Ashley Lyndol Jones v. Warden, Georgia Diagnostic and Classification Prison

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12587
____________________
ASHLEY LYNDOL JONES,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION
PRISON,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 5:02-cv-00116-WTM
____________________
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2 Opinion of the Court 20-12587
Before J ORDAN, NEWSOM , and BRANCH, Circuit Judges.
NEWSOM , Circuit Judge:
Ashley Lyndol Jones was sentenced to death in 1995 for
committing murder. Since the conclusion of his direct-appeal pro-
ceedings, Jones has been seeking post-conviction relief in state and
federal courts to no avail. We granted a limited certificate of ap-
pealability to determine whether Jones had ineffective assistance of
counsel at trial and whether he should receive discovery or an evi-
dentiary hearing to develop a juror-misconduct claim. With the
benefit of oral argument, we affirm the district court’s denial of
Jones’s ineffective-assistance claim. With respect to his request for
discovery or an evidentiary hearing, however, we vacate and re-
mand to the district court in light of new evidence that surfaced
after argument in this Court.
I
Ashley Lyndol Jones and Allen Bunner beat Keith Holland
to death with a sledgehammer in 1993.
Jones v. State, 481 S.E.2d
821, 823 (Ga. 1997). A Georgia jury found Jones guilty of malice
murder and several other crimes, and it recommended the death
penalty based on the “horrible and inhuman” nature of the killing.
Id. The trial court sentenced Jones to death.
Id. The Georgia Su-
preme Court affirmed Jones’s conviction and sentence.
Id. at 826.
Following the issuance of his execution warrant, Jones filed
a habeas corpus petition in state court. After unavailing state-court
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proceedings, Jones sought habeas relief in federal court under 28
U.S.C. § 2254. The district court denied Jones’s petition in all re-
spects and denied his motion for a certificate of appealability. Jones
then sought a COA from this Court, which we granted on two is-
sues:
1. Whether the district court erred in denying Jones’s claim
that his trial counsel rendered ineffective assistance in the
penalty phase of his capital trial by failing to object to the
prosecution’s allegedly improper closing argument (a) mis-
stating Jones’s age and (b) urging the jury to draw an adverse
inference from Jones’s decision to exercise his constitutional
rights;
2. Whether the district court erred in denying Jones discovery
or an evidentiary hearing to develop his claim of juror mis-
conduct.
II
We begin with Jones’s ineffective-assistance claim, which is
a mixed question of law and fact subject to de novo review.
Ward
v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Because no state court
adjudicated this claim on the merits, 28 U.S.C. § 2254(d)’s deferen-
tial standard of review doesn’t apply.
See Cone v. Bell, 556 U.S.
449, 472 (2009).
Jones contends that his trial counsel failed to object to sev-
eral improper statements that the prosecutor made during closing
arguments. For instance, the prosecutor twice misstated Jones’s
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4 Opinion of the Court 20-12587
age as 21 rather than 19. In the first instance, the prosecutor said:
“Ashley Jones had choices. It’s a free country. You do what you
want to do. He was free and 21.” And in the second, he remarked
that it was “beyond belief that a man 21 years of age, or whatever
he was at the time,” would commit murder just because he was
under the influence of alcohol. Jones contends that because he was
only 19 at the time of the crime, the prosecutor’s misstatement of
his age kept the jury from considering his youth as a mitigating fac-
tor.
Separately, Jones complains about the following comments
that the prosecutor made regarding the process that Jones received
at trial:
The defendant has had his rights throughout this trial
and throughout the time from the day he was ar-
rested until today. This is the lawful function of our
society. He has had due process, and he has a judge
who has sat over the trial to [e]nsure that his rights
are protected, and he has had a lawyer who sits with
him today and who has sat with him from the begin-
ning to make sure that his rights are protected. Those
rights [e]nsure his protection, but there is still the
punishment that should be inflicted.
* * *
He has a right to an attorney, he has the right to a jury
trial, he has the right here to sit and listen to the evi-
dence as we all have done for the last few days. He
has a right to have his parents come, and friends of his
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parents, and friends of his when he was child, come
and cry for him, and he has a right, when I sit down,
for his lawyer to come up here and beg for his life.
But on March 31st, 1993, the defendant trampled on
the rights of Keith Holland. Keith Holland had no
choice in that matter. His rights were taken away
quickly at the strong, hard end of a sledge hammer
and a wrench.
Jones asserts that these statements “attack[ed]” his right to counsel
and “called into question the legitimacy of a system that preserved
[his] rights to trial, to an impartial judge, to be present at his own
trial, to present evidence in his defense and in mitigation of punish-
ment, and his right to beg for mercy.” Br. of Appellant at 43 (cita-
tions omitted).
The district court concluded that Jones failed to establish an
ineffective-assistance claim with respect to any of the several chal-
lenged statements. With respect to the prosecutor’s age-related
misstatements, the court held that they “likely had a minimal effect
on the jury’s determination.” As for the prosecutor’s comments on
the rights afforded to Jones, the court reasoned that because “no
controlling authority . . . finds that an argument comparing the rel-
ative rights of the victim and the defendant is a reversible error,”
trial counsel wasn’t deficient for failing to object.
To prevail on an ineffective-assistance claim, Jones must
prove two things: (1) that his trial counsel’s representation “fell be-
low an objective standard of reasonableness” under prevailing
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6 Opinion of the Court 20-12587
professional norms and (2) that counsel’s deficient performance
prejudiced his defense.
Strickland v. Washington, 466 U.S. 668,
686–88 (1984). Generally, “a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range of reasona-
ble professional assistance.”
Id. at 689. In particular, “for a peti-
tioner to show that [his lawyer’s] conduct was unreasonable, a pe-
titioner must establish that no competent counsel would have
taken the action that his counsel did take.”
Chandler v. United
States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). And even if
the defendant can show that his counsel acted as “no competent
counsel” would, he must also demonstrate that there is “a reason-
able probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland,
466 U.S. at 694.
A
Jones first contends that his trial counsel failed to provide
constitutionally effective assistance by failing to object to the pros-
ecutor’s misstatement of his age. In
Johnson v. Texas, the Supreme
Court confirmed that “a defendant’s youth is a relevant mitigating
circumstance” in capital cases. 509 U.S. 350, 367 (1993). In that
case, though, the defendant’s age played a prominent role in his
defense. Not only had the defendant’s father testified that at 19 he
was still immature, but his counsel had also specifically questioned
potential jurors about things they had done as youths that they
wouldn’t do as adults and had returned to the theme of youth and
change during closing arguments.
Id. at 356–58. The Supreme
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Court also emphasized in that case that youth isn’t just a number
but also a state—a “lack of maturity and an underdeveloped sense
of responsibility” that may affect the sentencing jury’s decision.
Id.
at 367. More recently, in
Jones v. Mississippi, the Court reaffirmed
that “youth matters in sentencing.” 141 S. Ct. 1307, 1314 (2021). In
particular, the Court held that because the defendant in that case
was 15 and thus below the age of majority when he committed a
murder, his life-without-parole sentence was properly applied in a
discretionary (rather than mandatory) manner.
Id. at 1314–15.
Neither
Johnson nor
Jones support Jones’s contention that
his trial counsel was constitutionally ineffective for failing to object
to the prosecutor’s misstatement of his age. The trial record
doesn’t suggest that Jones’s youth played a major role in his de-
fense, as was the case in
Johnson. Indeed, Jones’s trial counsel
didn’t even address Jones’s age or immaturity as a mitigating factor
in his closing argument. And unlike the defendant in
Jones, the
Jones in our case was over the age of majority at the time of the
crime. It is entirely possible that his lawyer thought it best not to
object and draw attention to his age to avoid the conclusion that at
the time of the crime, Jones was an adult who was mature enough
to make adult decisions. Thus, we cannot say that “no competent
counsel,”
Chandler, 218 F.3d at 1315, would have acted as Jones’s
counsel did.
Moreover, and in any event, Jones hasn’t shown a reasona-
ble probability that an objection to the prosecutor’s age-related
misstatements would have changed the jury’s decision. Jones’s age
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8 Opinion of the Court 20-12587
was established through evidence at trial, and the jury was free to
weigh it against the aggravating evidence. Jones has presented no
reason to conclude that if the jury had been reminded that he was
19 during closing arguments, it wouldn’t have recommended the
death penalty.
B
Next, Jones asserts that the prosecutor’s comments regard-
ing the rights that he exercised during trial were made to imply that
“Jones must pay with his life for exercising his rights because he
gave none to the victim.” Br. of Appellant at 42. As an initial mat-
ter, we don’t find the adverse implication that Jones urges in the
prosecutor’s comments, which, as we read the record, were made
simply to suggest that Jones had received full due process despite
the heinous nature of his crime before the jury was asked to make
a sentencing decision. Though it is true that a prosecutor violates
due process by implying that a defendant should be found guilty
for exercising his constitutional rights—such as his right to not tes-
tify against himself,
see Griffin v. California, 380 U.S. 609, 615
(1965)—the prosecutor made no such implication here.
Cf., e.g.,
United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980) (find-
ing prosecutorial misconduct when prosecutor blatantly implied
that the defendant was guilty because he called his lawyer).
No binding authority suggests that a defendant is deprived
of a fair trial simply because the jury is reminded of the constitu-
tional rights that have safeguarded his proceedings. Likewise,
while one of our sister circuits has criticized prosecutorial
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comments comparing the relative rights of a victim and a defend-
ant,
see Lawson v. Dixon, 3 F.3d 743, 755 (4th Cir. 1993), at the
time of Jones’s trial, no court had held that such comments violate
a defendant’s constitutional rights. Accordingly, it was not unrea-
sonable for Jones’s lawyer to conclude that no objection was war-
ranted.
See Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329 (11th Cir.
2011) (“An attorney does not render ineffective assistance when he
declines to make an argument that the attorney ‘reasonably be-
lieved was . . . doomed to fail.’” (quoting
Knowles v. Mirzayance,
556 U.S. 111, 124 (2009)));
Jackson v. Herring, 42 F.3d 1350, 1359
(11th Cir. 1995) (“To be effective within the bounds set by
Strick-
land, an attorney need not anticipate changes in the law.”).
The prosecutor’s recounting of Jones’s rights likely didn’t
“infect[] the trial with unfairness as to make the resulting convic-
tion a denial of due process.”
Darden v. Wainwright, 477 U.S. 168,
180–81 (1986) (quotation omitted) (finding that defendant had a fair
trial even though the prosecutor called him an “animal,” made sev-
eral offensive comments, and implied that the death penalty was
the only guarantee against a future similar attack). Thus, trial
counsel acted within the range of reasonableness by not raising an
objection that was unlikely to succeed. And as with the age mis-
statements, Jones alleges nothing to suggest that if an objection had
been made, the outcome of his case would have changed.
* * *
Given that it wasn’t unreasonable for trial counsel not to ob-
ject during the prosecutor’s penalty-phase summation and that
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10 Opinion of the Court 20-12587
such an objection probably wouldn’t have mitigated the significant
impact of the aggravating evidence presented to the jury in any
event, the district court didn’t err in denying Jones’s ineffective-as-
sistance claim.
III
Jones’s request for discovery or an evidentiary hearing to de-
velop his juror-misconduct claims presents a thornier issue. The
Antiterrorism and Effective Death Penalty Act dictates, as relevant
here, that if a habeas petitioner “has failed to develop the factual
basis of a claim in State court proceedings, the [district] court shall
not hold an evidentiary hearing on the claim unless the applicant
shows” that the claim relies on “a factual predicate that could not
have been previously discovered through the exercise of due dili-
gence.” 28 U.S.C. § 2254(e)(2). If, by contrast, the district court
finds that the petitioner
has exercised due diligence at the state
level, Rule 6(a) of the Rules Governing § 2254 Cases applies and
permits the district court to authorize discovery “for good cause.”
See Williams v. Taylor, 529 U.S. 420, 433–34 (2000) (holding that
§ 2254(e)(2)’s provisions barring discovery apply only if the peti-
tioner was not reasonably diligent in trying to develop the factual
record in state court). Good cause exists “where specific allegations
before the court show reason to believe that the petitioner may, if
the facts are fully developed, be able to demonstrate that he is en-
titled to relief.”
Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)
(cleaned up).
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Here, Jones seeks to develop a juror-misconduct claim,
which requires showing that the “extrinsic evidence known by the
jury posed a reasonable possibility of prejudice to the defendant.”
Boyd v. Allen, 592 F.3d 1274, 1305 (11th Cir. 2010) (quotation omit-
ted). The defendant “has the burden to show that the jury [was]
exposed to extrinsic evidence or extrinsic contacts,” and “[o]nce the
defendant establishes that such exposure in fact occurred, prejudice
is presumed.”
Id. (quotation omitted). The presumption of preju-
dice requires two prerequisites: “[1] that an extraneous contact
with or by a member of the jury took place, and [2] that the contact
was about the matter pending before the jury.”
Id. (quotation
omitted).
In the district court, Jones alleged that two observations of a
dismissed penalty-phase juror suggested extrinsic influence on the
jury and warranted discovery or a hearing. The dismissed juror
had seen one jury member holding a Bible and a few others drink-
ing alcoholic beverages with bailiffs, but she declined to testify or
submit any written statement regarding her observations. The dis-
trict court concluded that AEDPA didn’t bar further proceedings
because Jones exercised “due diligence” during state-court pro-
ceedings: Jones’s state habeas counsel had attempted to interview
his jurors several times but were largely unsuccessful. Even so, the
court found no good cause for discovery, reasoning that Jones
hadn’t sufficiently “show[n] reason to believe that [he] may, if the
facts are fully developed, be able to demonstrate that he is entitled
to relief.” The court also denied an evidentiary hearing, concluding
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12 Opinion of the Court 20-12587
that even if Jones’s “unsupported and unsworn” allegations were
true, he would not be entitled to a hearing:
The allegation that a juror had a drink with a deputy
is not direct evidence of juror misconduct because it
lacks any suggestion that the juror received infor-
mation to which he should not have had access.
Moreover, the presence of a bible is not per se evi-
dence of juror misconduct.
With respect to the Bible’s presence in particular, the court rea-
soned that Jones failed to allege extraneous influence of the sort
that was present in
McNair v. Campbell, in which the jury foreman
“brought a Bible into the jury room during deliberations, read
aloud from it, and led the other jurors in prayer.” 416 F.3d 1291,
1301 (11th Cir. 2005). By contrast, here Jones had alleged nothing
more than that a jury member was seen holding a Bible at some
point.
Following oral argument before us, Jones’s counsel sought
to supplement the record with a number of additional juror state-
ments. After recent digitization of some documents related to
Jones’s state-level case, his federal habeas counsel found “work-
product generated during state habeas proceedings” that was bur-
ied in “one of multiple banker’s boxes of state habeas materials.”
The work product consists of notes taken by a paralegal on his state
habeas team regarding the team’s efforts to talk to jurors. In par-
ticular, one juror stated (1) that the “jury prayed together,” (2) that
he led jury members in prayer “before court and at night in their
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hotel room,” (3) that he “started bible study with the group,” and
(4) that “the bailiff brought them a bible in the deliberation room,
but no bibles were allowed in the jury box.” Another juror also
alleged that the jury members “prayed each day together.” Obvi-
ously, these new statements draw Jones’s case closer to
McNair.
It is not entirely clear why Jones’s current federal counsel
didn’t find these documents earlier. They explain that their offices
were in disarray when they began working on Jones’s case and that
they limited their review to “reading . . . the federal habeas record”
instead of wading through the many banker’s boxes of hard-copy
documents while preparing briefs for the district court. They fail
to explain why they didn’t find these documents in the nearly two
years that Jones’s case sat pending in this Court prior to oral argu-
ment. The juror-interview notes have existed since 1998 and were
in Jones’s lawyers’ possession all along, yet no set of lawyers dis-
covered them.
Despite their lateness, however, because these notes
may—
under
McNair—suggest “good cause” for discovery or an eviden-
tiary hearing regarding juror misconduct, we granted Jones’s mo-
tion to supplement the record with the new juror allegations.
See
CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1330 (11th
Cir. 2000) (noting that supplementation at the appellate level is per-
missible if “in the interests of justice,” particularly where “the prof-
fered material . . . would establish beyond any doubt the proper
resolution of the pending issues”). Having done so, though, we
decline to resolve the merits of this issue at this juncture for two
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14 Opinion of the Court 20-12587
reasons. First, the district court didn’t have the benefit of the new
juror statements when making its discovery and evidentiary-hear-
ing decisions. As a result, we are looking at a slightly different case
now than the one presented to the district court. Because we are a
court of review, not first view,
see CFPB v. Ocwen Fin. Corp., 30
F.4th 1079, 1086 (11th Cir. 2022), the district court should first de-
cide these fact-intensive issues on the supplemented record. Sec-
ond, the late discovery of the juror notes may affect the due-dili-
gence calculus, and, relative to the district court, we are ill-
equipped to make that factual determination.
See Ward, 592 F.3d
at 1159 (“[A] determination of diligence is a finding of fact which
we will not disturb unless it is clearly erroneous.”). On remand,
the district court should decide these issues with the benefit of the
new information admitted into the record.
IV
The district court’s denial of Jones’s ineffective-assistance
claim is AFFIRMED. The district court’s decision denying Jones
discovery or an evidentiary hearing for his juror-misconduct claim
is VACATED and REMANDED to the district court to decide
whether either proceeding is now warranted in light of the newly
submitted evidence.
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