Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOSE L. SOLIS, 

Petitioner,

v. CASE NO. 4:09cv312-MP-WCS

KENNETH S. TUCKER, 

Respondent.

_____________________________/

O R D E R

This cause comes on for consideration upon the magistrate judge's Report and

Recommendation dated . (Doc. 24). The parties have been furnished a copy of the Report

and Recommendation and have been afforded an opportunity to file objections pursuant

to Title 28, United States Code, Section 636(b)(1). The defendant filed an objection at

Doc. 27, of which I have made a de novo review. Having considered the Report and

Recommendation, and any objections thereto timely filed, I have determined that the

Report and Recommendation should be adopted. 

In his objections regarding Ground Three in his Amended Petition, the petitioner

argues for the first time that his counsel was ineffective for failing to investigate and call

witnesses who would have supported the self-defense instruction. Plaintiff's Amended

Petition (doc. 7), however, does not contain this newly minted ineffectiveness claim. The

text of Ground Three in his Amended Petition is as follows:

The trial court abused its discretion in limiting the jury charge. The trial court

should have allowed an instruction on come to the aid to another; trial court

improperly determined that the evidence did not support the inclusion in the

instruction. However, the failure to give a requested jury instruction

constitutes prejudicial error when there is a reasonable possibility that it was

misleading by the failure to give instruction. The instruction was necessary

to allow jury to properly resolve all issues in this case. The trial court in its

denial, denied the requested instruction which violated Petitioner Solis's

Constitutional right under the Eighth Amendment to the United States

Constitution in a way that prevented consideration of constitutionally relevant

evidence.

Case 4:09-cv-00312-MP-CAS Document 29 Filed 05/02/12 Page 1 of 2
Page 2 of 2

Like Ground Three in the Amended Petition, the fourth argument raised in petitioner's state

post-conviction motion did not involve ineffectiveness of counsel, petitioner merely argued

that the trial court abused its discretion in not giving a jury instruction on defense of others.

(Doc. 20, p. 12). Because petitioner failed to previously present this claim as an

ineffectiveness argument, he has failed to exhaust his state remedies with regard to the

new argument raised in his objections. Accordingly, this newly minted ineffectiveness

claim will not be considered by this Court.

Accordingly, it is now ORDERED as follows: 

1. The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this order. 

2. The petition for writ of habeas corpus filed by Jose L. Solis pursuant to 28 U.S.C.

§ 2254 challenging his convictions for second degree murder of Willie Joe Stanford and

aggravated battery with great bodily harm upon Joe Shiver, case number 03-00808CFA,

in the Circuit Court of the Second Judicial Circuit, in and for Gadsden County, Florida, is

DENIED WITH PREJUDICE and a certificate of appealability is DENIED pursuant to §

2254 Rule 11(a).

DONE and ORDERED this 2nd day of May, 2012.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No: 4:09cv312-MP-WCS

Case 4:09-cv-00312-MP-CAS Document 29 Filed 05/02/12 Page 2 of 2