Jones v. McNeil (776 F. Supp. 2d 1323, 2011)

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

WILLIAM J. ZLOCH, District Judge.

THIS MATTER is before the Court upon Petitioner Victor Tony Jones’s Petition For Writ Of Habeas Corpus By A Person In State Custody (DE 1). Petitioner, Victor Tony Jones (“Mr. Jones”), is on death row at the Union Correctional Institution in Raiford, Florida, following convictions in 1993 for first degree murder. The instant Petition For Writ Of Habeas Corpus (“the Petition”) was filed November 6, 2007. DE 1. On April 18, 2008, the State filed its Response To Order To Show Cause Why Petition For Writ Of Habeas Corpus Should Not Be Granted (DE 12). Mr. Jones filed his Reply To Respondent’s Response (DE 21) on June 6, 2008.

The Court has carefully reviewed said Petition (DE 1), the entire court file and is otherwise fully advised in the premises. For the reasons that follow, the Petition for Writ of Habeas Corpus is DENIED.

I. FACTUAL BACKGROUND

The Supreme Court of Florida gave the following summary of the pertinent and salient facts:

Jones was convicted of two counts of first-degree murder and two counts of armed robbery. According to the evidence presented at the trial, on December 19,1990, the bodies of sixty-six-year-old Matilda Nestor and sixty-seven-year-old Jacob Nestor were discovered in their place of business. Mr. Nestor’s body was found in the main office. He had been stabbed once in the chest. An empty holster was found on Mr. Nestor’s waistband. Mrs. Nestor’s body was discovered in the bathroom. She had been stabbed once in the back. The Nestors’ new employee, Victor Tony Jones, was found slumped over on the couch in the main office not far from Mr. Nestor’s body. The butt of a .22 caliber automatic pistol was protruding from under Jones’ arm.

According to the evidence, December 19 was Jones’ second day of work for the Nestors. It appears that as Mrs. Nestor was entering the bathroom in the rear of the building Jones came up behind her and stabbed her once in the back. As Mr. Nestor came toward the bathroom from the main office, Jones stabbed him once in the chest. The medical examiner testified that Mrs. Nestor died as result of a stab wound to the base of her neck which severed the aorta that carries blood and oxygen to the brain and Mr. Nestor died as a result of the stab wound to his chest which entered his heart.

There was evidence that after being stabbed, Mr. Nestor retreated into the office, where he pulled the knife from his chest, attempted to call for help, drew his .22 caliber automatic pistol and shot five times, striking Jones once in the forehead. No money or valuables were found on either victim or in Mrs. Nestor’s purse which was found on the couch in the main office next to the defendant. The evidence also was consistent with Mr. Nestor’s body having been rolled over after he collapsed so that personal property could be removed from his pockets.

After the couple was murdered, Jones was locked inside the building where he remained until police knocked down the door after being called to the scene by a neighbor. Money, keys, cigarette lighters and a small change purse that was later identified as belonging to Mrs. Nestor were found in Jones’ front pocket. The Nestors’ wallets were later found in the defendant’s pants pockets. It was not immediately apparent to the police that Jones had been shot. However, after Jones was handcuffed and escorted from the building, he complained of a headache. When an officer noticed blood on Jones’ forehead, and asked what happened, Jones responded, “The old man shot me.” Rescue workers were called and Jones was taken to the hospital. While in the intensive care unit, Jones told a nurse that he had to leave because he had “killed those peopie.” When asked why, Jones told the nurse, “They owed me money and I had to kill them.”

Jones v. State, 652 So.2d 346, 348 (Fla.1995).

II. PROCEDURAL BACKGROUND

On February 1, 1993, Mr. Jones was convicted of first degree murder for the deaths of Matilda Nestor and Jacob Nestor. See DE 1 at 2. The jury recommended the death penalty for the murder of Mrs. Nestor by a vote of ten to two and unanimously recommended the death penalty for the murder of Mr. Nestor. Jones, 652 So.2d at 348. The presiding judge adopted those sentencing recommendations. Id. As to each murder, the trial judge found four aggravating factors and nothing in mitigation. Id.

On direct appeal to the Supreme Court of Florida, Mr. Jones raised only five claims. First, “the trial court erred by denying his motion for judgment of acquittal on the two armed robbery counts.” Second, “the trial court erred by failing to instruct the jury that if it found both the aggravating factor of “during the course of a robbery” and the aggravating factor of “for pecuniary gain” that it had to consider the two factors as one.” Third, “the trial court erroneously rejected Jones’ mental or emotional disturbance at the time of the offense as a statutory mitigating factor and failed to properly instruct the jury on the factor.” Fourth, “a new sentencing proceeding is required because the mental health experts who testified failed to bring the possibility that Jones suffered from fetal alcohol syndrome/fetal alcohol effect to the court’s attention and because the court refused to consider Jones’ abandonment by his mother as a mitigating circumstance.” Finally, “the trial court erred by failing to grant Jones’ motion for mistrial based upon various alleged improper comments made by the prosecutor during penalty phase closing argument.” Id. at 349. The Florida Supreme Court affirmed the convictions and sentences on appeal. Id. at 353.

Thereafter, Mr. Jones filed a petition for writ of certiorari to the United States Supreme Court which was denied. Jones v. Florida, 516 U.S. 875, 116 S.Ct. 202, 133 L.Ed.2d 136 (1995). Mr. Jones then sought postconviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, arguing twenty-two grounds for relief. Jones v. State, 855 So.2d 611, 615 (Fla.2003). The motion raised the following claims:

The amended motion argued the following points: (1) postconviction counsel was ineffective because of the lack of sufficient funding fully to investigate and prepare the postconviction motion; (2) appellant was denied due process and equal protection because records were withheld by state agencies; (3) no adversarial testing occurred at trial due to the cumulative effects of ineffective assistance of counsel, the withholding of exculpatory or impeachment material, newly discovered evidence, and improper rulings of the court; (4) trial counsel was ineffective for (a) failing adequately to investigate and prepare mitigating evidence, (b) failing to provide this mitigation to mental health experts, and (c) failing adequately to challenge the State’s case; (5) trial counsel was burdened by an actual conflict of interest adversely affecting counsel’s representation; (6) appellant was denied due process because he was incompetent, and trial counsel failed to request a competency evaluation; (7) appellant was denied a fair trial because of improper prosecutorial argument, and trial counsel was ineffective for failing to object; (8) appellant’s convictions are constitutionally unreliable based on newly discovered evidence; (9) appellant was denied due process because the state withheld exculpatory evidence; (10) appellant’s death sentence is unconstitutional because the penalty phase jury instructions shifted the burden to appellant to prove death was inappropriate; (11) the jury instructions on aggravating circumstances were inadequate, facially vague, and overbroad, and trial counsel was ineffective for failing to object; (12) appellant’s death sentence is unconstitutional because the State introduced nonstatutory aggravating factors, and counsel was ineffective for failing to object; (13) jury instructions unconstitutionally diluted the jury’s sense of responsibility in sentencing, and trial counsel was ineffective for not objecting; (14) appellant was denied his constitutional rights in pursuing postconviction relief because he was prohibited from interviewing jurors; (15) appellant is innocent; (16) execution by electrocution is unconstitutional; (17) Florida’s capital sentencing statute is unconstitutional facially and as applied; (18) appellant’s conviction and sentence are unconstitutional because the judge and jury relied on misinformation of constitutional magnitude; (19) appellant’s death sentence is unconstitutional because it is predicated on an automatic aggravating circumstance, and counsel was ineffective for failing to object; (20) appellant “is insane to be executed”; (21) because of juror misconduct, appellant’s rights were violated; and (22) cumulative errors deprived appellant of a fair trial.

Jones, 855 So.2d at 615. The trial court held a Huff hearing after which it granted “an evidentiary hearing limited to appellant’s claims of ineffective assistance of counsel related to a voluntary intoxication defense, mitigation, and appellant’s pretrial competency. After the evidentiary hearing, the lower court denied relief on all claims.” Id.

On appeal to the Florida Supreme Court, Mr. Jones again raised only five claims with multiple sub-issues.

Jones contends in his first issue that trial counsel was constitutionally ineffective for failing to investigate a voluntary intoxication defense, failing to present other evidence consistent with the defense at trial, failing to challenge several jurors for cause, and failing to ensure appellant’s presence at all critical stages of trial, and that no reliable adversarial testing occurred at the guilt phase as a result of the combined effects of trial counsel’s deficient performance. The claim regarding voluntary intoxication is addressed in the body of the opinion. Each of these claims fails to meet the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because each is either insufficiently pled or is conclusively refuted by the record. Jones’s second issue alleges that defense counsel had a conflict of interest that denied appellant the effective assistance of counsel. This issue was fully argued during trial, and the court ruled on this issue. The claim thus could have and should have been raised on direct appeal and is procedurally barred. See Wike v. State, 698 So.2d 817, 820-21 (Fla.1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Water-house v. State, 596 So.2d 1008, 1015 (Fla.), 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992). In his third issue, Jones argues that no adequate adversarial testing occurred at the penalty phase because trial counsel failed properly to investigate and present available mitigation, failed to present evidence to support the unconstitutionality of appellant’s prior convictions, and failed to object to constitutional error with regard to jury instructions. The claim regarding investigation and presentation of mitigation is addressed in the opinion, and the claim regarding appellant’s prior convictions is conclusory and thus fails under Strickland. Appellant’s claims regarding the trial court’s giving or failing to give certain standard jury instructions could and should have been or were raised on direct appeal; the claims also fail because this Court has expressly upheld these instructions against identical challenges. See Asay v. State, 769 So.2d 974, 989 (Fla.2000); San Martin v. State, 705 So.2d 1337, 1350 (Fla.1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998); Oats v. Dugger, 638 So.2d 20, 21 n. 1 (Fla.1994), cert. denied, 513 U.S. 1087, 115 S.Ct. 744, 130 L.Ed.2d 645 (1995); Jackson v. State, 648 So.2d 85, 91 (Fla.1994); Combs v. State, 525 So.2d 853, 858 (Fla.1988) (rejecting defendant’s claim that standard jury instruction is unconstitutional under Caldwell). Appellant argues as his fourth issue on appeal that the lower court erred in determining that public documents were exempt from disclosure, but the claim as stated is legally insufficient. Finally, appellant asserts that he is “insane to be executed” but admits that this issue is not ripe for review.

Jones, 855 So.2d at 615.

The court found “it unnecessary to address each claim here and affirm the lower court’s denial of relief as to all of the issues raised. [The court] discuss[ed] only two of appellant’s claims: (1) that trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense at trial, and (2) that counsel failed properly to investigate and present available mitigation during the penalty phase.” Id. at 615-16.

The Florida Supreme Court affirmed the trial court’s denial of Mr. Jones’s Rule 3.850 motion. Id. at 619. As to the issue of a voluntary intoxication defense at trial, the court found that trial counsel’s decision to not present a voluntary intoxication defense was a matter of trial strategy and, regardless, Mr. Jones had failed to establish prejudice. Id. at 616. As such, the court determined that Mr. Jones did not meet the second prong of the Strickland standard for ineffective assistance of counsel. Id. As to the failure to properly investigate and present available mitigation, the court agreed with the trial court when it concluded that counsel’s investigation was reasonable and that Mr. Jones failed to establish prejudice. Upon review, the Florida Supreme Court found that “[competent, substantial evidence supported] this determination.” Id. at 618. In particular, the court found that the facts adduced at the evidentiary hearing did not support Mr. Jones’s claim. See id.

Mr. Jones also petitioned for writ of habeas corpus. Id. at 619. He raised seven claims of ineffective assistance of appellate counsel. The Florida Supreme Court found all these claims either procedurally barred or lacking in merit. These claims were denied “without further discussion.” Id. Mr. Jones also contended that the Florida capital sentencing scheme was unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This claim was also denied. Jones, 855 So.2d at 619.

Mr. Jones next filed a successive post-conviction motion to vacate the judgment and sentence alleging that he was mentally retarded. See Jones v. Florida, 966 So.2d 319 (Fla.2007). The trial court held an evidentiary hearing on the issue. See id. Three witnesses testified: “one (Dr. Eisenstein) on behalf of Jones, and two (Dr. Enrique Suarez and Lisa Wiley, a psychological specialist with the Department of Corrections) on behalf of the State. The parties stipulated that evidence from the evidentiary hearing would be considered cumulatively with the evidence from prior proceedings.” Jones, 966 So.2d at 322. Ultimately, the trial court denied Mr. Jones’s motion after finding “no credible evidence” to support his claims and finding that he failed to meet even one of the three statutory requirements for mental retardation. Id. at 325. Mr. Jones appealed to the Florida Supreme Court. He argued “that the trial court erred in rejecting his expert’s opinion that the second prong of the mental retardation definition requires a “retrospective” determination of his adaptive functioning before age 18, instead of an assessment of Jones’s adaptive functioning as an adult. He also contended that the trial court erred in finding that Jones did not meet this prong of the definition.” Id. at 325. The Florida Supreme Court disagreed and affirmed “the circuit court’s orders denying Jones’s successive motion for postconviction relief and determining that Jones is not mentally retarded.” Id. at 330.

On November 6, 2007, Mr. Jones filed the instant Petition For Writ Of Habeas Corpus (DE 1) pursuant to 28 U.S.C. § 2254. On April 18, 2008, the State filed its Response (DE 12). On June 6, 2008, Mr. Jones filed his Reply (DE 21). This matter is now ripe. The State has not argued that the Petition is untimely.

III. STANDARD OF REVIEW

Mr. Jones’s habeas corpus Petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AED-PA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the United States Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under the AEDPA, if a claim was adjudicated on the merits in state court, habeas corpus relief can only be granted if the state court’s adjudication “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 “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). This is an “exacting standard.” Maharaj v. Sec’y, Dept. of Corrections, 432 F.3d 1292, 1308 (11th Cir.2005).

Pursuant to § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an] [opposite] result.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of O’Connor, J., for a majority of the Court). In other words, the “contrary to” prong means that “the state court’s decision must be substantially different from the relevant precedent of [the Supreme] Court.” Id.

With respect to the “unreasonable application” prong of § 2254(d)(1), which applies when a state court identifies the correct legal principle but purportedly applies it incorrectly to the facts before it, a federal habeas court “should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. See also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Significantly, an “objectively unreasonable application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). An “unreasonable application” can 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.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001).

As noted above, § 2254(d)(2) provides an alternative avenue for relief. Habeas relief may be granted if the state court’s determination of the facts was unreasonable. “A state court’s determination of the facts, however, is entitled to deference” under § 2254(e)(1). See Maha raj, 432 F.3d at 1309. This means that a federal habeas court must presume that findings of fact by a state court are correct; and, a habeas petitioner must rebut that presumption by clear and convincing evidence. See Hunter v. Sec’y, Dept. of Corrections, 395 F.3d 1196, 1200 (11th Cir. 2005).

Finally, where a federal court would “deny relief under a de novo review standard, relief must be denied under the much narrower AEDPA standard.” Jefferson v. Fountain, 382 F.3d 1286, 1295 n. 5 (11th Cir.2004).

IV. EXHAUSTION AND PROCEDURAL BARS

In response to Mr. Jones’s Petition, the State has argued that certain of Mr. Jones’s claims are unexhausted and proeedurally barred from federal review. To exhaust state remedies, a petitioner must fairly present every issue raised in his federal petition to the state’s highest court. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (emphasis added). A careful review of the record shows that while Mr. Jones initially pursued a majority of the claims he now asserts here in his Rule 3.850 postconviction Motion, when he filed his appeal of the denial that Motion, he did not raise those same claims to Florida Supreme Court. “When a petitioner fails to properly raise his federal claims in state court, he deprives the State of “an opportunity to address those claims in the first instance” and frustrates the State’s ability to honor his constitutional rights.” Cone v. Bell, — U.S. -, 129 S.Ct. 1769, 1780, 173 L.Ed.2d 701 (2009) (internal citations omitted). Therefore, these types of claims are unexhausted and barred from federal habeas review. See id.

Ordinarily, a federal habeas corpus petition which contains unexhausted claims is dismissed pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), allowing Mr. Jones to return to the state forum to present his unexhausted claim or claims. However, such a result in this instance would be futile, since Mr. Jones’s unexhausted claim is now incapable of exhaustion at the state level and would be proeedurally barred under Florida law. Mr. Jones has already pursued a direct appeal and filed two Rule 3.850 motions in state court, with the denial of the motions affirmed on appeals. Because there are no procedural avenues remaining available in Florida which would allow Mr. Jones to return to the state forum and exhaust the subject claim, the claim is likewise proeedurally foreclosed from federal review. Collier v. Jones, 910 F.2d 770, 773 (11th Cir.1990) (where dismissal to allow exhaustion of unexhausted claims would be futile due to state procedural bar, claims are proeedurally barred in federal court as well).

Claims that are unexhausted and procedurally defaulted in state court are not reviewable by the Court unless the petitioner can demonstrate cause for the default and actual prejudice, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or establish the kind of fundamental miscarriage of justice occasioned by a constitutional violation that resulted in the conviction of a defendant who was “actually innocent,” as contemplated in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). See House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). See also United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Since Mr. Jones has not alleged, let alone established, cause to excuse his default, it need not be determined whether he suffered actual prejudice. See Glover v. Cain, 128 F.3d 900, 904 n. 5 (5th Cir.1997).

The Court has fully reviewed the state court record. Here, Mr. Jones has failed to meet this high standard such that federal habeas relief is warranted. Habeas relief will be denied as to Claims III, V(B)(2), VI(3), VII, X, and XI (ineffective assistance of counsel) as procedurally barred.

V. ANALYSIS

Mr. Jones argues twenty-six separate claims and sub-claims for habeas relief in his Petition. For ease of reference, the headings of each part and subpart are the same as those used by Petitioner.

As an initial matter, Mr. Jones argues that “because this is a capital case involving Victor Tony Jones’s fundamental constitutional right to life” “Congress’ passage of S.686 on March 21, 2005” makes the AEDPA inapplicable to his claims, and that none of his claims are the subject to any procedural defaults. See DE 3 at 3, n. 1. The State disagrees and argues that “the law [S.686] does not even mention any ‘fundamental right to live,’ much less any principal about this unmentioned right.” DE 12 at 31. The State is correct.

Section 1 of the Schaivo Act provides the following:

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schaivo for the alleged violation of any right of Theresa Marie Schaivo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Section 2 of the Schaivo Act provides, in pertinent part, that “[a]ny parent of Theresa Marie Schaivo shall have standing to bring a suit under this Act.” Pub.L. 109-3 (S.686) (March 21, 2005). This law is also known as “Relief of the Parents of Theresa Marie Schaivo Act” and was passed to permit a complainant, more specifically, only the parents of Theresa Marie Schaivo to bring suit to assert a violation, only as to the rights of Theresa Marie Schaivo, and only in the Middle District of Florida. See Pub.L. 109-3 (emphasis added). Mr. Jones has provided no support for his argument that this extremely limited and narrow law 1) applies to him, 2) invalidates the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, or 3) eliminates state procedural bars or defaults.

Simply stated, Mr. Jones provides no basis of support for this argument because there is none. The plain reading of this unambiguous statute is that its sole purpose was to address alleged violations of Theresa Marie Schaivo’s rights under the United States Constitution. Nowhere in the text does it even remotely implicate the rights of a federal habeas corpus petitioner. And the Court declines Petitioner’s invitation to find that it was intended to. As such, Mr. Jones’s current federal habeas petition is governed by the AEDPA and all of its attendant implications and applications.

Therefore, Mr. Jones’s claims for habeas relief are to be denied unless the state court’s adjudication “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 “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).

I. Trial Counsel was Burdened by an Actual Conflict of Interest Adversely Affecting Counsel’s Representation, in Violation of the Sixth, Eighth, and Fourteenth Amendments and the Corresponding Provisions of the Florida Constitution, [sic] which was [sic] Preserved Below but not Raised on Direct Appeal by Appellate Counsel Ware.

The basis for Mr. Jones’s first claim for relief is essentially as follows: He was denied the effective assistance of counsel because “a conflict arose between trial counsel and Victor Jones.” DE 1 at 8. This conflict was alleged to have occurred in the time period between the jury’s decision of the guilt phase and the beginning of the penalty phase. At that time, defense counsel filed a motion to withdraw. Id. The basis for the motion was that Mr. Jones had threatened his counsel with “physical injury and death and has refused to communicate with counsel concerning the penalty phase proceedings in this case.” Id. Ultimately, the trial court denied the motion to withdraw. Id. at 13. The guilt phase proceeded with trial counsel representing Mr. Jones. The end result being that he was denied effective assistance of counsel because of the conflict. He further argues that his appellate counsel was ineffective for failing to raise this issue on his direct appeal. Id.

The State responds that this claim is “barred and meritless.” DE 12 at 35. The State argues that these claims are procedurally barred because they should either have been: 1) raised on direct appeal (trial court error denying the motion to withdraw) or 2) because it was determined to be procedurally barred by the state courts on Petitioner’s writ of habeas corpus (ineffective assistance of appellate counsel). See DE 12 at 40. The State also asserts that the Florida Supreme Court correctly cited and applied Strickland to Mr. Jones’s claims, therefore, the Court should deny this claim. See id.

In his Reply (DE 21), Mr. Jones’s argument in response to the State is two-fold. First, Mr. Jones argues that the Florida Supreme Court erred in determining that this claim (ineffective assistance of trial counsel) was procedurally barred because it could have and should have been raised on direct appeal. Id. at 3. Second, Mr. Jones again argues that his appellate counsel was ineffective for failing to raise this claim on direct appeal. Id. at 5.

The Strickland Standard

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the two-prong test that a convicted defendant must meet to demonstrate that his or her counsel rendered ineffective assistance. First, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “The test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead the test is whether some reasonable attorney could have acted in the circumstances ... [as this attorney did]-whether what ... [this attorney] did was within the ‘wide range of reasonable processional assistance.’” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir.1995) (en banc) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (citation omitted). See also Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.1998) (stating that to show unreasonableness “a petitioner must establish that no competent counsel would have made such a choice.”). “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). See also Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.2000) (en banc). “Given the strong presumption in favor of competence, the petitioner’s burden of persuasion — though the presumption is not insurmountable — is a heavy one.” Chandler, 218 F.3d at 1314.

Second, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Court defines a “reasonable probability” as one “sufficient to undermine confidence in the outcome.” Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052.

Ineffective Assistance of Trial Counsel

Mr. Jones first raised this claim in his Rule 3.850 postconviction Motion. The Florida Supreme Court found that “Jones’s second issue alleges that defense counsel had a conflict of interest that denied appellant the effective assistance of counsel. This issue was fully argued during trial, and the court ruled on this issue. The claim thus could have and should have been raised on direct appeal and is procedurally barred. See Wike v. State, 698 So.2d 817, 820-21 (Fla.1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Waterhouse v. State, 596 So.2d 1008, 1015 (Fla.), 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992).” Jones, 855 So.2d at 616, n. 4. In support, the state supreme court cited to two of its prior opinions. Neither of those cases support the proposition that claims of ineffective assistance of counsel must be brought on direct appeal or are otherwise procedurally barred.

The procedural bar would be appropriate if Mr. Jones were to bring a claim of trial court error for denying his counsel’s motion to withdraw, as claims of trial court error are properly brought on direct appeal in Florida. See Wike v. State, 698 So.2d 817 (Fla.1997). However, there is a subtle difference because this claim argues not that the trial court erred but rather that Mr. Jones’s counsel was operating under an actual conflict of interest and, as such, he was rendered ineffective. This claim was properly brought in a Rule 3.850 postconviction motion in Florida. See Smith v. State, 998 So.2d 516 (Fla.2008). On appeal to the Florida Supreme Court, Mr. Jones clearly argued that this was a claim of ineffective assistance of counsel and was properly raised at the Rule 3.850 stage of proceedings. See DE 13, App. F at 69. The Florida Supreme Court disagreed and denied the claim as procedurally barred. On the record before the Court, the Florida Supreme Court misapplied a procedural bar to this claim. Mr. Jones fairly presented this claim to the state court for its initial consideration. The state court declined to review the merits of the claim.

As the Florida Supreme Court denied this claim on an inadequate state procedural ground and not an application of federal law, Mr. Jones’s claim will be analyzed here on its merit. See Cone v. Bell, — U.S.-, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (“[w]e have recognized that ‘the adequacy of state procedural bars to the assertion of federal questions’... is not within the State’s prerogative finally to decide; rather adequacy ‘is itself a federal question.’ ”); see also Owen v. Secretary, 568 F.3d 894 (11th Cir.2009).

On February 9, 1993, counsel for Mr. Jones filed a motion to withdraw as counsel after an incident where Mr. Jones allegedly threatened his counsel with physical injury. See DE 1 at 8. At a hearing held on the motion, Mr. Jones testified that he thought his counsel was a good lawyer who had been effective but that he had issues with certain aspects of trial strategy. See DE 13, App. Q, Vol. 14 at 2230-31. The trial court denied the motion finding:

I consider you to be a very highly qualified lawyer. I know you take your responsibility of these death penalty cases extremely serious. I can understand where you would be displeased after so much effort to have someone vent in the way that Mr. Jones apparently did vent. However, I feel you will fulfill your obligations. You have got together a considerable amount to present to the jury in mitigation of sentence and I will deny your motion for leave to withdraw.

DE 13, App. Q, Vol. 14 at 2236-37. Thereafter, defense counsel continued his representation of Mr. Jones during the sentencing phase of his trial.

A criminal defendant’s Sixth Amendment right to effective assistance of counsel is violated when an attorney has a conflict of interest. In order for Mr. Jones to prevail on this claim, he would have to show that “his attorney had an actual conflict of interest, and second, that the conflict of interest adversely affected counsel’s performance.” McCorkle v. United States, 325 Fed.Appx. 804, 808 (11th Cir.2009) (citing Pegg, 253 F.3d at 1277; see also Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)). He did not. Mr. Jones has argued — but has not established — that an actual conflict of interest existed. And he has completely failed to show that the alleged conflict affected his counsel’s performance. The record indicates that while Mr. Koch and Mr. Jones had a disagreement in which Mr. Jones threatened his counsel, the conflict appeared to have been resolved by the time the penalty phase began. Regardless, Mr. Jones has not shown how his counsel’s conduct was in any way influenced by a conflict of interest. Finally, he failed to argue, let alone prove, that a conflict of interest caused deficient performance resulting in prejudice to Mr. Jones. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Mr. Jones does not cite to one page in the extensive record before the Court to where he was adversely affected by counsel’s performance because of this alleged conflict of interest. Rather, he appears to be asserting a per se violation of the right to effective assistance of counsel. This claim fails, however, as the Eleventh Circuit does not recognize per se violations of the right to effective assistance of counsel. See McCorkle v. United States, 325 Fed.Appx. 804 (11th Cir.2009). Mr. Jones is not entitled to relief on this claim. Habeas is denied.

Ineffective Assistance of Appellate Counsel

Mr. Jones first raised this claim in his Petition For Writ Of Habeas Corpus filed with the Florida Supreme Court. The court denied this claim because “Jones’s petition for writ of habeas corpus raises seven claims of ineffective assistance of appellate counsel. Because these claims are either barred or lack merit, we deny the petition as to these grounds without further discussion.” Jones, 855 So.2d at 619. (footnote omitted).

As discussed above, Mr. Jones has failed to establish that his trial counsel was ineffective due to a conflict of interest. Therefore, his appellate counsel cannot be deemed ineffective for failing to raise a non meritorious claim. See Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006) (finding it fortiori that appellate counsel was not ineffective for failing to raise an issue on appeal when the trial counsel’s inactions were not deemed ineffective assistance of counsel for initially failing to object). Habeas relief is denied.

II. Appellate Counsel Failed to Raise Constitutionality of Prior Convictions.

Mr. Jones’s second claim for habeas relief is that his appellate counsel failed to argue that it was trial court error to 25 deny motions to “set aside Mr. Jones’s prior Dade County convictions” that were later used as aggravating factors at sentencing. See DE 1 at 26. Mr. Jones argues that his trial counsel preserved the issue but his appellate counsel failed to raise this on appeal and therefore rendered ineffective assistance of counsel. See DE 1 at 29.

The State responds that “appellate counsel also cannot be deemed ineffective for failing to raise a nonmeritorious claim.” DE 12 at 55. Specifically, the State argues that “[t]he Florida Supreme Court has recognized that it does not have jurisdiction to entertain appeals from the denials of motions for post conviction relief from convictions that do not lie within its appellate jurisdiction.” Id. Mr. Jones did not make further argument in support of this claim in his Reply. See DE 21 at 5.

Mr. Jones first raised this claim in his petition for writ of habeas corpus filed with the Florida Supreme Court. See Jones, 855 So.2d at 619. The court denied this claim “[bjecause these claims are either barred or lack merit, we deny the petition as to these grounds without further discussion.” Id.

Initially, counsel for Mr. Jones filed motions to set aside his prior convictions which were later used as aggravating factors at sentencing. The motions were denied by the trial judge. Mr. Jones’s counsel argued that such denial was error. Mr. Jones now argues that while his trial counsel preserved the issue for appeal, his appellate counsel failed to raise this preserved issue on direct appeal of his conviction and sentence. See DE 1 at 27-29. Mr. Jones contends that this failure constitutes ineffective assistance of counsel.

This claim, as are most of Mr. Jones’s claims, is insufficiently pleaded. In order to establish a claim of ineffective assistance of counsel, “a defendant must show that his counsel’s representation fell below an ‘objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Devier v. Zant, 3 F.3d 1445, 1450 (11th Cir.1993) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).

In order for Mr. Jones to prevail on this claim, he would have to show that because the trial court erred in denying defense counsel’s motion to set aside his prior convictions, his appellate counsel was ineffective when it failed to raise this claim on direct appeal. If the trial court did not err, then appellate counsel cannot be faulted for not raising this issue on appeal. See Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir.2006). He would also have to show prejudice.

Here, Mr. Jones fails to argue how the trial court committed error when it denied the motion to set aside. The Court is simply left to wonder exactly why the trial court should have granted the motion and why appellate counsel’s failure to assert this argument fell below an objective standard of reasonableness. Further, he fails to assert how or why he was prejudiced other than to argue “Mr. Jones’s capital conviction and sentence of death are the resulting prejudice.” DE 1 at 29. This, of course, is not the standard to establish the prejudice prong under Strickland. If it were, it would render the entire prejudice analysis superfluous because all habeas petitioners would have been “prejudiced” as they are seeking relief from their conviction and sentence.

To show prejudice, in essence, a petitioner must demonstrate that there is at least a reasonable probability that the outcome of the proceeding would* have been different. See Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir.2002). Mr. Jones was sentenced to death by the trial judge after it was determined that Mr. Jones qualified for four statutory aggravators and established no mitigating factors. See Jones, 652 So.2d at 349. As a result, even if the trial court had set aside Mr. Jones’s prior convictions, the aggravating factors still would outweigh mitigation and the outcome of the proceedings would not have been different. Mr. Jones has failed to establish the prejudice prong of Strickland.

Additionally, Mr. Jones has failed to argue that the Florida Supreme Court decision “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 “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). This is the standard of review by which the Court is bound. In his Petition (DE 1), Mr. Jones failed to even cite to the Florida Supreme Court’s decision on this claim. Habeas relief is denied.

III. Appellate Counsel Improperly Raised Fetal Alcohol Syndrome Issue.

Mr. Jones’s third claim for relief is that his appellate counsel had an “obsessive focus on alcoholism and fetal alcohol syndrome” and it resulted in a “colossal mistake that operated to the considerable prejudice of Mr. Jones, who was denied the effective assistance of appellate counsel because of her personal biases.” DE 1 at 30-31.

The State responds that Mr. Jones “is entitled to no relief because the claim is unexhausted, proeedurally barred, insufficiently plead and meritless.” DE 12 at 57. It is argued that Mr. Jones did not make this argument to the Florida Supreme Court in his petition for writ of habeas corpus and, therefore, the court did not address this claim in the order denying his petition. Id. at 60. Accordingly, the State argues, this claim would be unexhausted and subsequently proeedurally barred. Id. The State further argues that even if it were not unexhausted and proeedurally barred, this claim has been insufficiently pleaded. Id. at 62. Mr. Jones did not reply to the State’s arguments as to this claim. See DE 21.

The State is correct. Mr. Jones filed his Petition For Writ Of Habeas Corpus with the Florida Supreme Court in March of 2002. DE 13, App. I, Vol. 2. A review of the Petition reveals that Mr. Jones did not fairly present this claim to the state’s highest court. As such, this claim is unexhausted and proeedurally barred from further review. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); see also supra pp. 1335-36. Habeas relief is denied.

IV. Trial Counsel’s Attempts to Suppress Evidence were Dropped on the Direct Appeal.

In an attempt to construe the above-titled claim into one that is cognizable before the Court, it appears that Mr. Jones is arguing that his appellate counsel was ineffective for failing to assert that the trial court erred in denying certain motions to suppress in advance of trial. See DE 1 at 31.

Similar to Mr. Jones’s third claim, the State responds that Mr. Jones’s claim is “insufficiently plead, unexhausted, proeedurally barred and without merit.” DE 12 at 63. The State argues that because the Florida Supreme Court found that this claim was “either barred or lack[s] merit” that this Court should find the same. More significantly, the State argues that this claim is insufficiently pleaded. See DE 12 at 74. It is argued that Mr. Jones has failed to explain “how counsels’ failure to have raised this conclusory claim would have resulted in a reasonable probability of a different result except through conclusory allegations.” DE 12 at 74. Mr. Jones did not specifically reply to this claim but rather “relies on the facts, arguments, and authorities discussed in his habeas petition and memorandum of law.” DE 21 at 5.

Mr. Jones first raised this claim in his petition for writ of habeas corpus filed with the Florida Supreme Court. See Jones, 855 So.2d at 619. The court denied this claim “[bjecause these claims are either barred or lack merit, we deny the petition as to these grounds without further discussion.” Id.

Here, Mr. Jones’s entire legal argument is: “Appellate counsel did not carry forward any of these issues on the direct appeal.” DE 1 at 32. Mr. Jones provides no argument as to: 1) why the trial court erred and 2) why his appellate counsel’s failure to argue this error on direct appeal shows that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Rather, he declines to set forth any argument and his memorandum of law contains unhelpful citations standing for general propositions such as “[t]he right to cut off questioning is a ‘critical safeguard’ of the Fifth Amendment.” DE 3 at 7. As Mr. Jones has failed to set forth any cogent legal argument, the Court cannot grant him habeas relief.

If the trial court did not err, then appellate counsel cannot be faulted for not raising this issue on appeal. See Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006). Mr. Jones has failed to establish the threshold complaint of trial court error, let alone how his claim satisfies the two prong test of Strickland. Lastly, he did not even address whether or not the Florida Supreme Court’s decision was unreasonable or contrary to law. This claim suffers a similar fate to that of Mr. Jones’s second claim. See supra pp. 1335-36. Habeas relief is denied.

V. Mr. Jones’s Convictions are Materially Unreliable Because no Adversarial Testing Occurred.

Mr. Jones’s fifth claim for relief and its multiple sub-claims all argue one aspect or another of his counsel’s representation during the guilt phase of his trial. See DE 1 at 32. He asserts six sub-claims. The State responds generally that Mr. Jones is “entitled to no relief as parts of the claim are unexhausted and procedurally barred and the entire claim lacks merit.” DE 12 at 81.

Mr. Jones replies that the Court is not necessarily bound by the decision of the state courts because the United States Supreme Court has twice “reminded courts, ‘deference [to state court findings and conclusions] does not by definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). DE 21 at 7.

A. Counsel Failed to Challenge Biased Jurors.

Mr. Jones begins his ineffective assistance of counsel claims by arguing that his trial counsel “failed to challenge jurors who expressed a bias or prejudice in favor of the death penalty; who indicated that they felt all indicted people were guilty and; who indicated that the defendant’s failure to testify would be held against him.” DE 1 at 32. The State responded that “[d]uring jury selection, Petitioner did not attempt to challenge Jurors Carpenter, Dicus or Wallo in any manner.” DE 12 at 85. Further, the State argues that while certain jurors may have made statements that Mr. Jones construed as biased, during questioning the jurors also stated that they would be able to evaluate the aggravating and mitigating circumstances, set aside personal experiences and otherwise agree to keep open minds regarding the case. See DE 12 at 83-85.

Mr. Jones first argued this claim in his Rule 3.850 postconviction Motion. On appeal of the denial, the Florida Supreme Court denied this claim finding it “unnecessary to address each claim here and affirm the lower court’s denial of relief as to all of the issues raised.” Jones, 855 So.2d at 615. Mr. Jones argues that “[c]ounsel was ineffective for failing to identify specific jurors he would use peremptory challenges to excuse and for failing to request additional peremptory challenges.” DE 1 at 34. As an initial matter, the United States Supreme Court has ‘“long recognized’ that ‘peremptory challenges are not of federal constitutional dimension.’ ” Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (quoting United, States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)). “States may withhold peremptory challenges ‘altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.’ ” Id. at 1450 (quoting Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)). Mr. Jones contends that he was denied the effective assistance of counsel when the jury was impaneled because an additional challenge remained which should have been used to strike certain jurors which Mr. Jones claims were biased. However, there is nothing in the record to indicate, nor has Mr. Jones shown, that his jury was not constituted of persons who were qualified for jury service and not challengeable for cause. There is no indication that trial counsel’s failure to object rendered Mr. Jones’s trial “fundamentally unfair” or that “there is a reasonable probability that, but for counsel’s unprofessional errors that the result of the proceeding would have been different.” Devier, 3 F.3d at 1451; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Mr. Jones also argues that “trial counsel failed to question potential jurors about their understanding of voluntary intoxication defense and also failed to question jurors about their feelings about the use of drugs as viable defenses to crimes or in terms of mitigation of crimes.” DE 1 at 34. This is the entire argument put forth by Mr. Jones on this issue. It is insufficiently pleaded. In order to prevail, Mr. Jones must demonstrate both that his attorney’s efforts fell below constitutional standards, and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He has not done so. Habeas relief is denied.

B. Trial Counsel Failed to Investigate and Present Mr. Jones’s History of Mental Health and Substance Abuse Problems.

Mr. Jones next argues that his counsel was ineffective for failing to conduct an investigation into certain potential defenses and mitigation allegedly available to Mr. Jones. See DE 1 at 35. In particular, Mr. Jones argues that his counsel: 1) should have put forth a voluntary intoxication defense and mental health mitigation and 2) failed to investigate his longstanding mental problems. See id. at 35-54.

1. Counsel failed to investigate and develop an intoxication defense.

Mr. Jones’s first sub-claim argues that his counsel provided ineffective assistance when he failed to “investigate the issue of intoxication either as an affirmative defense or as potential mitigation.” See DE 1 at 35. Mr. Jones further argues that “foregoing an intoxication defense, which did have evidentiary support, was unreasonable. The failure to present the most cogent legal defense is unreasonable attorney performance, particularly in a ease such as this where a client’s competency was in doubt.” DE 1 at 46.

The State responds that Mr. Jones’s counsel testified at an evidentiary hearing that “in his experience intoxication, particularly on illegal drugs, was dangerous evidence because juries tend to view such evidence negatively.” DE 12 at 91. Defense counsel testified that “he had spoken to people who had served on juries and that they had indicated that they generally do not consider intoxication mitigating.” Id. at 92. Ultimately, the State argues that “[rjejecting a claim of ineffective assistance of counsel because counsel made a strategic decision to proceeding [sic] in a different manner is perfectly consistent with Strickland and its progeny.” DE 12 at 123.

Mr. Jones first raised this claim in his Rule 3.850 postconviction motion. On appeal from the denial of relief, the Florida Supreme Court affirmed as follows:

Appellant claimed that his trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense, and that he was prejudiced because such intoxication negates specific intent, the requisite mental state for first-degree murder. The trial court concluded that trial counsel chose not to present a voluntary intoxication defense as a matter of trial strategy and that appellant failed to establish prejudice, the second prong of Strickland. We agree.

This Court has held that it will not second-guess counsel’s strategic decisions about whether to pursue an intoxication defense. Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); see Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (holding that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct”). At the hearing below, appellant’s trial counsel testified that he was aware that a toxicology report indicated that appellant’s blood contained trace indications of the presence of cocaine. He stated that he did not pursue a voluntary intoxication defense for several reasons. First, it was his experience that juries did not accept voluntary intoxication as a defense or mitigating factor, especially when the charge is murder. In addition, appellant told counsel that he was not intoxicated at the time of the murders and that he was innocent-i.e., that an intruder killed his employers. Thus, the evidence supports the trial court’s determination that counsel’s decision not to pursue an intoxication defense was a reasonable, strategic one. See Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the case). In addition, appellant maintained his innocence, a defense inconsistent with an intoxication defense. See Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000) (stating that voluntary intoxication defense is wholly inconsistent with the defense of innocence), cert. denied, 534 U.S. 878, 122 S.Ct. 179, 151 L.Ed.2d 124 (2001); Combs v. State, 525 So.2d 853, 855 (Fla.1988) (rejecting ineffective assistance claim because the “presentation of an intoxication defense would have been inconsistent with Combs’ testimony that he was at home at the time of the murder and did not commit the offense”).

Finally, to assert a voluntary intoxication defense, a defendant must present evidence of intoxication at the time of the offense that would establish the defendant’s inability to form the requisite specific intent. Rivera v. State, 717 So.2d 477, 485 (Fla.1998); see also Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) (emphasizing that voluntary intoxication is an affirmative defense and that defendant must come forward with evidence of intoxication, not just use of intoxicants, at the time of offense sufficient to establish an inability to form the intent necessary to commit the crime charged). The lower court found that not one of appellant’s witnesses who testified at the hearing on this issue was credible. Appellant’s cousin, a convicted felon and admitted drug user and dealer, testified that he and appellant used drugs and “got high” together one day, but he was uncertain whether it was the day before the murders. Further, two psychologists testified that appellant was intoxicated at the time of the murders, but their testimony was based on hearsay interviews with appellant’s family members, none of whom could say they saw appellant on the day of-or even the evening before-the murders. These experts also testified that they relied on the toxicology report, but neither knew what that report meant regarding appellant’s intoxication at the time of the murders. Matters of credibility fall within the trial court’s ambit. Appellant has not shown the court’s rejection of this testimony to be error. In addition, the State’s expert witness on toxicology and intoxication testified, based on the toxicology report, that appellant was not intoxicated at the time of the murders. Accordingly, the trial court’s determination that appellant failed to establish this claim of ineffective assistance of counsel is affirmed.

Jones, 855 So.2d at 616-17.

Mr. Jones’s habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996, “which limits our review of the decisions of the state courts and establishes a ‘general framework of substantial deference’ for reviewing ‘every issue that the state courts have decided.’ ” Fotopoulos v. Sec’ y for the Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir.2008) (citing Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.2007) (quoting Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir.2005))). After careful review of Mr. Jones’s claim regarding a voluntary intoxication defense, there is nothing in the record to suggest that the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court or that there was an unreasonable determination of the facts. See Fotopoulos, 516 F.3d at 1232. Based on the testimony of counsel at the evidentiary hearing, Mr. Jones’s assertion that his counsel failed to investigate a possible voluntary intoxication defense is inaccurate. Mr. Jones’s counsel did not pursue this defense for strategic reasons. And the Court will not second guess Mr. Koch’s decisions after he conducted an appropriate investigation of the facts. Nor will the Court reverse the Florida Supreme Court’s determination of this issue absent a finding of unreasonableness. Review of counsel’s conduct is to be highly deferential. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.1994). Second-guessing of an attorney’s performance is not permitted. White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.1992) (“Courts should at the start presume effectiveness and should always avoid _ second-guessing with the benefit of hindsight.”); Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992). Therefore, the foregoing resolution of his assertion of ineffectiveness of counsel was reasonable and in accord with applicable federal authority, and should not be disturbed. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Habeas relief is denied as to this claim.

2. Counsel also failed to investigate Mr. Jones’s longstanding mental health problems.

Mr. Jones’s second sub-claim is not entirely clear. He initially appears to assert that his counsel failed to investigate potential mental health mitigation but, in reality, he is arguing that his counsel failed to investigate certain records and information which would have aided the expert witnesses that counsel did retain to testify