Supreme Court of Florida

____________

No. SC18-899

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JOSEPH EDWARD JORDAN,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

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No. SC18-2012

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JOSEPH EDWARD JORDAN,

Petitioner,

vs.

MARK S. INCH, etc.,

Respondent.

December 5, 2019

PER CURIAM.

Joseph Edward Jordan appeals the denial of his motion to vacate his 

conviction of first-degree murder filed under Florida Rule of Criminal Procedure 

3.851, and he also petitions this Court for a writ of habeas corpus. We have 
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jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

1

 For the reasons below, we 

affirm the trial court’s order denying Jordan relief from his conviction and deny his 

habeas petition. 

I. BACKGROUND

The facts of this case, which include overwhelming evidence of Jordan’s 

guilt, were set out in this Court’s direct appeal opinion. See Jordan v. State, 176 

So. 3d 920 (Fla. 2015). On or about Thursday, June 25 or Friday, June 26, 2009, 

Jordan beat and robbed the victim, Keith Cope, at the victim’s home in Edgewater, 

Florida, pistol-whipping and binding him around the neck and face with multiple 

layers of duct tape, binding his hands and ankles with rope and leaving him 

injured, in distress, bound tightly, and tied to the four corners of his bed. Id. at 

924-25, 931. Jordan made a bank withdrawal using the victim’s debit card on the 

evening of June 25 and then drove the victim’s truck to the Hollywood, Florida 

area, where he subsequently made several more withdrawals. Id. at 924, 937. 

After arriving in Hollywood, Jordan met up with some of his friends, including 

former coworker Mathew Powell and Mathew’s girlfriend, Sadia Haque. Id. at 

925. Jordan eventually told Mathew that the victim was literally tied up at his 

home and that Mathew could go to the victim’s house and steal guns from the 

 

1. The circuit court vacated Jordan’s sentence of death and ordered a new 

penalty phase, and the State has not appealed that ruling.
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victim’s gun safe. Id. Mathew, Sadia, and two of their other friends then traveled 

to the victim’s house, arriving early in the morning on Sunday, June 28, 2009. Id. 

They found the victim in an extremely distressed state, barely alive, restrained by 

multiple ropes and pieces of duct tape and suspended by rope at the foot of the bed. 

Id.

Sadia called 911, and first responders arrived to transport the victim to the 

nearby hospital. Id. The victim then underwent emergency surgery to amputate 

his left shoulder and arm, which had lost circulation from the constriction of the 

tight rope. Id. The victim’s treating physician concluded that the victim’s body 

was dying, testifying at trial that the victim entered the hospital completely 

unresponsive and suffered from almost no blood pressure, several organ failures, 

cardiovascular collapse, and compartment syndrome, a life-threatening illness 

related to the condition of his left arm. Id. The victim remained unresponsive until 

he was removed from life support and died at the hospital on July 13, 2009. Id.

Police began searching for Jordan as the main suspect in their investigation 

after interviewing the four witnesses who found the victim. Id. While hiding from 

the police in South Florida, Jordan admitted to two friends that he had robbed and 

restrained the victim. Police eventually arrested Jordan on July 18, 2009. 

Afterwards, Jordan wrote several letters to one of the detectives assigned to his 
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case, Joanne Winston, and spoke with her both over the telephone and in person, 

admitting to her several times that he had robbed and tied up the victim. 

After hearing the evidence presented at trial, Jordan’s jury found him guilty 

of first-degree felony murder and robbery with a firearm or other deadly weapon. 

Id. at 925. Following the penalty phase presentation, the jury recommended death 

by a vote of ten to two for the murder. Id. at 926. The trial court followed the 

jury’s recommendation and sentenced Jordan to death for the murder and life in 

prison for the robbery. Id. On direct appeal, this Court affirmed Jordan’s 

convictions and sentences. Id. at 924.

2

In 2016, Jordan filed an initial motion for postconviction relief. Following 

an evidentiary hearing on one claim, the trial court denied relief on all of Jordan’s 

guilt phase claims but vacated Jordan’s death sentence and ordered a new penalty 

phase pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016). Jordan appeals the 

 

2. Jordan raised the following six claims on direct appeal: “(1) that the trial 

court should have declared a mistrial due to the prosecutor’s improper statements 

during closing arguments; (2) that the trial court erred in finding the heinous, 

atrocious, or cruel aggravating circumstance; (3) that the trial court abused its 

discretion by admitting the victim impact statements into evidence; (4) that the trial 

court declined to find as a mitigating circumstance Jordan’s ability to conform his 

conduct to the requirements of the law was substantially impaired; (5) that the 

sentence of death should be reversed under this Court’s proportionality review; and 

(6) that Florida’s death penalty statutory scheme is facially unconstitutional under 

Ring v. Arizona, 536 U.S. 584 (2002).” Jordan, 176 So. 3d at 927. This Court also 

reviewed the sufficiency of the evidence supporting Jordan’s convictions, and the 

proportionality of his death sentence. Id. at 927-38.
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trial court’s denial of his guilt phase claims and also petitions this Court for a writ 

of habeas corpus.

II. POSTCONVICTION APPEAL

Ineffective Assistance During the Guilt Phase 

Jordan first argues that trial counsel was ineffective during the guilt phase 

(1) for failing to object to the prosecutor’s multiple improper statements during the 

guilt phase closing argument; (2) in presenting a deficient motion for judgment of 

acquittal; (3) for failing to object or move to exclude the admission of certain duct 

tape evidence; and (4) for failing to challenge the State’s timeline regarding how 

long the victim was bound. 

Following the United States Supreme Court’s decision in Strickland v. 

Washington, 466 U.S. 668 (1984), we have explained that, to prevail on an 

ineffective assistance of counsel claim, a defendant must establish two prongs, 

deficient performance and prejudice, both of which are mixed questions of law and 

fact:

First, the claimant must identify particular acts or omissions of the 

lawyer that are shown to be outside the broad range of reasonably 

competent performance under prevailing professional standards. 

Second, the clear, substantial deficiency shown must further be 

demonstrated to have so affected the fairness and reliability of the 

proceeding that confidence in the outcome is undermined. 
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Peterson v. State, 221 So. 3d 571, 583 (Fla. 2017) (quoting Schoenwetter v. State, 

46 So. 3d 535, 546 (Fla. 2010)). 

To establish the Strickland deficiency prong, “the defendant must 

demonstrate that counsel’s performance was unreasonable under ‘prevailing 

professional norms.’ ” Id. at 583-84 (quoting Morris v. State, 931 So. 2d 821, 828 

(Fla. 2006)). There is a strong presumption that trial counsel’s performance was 

not deficient but rather was sound trial strategy, and the defendant bears the burden 

to overcome it. Strickland, 466 U.S. at 689-90. Further, “[a] fair assessment of 

attorney performance requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 

689. 

The Strickland prejudice prong requires the defendant to “show that but for 

his counsel’s deficiency, there is a reasonable probability that he would have 

received a different [outcome],” Porter v. McCollum, 558 U.S. 30, 41 (2009),

where a reasonable probability is one that is “sufficient to undermine confidence in 

the outcome,” Strickland, 466 U.S. at 694. 

Because Strickland “requires establishment of both prongs, when a 

defendant fails to make a showing as to one prong, it is not necessary to delve into 

whether he has made a showing as to the other prong.” Waterhouse v. State, 792 
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So. 2d 1176, 1182 (Fla. 2001). Moreover, we employ a mixed standard of review, 

reviewing a trial court’s factual findings for competent, substantial evidence, while 

reviewing its legal conclusions de novo. Bolin v. State, 41 So. 3d 151, 155 (Fla. 

2010).

As explained below, we affirm the trial court’s denial of relief as to each of 

Jordan’s ineffective assistance of counsel claims.3

(1) Guilt Phase Closing Argument

Jordan argues that his trial counsel was ineffective for failing to object to the 

prosecutor’s improper comments during the guilt phase closing argument, 

contending that counsel was ineffective for failing to object to (1) the prosecutor’s 

two golden rule arguments; (2) the prosecutor’s statement, “Don’t let him get away 

with this”; (3) the prosecutor’s improper reference to Jordan’s alleged lack of 

remorse; and (4) the prosecutor’s comment denigrating Jordan’s theory of defense.

Golden Rule Arguments

Jordan first argues that trial counsel should have objected when the 

prosecutor made two improper golden rule arguments during closing argument. 

“A ‘golden rule’ argument asks the jurors to place themselves in the victim’s 

 

3. Jordan also claims that the cumulative effect of trial counsel’s ineffective 

assistance entitles him to relief. However, as explained below, because Jordan has 

not established deficient performance with respect to any claim, there is nothing to 

cumulate. See Israel v. State, 985 So. 2d 510, 520 (Fla. 2008).
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position, [and] asks the jurors to imagine the victim’s pain and terror or imagine 

how they would feel if the victim were a relative.” Hutchinson v. State, 882 So. 2d 

943, 954 (Fla. 2004), abrogated on other grounds by Deparvine v. State, 995 So. 

2d 351, 369 (Fla. 2008). In this case, the prosecutor stated:

When he closed the door behind him, it was as if he had put 

Keith Cope on a raft and set him adrift in an endless sea. He had 

absolutely no ability, no tool, to free himself. And he could only hope 

that someone would come and find him. Three days later, three days 

without water, three days of sunrises and sunsets, three days of 

watching the clock and minutes slowly pass by, someone came and 

found Keith Cope. And it was too late. As the days ticked slowly by, 

his hope got smaller and smaller, I would imagine. As the days ticked 

slowly by, he probably knew that no one was coming for him. 

. . . .

Just because the defendant was owed something doesn’t mean 

that he has a right to come up here and demand someone else’s money 

and take it from him when they’re not willing to give it, and to use 

force to do that, use guns and tape and rope. If you could do that in 

America, then we’d all be in trouble because the mortgage companies 

would have us tied to the bed.

Jordan claims that the first of the prosecutor’s arguments improperly invited 

the jurors to place themselves in the victim’s position by narrating what the victim 

must have felt while being tied up for three days. Jordan also claims that the 

second of the arguments improperly invited the jurors to imagine what being tied 

to the bed feels like by asking the jurors to imagine being tied to the bed by their 

creditors. Jordan contends that counsel’s deficiencies in failing to object to these 
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arguments prejudiced him in the guilt phase by unduly inflaming the sympathy and 

passions of the jury against him. 

However, trial counsel’s decision not to object to the first alleged golden 

rule argument was not deficient. The first comment did not expressly ask the 

jurors to put themselves in the victim’s position but did impliedly ask them to 

imagine what the victim would have felt emotionally as he died. Although it 

would have been wholly proper for the prosecutor to describe, based on facts in 

evidence, the manner of death suffered by the victim as a result of Jordan’s actions, 

the prosecutor at least came close to crossing the line by imagining the loss of hope 

that the victim would have experienced as he lay bound and tied to his bed. 

Additionally, we agree that the second brief comment about debt collectors in 

America did constitute a golden rule argument. However, the trial court found that 

defense counsel’s strategy of not objecting (in order to maintain credibility with 

the jury by keeping his objections to a minimum) was reasonable in this instance. 

We agree, and note that any description of the facts of this case would have an 

emotional impact on a jury—and that a more artfully crafted and wholly proper 

argument covering these facts would likely have been more impactful than the 

technical golden rule violation talking about mortgage companies in America. 

Accordingly, we find no deficiency in counsel letting these comments pass without 

objection. Cf. Floyd v. State, 18 So. 3d 432, 446 (Fla. 2009) (relying on trial 
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counsel’s testimony that “he made a strategic decision to limit unnecessary 

objections to avoid ‘irritating the jury during the course of the trial’ ” to hold that 

“[t]rial counsel was not ineffective for following a trial strategy that, in hindsight, 

did not ultimately result in the defendant’s acquittal”).

“Don’t let him get away with this”

Jordan next claims that trial counsel should have objected when the 

prosecutor told the jury not to let Jordan get away with the charged crime of firstdegree felony murder. Jordan contends that trial counsel’s failure to object to this 

statement was prejudicial because hearing it inflamed the jurors’ emotions, 

influencing them to convict him of first-degree felony murder instead of a lesserincluded offense. We disagree.

The record shows that the prosecutor stated during closing argument, “Don’t 

let him get away with this,” within the context of an argument that the law requires 

the jury to return a verdict for the highest offense established beyond a reasonable 

doubt and that although there were lesser-included offenses, the evidence clearly 

supported a conviction of first-degree felony murder. Jordan previously raised a 

prosecutorial misconduct claim on direct appeal regarding this statement, arguing 

that it constituted an improper comment. On direct appeal, we agreed that the 

comment was improper but concluded that it did not rise to the level of 

fundamental error. See Jordan, 176 So. 3d at 929. Again, however, just because 
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the brief statement within the context of an otherwise valid argument was improper 

does not mean that trial counsel was deficient for failing to object to it. Following 

an evidentiary hearing, the trial court accepted defense counsel’s testimony 

regarding his strategy decision of limiting objections, and found it to be reasonable 

under the circumstances. Based upon the trial court’s findings and our review of 

the record we agree that counsel’s performance was not deficient as to this issue. 

Cf. Floyd, 18 So. 3d at 446 (concluding trial counsel was not deficient for 

strategically limiting unnecessary objections to avoid irritating the jury).

Remorse

Jordan also claims that trial counsel should have objected when the 

prosecutor referenced Jordan’s lack of remorse during the guilt phase. Jordan 

argues that counsel’s deficient performance prejudiced his jury because it inflamed 

their emotions regarding his guilt. We disagree.

Although we recognize that, generally, it is improper for the State to 

comment on a defendant’s lack of remorse, see Jones v. State, 569 So. 2d 1234, 

1240 (Fla. 1990), the record shows that trial counsel, not the State, first raised this 

issue. Specifically, during trial counsel’s opening statement, he stated that he 

“would like to offer the condolences to [the victim] and his family,” and that he 

was “sorry for” the fact that the victim “ultimately pass[ed] away in a hospital.” 

The defense also argued that Jordan did not intend by his actions to kill the victim. 
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Any statements of remorse for the victim’s death would lend support to the 

argument that Jordan should not be held accountable for a death that he did not 

intend. During the guilt phase closing argument, the prosecutor stated:

Let’s talk about the defense’s argument in this case. Let’s start with 

I’m sorry. Nowhere in the evidence, nowhere, is there a single fact

that demonstrates the defendant is sorry about anything.

He wrote six letters. You listened to them yesterday as they 

were read. You’ll have an opportunity to take them in the back and 

read them yourself. Look carefully for the words I’m sorry. I’m sorry 

doesn’t appear anywhere. I’m sorry doesn’t come up in the statement 

to Joanne Winston out at the jail. There is no I’m sorry. When he 

told his friends, Raymond Hill and Eddie Yarrow and Mathew Powell 

and Sadia Hague, not once did he say I’m sorry. Not once did he say, 

God, I wish it hadn’t happened this way. I – I wish Keith were in 

better shape or hadn’t died.

. . . .

You know, nowhere in there, though, was I’m sorry. The most 

we got was I’m suicidal. I F-ed up. I didn’t want to go to jail, but we 

never heard I’m sorry.

The prosecutor’s statements regarding Jordan’s lack of remorse were made 

in response to trial counsel’s opening statement, wherein counsel gave his 

condolences to the victim’s family in a show of sympathy that counsel testified (at 

the evidentiary hearing) that he believed would have been understood by the jury 

as an expression of sympathy “on behalf of the defense team.” Yet, the purpose of 

opening statements is “for counsel to outline what [counsel] in good faith expect[s] 

to be established by the evidence presented at trial.” Perez v. State, 919 So. 2d 

347, 363 (Fla. 2005). Therefore, by injecting remorse into his opening statement in 
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a case where part of the defense was that Jordan did not know the victim was in 

danger and had not meant to kill the victim when he left him tied up, we find that 

trial counsel opened the door for the State to address the lack of any evidence of 

remorse in this case. Accordingly, we agree with the trial court that counsel would 

have been unlikely to prevail if he had objected and was therefore not deficient for 

failing to do so. Cf. Singleton v. State, 783 So. 2d 970, 978 (Fla. 2001) (holding 

that “lack of remorse is admissible [during the penalty phase of capital cases] to 

rebut evidence of remorse or other mitigation such as rehabilitation”); Eaglin v. 

State, 19 So. 3d 935, 946 (Fla. 2009) (“[L]ack of remorse can be admitted [during

the penalty phase of capital cases] to rebut evidence presented by a defendant of 

remorse or other mitigating factors such as rehabilitation.”).

Defense Theory

Jordan also claims that trial counsel should have objected when the 

prosecutor mischaracterized and denigrated Jordan’s theory of defense.

The record shows that in the prosecutor’s closing argument, he stated,

I told you it was coming, and there, there we heard it. It’s 

everybody’s fault but the defendant’s. I mean, if he had stayed in the 

middle of the bed, he would still be alive. If these guys had come up 

from south Florida a day and a half earlier, he’d still be alive. Come 

on. Everybody’s fault but his. I mean, he snapped? Is that a defense? 

He snapped?

Although the points being made by the prosecutor could have been made in 

an appropriate way, we agree with Jordan that the tone of the argument is 
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denigrating. See, e.g., Jackson v. State, 147 So. 3d 469, 486-87 (Fla. 2014)

(explaining that although a prosecutor is allowed to critique and counter a theory of 

defense, a prosecutor may not denigrate or ridicule defense counsel or the theory of 

defense). Again, however, we cannot find on this record that Jordan has 

demonstrated deficient performance for the reasons already explained regarding 

trial counsel’s strategy.

(2) Motion for Judgment of Acquittal

Jordan also argues that his trial counsel was ineffective by presenting a 

deficient motion for judgment of acquittal. He contends that the motion prejudiced 

him because, had trial counsel properly argued the legal grounds for the motion, 

the trial court would have granted the motion. We disagree.

We first note that the argument that appellate counsel believes should have 

resulted in a judgment of acquittal as to the felony murder charge was in fact made 

by defense counsel at trial. Trial counsel cannot be ineffective for failing to make 

an argument that trial counsel actually made. Cf. Dennis v. State, 109 So. 3d 680, 

692 (Fla. 2012) (“[T]rial counsel is not ineffective for failing to object to [certain] 

testimony . . . because trial counsel did, in fact, object repeatedly.”). Tellingly, 

appellate counsel even acknowledges in presenting Jordan’s claim of ineffective 

assistance of appellate counsel (in the habeas petition) that trial counsel’s judgment 
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of acquittal argument was made with “enough specificity to preserve the issue for 

appeal.”

We independently review the sufficiency of the evidence in every capital 

case and did so here. Jordan, 176 So. 3d at 937-38 (“Although Jordan does not 

raise the issue of sufficiency of the evidence on appeal, we nevertheless must 

independently review ‘the evidence to determine whether [it supports the] murder 

conviction.’ ”). Because the evidence was clearly sufficient to support the verdict, 

see id., there is no additional argument available to counsel that would have 

changed the correct legal ruling of the trial court on this issue. Moreover, this 

issue is foreclosed by the law of the case doctrine. It is well-established that “all 

questions of law . . . decided by the highest appellate court become the law of the 

case [and] . . . must be followed in subsequent proceedings.” Brunner Enters., Inc. 

v. Dep’t of Revenue, 452 So. 2d 550, 552 (Fla. 1984). Only where strict adherence 

to a point of law previously decided in a former appeal would result in “manifest 

injustice” will an appellate court reconsider and correct it. Fla. Dep’t. of Transp. v. 

Juliano, 801 So. 2d 101, 106 (Fla. 2001). Thus, in order to prevail on an 

ineffective assistance of counsel claim that, at its core, seeks to revisit our prior 

sufficiency determination, Jordan would have to show that adherence to the ruling 

would result in a manifest injustice. See id. However, he has not made this 

argument below or on appeal. 
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We thus conclude that the trial court properly denied relief on this claim.

(3) Duct Tape Evidence

Jordan next argues that his trial counsel was ineffective for failing to object 

or move to exclude the admission of certain duct tape evidence that included the 

victim’s hair. He contends that trial counsel’s deficient performance prejudiced 

him because the jurors’ emotions were inflamed and their sympathy was evoked by 

seeing the duct tape evidence containing the victim’s hair, which influenced their 

decision to convict him of first-degree felony murder. We disagree.

In choosing not to object to the admission of a piece of duct tape from the 

crime scene containing a fragment of the victim’s hair, trial counsel was not 

deficient. Florida’s Evidence Code sets forth the general rules that relevant 

evidence is admissible, § 90.402, Fla. Stat. (2019), and that evidence is relevant if 

it “tend[s] to prove or disprove a material fact,” § 90.401, Fla. Stat. (2019). The 

piece of duct tape with the victim’s hair on it was not irrelevant, because it tended 

to prove the manner of the killing. Testimony was given by several witnesses, 

including Detective Seldaggio and emergency response personnel, that the victim’s

face, neck, and head were tightly bound with a large amount of duct tape. The duct 

tape and hair corroborate this testimony. Although this piece of evidence may 

have been cumulative to other evidence, this fact does not render this evidence 

irrelevant, as Jordan argues. As found by the trial court, trial counsel could not 
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have had this evidence excluded as irrelevant, and counsel was therefore not 

deficient for failing to object to the evidence as irrelevant. Counsel could have 

objected based upon section 90.403, Florida Statutes, arguing that the probative 

value of the evidence was substantially outweighed by unfair prejudice (given the 

cumulative nature of the evidence). However, this was not the postconviction 

argument; it would have been well within the trial court’s discretion to deny the 

objection had it been made; and, in any event, we could not find on this record that 

counsel was deficient for failing to make that objection.

(4) The State’s Timeline

In his last claim on appeal, Jordan argues that his trial counsel was 

ineffective for failing to challenge the State’s timeline regarding how long the 

victim was bound. He contends that, had trial counsel challenged the State’s 

timeline that the victim was restrained for three days, there is a reasonable 

probability that the jury would not have convicted him of first-degree felony 

murder. We disagree.

Trial counsel was not deficient for failing to object to the State’s timeline 

because the totality of the record clearly supports the three-day timeframe argued 

by the State. First, the victim’s ex-wife testified that she saw the victim’s truck 

parked at his home around 7:30 p.m. on Wednesday, June 24, 2009, but that it was 

not parked at his home around 6:30 a.m. on Thursday, June 25, 2009. Bank 
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records admitted into evidence showed that Jordan used the victim’s debit card to 

withdraw money near the victim’s house at 8:18 p.m. on June 25, and repeatedly 

used the card in South Florida over the next several days. Testimony from a South 

Florida police officer, Leonard Tinelli, revealed that he saw Jordan in South 

Florida around 7:30 p.m. on June 26, 2009. Additionally, Jordan admitted to 

Detective Joanne Winston that he had taken the victim’s truck and tied him up. 

Jordan also told Mathew Powell and two of his other friends that he had tied up the 

victim and taken his truck. Finally, Mathew and three witnesses found the victim

restrained to the bed around 6 a.m. on June 28, 2009. This evidence shows that it 

was reasonable for the State to argue that the victim was bound for three days. 

Accordingly, the record establishes that trial counsel’s choice not to object to the 

three-day timeline was a reasonable one under the norms of professional conduct 

and, therefore, not deficient.

III. HABEAS PETITION 

In his habeas petition, Jordan argues that appellate counsel was ineffective 

on direct appeal for (1) failing to raise a claim that the trial court’s denial of trial 

counsel’s motion for judgment of acquittal was fundamental error; and (2) failing 

to raise a claim that the trial court abused its discretion by denying trial counsel’s 

motion for continuance.
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Ineffective assistance of appellate counsel claims are generally proper in a 

petition for a writ of habeas corpus. See Wickham v. State, 124 So. 3d 841, 863 

(Fla. 2013). This Court has explained the applicable standard of review as follows:

“The standard of review for ineffective appellate counsel claims 

mirrors the Strickland standard for ineffective assistance of trial 

counsel.” Id. Specifically, to be entitled to habeas relief on the basis 

of ineffective assistance of appellate counsel, the defendant must 

establish

[first, that] the alleged omissions are of such magnitude 

as to constitute a serious error or substantial deficiency 

falling measurably outside the range of professionally 

acceptable performance and, second, [that] the deficiency 

in performance compromised the appellate process to 

such a degree as to undermine confidence in the 

correctness of the result.

Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v. 

Wainwright, 496 So. 2d 798, 800 (Fla. 1986)). Further, “appellate 

counsel cannot be deemed ineffective for failing to raise 

nonmeritorious claims.” Valle v. Moore, 837 So. 2d 905, 908 (Fla. 

2002).

England v. State, 151 So. 3d 1132, 1140 (Fla. 2014).

In his first habeas claim, Jordan argues that appellate counsel was ineffective 

for failing to challenge the trial court’s denial of the motion for judgment of 

acquittal. Jordan specifically contends that felony murder was not proven because 

there was a break in the chain of events between the robbery and the victim’s 

death. This claim is precluded by the law of the case doctrine, as this Court has 

already determined the sufficiency of the evidence on direct appeal and Jordan has 
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not made an argument alleging manifest injustice. See Juliano, 801 So. 2d at 106. 

However, even when addressed on its merits, this claim fails.

Jordan’s argument is based upon several readily distinguishable district court 

cases involving homicides committed during attempts by felons to flee from the 

scene of a felony. Those cases held that if there is no definite break in the chain of 

events beginning with the felony and ending with the murder, the felony, even 

though it was technically complete, is said to continue to the time of the murder. 

See, e.g., Allen v. State, 690 So. 2d 1332, 1334 (Fla. 2d DCA 1997); Parker v. 

State, 570 So. 2d 1048, 1051 (Fla. 1st DCA 1990); Mills v. State, 407 So. 2d 218, 

221 (Fla. 3d DCA 1981). These courts evaluate several factors when determining 

whether a felon is responsible for a homicide committed while escaping from a 

crime scene, i.e., whether a break in the chain of circumstances between the killing 

and the underlying felony occurred, including if “the fleeing felon has reached a 

place of temporary safety.” Allen, 690 So. 2d at 1334; see also Parker, 570 So. 2d 

at 1051. The felony murder rule generally does not apply if the felon reached a 

place of temporary safety after committing the felony and prior to the victim’s 

killing. State v. Williams, 776 So. 2d 1066, 1070 (Fla. 4th DCA 2001) (finding no 

felony murder when the defendant fled the scene of the felony carjacking but then 

reached a place of temporary safety by stopping for pizza and relaxing near a 7-

Eleven before fatally colliding with the victim 24 hours after the carjacking).
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Jordan contends that appellate counsel should have argued that the evidence 

cannot support the felony murder conviction because he reached “a place of 

temporary safety” after fleeing the scene of the robbery (by traveling to the home 

of his friend Mathew Powell), before the victim died in the hospital. The argument 

is meritless. Because Jordan inflicted the injuries and committed the actions that 

led to the victim’s death at the scene of the robbery, before fleeing, cases involving 

a murder committed after fleeing the scene of the robbery or other felony are 

inapposite. Cf. Fitzpatrick v. State, 900 So. 2d 495, 509 (Fla. 2005) (rejecting 

claim that trial court erred in failing to grant a judgment of acquittal with regard to 

felony murder where the victim was stabbed, sexually battered, left on the side of 

the road, and subsequently found and treated at the hospital before dying from her 

injuries because “[t]he State presented competent, substantial evidence from which 

the jury could find that there was sufficient evidence that the killing occurred 

during a sexual battery”).

Appellate counsel cannot be ineffective for failing to raise this meritless 

claim. See Valle v. Moore, 837 So. 2d at 908.

Jordan’s second habeas claim, that appellate counsel was ineffective for 

failing to argue that the trial court abused its discretion in denying trial counsel’s 

motion for continuance, resulting in undue prejudice, is also without merit.
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As a general rule, “the granting or denying of a motion for continuance is 

within the discretion of the trial court.” Williams v. State, 438 So. 2d 781, 785 

(Fla. 1983). “A court’s ruling on a motion for continuance will only be reversed 

when an abuse of discretion is shown.” Smith v. State, 170 So. 3d 745, 758 (Fla. 

2015) (quoting Snelgrove v. State, 107 So. 3d 242, 250 (Fla. 2012)). We have 

explained the abuse of discretion standard as follows:

This standard is generally not met “unless the court’s ruling on the

continuance results in undue prejudice to the defendant.” [Snelgrove,

107 So. 3d at 250]. . . . “While death penalty cases command our

closest scrutiny, it is still the obligation of an appellate court to review

with caution the exercise of experienced discretion by a trial judge in

matters such as a motion for a continuance.” Doorbal[v. State], 983

So. 2d [464,] 486 [(Fla. 2008)] (quoting Hernandez-Alberto v. State, 

889 So. 2d 721, 730 (Fla. 2004)).

Id. at 758-59. “Denial of a motion for continuance ‘should not be reversed by an 

appellate court unless there has been a palpable abuse of [the trial court’s] judicial 

discretion’ that ‘clearly and affirmatively’ appears in the record.” Weible v. State, 

761 So. 2d 469, 472 (Fla. 4th DCA 2000) (quoting Magill v. State, 386 So. 2d 

1188, 1189 (Fla. 1980)).

Jordan contends that he was unduly prejudiced by the trial court’s decision 

not to grant a continuance when attorney Christopher L. Smith was appointed to 

Jordan’s defense team as “second-chair” three weeks before trial. Attorney 

Michael W. Nielson, first chair, moved to continue the trial in order to get Smith 

“up to speed” on the case. The trial court denied the motion for continuance, and 
- 23 -

later denied Nielson’s renewed motion. At trial, Nielson performed the opening 

statement, closing argument, and examined many of the witnesses. Smith moved 

for judgment of acquittal and interviewed some of the witnesses at trial. Although 

Smith was assigned to the case only a few weeks prior to trial, the record does not 

show that he was in any way unprepared for it. Nothing in the record indicates that 

Smith lacked time to procure witnesses or interview or prepare them for trial.

The record clearly shows that Jordan was afforded effective assistance of 

trial counsel in general. Jordan specifically argues that Smith was deficient in 

advising Jordan not to testify. However, Jordan has not demonstrated that failure 

to grant the continuance in any way affected this advice, or that it was not good 

advice. Moreover, Jordan testified that, ultimately, he knew it was his personal 

decision not to testify, and competent, substantial evidence supports the trial 

court’s finding that Jordan knowingly and voluntarily chose not to testify. 

Although Jordan told the judge that he was concerned that Smith was not 

sufficiently prepared to advise him on his decision, the record does not reflect that 

Smith was ill-prepared for trial, and it further shows that Jordan also received 

advice from Nielson, whom Jordan does not accuse of lacking preparation. This 

claim is wholly without merit. Thus, appellate counsel was not ineffective for 

failing to raise it. See Valle, 837 So. 2d at 908.

Accordingly, we deny Jordan’s habeas petition.
- 24 -

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order denying Jordan 

relief from his conviction and deny his habeas petition.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, and MUÑIZ, 

JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Volusia County,

Terence Robert Perkins, Judge - Case No. 642009CF002872XXXAWS

And an Original Proceeding – Habeas Corpus 

Eric Pinkard, Capital Collateral Regional Counsel, and Lisa Marie Bort, Adrienne 

Joy Shepherd, and Ali Shakoor, Assistant Capital Collateral Regional Counsel, 

Middle Region, Temple Terrace, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, and Patrick A. Bobek, 

Assistant Attorney General, Daytona Beach, Florida,

for Appellee/Respondent