (2012) (adding the fourth). But “after the fact testimony
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6 Opinion of the Court 21-13448
concerning his desire to plead, without more, is insufficient to es-
tablish that but for counsel’s alleged advice or inaction, he would
have accepted the plea offer.” Diaz v. United States, 930 F.2d 832,
835 (11th Cir. 1991).
Jones’s underlying ineffective-assistance claim is not sub-
stantial because he failed to show that trial counsel was deficient.
Unlike in Frye, it’s not that trial counsel failed to convey the plea
offer entirely; he just tried but failed to convey the deadline exten-
sion. Frye, 566 U.S. at 145. In fact, trial counsel informed Jones of
the deal and discussed its details with him. Trial counsel commu-
nicated to Jones that if he accepted the deal, he would receive a
15-year sentence, and if he refused, he faced life in prison because
the state would seek Prison Releasee Reoffender (“PRR”) status.
Although Jones contested his lawyer’s opinion that he would be
subject to PRR status, he understood its consequences. Even so,
Jones refused the deal.
Despite his refusal, trial counsel sought an extension on the
plea-deal deadline in the hope that Jones might change his mind
given an upcoming psychological evaluation that would determine
whether he could pursue an insanity defense. After receiving the
extension, trial counsel tried to contact Jones. Jones did not answer
the phone call so trial counsel left a message with instructions to
call him back. Trial counsel called Jones a second time, but the
number was out of service. The plea-deal deadline passed, and
Jones went to trial where he was sentenced to life in prison.
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21-13448 Opinion of the Court 7
Under the deferential standard of Strickland, trial counsel’s
attempts to contact Jones were not perfect but nonetheless reason-
able. Chandler, 218 F.3d at 1315. From trial counsel’s “perspective
at the time,” Jones had rejected the 15-year plea deal. Id. at 1316
(quoting Strickland, 466 U.S. at 669). His attorney’s last attempt to
contact Jones was to try to change his mind given the results of his
psychological evaluation. But based on his prior discussions with
Jones, trial counsel didn’t think that Jones would change his mind.
So having failed to reach Jones twice, trial counsel reasonably re-
lented.
With the benefit of hindsight, Jones argues that trial counsel
should have tried to contact his parents or seek a deadline exten-
sion. But evaluating deficient performance “has nothing to do with
what the best lawyers would have done. Nor is the test even what
most good lawyers would have done. We ask only whether some
reasonable lawyer [during plea negotiations] could have acted, in
the circumstances, as defense counsel acted [during plea negotia-
tions].” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en
banc) (internal citations omitted). While trial counsel could have
taken those extra steps, the Sixth Amendment did not require him
to do so. Trial counsel’s actions were reasonable and did not fall
below the standard of performance expected of attorneys. Strick-
land, 466 U.S. at 694.
Even if Jones’s argument that trial counsel was deficient had
merit, Jones’s arguments that he was prejudiced fail because he did
not show that he would have accepted the plea deal even with the
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8 Opinion of the Court 21-13448
extension. Frye, 566 U.S. at 147. While Jones now claims that he
would have accepted the offer once he knew that the insanity de-
fense was not viable, there is little evidence in the record that
shows that’s true. In initial conversations with his lawyer about
the plea deal, Jones stated that 15 years was too long because his
loved ones would have passed away by the time he was released.
Furthermore, at the state post-conviction evidentiary hearing,
Jones stated that he rejected the 15-year plea deal because he
thought he did not qualify as a PRR. Throughout his testimony at
the evidentiary hearing, he never conveyed that his decision to re-
ject the plea deal was based on the viability of an insanity defense.
His after-the-fact statements before this Court are not enough to
show that but for trial counsel’s failure to tell him of the extension,
he would have taken the deal. See Diaz, 930 F.2d at 835.
Having failed to show both deficient performance and prej-
udice on the underlying ineffective assistance of counsel claim,
Jones has not established that his claim is “substantial.” Therefore,
Jones cannot overcome the procedural default bar.
AFFIRMED.