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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10850
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-60728-KMW
JORDY FOSTER,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 24, 2014)
Before TJOFLAT, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Jordy Foster appeals the district court’s denial of his
28 U.S.C. § 2254
habeas corpus petition, in which he argued that his trial counsel provided
ineffective assistance by failing to advise him of the results of psychological
testing and by failing to pursue additional testing. He argues the district court
erred in finding his § 2254 petition untimely and in denying the petition on the
merits. We granted a certificate of appealability (COA) on the following
questions:
Whether Mr. Foster’s habeas petition was timely under Gonzalez v.
Thaler, 565 U.S. ___,
132 S.Ct. 641,
181 L.Ed.2d 619 (2012); and, if
timely, whether the state court’s determination that Foster’s trial
counsel was not ineffective for failing to share with him the contents
of mental health evaluations, and/or failing to have him evaluated for
mental retardation by a neuropsychologist prior to entering his guilty
plea, was contrary to, or involved an unreasonable application of
clearly established federal law, or was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding?
Upon review,1 we conclude that while Foster’s petition was timely, he has not
made the requisite showing for relief under § 2254 . Accordingly, we affirm the
district court’s denial of his petition.
1
We review a district court’s denial of a habeas petition under § 2254 de novo and its
factual findings for clear error. Sims v. Singletary,
155 F.3d 1297, 1304 (11th Cir. 1998). A
claim of ineffective assistance of counsel presents a mixed question of law and fact that we
review de novo.
Id.
2
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I. TIMELINESS
To evaluate the timeliness of Foster’s petition, we must recite the procedural
history of his conviction and appeals in Florida court. Foster pleaded guilty to the
second-degree murder of his infant son, and the state court sentenced him to 45
years’ imprisonment. Foster appealed, and the Florida appellate court affirmed on
June 9, 2010. Foster v. State,
52 So. 3d 672 (Fla. 4th DCA 2010). Foster moved
for post-conviction relief in the state court under Florida Rule of Criminal
Procedure 3.850(d) on June 28, 2011. The state court denied the Rule 3.850
motion, Foster again appealed, and the state appellate court affirmed on February
24, 2012. Foster petitioned the Supreme Court of Florida to review the appellate
court’s decision, but the Court found that it lacked jurisdiction.
Foster filed the instant § 2254 habeas petition with the district court on April
23, 2012. As the parties agree, this filing was timely under the Antiterrorism and
Effective Death Penalty Act because it fell within one year of “the date on which
the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). Foster’s judgment
became final when the time for seeking review before the Florida Supreme Court
expired, see Gonzalez v. Thaler,
132 S. Ct. 641, 649-52 (2012), which occurred on
September 7, 2010, ninety days after the Florida appellate court issued its per
curiam affirmance of Foster’s conviction, see Nix v. Sec’y for the Dep’t of Corr.,
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393 F.3d 1235, 1236-37 (11th Cir. 2004). Foster’s motion under Rule 3.850, filed
294 days later, tolled the one-year limitations period until February 24, 2012, when
the mandate issued on the denial of his motion. See
28 U.S.C. § 2244(d)(2).
Foster then filed his § 2254 petition on April 23, 2012, 59 days later. Thus, a total
of only 353 days of elapsed for the purpose of the limitations period, and Foster’s
petition was timely.
II. MERITS
To succeed in this appeal, Foster must show that the state court’s conclusion
that his trial counsel was not ineffective either for failing to tell him the results of
his mental health evaluations or for failing to pursue further evaluation by a
neuropsychologist was contrary to or involved an unreasonable application of
clearly established federal law or was based on an unreasonable determination of
the facts.
28 U.S.C. § 2254(d)(1)-(2). Foster was initially examined by Dr.
Michael Brannon, who opined that Foster appeared to be of average intelligence.
The record suggests that Dr. Brannon recommended further evaluation by a
neuropsychologist, Dr. Alex Arias, and a motion before the trial court speculated
that Foster may have a learning disability or be mentally retarded. However, in
light of Dr. Brannon’s finding that Foster was of average intelligence, Foster
cannot cite federal law clearly establishing that his counsels’ failure to pursue
further psychological testing rendered their assistance ineffective. See Strickland
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v. Washington.
466 U.S. 668, 688 (1984) (explaining that ineffective assistance
means assistance that is unreasonable under “prevailing professional norms”).
Similarly, with no evidence that Foster was of anything but average
intelligence, we cannot conclude that the state court would contradict or misapply
clearly established federal law by determining that Foster could not show any
prejudice even if he did receive ineffective assistance. See
id. at 694 (“[Prejudice]
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”). For these reasons, Foster cannot
show that his the state courts’ applications of federal law were incorrect, much less
that they were objectively unreasonable. See Renico v. Lett,
559 U.S. 766, 773
(2010) (“[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application
must be objectively unreasonable.” (internal quotation marks and citation
omitted)).
Accordingly, while Foster’s habeas petition was timely, it fails on its merits,
and on that basis we affirm the district court. 2
AFFIRMED.
2
Although Foster also argued that his trial counsel was ineffective for failing to conduct
an adequate mitigation investigation prior to sentencing, this argument is beyond the scope of the
COA, and we will not consider it. Hodges v. Att’y Gen., State of Fla.,
506 F.3d 1337, 1340-41
(11th Cir. 2007).
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