           Case: 12-15556   Date Filed: 10/17/2013   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15556
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:08-cv-00504-WTH-PRL




ANDRE VERLASQUE NEWMONES,

                                                            Plaintiff-Appellant,

                                   versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
and ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 17, 2013)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:
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      Appellant-Petitioner Andre Newmones (“Newmones”), proceeding pro se,

appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition, arguing that

there was insufficient evidence to support the state trial court’s decision that he had

violated his probation by committing second-degree murder, a finding that was

made immediately after a jury had acquitted Newmones of the substantive count of

second-degree murder. While on drug-offender probation for two offenses,

Newmones was arrested and charged with the second-degree murder of Leroy

Browning (“Browning”). At trial, the state presented no physical evidence

connecting Newmones to the murder, and, instead, relied nearly exclusively on the

testimony of Arthur Jones (“Jones”), Browning’s roommate, to place Newmones at

the scene of the murder. No other eyewitnesses connected Newmones to the

murder.

                                          I.

      Newmones’s main argument is that the district court “unreasonabl[y] applied

the standard for reviewing due process challenges based on the sufficiency of the

evidence, as set forth in [Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979)], in determining that a trier of fact could have found Mr. Newmones

guilty by a preponderance of the evidence.” [Appellant Br. at 1.] Among other

things, Newmones contends Jones was not a credible witness and the district court


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erred in relying upon his testimony. After reviewing the record and reading the

parties’ briefs, we affirm the district court’s denial of § 2254 relief.

      At trial, Jones testified on direct examination that he was sitting on his porch

in his wheelchair when Newmones approached and asked where Browning was.

Jones testified that he had told Newmones that Browning was in bed, and that he

had overheard Newmones and Browning arguing before he heard two gunshots.

However, Jones’s testimony on cross-examination was inconsistent either with his

own testimony or other witnesses’ statements as to, inter alia, (1) where he was

physically located when Newmones allegedly approached the house; (2) both the

number of gunshots that he heard and the number of gunshots that were actually

fired; (3) the specific comments that he overheard during the incident; (4) whether

he went into the bedroom, where Browning’s body was found, after he heard the

gunshots and whether it was possible to see Browning’s body without approaching

the bedroom; (5) whether he had consumed alcohol on the date in question; (6)

what time of day the shooting occurred; (7) his physical location when the police

arrived; (8) what kind of firearm was involved; and (9) his ability to walk, as he

was wheelchair-bound.

      Jones refused to answer various questions, which required the state trial

court to intervene in the questioning. Jones was hostile to Newmones’s attorney,


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telling him that he needed to go back to school, that Jones was not going to

continue answering questions, and that Newmones’s attorney needed to stop

questioning him. Other witnesses consistently indicated that Jones was inebriated

at the time of the incident and in the interviews with law enforcement that

followed. The trial transcript reflects that Jones apparently soiled himself while on

the stand. There was also evidence suggesting that Jones himself committed the

murder, as he had owned a gun of the caliber used in the murder, the murder

happened at his home, and he had traces of gunshot residue on his hands.

       The jury acquitted Newmones of second-degree murder. Nevertheless, the

state trial judge conducted a probation-revocation hearing 1 immediately after the

jury verdict was announced and concluded that Newmones had violated his

probation, stating “The violation is he murdered someone, in my opinion.” [Jury

Trial Transcript, Vol. III at 390.] When asked if the trial court was giving

credibility to the witnesses’ testimony without physical evidence, the court

declined to point out the specific evidence on which it had relied. The court

sentenced Newmones to consecutive maximums on the probation violations,

totaling 20 years’ imprisonment.



       1
         Prior to voir dire on the substantive count of second-degree murder, the State noted that
Newmones had a violation-of-probation case and asked the court to conduct a silent violation of
probation hearing during the trial. Newmones agreed to permit the court to do so.
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                                               II.

      In his § 2254 petition, Newmones argued (1) the evidence was insufficient to

support the state trial court’s conclusion that his guilt had been proven by a

preponderance of the evidence; the state trial court erred by failing to (2) give

Newmones an opportunity to be heard; (3) allow his counsel to be present at the

probation violation hearing; (4) be a neutral party; (5) enter a written order reciting

the specific violations found; and (6) give him a full revocation hearing. The

district court denied Newmones’s § 2254 petition, but issued a certificate of

appealability (“COA”) on the issue of whether the state trial court’s conclusion that

Newmones had violated his probation was supported by insufficient evidence so as

to render the decision unconstitutional under the Due Process Clause. Liberally

construing Newmones’s pro se brief, Newmones argues on appeal that the district

court erred by denying his § 2254 petition because there was insufficient evidence

for the trial court to conclude that he had violated his probation. Specifically, he

argues that the district court unreasonably applied Jackson, 443 U.S. at 319, 99

S. Ct. at 2789, when it determined that a trier of fact could have found him guilty

by a preponderance of the evidence.




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                                         III.

      We review de novo a district court’s decision to deny habeas relief.

Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1330 (11th Cir.), cert.

denied, ___ U.S. ___, 82 USLW 3069 (2013). We liberally construe pro se

petitions. Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). We will not

review issues that are outside the scope of the COA. Jordan v. Sec’y, Fla. Dep’t of

Corr., 485 F.3d 1351, 1356 (11th Cir. 2007).

      Under § 2254(d), a federal court may not grant habeas relief on claims that

were previously adjudicated in state court, 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,” or “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented” in state court. 28 U.S.C.

§ 2254(d)(1)–(2). The phrase “clearly established Federal law” refers to holdings

by the U.S. Supreme Court at the time of the state court’s decision. Williams v.

Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000) (O’Connor, J.,

concurring). Clearly established federal law does not encompass statements made

in dicta. Id.




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      “The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1)

are separate bases for reviewing a state court’s decisions.” Putman v. Head, 268

F.3d 1223, 1241 (11th Cir. 2001). “A state court decision is ‘contrary to’ clearly

established federal law if either (1) the state court applied a rule that contradicts the

governing law set forth by Supreme Court case law, or (2) when faced with

materially indistinguishable facts, the state court arrived at a result different from

that reached in a Supreme Court case.” Id. An “unreasonable application” of

federal law occurs when the state court either (1) correctly identifies the legal rule

from Supreme Court precedent but unreasonably applies the rule to the facts of the

case, or (2) “unreasonably extends, or unreasonably declines to extend, a legal

principle from Supreme Court case law to a new context.” Id. The Supreme Court

has repeatedly reiterated “that an unreasonable application of federal law is

different from an incorrect application of federal law.” Cullen v. Pinholster, 563

U.S. ___, ___, 131 S. Ct. 1388, 1411 (2011) (internal quotation marks omitted).

Unreasonableness is “a substantially higher threshold.” Schriro v. Landrigan, 550

U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), the “contrary to” or

“unreasonable application of” standard “is difficult to meet, because the purpose of

AEDPA is to ensure that federal habeas relief functions as a guard against extreme


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malfunctions in the state criminal justice systems, and not as a means of error

correction.” Greene v. Fisher, 565 U.S. ___, ___, 132 S. Ct. 38, 43 (2011)

(internal quotation marks omitted). Indeed, “if some fairminded jurists could agree

with the state court’s decision, although others might disagree, federal habeas relief

must be denied.” Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011) (en

banc) (internal quotation marks omitted), cert. denied, 132 S. Ct. 2727 (2012).

                                         IV.

      In Jackson, a federal habeas petitioner claimed he had been convicted of

murder based upon insufficient evidence. 443 U.S. at 309, 99 S. Ct. at 2783–84.

The Supreme Court concluded that, when reviewing the sufficiency of the

evidence to support a criminal conviction, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. at 318–19, 99 S. Ct. at 2788–89. Here, the district court

applied that standard to determine that a “rational trier of fact could have found

[Newmones] guilty [of second-degree murder] by a preponderance of the

evidence.” [R. 18 at 13.]

      The standard set forth in Jackson, however, primarily applies to cases

involving direct criminal prosecutions. See, e.g., Smith v. White, 815 F.2d 1401,


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1403, 1404 (11th Cir. 1987) (holding that a rational jury could have found the

evidence sufficient to prove robbery and assault with intent to murder beyond a

reasonable doubt). Here, on the other hand, we are reviewing not a direct criminal

prosecution but a probation revocation. Indeed, the Supreme Court has indicated

the standard applicable to probation-revocation cases is different from that in

Jackson. In Douglas v. Buder, 412 U.S. 430, 93 S. Ct. 2199 (1973), the Supreme

Court addressed the constitutionality of the revocation of a petitioner’s probation

for his failure to immediately report a traffic citation where the terms of

petitioner’s probation required him to report all “arrests.” The Court determined

the state court’s decision that petitioner had violated his probation “was so totally

devoid of evidentiary support as to be invalid under the Due Process Clause of the

Fourteenth Amendment.” Id. at 432, 93 S. Ct. at 2200. The Supreme Court has

since applied that standard in affirming the revocation of an incarcerated

petitioner’s good-time credits. See Superintendent, Mass. Corr. Inst., Walpole v.

Hill, 472 U.S. 445, 455–56, 105 S. Ct. 2768, 2774 (1985) (noting that the Court

had previously recognized “a governmental decision resulting in the loss of an

important liberty interest violates due process if the decision is not supported by

any evidence” (citing Douglas, 412 U.S. at 432, 93 S. Ct. at 2200)).




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      We conclude the standard set forth in Jackson is not applicable to this case.

Instead, the appropriate standard is set forth in Douglas, i.e., whether “the finding

that [Newmones] had violated the conditions of his probation . . . was so totally

devoid of evidentiary support as to be invalid under the Due Process Clause of the

Fourteenth Amendment.” 412 U.S. at 432, 93 S. Ct. at 2200. Although

Newmones only challenges the district court’s application of Jackson, this Court

liberally construes pro se petitions, such that we construe his claim to refer to

Douglas and address it on the merits. See Dupree, 715 F.3d at 1299.

      We conclude there was sufficient evidence to find that Newmones had

violated his probation by committing second-degree murder, such that the state

trial court’s decision was not contrary to, nor an unreasonable application of,

Douglas’s totally-devoid of evidence standard. See 28 U.S.C. § 2254(d)(2).

Further, the state court’s determination of the facts was not unreasonable. Id.

§ 2254(d)(1). Although Jones’s testimony was hostile toward Newmones’s

attorney, inconsistent both with his prior statements and other testimony that he

provided at trial, and often unclear, it was not “so inherently incredible, so contrary

to the teachings of human experience, so completely at odds with ordinary

common sense, that no reasonable person would believe it beyond a reasonable

doubt.” Wilcox v. Ford, 813 F.2d 1140, 1146 (11th Cir. 1987) (internal quotation


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marks omitted). Jones consistently stated that Newmones had approached his

home, asked where Browning was, and confronted Browning about money,

immediately before Jones heard gunshots. Further, numerous witnesses testified

that Jones had identified Newmones as the shooter consistently since the date of

Browning’s death. Because Jones consistently testified as to these facts, his

testimony was consistent enough for us to conclude it was not incredible as a

matter of law.

      Giving credence to Jones’s testimony, we conclude there was evidence to

support the state court’s finding by a preponderance of the evidence that

Newmones had violated his probation by committing second-degree murder.

Jones’s testimony connected Newmones to Browning’s death. Although Jones’s

testimony was the only evidence linking Newmones to Browning’s death, Jones’s

testimony was not contradicted, and he never wavered in his statements that

Newmones shot Browning.

      We conclude that the district court did not err by denying Newmones’s

§ 2254 petition. Jones’s testimony was not incredible as a matter of law, and, as

such, the state court’s determination of the facts was not unreasonable. Moreover,

under a totally devoid of evidence standard, the state court’s decision that

Newmones had violated his probation by committing second-degree murder was


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not contrary to, nor an unreasonable application of, clearly established federal law.

We decline to address Newmones’s other arguments about the procedural

requirements of the revocation hearing, because those issues are outside the scope

of the COA.

                                              V.

      For the foregoing reasons, we affirm the judgment of the district court

denying habeas relief.

      AFFIRMED.




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