FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 20, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 04-11911

 

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:
2

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
3

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
4

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
5

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.
6

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). 
7

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 postconviction 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
8

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 deathsentenced 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;
9

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.
10

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
11

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
12

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 ofthese precepts, we will consider each of Jones’s claims of ineffective

assistance of counsel.
13

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
14

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
15

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
16

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.
17

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 thatJones 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
 Jones’s other counsel, Jack Davis, did not testify at the post-conviction hearing because

1

he is deceased.

18

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 atJones’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.
19

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
20

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
21

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.
22

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 ofthe 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
23

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
24

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

wassuffering 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
25

to cross-examine him. Because Jones fails to present any credible evidence to

support his claim of toxic psychosis, he cannotshow 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
26

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:
27

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
28

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
29

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
30

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
31

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
 We acknowledge that the Supreme Court has disapproved of some of the Yates 2

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 to reasonable jurors, when measured against the other

evidence considered by those jurors independently of the presumption.

111 S. Ct. at 1893. The Court then set forth two distinct steps for the reviewing 2

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
33

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
34

(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 theRule 32 hearing,Jones presented testimony from Ann Graham, the
35

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 ineffectiveassistance-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
36

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).
 We note that in addition to his request for relief from his conviction and sentence, Jones 3

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

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
38

performance prejudiced the outcome of his trial or sentencing. Accordingly, we

affirm the district court’s judgment denying Jones habeas relief.

AFFIRMED.