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Clarence Jones v. Secretary

November 9, 2011

CLARENCE JONES, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

This cause is before the Court on Petitioner Clarence Jones's timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. Jones challenges his conviction and sentence entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida.

A review of the record demonstrates that, for the following reasons, the petition must be denied.

PROCEDURAL HISTORY

On February 24, 2003, an information was filed charging Jones with 1) obstructing or opposing an officer with violence, 2) possession of cocaine with intent to deliver within 1,000 feet of a school, 3) possession of cannabis, and 4) possession of drug paraphernalia. (Exhibit 1, pg. 14-18). On March 1, 2004, a jury trial was conducted. (Exhibit 2, pg. 1). Jones was found guilty of 1) obstructing or opposing an officer without violence, 2) possession of cocaine with intent to deliver within 1,000 feet of a school, 3) possession of cannabis, and 4) possession of drug paraphernalia. (Exhibit 2, pg. 255). Jones was sentenced to thirty years incarceration with a three year minimum mandatory sentence.

(Exhibit 2, pg. 269).

Direct Appeal

Jones pursued an appeal of his convictions and sentences. On March 23, 2005, Jones's appellate attorney, Assistant Public Defender, Douglas S. Connor, filed an Initial Brief on behalf of Jones raising the following issues:

ISSUE ONE. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT APPELLANT INTENDED TO SELL OR DELIVER THE COCAINE THAT HE POSSESSED.

ISSUE TWO. OFFICER MAYO'S OPINION THAT THE COCAINE POSSESSED BY APPELLANT WAS INTENDED FOR SALE INVADED THE PROVINCE OF THE JURY. (Exhibit 3). The State filed an Answer Brief on October 3, 2005. (Exhibit 4). On October 31, 2005, appellate counsel filed a reply brief. (Exhibit 5). On January 20, 2006, in Case No. 03-CF-001845, 2D04-2044, the Second District Court of Appeal filed an unwritten per curiam opinion affirming Jones's judgment and sentences. See Jones v. State, 923 So.2d 1171 (Fla. 2d DCA 2006)(Table). (Exhibit 6). The mandate issued March 27, 2006. (Exhibit 7).

Rule 3.850 Motion for Post-conviction Relief

On June 30, 2006, Jones filed a pro se Motion for Post-conviction Relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Exhibit 8). On October 11, 2007, the post-conviction court entered an order ordering the State to respond to ground three(a) and ground five(a). (Exhibit 9). On October 16, 2007, the State filed its response conceding that an evidentiary hearing was necessary. (Exhibit 10). On October 29, 2007, the post-conviction court ordered an evidentiary hearing. (Exhibit 11). On May 8, 2008, an evidentiary hearing was conducted. (Exhibit 12). On June 24, 2008, the post-conviction court entered its final order denying grounds three and five. (Exhibit 13).

Jones appealed the adverse rulings. On November 5, 2008, Jones's appellate attorney, Assistant Public Defender, Susan J. Best, filed an Anders Initial Brief. (Exhibit 14). On November 25, 2008, Jones filed a pro se initial brief. (Exhibit 15). On December 12, 2008, the State filed its Anders Answer Brief. (Exhibit 16). On May 29, 2009, Jones filed a post Anders pro se initial brief. (Exhibit 17). On February 12, 2010, in Case No. 2D08-3504, the Second District Court of Appeal filed an unwritten per curiam opinion affirming the lower court's denial of post-conviction relief. See Jones v. State, 27 So.3d 666 (Fla. 2d DCA 2010)(Table). (Exhibit 18). The mandate issued March 11, 2010. (Exhibit 19).

Jones then filed the present federal 28 U.S.C. § 2254 federal petition and a supplement to the petition, raising a total of five grounds for relief.

STANDARDS OF REVIEW

The AEDPA Standard

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law-including constitutional issues-must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). Indeed, it is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

Ineffective Assistance of Counsel Standard

To have a facially valid claim in alleging ineffective assistance of counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component.

The standard of review is "doubly deferential" when "a Strickland claim [is] evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, --- U.S.--- ,129 S. Ct. 1411, 1420 (2009). "The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable -- a substantially higher threshold." Id. (quotation marks omitted).

DISCUSSION

GROUND ONE

Jones claims the evidence was insufficient to prove that he intended to sell or deliver the cocaine in his possession.

In Florida, a motion for judgment of acquittal should be denied unless the evidence, taken in the light most favorable to the state, is such that no view the jury may lawfully take of it can be sustained under the law. Boyd v. State, 910 So.2d 167, 180 (Fla. 2005). Additionally, in moving for a judgment of acquittal the defendant admits not only the facts adduced at trial, but every reasonable inference based on those facts that the jury could make in favor of the state. Washington v. State, 737 So.2d 1208, 1211 (Fla. 1st DCA 1999), citing, Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).

Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

Id.

During the State's case in chief, the following evidence was adduced at trial. Officer Miles was on routine patrol when he discovered that Jones had an outstanding warrant. (Exhibit 2, pg. 120-124). Officer Miles radioed Officer Krupa for back-up. (Exhibit 2, pg. 120-124). Officer Miles and Officer Krupa were wearing their uniforms during the incident with Jones. (Exhibit 2, pg. 122). Officers identified themselves to Jones. (Exhibit 2, pg. 123). Jones struggled when the officers attempted to take him into custody. (Exhibit 2, pg. 123-125). Officer Miles observed Jones pull out a clear bag from his pocket, which appeared to contain a "white substance." (Exhibit 2, pg. 126). Officer Miles observed Jones "reach in his pocket and pull it out and started popping it up in the air." (Exhibit 2, pg. 139, 140). Defense counsel made a motion for judgment of acquittal and argued that there was no evidence that Jones intended to sell or deliver the narcotics. (Exhibit 2, pg. 174-175). Defense counsel cited McCollough v. State, 541 So.2d 720 (Fla. 4th DCA 1989), and argued that there was only circumstantial evidence presented. (Exhibit 2, pg. 175).

The State argued that McCollough was distinguishable from Jones's case and based on a totality of the circumstances and in the light most favorable to the State, the State provided evidence that Jones intended ...


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