Jones v. Mcneil, Case No: 07-22890-CIV-ZLOCH

CourtU.S. District Court — Southern District of Florida
Writing for the CourtWILLIAM J. ZLOCH
PartiesVICTOR TONY JONES, Petitioner, v. WALTER A. MCNEIL,1 Secretary, Florida Department of Corrections, Respondent.
Decision Date07 March 2011
Docket NumberCase No: 07-22890-CIV-ZLOCH

VICTOR TONY JONES, Petitioner,
v.
WALTER A. MCNEIL, 1 Secretary, Florida Department of Corrections, Respondent.

Case No: 07-22890-CIV-ZLOCH

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Dated: March 7, 2011


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

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

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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

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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 people." 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.2 Id.

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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.

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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 (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

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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 hearing3after 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...

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