Menard v. Florida Attorney General (Collier County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JAMES MATTHEW MENARD,

Petitioner,

v. Case No: 2:16-cv-854-FtM-29NPM

FLORIDA ATTORNEY GENERAL and

SECRETARY, DOC,

Respondents.

OPINION AND ORDER

Petitioner James Matthew Menard (petitioner or Menard),

represented by counsel, filed a 28 U.S.C. § 2254 Petition for

Habeas Corpus on November 30, 2016. Doc. #1, Petition. Menard, a

Florida prisoner, challenges his convictions and sentences for

aggravated battery with a deadly weapon, trespass of property, and

third degree felony murder entered by the Twentieth Judicial

Circuit Court in and for Collier County in Case No. 10-000045-CF.

Id. at 1. The Petition raises seven grounds for relief. Id. at

5-14. Menard filed a Memorandum of Law (Doc. #4, Memorandum) and

exhibits (Docs. 6-9) to support his Petition. In his Memorandum,

Menard requests to withdraw Grounds Five and Seven of the Petition.

Doc. #4 at 36. The Court construes the Memorandum as incorporating

a motion to voluntary dismiss Grounds Five and Seven, which will

be granted.

Respondent filed a Response to the Petition on August 14,

2017. Doc. #16, Response. Respondent also filed exhibits,

including the pretrial motion to dismiss, the stand your ground

hearing transcript, and the trial transcript. Doc. #18. Although

afforded the opportunity (Doc. #20), Menard elected not to file a

reply.

I. Timeliness and Evidentiary Hearing

Respondent concedes the Petition is timely filed. Doc. #16

at 7. The Court agrees.

Menard asks for an evidentiary hearing as to some of the

grounds he raises. A federal court “must limit its review under

§ 2254(d) to the state court’s record.” Brannon v. Sec'y, Fla.

Dep't of Corr., No. 19-13757, 2020 WL 2188675, at *5 (11th Cir.

May 6, 2020)(finding district court erred in granting evidentiary

hearing and considering evidence not before the state court).

“An evidentiary hearing is unnecessary unless it would “enable [a

postconviction petitioner] to prove the petition’s factual

allegations, which, if true, would entitle [him] to federal habeas

relief.” Samuels v. Sec'y, Dep't of Corr., No. 19-13445, 2020 WL

2097260, at *1 (11th Cir. May 1, 2020)(quoting Crowe v. Hall, 490

F.3d 840, 847 (11th Cir. 2007)). “[T]he burden is on the petitioner

to establish the need for an evidentiary hearing.” Jones v. Sec’y,

Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016)(citations

omitted), cert. denied, __ U.S. __, 137 S. Ct. 2245 (2017).

Conclusory allegations will not suffice. Instead, petitioner must

proffer specific facts and evidence, which if true, would prove an

entitlement to relief. Id. at 1319.

Menard has set forth no specific facts or evidence which

warrant an evidentiary hearing. The Court finds an evidentiary

hearing is not warranted because the material facts are developed

in the record. Schriro v. Landrigan, 550 U.S. 465, 474 (2007)(if

the record refutes the factual allegations in the petition or

otherwise precludes habeas relief, a district court need not hold

an evidentiary hearing); see also Jones, 834 F.3d at 1318-19.

Menard has not demonstrated he is entitled to an evidentiary

hearing, 28 U.S.C. § 2254(e)(2), and therefore his request for an

evidentiary hearing is denied.

II. Factual and Procedural Background

The State of Florida charged Menard with six felony offenses:

(1) second degree murder with a firearm of Jake Couture, (2)

attempted second degree murder for discharging a firearm and

causing great bodily injury to Michael Fleitas, (3) attempted

second degree murder for discharging a firearm and causing great

bodily harm to Brandon Standifer, (4) armed trespass of the

Brittany Bay apartment complex, (5) armed trespass of the property

of Brandon Morales or Dallas Hubbard, and (6) third degree felony

murder of Jake Couture occurring due to armed trespass. (Ex. 1:95-

97,1 Third Amended Information).

Trial Court Proceedings

Menard filed a pretrial motion to dismiss the charges under

Florida Statute section 776.013,2 asserting he was immune from

criminal prosecution because his use of deadly force was justified.

(Ex. 1:49-50). The state court held an evidentiary hearing on the

motion. (Ex. 2, Hearing Transcript). Menard did not testify at

the hearing. The Court accepts the summary of the evidence adduced

at the hearing as set forth in Menard’s initial brief on direct

appeal, in which the State concurred. (Ex. 5)3.

Facts and Evidence Adduced at Hearing

At the hearing, Carlos Nazco testified that Mr. Menard

had been living with his family for about two to three

months. According to Mr. Nazco, on the night in question,

he and Mr. Menard had plans to visit Mr. Nazco’s sister,

Nattie Montes, who lived in the Brittany Bay Apartment

complex. Mr. Nazco testified that he and Mr. Menard

often stopped by her apartment without calling in

advance. Mr. Nazco further testified that Ms. Montes

had no problem with their custom and that they had

visited her in this manner on four or five occasions

prior to the night in question. Mr. Nazco attempted to

call Ms. Montes prior to departing, but she did not

answer the phone. Nevertheless, in keeping with their

custom, Mr. Menard and M. Nazco proceeded to Brittany

Bay apartments to visit her. Two other individuals,

Philip Markle and Jacob Markham, accompanied them on

1 The Court will refer to paper exhibits filed by Respondent

on August 18, 2017 (Doc. #18) as “Ex _.”

2 This statute is commonly known as “Stand Your Ground.”

3 The Court omits the internal citations to the hearing

transcript and footnotes.

this trip. The Brittany Bay Apartment complex has a

gate around its perimeter. Rather than attempting to

use the keypad to call a resident to gain access, Mr.

Menard entered the complex through the exit gate, which

opened after another vehicle departed the complex.

Mr. Nazco testified that on the way to Ms. Montes’s

apartment the group decided to stop at another Brittany

Bay apartment. Mr. Menard parked in front of one of the

apartment buildings whereupon the passengers, with the

exception of Mr. Nazco, exited the vehicle. There is

some disagreement about what happened next. According to

one witness, Korenzo Smith, a group of males, including

Mr. Menard, knocked on the apartment door of Brandon

Morales. A neighbor, Dallas Hubbard, testified that

Menard and another “little boy” approached “one of my

friends and said do you know who Brandon Morales is.”

However, according to Mr. Nazco, Mr. Menard, Mr. Markham

and Mr. Markle did not approach anyone or knock on any

apartment doors but simply stood in front of Mr. Menard’s

truck talking.

At some point after their arrival, a white Mercedes

pulled into the parking lot carrying Brandon Standifer,

Brandon Morales, Jake Couture, and Michael Fleitas. Mr.

Nazco stated that the people who exited the Mercedes

began arguing with Mr. Menard after they got out of the

car, “screaming stuff back and forth.” Mr. Nazco

testified that during the argument a “short dark-skinned

guy,” who was later identified as Brandon Standifer, was

“screaming go get the fire, fire” to one of his cohorts.

According to Mr. Nazco, “some tall kid with a big Afro,

I guess he went to go get it and he came out with a gun

or whatever” and was then “standing on the sidewalk”

less than ten feet from Mr. Menard. The individual with

an Afro was later identified as Brandon Morales. Mr.

Nazco described the gun as “an Uzi-type thing” that was

“[a]ll black.” Another witness, Dallas Hubbard, who

lived next door to Morales, corroborated Mr. Nazco’s

testimony regarding the gun held by Mr. Morales, stating

that it “looked like an Uzi or something like that.”

The evidence ultimately revealed that the item was not

a gun at all but was a replica of an Uzi that shot BB

pellets. However, unlike other toy guns, which have an

orange or red tip to allow for identification as toys,

this replica Uzi had its safety markings removed. When

asked what Morales was doing with the replica Uzi,

Hubbard stated that he was “trying to act like a bad-

ass. . . .”

All of the witnesses testified that a physical

altercation ensued between Mr. Standifer and Mr. Menard,

with Mr. Standifer acting as the aggressor. Mr. Nazco

testified that after the individuals were “screaming

stuff back and forth.” He further testified that Mr.

Standifer took off his shirt and then pushed Mr. Menard.

Ms. Hubbard likewise testified that Mr. Standifer was

“very aggressive” toward Mr. Menard and “pushed him to

where he almost fell.” Another witness, Joleen

Pelletier, who observed the events from her window, also

confirmed that the white male, Mr. Menard, did not lay

hands on anyone and was pushed by a black male, Mr.

Standifer, who had taken his shirt off in anticipation

of a fight. No witness testified that Menard was the

aggressor. Directly after stumbling as a result of Mr.

Standifer’s push, Mr. Menard pulled a gun from his pocket

and fired a series of shots while moving sideways toward

his pickup. One bullet hit Mr. Standifer in the chest;

another hit Mr. Fleitas in his buttocks. Both lived.

Another third bullet hit Jake Couture in the back and

killed him.

Defense counsel argued at the hearing on the motion to

dismiss that Mr. Menard was immune from prosecution

under Section 776.013 and Section 776.032 of the Florida

Statutes. Specifically, Mr. Menard claimed he had a

standing invitation to visit Ms. Montes at the Brittany

Bay apartment complex and had the legal right to stand

his ground and use deadly force in defending himself

from the threat he perceived from Mr. Standifer and

replica Uzi brandished by Mr. Morales.

The court orally denied the motion. The judge opined

that Mr. Menard did not have a “legal right to be where

he was.” The judge additionally ruled that Mr. Menard

was the aggressor because he failed to leave the

apartment complex when asked. With respect to the

threat perceived by Mr. Menard, the state trial court

stated that “the only force used against him was a push,”

which it found insufficient to “lead a reasonable person

to believe that there was imminent danger to himself or

to another.”

The judge refused to consider the replica Uzi in

determining whether Menard used force justifiable under

Florida law:

. . . the evidence wasn’t that the gun was

pointed at anybody other than that it was

present and it may have been seen by someone.

But I haven’t heard any testimony to indicate

that the defendant in this particular case was

aware of the firearm. What we have is an

individual who is in front of him, who is

shirtless, who appears to be unarmed who

pushes him and then immediately, depending on

who you listen to: miss - - Ms. Pelletier

indicated it was instantaneous; Mr. Zarco

(sic) said he pushed and he fired; Mr. Smith

said he pushed and the guy started the guy

started shooting. That was more of a reaction

than it was an indication that anybody had an

imminent fear. It was - - there was - - the

force was in excess of what was presented. .

. . Again, he was faced with an individual who

was shirtless and unarmed. The push, I don’t

think - - or I find it certainly was not one

that would place a reasonable person in

imminent fear and I therefore find that the

defendant hasn’t met its burden by a

preponderance of the evidence that the

defendant was justified under these facts in

the use of the deadly force.

(Doc. #18, Ex. 5.)

Based on the court’s oral findings (Ex. 2 at 133-137), the

state court issued a written order denying the motion to dismiss

under Florida Statute Sections 776.013 and 776.032.4 (Ex. 1:92A).

Menard proceeded to a jury trial held in January, 2012. (Ex.

3, Trial Transcript). The testimony at trial was substantially

4 Section 776.032(1) provides immunity from criminal

prosecution for persons using force permitted in section 776.012,

section 776.013, or section 776.031.

similar to that produced at the stand-your-ground hearing. The

Court accepts the summary of the additional facts as set forth in

Menard’s initial brief on direct appeal, in which the State

concurred. (Ex. 5)5.

Additional Facts and Evidence Adduced at Trial

With respect to the nature of the threat facing the

defendant, Mr. Standifer testified that he told Mr.

Menard and his friends, “Look, you got to get the F out

of here” and described the tactic of taking his shirt

off as a “bluff game” designed to “scare them to leave,

rather than staying” in the parking lot. Mr. Standifer

explained the tactic on cross-examination: “I was

bigger than I am at the time. You understand what I’m

saying? Normally, when I take off my shirt, everybody

is like, oh, he’s big. That’s scary to most people.”

Regarding the threat posed by the replica Uzi, Ms.

Hubbard testified that when she saw it on the night in

question and she believed it was a real gun. She also

confirmed that the replica had an Uzi-like clip that

protruded from the bottom of the gun. In addition, she

testified that Mr. Morales “was waving [the replica Uzi]

back and forth to where [she] could see it.” Ms. Hubbard

further testified that Mr. Morales “always acts like a

bad ass” and that he behaved in conformity with this

trait on the night in question.

Mr. Morales testified that he went to his closet to get

the replica Uzi, came back outside, and held the replica

Uzi by his side during the encounter “for protection.”

In addition, when asked whether he intended that others

viewing the replica to perceive it as a real firearm,

Mr. Morales answered in the affirmative. Mr. Morales

also confirmed that the replica Uzi has a clip that

stores BB pellets and stock apparatus that folded

outward to allow the replica to be positioned and shot

from the shoulder.

5 The Court omits the internal citations to the trial

transcript and footnotes.

On the issue of the legality of Mr. Menard’s presence in

Brittany bay, the State introduced evidence that

Brittany bay Apartment complex is broken up into three

separate divisions, each with a separate access road and

a separate entry gate. An individual can walk from one

section to another. The apartment complex is owned and

maintained by one corporation and the entirety of the

complex is enclosed by a single fence around the

perimeter of the property.

When asked why they did not proceed directly to the

apartment of Ms. Montes, both Mr. Nazco and Mr. Menard

explained that they planned on visiting her but the other

two passengers, Mr. Markle and Mr. Markham, suggested

that they visit the residents in the section where the

incident occurred prior to doing so. Mr. Menard

testified that he remained close to the truck while Mr.

Markle and Mr. Markham knocked on the door of Mr.

Morales’ apartment.

With respect to his perception of the threat he faced,

Mr. Menard testified that Mr. Standifer “rushed over”

towards him. Mr. Menard stated that he told Mr.

Standifer that he did not know him and that he did not

want problems with him. Mr. Menard testified that

Standifer then took several steps backward, took off his

shirt, and yelled “get the fire.” Though he did not

immediately understand the import of Mr. Standifer’s

command, he noticed a weapon was pulled after his friend,

Mr. Markham, “took off running across the parking lot.”

He recognized that the gun was not a handgun but was a

semiautomatic weapon. Mr. Menard stated that Mr.

Morales was “waving [the gun] around,” threatening him

with the gun, and pointing at him.

Mr. Menard testified that “it was pretty hectic.

Everybody - - people were just saying, oh, we’re going

- - somebody was saying, we’re going to kill these guys

. . . we’re going to mess these guys up.” Mr. Menard

averred that, with the weapon being pointed at him and

Mr. Standifer aggressing towards him, he was scared for

his life. He further testified that he intended to get

away, but Mr. Standifer kept moving toward him while he

recovered from being pushed and he feared Mr. Standifer

might try to pin him down. As a consequence, when he

recovered from being pushed nearly to the ground, with

Mr. Standifer still moving towards him and the gun still

pointed at him, Mr. Menard drew his weapon and opened

fire, shooting first at Mr. Standifer and then at Mr.

Morales.

(Doc. #18, Ex. 5.)

Defense counsel moved for judgment of acquittal on all counts

at the close of the State’s case and renewed the motion at the

close of all evidence. The state trial court denied these motions.

The jury returned the following verdicts:

•

Count 1: guilty of the lesser included offense of

manslaughter of Couture;

•

Count 2: guilty of the lesser offense of aggravated

battery of Fleitas;

•

Count 3: not guilty;

•

Count 4: guilty of armed trespass;

•

Count 5: not guilty; and

•

Count 6: guilty of third-degree felony murder of

Couture.

(Ex. 1:155-59). In due course the trial court struck the

manslaughter conviction in Count 1 to avoid a double jeopardy

violation in light of the conviction in Count 6. The state court

adjudicated Petitioner guilty of Counts 2, 4, and 6, and imposed

the following sentences:

•

Count 2: 30 years of imprisonment with a 25-year mandatory

minimum;

•

Count 4: 5 years of imprisonment, concurrent with Count 2;

and

•

Count 6: life imprisonment, consecutive to Count 2.

(Ex. 1:171-86; Ex. 4:88-89).

Direct Appeal

Menard timely filed a direct appeal. (Ex. 5). Represented

by counsel, Menard asserted three grounds for relief on direct

appeal:

(1) the trial court erred in denying Menard’s

motions for judgment of acquittal because the

State failed to disprove Menard acted in self-

defense;

(2) the trial court erred in denying the

motion to dismiss because Menard has a lawful

right to be in the common area of the apartment

complex and possessed reasonable belief he

faced great bodily harm; and

(3) the trial court should have granted

Menard’s motion for judgment of acquittal on

trespassing and third degree murder charges

because he had a lawful right to be in the

apartment complex.

The State filed a brief in response. (Ex. 5). The Second District

Court of Appeal per curiam affirmed Menard’s convictions and

sentences. Menard v. State, 110 So. 3d 455 (Fla. 2d DCA 2013).

(Ex. 6).

Rule 3.80 Motion

Represented by counsel, Menard filed a post-conviction motion

under Florida Rule of Criminal Procedure 3.850, raising the

following grounds:

(1) the trial court imposed an illegal

sentence when it struck the manslaughter

verdict instead of the third-degree murder

verdict,

(2) trial counsel provided ineffective

assistance by failing to argue in his motion

to dismiss that Petitioner could have immunity

under section 776.012, Florida Statutes,

(3) trial counsel provided ineffective

assistance by failing to present Menard’s

testimony at the hearing on the motion to

dismiss,

(4) trial counsel provided ineffective

assistance by failing to call Phillip Markle

and Jacob Markham to testify at the hearing on

the motion to dismiss and at trial, and

(5) trial counsel provided ineffective

assistance by failing to present prior

statements by Phillip Markle and Jacob Markham

at the hearing on the motion to dismiss and at

trial. (Ex. 7:1417-37).

Menard later filed a supplemental motion, which provided further

argument but raised no new grounds for relief. (Ex. 7:3433-55).

Menard then moved to assert an additional ground for relief:

(6) trial counsel provided ineffective

assistance by failing to request a special

jury instruction on justifiable use of deadly

force.

(Ex. 7:3456-60).

The post-conviction court summarily denied grounds 1, 2, 4,

and 5, and denied grounds 3 and 6 after an evidentiary hearing.

(Ex. 7:4858-72). The Second District Court of Appeal per curiam

affirmed the denial of Menard’s Rule 3.850 motion in Menard v.

State, 202 So. 3d 418 (Fla. 2d DCA 2016); (Ex. 9).

State Habeas Petition

Represented by counsel, Menard filed a Petition Alleging

Ineffective Assistance of Appellate Counsel with the District

Court of Appeals, asserting that on direct appeal appellate counsel

should have argued that the trial court erred by striking the

manslaughter verdict instead of the third-degree murder verdict.

(Ex. 10). The State filed a Response. (Ex. 11). The Second

District Court of Appeal summarily denied the petition. Menard v.

State, 206 So. 3d 706 (Fla. 2d DCA 2015).

III. Applicable Habeas Law

A. AEDPA General Principles

The statutory authority of federal courts to issue habeas

corpus relief for persons in state custody is set forth in 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). The AEDPA requires a state prisoner

seeking federal habeas relief to first “exhaus[t] the remedies

available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

If the state courts do not adjudicate the prisoner's federal claim

“on the merits,” a de novo standard of review applies in the

federal habeas proceeding; if the state courts do adjudicate the

claim on the merits, then the AEDPA mandates a deferential, rather

than de novo, review. Kernan v. Hinojosa, 136 S. Ct. 1603, 1604

(2016).

This deferential standard is set forth in § Section 2254(d),

which provides:

“An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim—”

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and

intentionally difficult to satisfy. Sexton v. Beaudreaux, 585 U.S.

___, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415,

419 (2014).

“Clearly established federal law” consists of the governing

legal principles in the decisions of the United States Supreme

Court when the state court issued its decision. White, 572 U.S. at

419. Habeas relief is appropriate only if the state court decision

was “contrary to, or an unreasonable application of,” that federal

law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly

established federal law if the state court either: (1) applied a

rule that contradicts the governing law set forth by Supreme Court

case law; or (2) reached a different result from the Supreme Court

when faced with materially indistinguishable facts. Ward v. Hall,

592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540

U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court

either unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson, 234 F.3d at 531 (quoting

Williams, 529 U.S. at 406.) “A state court’s determination that

a claim lacks merit precludes federal habeas relief so long as

fair-minded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

See also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,

1301 (11th Cir. 2019) (“To justify federal habeas relief, the state

court’s decision must be so lacking in justification that there

was an error . . . beyond any possibility for fairminded

disagreement.”)(internal quotation marks omitted).

When reviewing a claim under § 2254(d), any “determination of

a factual issue made by a State court shall be presumed to be

correct[,]” and the petitioner bears “the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]

state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different

conclusion in the first instance.”) (quoting Wood v. Allen, 558

U.S. 290, 293 (2010)). See also Morrow v. Warden, 886 F.3d 1138,

1146 (11th Cir. 2018) (the court must presume that the State

court’s determination of a factual issue is correct, and petitioner

must rebut presumption by clear and convincing evidence).

As discussed earlier, for the deferential § 2254(d) standard

to apply there must have been an “adjudication on the merits” in

state court. An adjudication on the merits does not require that

there be an opinion from the state court explaining the state

court's reasoning. Harrington v. Richter, 562 U.S. 86, 98 (2011).

“When a federal claim has been presented to a state court and the

state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.”

Richter, 562 U.S. at 99. “The presumption may be overcome when

there is reason to think some other explanation for the state

court's decision is more likely.” Richter, 562 U.S. at 99–100.

This presumption applies whether the state court fails to discuss

all of the claims or discusses some claims but not others. Johnson

v. Williams, 568 U.S. 289, 293, 298-301 (2013).

While such a decision is an “adjudication on the merits,” the

federal habeas court must still determine the state court's reasons

for its decision in order to apply the deferential standard. When

the relevant state-court decision on the merits is not accompanied

by its reasons,

the federal court should “look through” the

unexplained decision to the last related

state-court decision that does provide a

relevant rationale. It should then presume

that the unexplained decision adopted the same

reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on

different grounds than the lower state court's

decision, such as alternative grounds for

affirmance that were briefed or argued to the

state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal

court “looks through” the silent state court decision “for a

specific and narrow purpose—to identify the grounds for the higher

court's decision, as AEDPA directs us to do.” Id. 138 S. Ct. at

1196.

When, as here, there is no reasoned state-

court decision on the merits, the federal

court “must determine what arguments or

theories ... could have supported the state

court's decision; and then it must ask whether

it is possible fairminded jurists could

disagree that those arguments or theories are

inconsistent with the holding in a prior

decision of this Court.” Harrington v.

Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 178

L. Ed. 2d 624 (2011). If such disagreement is

possible, then the petitioner's claim must be

denied. Ibid.

Sexton, 138 S. Ct. at 2558.

B. Exhaustion and Procedural Default

The AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of relief under state law. Exhaustion of

state remedies requires that the state prisoner “fairly presen[t]

federal claims to the state courts in order to give the State the

opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365

(1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). See

also Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th

Cir. 2012)(failure to exhaust occurs “when a petitioner has not

fairly presented every issue raised in his federal petition to the

state’s highest court, either on direct appeal or on collateral

review.”). The petitioner must apprise the state court of the

federal constitutional issue, not just the underlying facts of the

claim or a similar state law claim. Snowden v. Singletary, 135

F.3d 732 (11th Cir. 1998).

In addition, a federal habeas court is precluded from

considering claims which are not exhausted and would clearly be

barred if returned to state court. Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991) (if a petitioner has failed to exhaust state

remedies and the state court to which the petitioner would have to

present his claims to meet the exhaustion requirement would now

find the claims procedurally barred, there is a procedural default

for federal habeas purposes regardless of the decision of the last

state court to which the petitioner actually presented his claims).

Finally, a federal court must dismiss those claims or portions

of claims denied on adequate and independent procedural grounds

under state law. Coleman, 501 U.S. at 750. If a petitioner

attempts to raise a claim in a manner not permitted by state

procedural rules, he is barred from pursuing the same claim in

federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.

1994).

A petitioner can avoid the application of procedural default

by establishing objective cause for failing to properly raise the

claim in state court and actual prejudice from the alleged

constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609

F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner

“must demonstrate that some objective factor external to the

defense impeded the effort to raise the claim properly in state

court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);

Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a

petitioner must demonstrate there is a reasonable probability the

outcome of the proceeding would have been different. Crawford v.

Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).

A second exception, known as the fundamental miscarriage of

justice, only occurs in an extraordinary case, where a

“constitutional violation has probably resulted in the conviction

of one who is actually innocent[.]” Murray v. Carrier, 477 U.S.

478, 479-80 (1986). Actual innocence means factual innocence, not

legal insufficiency. Bousley v. United States, 523 U.S. 614, 623

(1998). To meet this standard, a petitioner must “show that it

is more likely than not that no reasonable juror would have

convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.

298, 327 (1995). “To be credible, a claim of actual innocence

must be based on [new] reliable evidence not presented at trial.”

Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,

513 U.S. at 324).

C. Ineffective Assistance of Trial and Appellate Counsel

In Strickland v. Washington, the Supreme Court established a

two-part test for determining whether a convicted person may have

relief claiming his counsel rendered ineffective assistance. 466

U.S. 668, 687-88 (1984). A petitioner must establish that

counsel’s performance was deficient and fell below an objective

standard of reasonableness and that the deficient performance

prejudiced the defense. Id. This is a “doubly deferential”

standard of review that gives both the state court and the

petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct.

at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).

The Strickland standard applies to claims of ineffective

assistance of appellate counsel. Corales-Carranza v. Sec’y, Fla.

Dep’t of Corr., 786 F. App’x 053, 957 (11th Cir. 2019); Smith v.

Robbins, 528 U.S. 259, 285 (2000). Appellate counsel need not

raise every nonfrivolous claim on appeal. See Jones v. Barnes, 463

U.S. 745 (1983); see also Eagle v. Linahan, 279 F.3d 926, 940 (11th

Cir. 2001)(“[T]he Sixth Amendment does not require appellate

attorneys to press every non-frivolous issue that the client

requests to be raised on appeal, provided that counsel uses

professional judgment in deciding not to raise those issues.”

(citations omitted)). The Jones Court underscored the importance

of sorting out weaker arguments for stronger ones.

Most cases present only one, two, or three significant

questions . . . . Usually, . . . if you cannot win on a

few major points, the others are not likely to help, and

to attempt to deal with a great many in the limited

number of pages allowed for briefs will mean that none

may receive adequate attention. The effect of adding

weaker arguments will be to dilute the force of the

stronger ones.

Jones v. Barnes, 463 U.S. at 752 (citations omitted).

The Court recognized it is possible to bring a Strickland

claim based on appellate counsel's failure to raise a particular

claim, but demonstrating incompetence is difficult. Robbins, 528

U.S. at 288. “‘Generally, only when ignored issues are clearly

stronger than those presented, will the presumption of effective

assistance of counsel be overcome.’” Id. (citation omitted). To

demonstrate prejudice, the petitioner must demonstrate a

reasonable probability that, but for his counsel's failure to brief

the particular issue, petitioner would have prevailed on the issue

on appeal. Id. at 285. If petitioner demonstrates that the omitted

claim would have had a reasonable probability of success on appeal,

then appellate counsel's performance resulted in prejudice. Heath

v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991).

IV. Analysis

A. Ground One: Illegal sentence when trial court

vacated the manslaughter verdict instead of the third-

degree murder verdict.

Menard claims the trial court imposed an illegal sentence

when it vacated the jury’s manslaughter verdict instead of vacating

the third-degree murder verdict. Doc. #1 at 5. Respondent seeks

dismissal of this ground as procedurally barred. Doc. #16 at 13-

14.

(1) Procedural Bar

Respondent correctly points out that Menard did not raise

this claim on direct appeal in state court. See Ex. 5. Instead,

Menard raised a similar claim as ground one in his Rule 3.850

motion, in which he complained the state court improperly

determined which verdict to vacate under Florida law, citing to

and arguing only Florida caselaw. (Ex. 7 at 1428-29.) The post-

conviction court found this claim was not cognizable in a Rule

3.850 proceeding, citing to Watts v. State, 82 So. 3d 1215, 1216

n. 1 (Fla. 2d DCA 2012) and Johnson v. State,539 So. 2d 206 (Fla.

1992). (Ex. 7:4535-36). The post-conviction court further held

“a Rule 3.850 motion cannot be used to provide a second appeal or

an alternative to a direct appeal.” (Id. citing Straight v. State,

488 So. 530 (Fla. 1986)). The Florida appellate court per curiam

affirmed the denial of the Rule 3.850 motion.

Federal review of a habeas petitioner’s claim is barred if

the last state court to examine the claim states explicitly that

the claim is barred because the petitioner failed to follow state

procedural rules, and that procedural bar provides an adequate and

independent state ground for denying relief.

A state court’s procedural ruling constitutes

an independent and adequate ground if: (1) the

last state court to render a judgment in the

case clearly and expressly states that it is

relying on state procedural rules to resolve

the federal claim without reaching the merits

of the claim; (2) the state court’s decision

rests solidly on state law grounds and is not

intertwined with an interpretation of federal

law; and (3) the state procedural rule is

adequate, meaning it was not applied

arbitrarily or in an unprecedented way.

Smith v. Warden, Macon State Prison, No. 18-13801, 2020 WL 615034,

at *6 (11th Cir. Feb. 10, 2020); see also Caniff v. Moore, 269

F.3d 1245, 1247 (11th Cir. 2001)(“[C]laims that have been held to

be procedurally defaulted under state law cannot be addresses by

federal courts.”).

Here, the state court rejected Menard’s claim because he had

failed to assert it on direct appeal and had improperly sought

review in a collateral Rule 3.850 motion. This ruling was not

intermixed with the merits of the claim, and Menard does not submit

the state court’s ruling was arbitrary. Nor does Menard allege,

yet alone show, cause and prejudice or a fundamental miscarriage

of justice to overcome the procedural default. Coleman v. Thompson,

501 U.S. at 750; Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus,

the record establishes that Ground One is unexhausted and

procedurally barred.

(2) Double Jeopardy

In his Reply, Menard contends that the claim is not one of

trial court error but is premised on the double jeopardy provision

of the Fifth Amendment. See Ex. 7 at 4522, ¶ 1. This is not the

way the issue was presented in state court, since a double jeopardy

claim may be raised for the first time in a Rule 3.850 motion.

Gammage v. State, 277 So. 3d 735, 738-39 (Fla. 2d DCA 2019). Even

if phrased in terms of a violation of the double jeopardy clause,

however, petitioner has shown no constitutional error.

“The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall be ‘subject for the same offence to be twice

put in jeopardy of life or limb.’” Jones v. Thomas, 491 U.S. 376,

380 (1989) (quoting U.S. Const., amend. V). In addition, the Double

Jeopardy Clause guarantees against “multiple punishments for the

same offense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th

Cir. 2009). In the context of multiple punishments, the purpose

of double jeopardy is simply to ensure that the total punishment

does not exceed that authorized by the legislature. Jones v.

Thomas, 491 U.S. 376, 381 (1989)); Missouri v. Hunter, 459 U.S.

359, 366 (1983) (“[T]he Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment

than the legislature intended.”).

Here, Florida law is clear that there cannot be multiple

punishments for the killing of a single person. Houser v. State,

474 So. 2d 1193, 1197 (Fla. 1985)(“Florida courts have repeatedly

recognized that the legislature did not intend to punish a single

homicide under two different statutes.”) Thus, the trial court

clearly had to vacate one of the jury verdicts. Florida law is

also clear that vacating the verdict of the lesser is proper and

does not violate double jeopardy.

Under the Fifth Amendment, where double jeopardy prohibits

multiple punishment, “the only remedy consistent with the

congressional intent is for the District Court, where the

sentencing responsibility resides, to exercise its discretion to

vacate one of the underlying convictions.” Ball v. United States,

470 U.S. 856, 864 (1985). Thus, under the Fifth Amendment the

trial court has the discretionary authority to sentence a defendant

on either count, regardless of which is a lesser offense. Given

the jury’s verdict, there was no violation of Fifth Amendment

double jeopardy by imposing sentence on the third-degree murder

conviction and vacating the manslaughter verdict. In the

alternative, Ground One is denied as without merit.

B. Ground Two: Ineffective assistance of appellate

counsel for failing to argue the trial court erred by

vacating the manslaughter instead of the third-degree

murder conviction.

Menard claims appellate counsel was constitutionally

ineffective when he failed to assert on direct appeal that the

trial court erred by vacating the manslaughter verdict instead of

the third-degree murder verdict. Doc. #1 at 7. Menard argues that

appellate counsel failed to raise this issue on direct appeal

despite “this critical issue being flagged by the state trial court

for appeal.” Doc. #4 at 25. Menard submits that had this issue

been raised on direct appeal, he would have prevailed and his

conviction for third degree murder would have been vacated and he

would have been convicted of manslaughter. Id. Because Menard was

sentenced to life on the third degree murder conviction and a

conviction for manslaughter carries a maximum sentence of 30 years,

Menard claims he suffered prejudice due to appellate counsel’s

deficiency. Id.

Menard raised this same ground in his state habeas petition.

(Ex. 10). The State filed a response. (Ex. 11). The Second

District Court of Appeal denied the petition without opinion. (Ex.

12).

Respondent first argues this ground is procedurally barred

because Menard did not “invoke federal constitutional rights while

asserting this claim.” Doc. #16 at 15. The Court disagrees.

Menard raised an ineffective assistance of appellate counsel claim

to the Second District Court of Appeal citing to Strickland as the

governing law. (Ex. 10 at 6). Thus, Menard did invoke a federal

constitutional right. The Court finds that this ground is not

procedurally barred, and so turns to the merits of the claim.

Both Menard’s state petition (Ex. 10) and the State’s response

(Ex. 11) argued the application of Florida law when dual

convictions violate double jeopardy. Both pleadings agreed that

Florida law requires the lesser offense to be stricken. State v.

Barton, 523 So. 2d 152, 153 (Fla. 1988). (See Ex. 10 at 7, Ex. 11

at 3). Both acknowledged under Florida law the lesser offense is

determined by the elements of each offense. Pizzo v. State, 945

So. 2d 1203, 1206 (Fla. 2006). (See Ex. 10 at 8, Ex. 11 at 3).

At the time of Menard’s conviction, manslaughter was defined

as “[t]he killing of a human being by the act, procurement, or

culpable negligence of another, without lawful justification.” §

782.07, Fla. Stat. (2010). The elements of manslaughter are (1)

death of the victim and (2) causation of the victim’s death by the

defendant through and intentional act, intentional procurement of

an act, or culpable negligence. Fla. Std. Jury Instr. (Crim.) 7.7.

Third degree felony murder is defined as “[t]he unlawful killing

of human being, when perpetrated without any design to affect

death, by a person engaged in the perpetration of, or in the

attempt to perpetrate, an [unspecified felony].” § 782.04(4), Fla.

Stat. (2010). The elements of third degree felony murder are (1)

death of the victim and (2) causation of the victim’s death or

accomplice during the commission, attempted commission, or escape

from a commission or attempted commission of a felony, and (3)

killing of the victim by the defendant or an accomplice. Fla. Std.

Jury Instr. (Crim.) 7.7.

The State in its response pointed out the elements of the

manslaughter offense were subsumed within the third degree murder

offense. Unlike the manslaughter offense, third degree murder

required the additional element of the commission of a felony.

Upon review of the parties’ respective pleadings, the Second

District Court of Appeal denied Menard’s petition. The appellate

court’s silent denial constitutes an “adjudication” for § 2254.

Harrington, 562 U.S. 98-99. Thus, the decision is entitled to

deference under § 2254(d) because “the summary nature of a state

court’s decision does not lessen the deference that is due.”

Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002); see also

Richter, 562 U.S. at 99. The appellate court’s interpretation of

Florida law binds this Court. Mullaney v. Wilbur, 421 U.S. 684,

691 (1975)(holding “state courts are the ultimate expositors of

state law.”).

Menard has not demonstrated that the state court’s rejection

of this ground was contrary to clearly established federal law nor

based upon an unreasonable determination of the facts. Ground Two

is denied. 28 U.S.C. § 2254(d).

C. Ground Three: Ineffective assistance of counsel for

failing to argue Menard was entitled to immunity under

Florida Statute Section 776.012(1).

Menard claims trial counsel was ineffective because, while he

pled immunity under Fla. Stat. § 776.013(3), he failed to also

assert immunity under Fla. Stat. § 776.012(1). Doc. #1 at 8.

Menard argues because his alleged trespassing would not have

precluded him for being granted immunity under § 776.012(1), trial

counsel was ineffective in failing to assert this alternative

theory of immunity. Id.

Respondent argues this ground is without merit and refuted by

the record. Doc. #16 at 20-21. Respondent asserts trial counsel

did advance an argument under both § 776.013 and § 776.012, and

the trial court considered and rejected both arguments. Id.

Menard raised this ground as ground two in his Rule 3.850

motion. (Ex. 7 at 3447-48). The post-conviction court summarily

denied this claim, stating:

In Ground Two Defendant asserts that trial counsel was

ineffective “when he failed to argue to the trial Court

that Mr. Menard was entitled to immunity under Florida

Statute 776.012(1).” Defendant further assets that “had

trial counsel pursued the alternative theory of immunity

available under section 776.012(1), Mr. Menard’s alleged

trespassing would not have precluded the trail court

from granting immunity.”

Initially, a review of the record reveals that during

the hearing on Defendant’s Motion to Dismiss, trial

counsel did specifically cite § 776.012(1) both in his

opening statement to the Court, and his closing argument

to the Court. (Def. Mot. Dismiss. 6, 113-18).

Furthermore, a review of the record reveals that after

the Court determined that immunity under § 776.013 did

not apply because the Defendant was trespassing, it went

on to consider whether the Defendant was entitled to

immunity under § 776.012 regardless of trespassing.

(Def. Mot. To Dismiss. 135). Despite trial counsel’s

efforts to urge the Court to grant immunity under §

776.012(1) and § 776.013, the Court ultimately found

that the Defendant was not entitled to immunity because

of § 776.041, Florida Statutes. (Def. Mot. To Dismiss.

135). Specifically, the Court found that Defendant was

the party who initially provoked the sue of force under

§§ 776.012(1), 776.013, 776.013, or 776.032. See §

776.041, Florida Statutes, see also Darling v. State, 81

So. 3d 574 (Fla. 3d DCA 2012)(“justification for using

deadly force in self defense, which includes the ‘stand

your ground’ defense, does not apply to a person who

provokes the attack.”)(citing § 776.041(2), Florida

Statutes)).

Therefore, the Court finds that Defendant’s claim is

refuted by the record because trial counsel specifically

argued § 776.012(1) as a basis for immunity in this case.

(Def. Mot. Dismiss, 6, 113-18). Furthermore, the Court

finds that Defendant’s claim is meritless as the Court’s

reliance on § 776.041 in denying the Defendant’s Motion

to Dismiss precluded any finding of immunity under the

statute. Accordingly, ground Two is denied.

(Ex. 7 at 4868-69, ¶¶ 5-8).

Menard argues that the state court’s ruling is unreasonable

under Strickland and based on an unreasonable determination of the

facts, given the evidence. Doc. #4 at 32. Menard suggests that

counsel “never argued” but only made “two insignificant

references” to § 776.012. Id. Menard also argues that the Court

should review this ground de novo because the state court “never

adjudicated the claim on the merits” or afforded Menard an

evidentiary hearing on this ground. Id.

Menard’s request for de novo review is unavailing. Florida’s

Second District Court of Appeal affirmed the post-conviction

court’s rejection of ground two. (Ex. 9). The silent affirmance

of the post-conviction court’s ruling is entitled to deference.

As discussed earlier, under a § 2254(d)(2) inquiry, the federal

court “looks through” the Florida appellate court’s per curiam

summary denial and evaluates the state postconviction court’s

reasoned decision denying Petitioner relief. Wilson v. Sellers, __

U.S. __, 138 S. Ct. 1188, 1192 (2018). The Court then presumes

the unexplained affirmance adopted the same reasoning. Id.

Here the state court found the record refuted Menard’s claim.

A state court’s findings of fact are presumed correct unless

petitioner rebuts them by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). “The Supreme Court has found state factual

findings unreasonable under § 2254(d)(2) when the direction of the

evidence, viewed cumulatively, was ‘too powerful to conclude

anything but [the petitioner's factual claim].’” Landers v.

Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1293–94 (11th Cir. 2015)

(citing Miller–El v. Dretke (Miller–El II), 545 U.S. 231, 265

(2005)). When a finding of fact is challenged on federal habeas,

the standard of review is doubly deferential: “[t]he ‘unreasonable

application’ inquiry requires the state court decision to be more

than incorrect or erroneous; it must be objectively unreasonable.”

Chandler v. Crosby, 454 F. Supp. 2d 1137, 1146 (M.D. Fla. 2006)

(citing Lockyer v. Andrade, 538 U.S. 63, 75–77 (2003)). But

“deference does not imply abandonment or abdication of judicial

review” and “does not by definition preclude relief.” Brumfiled

v. Cain, __ U.S. __, 135 S. Ct. 2269, 2277 (2015) (quoting Miller-

El v. Cockrell, 537 U.S. 322, 340 (2003)).

The Court finds the record supports the state court’s finding

that trial counsel advanced an argument that Menard could have

immunity under § 776.012(1) and the trial court considered but

rejected the argument. Although the motion to dismiss did not

refer to § 776.012(1) (see Ex. 1 at 49-50), the transcript from

the hearing clearly reflects trial counsel asserted immunity under

both § 776.013(1) and § 776.012(1) at the hearing. (Ex. 2). After

the State provided the court with a copy of § 776.013 at the

inception of the hearing, defense counsel submitted copies of §

776.012(1) and § 776.032 to the court. (Id. at 203). Trial counsel

further repeatedly argued throughout the hearing that Menard was

justified to use deadly force because he reasonably believed such

force was necessary to prevent his imminent death or great bodily

harm. (See generally Ex. 2). During his summation argument,

defense counsel again specifically directed the court to § 776.012

and argued Menard “had a right to deploy deadly force because Mr.

Standifer was physically attacking him while Mr. Morales had an

Uzi pointed at him.” (Id. at 318).

Denying the motion, the court first pointed out the evidence

suggested Menard did not have a legal right to be at the Brittany

Bay Apartments. (Id. at 332). The court then considered whether

Menard was justified to use reasonable force to protect himself

believing he was imminent harm or great bodily injury. Finding

the only force used against Menard “was a push,” the court

determined the evidence was “insufficient” to “lead a reasonable

person to believe that there was imminent danger to himself or

another.” (Id.). Further, the court determined Menard was not

entitled to immunity because he was aggressor. (Id.).

This ground fails under both prongs of Strickland. Menard

cannot demonstrate ineffective assistance of counsel because the

record refutes Menard’s claim that trial counsel did not argue

immunity based on § 776.012. And, Menard cannot demonstrate

prejudice because the trial court specifically found Menard the

aggressor, so he is not be entitled to immunity under § 776.012.

Menard has not demonstrated that state court's adjudication of

this claim was contrary to clearly established federal law nor

based upon an unreasonable determination of the facts. Ground

Three is denied. 28 U.S.C. § 2254(d).

D. Ground Four: Ineffective assistance of counsel for

advising Menard not to testify at the Stand Your

Ground hearing.

Menard states he was willing and able to testify at the

pretrial hearing held on his motion to dismiss but counsel advised

him that his testimony was unnecessary. Doc. #1 at 10. Menard

claim that, contrary to counsel’s advice, his testimony was

essential to establish he reasonably believed his use of force was

necessary to prevent imminent death or great bodily harm to himself

and suggests the outcome of the hearing would have been different

had he testified. Id.

Menard raised this ground as ground three in his Rule 3.850

motion. (Ex. 7 at 3449-50). The post-conviction court granted

Menard an evidentiary hearing on this ground. (Ex. 7 at 4537).

At the evidentiary hearing, defense counsel testified that he

never told Menard it was “unnecessary for him to testify.” Counsel

stated that for strategic reasons he advised Menard not to testify

at the motion to dismiss and Menard followed his advice. Defense

counsel provided this advice because (1) he believed Menard’s

reasonable belief of fear could be established through the

testimony of other witnesses, (2) testimony regarding unlawful

activity that occurred before the shooting would have prevented

him from getting immunity, (3) testimony regarding Menard being

the provoker would have prevented him from getting immunity, and

(4) Menard, by testifying, would subject himself to being

impeached. Counsel also stated that the defense strategy may

change between the hearing and trial, and he was concerned Menard’s

testimony at the hearing could undermine his anticipated

testimony. Menard did eventually testify at trial. Counsel

believed he could adequately prove the elements to show Menard was

justified in using deadly force through the three witnesses he

called at the hearing. In hindsight he admitted he questioned his

strategy, but at the time he believed it was the correct strategy.

Menard did not insist on testifying, and if Menard told counsel he

wanted to testify, counsel would have let him.

Menard testified at the post-trial hearing that he wanted to

testify at the motion hearing but followed counsel’s advice not to

testify. Menard claims counsel told him “it wasn’t necessary” for

him testify, and asserts he argued with counsel about testifying.

The post-conviction court denied this ground in a detailed

opinion:

In Ground Three Defendant asserts that trial counsel

“provided ineffective assistance of counsel when he

advised Mr. Menard that it was not necessary for him to

testify at the stand your ground hearing.” Defendant

further argues that “Mr. Menard’s testimony was

essential to establish that he reasonably believed that

his use of force was necessary to prevent imminent death

or great bodily harm to himself,” and that “had Mr.

Menard not been advised that his testimony was

unnecessary at the stand your ground hearing, he would

have testified, as he did at trial.”

At the evidentiary hearing, Defendant testified that he

wanted to testify at the stand your ground hearing, but

he was advised by trial counsel that his testimony was

not necessary. Defendant stated that trial counsel

advised him the three witnesses he presented at the

hearing were sufficient. Defendant also testified that

trial counsel was concerned with the upcoming trial, and

was not very confident in the success of the motion.

Defendant provided the testimony he would have given if

he had testified at the stand your ground hearing. The

testimony outlined his perception of the vents which

took place on January 1, 2010.

On cross examination, Defendant was asked why his

testimony differed at the evidentiary hearing compared

to trial. Specifically, at trial Defendant testified

that he originally went to the Brittany Bay apartments

to see Nattie Montes, but stopped at a different

apartment in Brittany bay so that the other occupants in

his car “could hang out with some friends.” (TT.990-93).

However, at the evidentiary hearing, Defendant testified

that he went to the Britany Bay apartments to confront

the parents of an individual who robbed his friends

earlier that day. The Defendant stated that the reason

for the discrepancy was because he is currently under

oath and swore to tell the truth. Defendant was then

asked “didn’t you swear to tell the truth when you

testified at trial,” and he replied, “no one else did.”

At the evidentiary hearing, trial counsel testified that

he researched the law, reviewed depositions, and weighed

the probability of success in deciding whether or not to

advise Defendant to testify at the stand your ground

hearing. Trial counsel; testified he then discussed

with the Defendant the risks associated with testifying

as the stand your ground hearing, and that the Defendant

agreed with his advice.

Trial counsel explained that the strategy for stand your

ground hearing and trial was that the Defendant was

invited to a party at the Brittany Bay apartments through

a friend, and that he thought he had a legal right to be

there. Trial counsel testified that his main concern

was that if the Defendant testified as the stand your

ground hearing, and the defense strategy late changed,

the Defendant’s statements at the stand your ground

hearing could be used against him at trial.

Specifically, trial counsel testified that there were

two potential state witnesses who if granted immunity by

the State, would have testified that Defendant went to

the Brittany Bay apartments to confront individuals

involved in an alleged robbery. Trial counsel explained

there was a genuine concern that the witnesses would

become available after the stand your ground hearing,

and would contradict Defendant’s stand your ground

testimony.

Trial counsel asserted that based upon the probability

of success, and the potential state witnesses, he

determined that strategically he should advise his

client that it was not in his best interest to testify

as the stand your ground hearing. However, trial

counsel testified that if Defendant had wanted to

testify, he would have allowed him. The Court finds

that the testimony of the Defendant is not credible due

to conflicting testimony at trial and the evidentiary

hearing. The Court further finds the testimony of trial

counsel credible, and that his decision to advise

Defendant not to testify was strategic. Therefor,

Defendant has failed to demonstrate an entitlement to

the relief he requested, Accordingly, Ground Three is

denied.

(Ex. 7 at 4860-62, ¶¶ 6-11).

The Second District Court of Appeal affirmed the post-

conviction court’s rejection of ground three. (Ex. 9). The silent

affirmance of the post-conviction court’s ruling is entitled to

deference, and this Court “looks through” the appellate court’s

per curiam summary denial and presumes the unexplained affirmance

adopted the state postconviction court’s reasoned decision.

Wilson, 138 S. Ct. at 1192.

A defendant's right to testify at a criminal proceeding is a

fundamental and personal right that cannot be waived by defense

counsel. See United States v. Teague, 953 F.2d 1525, 1532 (11th

Cir. 1992). In Teague, the Eleventh Circuit held that it is

defense counsel's responsibility to advise the defendant of this

right and the strategic implications and “that the appropriate

vehicle for claims that the defendant's right to testify was

violated by defense counsel is a claim of ineffective assistance

[under Strickland].” Id. at 1534. The Teague court reasoned that

an attorney's performance would be deficient under the first prong

of the Strickland test if counsel refused to accept the defendant's

decision to testify and would not call him to the stand or if

defense counsel never informed the defendant of the right to

testify and that the ultimate decision belonged to the defendant.

Id. In Teague, the defendant's ineffective assistance of counsel

claim was rejected because the trial court found that counsel had

advised the defendant of his right to testify, had advised him he

should not exercise that right, and the defendant did not protest.

Teague, 953 F.2d at 1535.

Menard’s Ground Four suffers from the same defect as the

ineffective assistance claim in Teague; specifically, it fails

because counsel informed Menard of his right to testify, advised

him against doing so, and Menard accepted counsel’s strategic

advice. Counsel’s strategic choices were made after a thorough

investigation of both the law and facts. Reasoned strategic

choices by counsel are “virtually unchallengeable.” Strickland,

466 U.S. at 690.

The post-conviction court’s determination that counsel was

more credible and had explained to Menard that he had a right to

testify are factual determinations that Menard must rebut by clear

and convincing evidence before he may have relief on this claim.

See Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999)

(questions of credibility and demeanor of a witness is a question

of fact); 28 U.S.C. § 2254(e)(1)(a determination of a factual issue

made by a State court shall be presumed correct unless rebutted by

clear and convincing evidence); Gore v. Sec'y, Dep't of Corr., 492

F.3d 1273, 1300 (11th Cir. 2007) (recognizing that while a

reviewing court also gives a certain amount of deference to

credibility determinations, that deference is heightened on habeas

review).

Menard offers nothing to rebut the state court’s factual

finding that counsel was more credible or informed him of his right

to testify. In fact, Menard concedes counsel advised him that he

could testify but recommended against him testifying. Upon review

of the hearing transcript, the Court concludes that reasonably

competent counsel would have advised Menard against testifying

under the circumstances. Menard has not demonstrated counsel was

constitutionally deficient. The Court finds the state courts’

rejection of this claim was neither contrary to clearly established

federal law nor based upon an unreasonable determination of the

facts. Ground Four is denied. 28 U.S.C. § 2254(d).

Additionally, Menard’s testimony at the hearing would have

done no good. Menard did testify at trial and was unable to

establish a basis for a stand your ground defense.

E. Ground Five: Ineffective assistance of counsel for

failing to call Phillip Markle and Jacob Markham as

witnesses at the stand your ground hearing and trial.

Trial counsel did not call Phillip Markel and Jacob Markham

as witnesses at the stand your ground hearing or at trial because

he was told by their respective attorneys they would not testify

and would plead the Fifth Amendment unless the prosecutor granted

them immunity. Doc. #1 at 12. Trial counsel also advised Menard

that the State threatened to pursue criminal charges against Markle

and Markham if they testified. Id. Menard claims counsel should

have called them as witnesses “to ask questions that would not

lead them to make an incriminating response.” Id.

In his Memorandum, Menard acknowledges he “did not present

this ground to the state appellate court” and acknowledges this

“ground is not properly preserved for habeas review.” Doc. #4 at

36. Menard “respectfully withdraws Ground 5 from this Court’s

consideration.” Id. Consequently, Ground Five is deemed

voluntarily dismissed.

F. Ground Six: Ineffective assistance of counsel for

failing to present Phillip Markle and Jacob Markham’s

prior statements against penal interest at the stand

your ground heading and trial.

Both Philip Markle and Jacob Markham, who were present during

the shooting, provided written statements to law enforcement. Doc.

#4 at 34. Menard claims their statements supported his stand your

ground defense and were admissible as an exception to hearsay under

§ 90.804(2)(c), Fla. Stat. Id. Menard claims that counsel decided

not to call either Markle or Markham at the hearing or trial

because both had asserted their Fifth Amendment rights. Menard

asserts counsel was ineffective because he should have introduced

Markle and Markham’s prior statements to law enforcement at the

stand your ground hearing and trial. Menard raised this ground

as ground five in his Rule 3.850 motion. (Ex. 7 at 3452-53).

Respondent submits the state court properly applied

Strickland in denying this ground because the state court found

both statements undermined Menard’s defense. Doc. #16 at 24-25.

In summarily denying the ground, the post-conviction court held:

In ground Five Defendant asserts that trial counsel was

ineffective for failing to introduce the sworn

statements of Phillip Markel and Jacob Markham in lieu

of their live testimony at the Defendant’s motion to

dismiss. A review of the documents demonstrates that

the statements would have undermined the Defendant’s

claim of immunity. (see attached sworn statements).

Specifically, both statements indicate that the reason

the Defendant illegally entered Brittany Bay Phase I on

January 1, 2010 was to avenge an alleged attack that

happened earlier that day. The statements would have

shown that the Defendant illegally entered Brittany Bay

Phase I while armed in order to provoke a confrontation

with the victims. See § 776.041, Florida Statutes, see

also Darling v. State, 81 So. 3d 574 (Fla. 3d DCA

2012)(“justification for using deadly force in self-

defense, which includes the ‘stand your ground’ defense,

does not apply to a person who provokes the

attack.”)(citing § 761.041(2), Florida Statutes)).

Accordingly, Ground Five is denied.

(Ex. 7 at 4870, ¶ 13). Florida’s Second District Court of Appeal’s

silent affirmance of the post-conviction court’s ruling (Ex. 9) is

entitled to deference and this Court considers the state

postconviction court’s reasoned decision denying Petitioner

relief. Wilson, 138 S. Ct. at 1192.

The record reflects both Markle and Markham were unavailable

to testify and invoked the Fifth Amendment during their deposition

noticed by Menard. (Ex. 7 at 4869-70; 4610-31). Both Markle and

Markham had given post-Miranda statements. (Ex. 7 at 1440-1475).

The statements confirmed that earlier in the day Markle and Markham

were at Brittany Bay apartments and encountered Standifer,

Fleitas, Morales and Couture, and that Markle was placed in a

headlock and had the money from his wallet stolen. Markle and

Markham admitted that they had told Menard about the robbery, and

they decided to go back to the Brittany Bay apartments to confront

the individuals and get their money back. Menard drove to the

apartment complex and drove directly to the area where they

believed the four individuals lived. Markle claimed an argument

broke out and one kid pulled an Uzi so he left but Menard “stayed

there, and I was like Matt let’s go, and he’s like and he stayed

there posted up, and then the black kid came up pushed him and I

saw Matt reaching and I was like no.” Markham and Markle both

claimed they did not know Menard had a gun. Markle also stated

that after Menard was pushed to the ground he pulled a gun from

his waist and shot.

Statements taken by police in the course of interrogation in

a criminal investigation are considered testimonial evidence and

constitute hearsay. Crawford v. Washington, 541 U.S. 36, 52

(2004). Menard argues the statements would have been admitted

because they qualify under the hearsay exception for declarations

against interests under Fla. Stat. § 90.804(c)(2).6 The state

court did not address the admissibility of the two statements or

make any findings whether either statement was truly self-

inculpatory. This is a “fact-intensive inquiry.” Williamson v.

U.S. 512 U.S. 504, 604 (1994). Assuming, without deciding that

the testimonial statements were admissible, the record supports

6 Statement against interest.--A statement which, at the time of

its making, was so far contrary to the declarant's pecuniary or

proprietary interest or tended to subject the declarant to

liability or to render invalid a claim by the declarant against

another, so that a person in the declarant's position would not

have made the statement unless he or she believed it to be true.

A statement tending to expose the declarant to criminal liability

and offered to exculpate the accused is inadmissible, unless

corroborating circumstances show the trustworthiness of the

statement.

Fla. Stat. Ann. § 90.804 (West).

the state court’s findings that counsel was not deficient for not

introducing the statements because they would have undermined

Menard’s defense. Whether to introduce a witness’s testimony is

a question of trial strategy. See Gonzalez v. United States, 553

U.S. 242, 249 (2008) (“Numerous choices affecting the conduct of

the trial, including the objections to make, the witnesses to call,

and the arguments to advance, depend not only upon what is

permissible under the rules of evidence and procedure but also

upon tactical considerations of the moment and the larger strategic

plan for the trial.”). While portions of the statements may have

assisted Menard’s defense (confirmation that an individual had an

Uzi and Menard was pushed), the statements also contained damaging

information on the pivotal issue concerning Menard’s justifiable

use of deadly force. The state court’s finding that there were

sufficient strategic reasons for counsel not to introduce the

statements is entitled to deference and is not one of those “rarer”

situations which merit federal habeas relief. See Nance v.

Warden, Georgia Diagnostic Prison, 922 F.3d 1298, 13031 (11th Cir.

2019). Thus, Menard cannot satisfy Strickland’s performance

prong. See Castillo v. Sec’y, Fla. Dep’t of Corr., 722 F.3d 1281,

1285 n.2 (11th Cir. 2013) (“The relevant question under

Strickland’s performance prong, which calls for an objective

inquiry, is whether any reasonable lawyer could have elected” [such

action] “for strategic or tactical reasons. . . .”).

The Court finds Menard has not demonstrated the state court's

adjudication of this claim was contrary to clearly established

federal law nor based upon an unreasonable determination of the

facts. Ground Six is denied. 28 U.S.C. § 2254(d).

G. Ground Seven: Ineffective assistance of counsel for

failing to request special jury instruction regarding

use of justifiable force.

Menard claims he was justified to use force because he was

placed in a position of imminent danger of death or great bodily

harm and trial counsel should have requested a special jury

instruction on justified force when engaged in unlawful activity.

Doc. #1 at 13.

In his Memorandum, Menard “respectfully withdraws Ground 7

from this Court’s consideration in light of the Florida Supreme

Court’s decision in State v. Floyd, 186 So. 3d 1013 (Fla. 2016)

and for the reasons cited by the state trial court.” Doc. #4 at

36. Ground Seven is deemed voluntarily dismissed.

DENIAL OF CERTIFICATE OF APPEALABLITY

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court must first issue

a certificate of appealability (COA). “A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such

a showing, a petitioner must demonstrate that “reasonable jurists

would find the district court's assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or

that “the issues presented were adequate to deserve encouragement

to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003) (citations omitted). Petitioner has not made the requisite

showing here and may not have a certificate of appealability on

either ground of his Petition.

Accordingly, it is hereby ORDERED:

1. Petitioner’s motion to voluntarily dismiss Grounds Five

and Seven of the Petition incorporated in his Memorandum (Doc. #4)

is GRANTED and Grounds Five and Seven are voluntarily dismissed.

2. Petitioner’s Writ of Habeas Corpus (Doc. #1) is DENIED.

3. Petitioner is DENIED a certificate of appealability.

4, The Clerk of Court shall moot any pending motions, enter

judgment and close this case.

DONE and ORDERED at Fort Myers, Florida, this 20th day

of May, 2020.

if ——

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ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies:

Counsel of Record