Case: 13-10850   Date Filed: 07/24/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10850
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:12-cv-60728-KMW



JORDY FOSTER,

                                                          Petitioner-Appellant,

                                  versus

DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

                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. ___, 

, 

(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, 

, 1304 (11th Cir. 1998). A
claim of ineffective assistance of counsel presents a mixed question of law and fact that we
review de novo. 

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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, 

(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, 

, 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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, 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. 

, 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 

(“[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, 

, 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., 

, 1340-41
(11th Cir. 2007).


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