Stoddart v. Secretary, DOC et al

Filing 17

OPINION AND ORDER dismissing the Florida Attorney General as a named-respondent; denying 1 Petition for writ of habeas corpus as follows: Grounds 1 and 3 on the merits, Grounds 2, 4, and 5 as procedurally defaulted, and Ground 4 is also dismis sed as raising a state law claim only and Ground 5 is also dismissed on the merits. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to proceed in forma pauperis are denied. Signed by Judge John E. Steele on 3/31/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRUCE PAUL DOUGLAS STODDART,
Petitioner,
v.

Case No: 2:14-cv-182-FtM-29CM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
OPINION AND ORDER
I.
Petitioner

Bruce

Paul

Status
Douglas

Stoddart

(hereinafter

“Petitioner,” “Stoddart,” or “Defendant”) initiated this action
with the assistance of counsel by filing a 28 U.S.C. § 2254
petition

for

writ

of

habeas

corpus

(Doc.

#1,

“Petition”).

Petitioner challenges his jury-based judgment and conviction of
premeditated murder entered in the Twentieth Judicial Circuit
Court in Collier County, Florida.

1Petitioner

names two Respondents in this case. Rule 2(a) of
the Rules Governing Section 2254 Cases in United States District
Courts provides that applicants in “present custody” seeking
habeas relief should name “the state officer having custody of the
applicant as respondent.” The Supreme Court has made clear that
there “is generally only one proper respondent to a given prisoner=s
habeas petition.” Rumsfeld v. Padilla, 542 U.S. 426, 433 (2004).
In Florida, that person is the Secretary of the Florida Department
of Corrections.
Accordingly, the Florida Attorney General is
dismissed as a named Respondent in this case.

Respondent filed a Response (Doc. #9, Response) opposing all
grounds and attached supporting exhibits (Doc. #16, Exhs. 1-23)
consisting of the record on direct appeal and the postconviction
record.

Inter alia, Respondent argues that Petitioner has not

satisfied 28 U.S.C. § 2254(d) (1)-(2). 2
(Doc. #13).

Petitioner filed a Reply

This matter is ripe for review.
II.

Background

Petitioner Stoddart was charged with premeditated murder of
his girlfriend at her apartment on New Year’s Eve of 2003 (case
number

03CF27A).

Exh.

1;

see

also

Exh.

22,

Vol.

4

at

602

(transcript of Stoddart’s statement to law enforcement); Exh. 22
Vol. 2 at 304-305 (victim’s daughter’s testimony).

On August 8,

2005, the three-day trial commenced before the Honorable William
Blackwell,
Circuit.

Senior

Circuit

Judge

for

the

Twentieth

Judicial

The jury heard testimony including, but not limited to,

several responding law enforcement officers, the victim’s children
who witnessed the shooting, and the victim’s sister.

The jury

also heard the recording of Petitioner’s 911 call, wherein he
admitted he killed his girlfriend.
a

tape

recorded

admission

of

Additionally, the jury heard

guilt

from

Petitioner

to

law

enforcement officials, which the trial court determined Petitioner
provided after a knowing and voluntary waiver of his Miranda

2

Respondent states
Response at 10, n. 1.

that

the

- 2 -

Petition

is

timely

filed.

rights.

In the recording, Petitioner explained that he and his

girlfriend were fighting that evening and admitted that he shot
her with a handgun once in the abdomen and multiple times in the
head.

Exh. 22, Vol. 4 at 597-739.

from Petitioner.

The jury also heard testimony

Exh. 22, Vol. 5 at 851.

The theory of the

defense, based solely on Petitioner’s testimony, was self-defense.
Id.

Petitioner claimed that the victim and he wrestled with the

handgun, the handgun went off, and the victim landed in her closet.
Exh. 22, Vol. 5 at 872.

Petitioner testified that he turned and

saw the victim’s daughter, after which he turned back around and
the victim was pointing a shotgun at him.

Id. at 873.

Petitioner

further testified that he then “fired in her direction.”

Id.

Notably, Petitioner’s trial testimony greatly differed from the
admission of guilt he provided to law enforcement officials.
22, Vol. 4 at 640-649, 648.

Exh.

The jury returned a verdict finding

Petitioner guilty of premeditated murder.

Exh. 2.

On February 9, 2007, Petitioner filed a direct appeal with
the assistance of counsel raising three grounds:
(1) whether Stoddart was denied a fair trial
when the family members who were testifying
were permitted to remain in the courtroom
after the sequestration rule was invoked;
(2) whether Stoddart was denied his Sixth and
Fourteenth Amendment rights under the United
States Constitution because neither the jury
venire nor the trial jury reflected
a fair
cross-section of the community; and

- 3 -

(3) whether the court abused its discretion
when it failed to conduct a proper Richardson
hearing when a discovery violation was
revealed.
Exh. 3.

The state responded.

Exh. 4.

The appellate court per

curiam affirmed Petitioner’s conviction and sentence on November
25, 2009.

Exh. 6.

On December 28, 2010, Petitioner then filed a petition raising
four claims of ineffective assistance of appellate counsel:
(1) appellate counsel was ineffective for
failing to argue the trial court erred in
denying the defense motion to suppress
statements obtained in violation of Miranda
rights;
(2) appellate counsel was ineffective for
failing to argue that the administration of
the
jury
instruction
on
forcible-felony
exception to self-defense in first degree
murder
prosecution
in
which
no
other
independent forcible felonies were charged was
fundamental error;
(3) appellate counsel was ineffective for
failing to argue the trial court’s error of
denying the defense motion for judgment of
acquittal where the state failed to present
sufficient evidence to warrant the trial
court’s submission of Stoddart’s case to the
jury on the theory of premeditation; and
(4) appellate counsel was ineffective for
failing to argue that the trial court
committed reversible fundamental error when at
the very beginning of the trial the court
itself instructed the jurors that Mr. Stoddart
had pled guilty of first-degree premeditated
murder.

- 4 -

Exh. 8.

The state responded.

Exh. 9.

The appellate court denied

Petitioner’s petition alleging ineffective assistance of appellate
counsel on November 4, 2011.

Exh. 10.

Petitioner then filed a motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850 and an amended Rule
3.850 motion.

Exhs. 12, 13.

Petitioner’s Rule 3.850 motions

raised the following two claims:
(1) Ineffective assistance of trial counsel
for failing to object to trial court’s
erroneous inclusion of the forcible-felony
instruction to the jury; and
(2) Trial counsel was ineffective for failing
to move for judgment of acquittal on grounds
that
the
State’s
evidence
was
legally
insufficient to rebut the Defendant’s prima
facie case of self-defense.
Exhs. 12-13.
court

The state responded.

summarily

denied

Exh. 13.

Petitioner

relief

The postconviction
on

both

claims,

incorporating by reference the state’s response in its order.
Exh. 14.

Petitioner appealed.

Exh. 15.

The appellate court per

curiam affirmed the postconviction court’s order.
Petitioner
manifest

then

injustice

instruction.

Exh. 19.

filed

a

petition

concerning

the

for

Exh. 17.

habeas

corpus

forcible-felony

for
jury

Specifically, Petitioner argued that his

Fifth and Fourteenth Amendment rights to due process and equal
protection of the law were violated as a result of the Florida
courts’ contradictory and opposite holdings affirming the denial

- 5 -

of the 3.850 motion and denial of the 9.114 motion.

Id. at 7-8.

The appellate court denied Petitioner’s state petition for writ of
habeas corpus.

Exh. 20.

Petitioner then moved for rehearing,

which the appellate court denied.
Proceeding

with

counsel,

Exh. 21.
Petitioner

then

initiated

instant § 2254 Petition raising five grounds for relief.
III.
A.

the

Doc. #1.

Applicable § 2254 Law

Deferential Review Required By AEDPA

Petitioner filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).

Abdul-Kabir v.

Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S.
782,

792

action.

(2001).

Consequently,

post-AEDPA

law

governs

this

Abdul-Kabir, 550 U.S. at 246; Penry, 532 U.S. at 792;

Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).
Under the deferential review standard, habeas relief may not
be granted with respect to a claim adjudicated on the merits in
state court 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.

- 6 -

28 U.S.C. § 2254(d).

Cullen v. Pinholster, 563 U.S. 170, 131 S.

Ct. 1388, 1398 (2011).

“This is a difficult to meet, and highly

deferential standard for evaluating state-court rulings, which
demands that the state-court decisions be given the benefit of the
doubt.”

Id. (internal quotations and citations omitted).

See

also Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786 (2011)
(pointing out that “if [§ 2254(d)’s] standard is difficult to meet,
that is because it was meant to be.”).
Both the Eleventh Circuit and the Supreme Court broadly
interpret

what

is

meant

by

an

“adjudication

on

the

merits.”

Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011).
a

state

court’s

summary

rejection

of

a

claim,

even

Thus,
without

explanation, qualifies as an adjudication on the merits that
warrants deference by a federal court.

Id.; see also Ferguson v.

Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

Indeed, “unless

the state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the state
court

has

rendered

an

adjudication

on

the

merits

when

the

petitioner’s claim ‘is the same claim rejected’ by the court.”
Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537
U.S. 3, 8 (2002)).
“A

legal

principle

is

‘clearly

established’

within

the

meaning of this provision only when it is embodied in a holding of
[the United States Supreme] Court.”

- 7 -

Thaler v. Haynes, 599 U.S.

43, 130 S. Ct. 1171, 1173 (2010); see also Carey v. Musladin, 549
U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)) (recognizing “[c]learly established federal law” consists
of the governing legal principles, rather than the dicta, set forth
in the decisions of the United States Supreme Court at the time
the state court issues its decision).
involves

an

unreasonable

application

“A state court decision
of

federal

law

when

it

identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner's
case, or when it unreasonably extends, or unreasonably declines to
extend, a legal principle from Supreme Court case law to a new
context.”

Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d

1271, 1291 (11th Cir. 2012) (internal quotations and citations
omitted).

The

“unreasonable

application”

inquiry

requires

the

Court to conduct the two-step analysis set forth in Harrington v.
Richter, 131 S. Ct. at 770.

First, the Court determines what

arguments or theories support the state court decision; and second,
the

Court

must

determine

whether

“fairminded

jurists

could

disagree that those arguments or theories are inconsistent with
the holding in a prior” Supreme Court decision.
omitted).

Id. (citations

Whether a court errs in determining facts “is even more

deferential than under a clearly erroneous standard of review.”
Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).

The Court

presumes the findings of fact to be correct, and petitioner bears

- 8 -

the burden of rebutting the presumption by clear and convincing
evidence.

28 U.S.C. § 2254(e)(1).

The Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the claim
on the merits.”

Cullen, 131 S. Ct. at 1398.

Thus, the Court is

limited to reviewing only the record that was before the state
court at the time it rendered its order.
B.

Id.

Federal Claim Must Be Exhausted in State Court

Ordinarily, a state prisoner seeking federal habeas relief
must first “‘exhaus[t] the remedies available in the courts of the
State,’ 28 U.S.C. § 2254(b)(1)(A), thereby affording those courts
‘the first opportunity to address the correct alleged violations
of [the] prisoner’s federal rights.’”

Walker v. Martin, 562 U.S.

307, 316 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 731
(1991)).

This imposes a “total exhaustion” requirement in which

all of the federal issues must have first been presented to the
state

courts.

Rhines

v.

Weber,

544

U.S.

269,

274

(2005).

“Exhaustion requires that state prisoners must give the state
courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established appellate
review

process.

That

is,

to

properly

exhaust

a

claim,

the

petitioner must fairly present every issue raised in his federal
petition to the state's highest court, either on direct appeal or
on collateral review.”

Mason v. Allen, 605 F.3d 1114, 1119 (11th

- 9 -

Cir. 2010) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
and Castile v. Peoples, 489 U.S. 346, 351 (1989)).
To fairly present a claim, a petitioner must present the same
federal claim to the state court that he urges the federal court
to consider.

A mere citation to the federal constitution in a

state court proceeding is insufficient for purposes of exhaustion.
Anderson v. Harless, 459 U.S. 4, 7 (1983).

A state law claim that

“is merely similar to the federal habeas claim is insufficient to
satisfy the fairly presented requirement.”
U.S. 364, 366 (1995) (per curiam).

Duncan v. Henry, 513

“‘[T]he exhaustion doctrine

requires a habeas applicant to do more than scatter some makeshift
needles in the haystack of the state court record.’”

McNair v.

Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (quoting Kelley v.
Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)).
“The teeth of the exhaustion requirement comes from its
handmaiden, the procedural default doctrine.”

Smith v. Jones, 256

F.3d 1135, 1138 (11th Cir. 2001), cert. denied, 534 U.S. 1136
(2002).

Under

the

procedural

default

doctrine,

“[i]f

the

petitioner has failed to exhaust state remedies that are no longer
available, that failure is a procedural default which will bar
federal habeas relief . . . . .”

Smith, 256 F.3d at 1138.

A

procedural default for failing to exhaust state court remedies
will only be excused in two narrow circumstances.

- 10 -

First, a

petitioner may obtain federal habeas review of a procedurally
defaulted claim if he shows both “cause” for the default and actual
“prejudice” resulting from the asserted error.

House v. Bell, 547

U.S. 518, 536-37 (2006); Mize v. Hall, 532 F.3d 1184, 1190 (11th
Cir. 2008).

Second, Petitioner would have to show a fundamental

miscarriage of justice.
C.

Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d).
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008).

Newland v.

Post-AEDPA, the

standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), remains applicable to the claims of ineffective assistance
of counsel raised in this case.

Newland, 527 F.3d at 1184.

In

Strickland, the Supreme Court established a two-part test to
determine whether a convicted person is entitled to habeas relief
on

the

grounds

that

his

or

her

counsel

rendered

ineffective

assistance: (1) whether counsel’s representation was deficient,
i.e., “fell below an objective standard of reasonableness” “under
prevailing professional norms,” which requires a showing that
“counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”;
and

(2)

whether

the

deficient

performance

prejudiced

the

defendant, i.e., there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding

- 11 -

would have been different, which “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.”
see

also

Bobby

Van

Hook,

558

Strickland, 466 U.S. at 688;

U.S.

4,

8

(2009);

Cullen

v.

Pinholster, 131 S. Ct. at 1403 (2011)
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”

Bobby Van Hook, 558 U.S. at 8

(internal quotations and citations omitted).

It is petitioner

who bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).

Jones v.

A court must

“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
466 U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.

Id.

A court must adhere to a strong presumption that

“counsel’s conduct falls within the wide range of reasonable
professional

assistance.”

Strickland,

466

U.S.

at

689.

An

attorney is not ineffective for failing to raise or preserve a
meritless issue.

Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.

1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992) (“a lawyer’s failure to preserve a meritless issue plainly

- 12 -

cannot prejudice a client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or something
different.

So, omissions are inevitable.

But, the issue is not

what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’”

Chandler v. United States, 218

F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)).
IV.

Findings of Fact and Conclusions of Law

This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court.

Schriro v. Landrigan, 550 U.S. 465, 127

S. Ct. 1933, 1939-40 (2007).

Petitioner does not proffer any

evidence that would require an evidentiary hearing, Chandler v.
McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds
that the pertinent facts of the case are fully developed in the
record before the Court.

Schriro, 550 U.S. at 474; Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004).
A.
Grounds One, Two, and Three: the Forcible-Felony
Exception to self-defense, Florida Statute § 776.041
Grounds One, Two, and Three of the instant Petition all
pertain to one of Florida’s standard jury instructions known as
the forcible-felony exception to self-defense.

In Ground One,

Petitioner argues trial counsel rendered ineffective assistance

- 13 -

when

counsel

instruction.

did

not

object

Petition at 5.

to

the

forcible-felony

jury

Petitioner contends in Ground Two

that the trial court erred when it read the forcible-felony jury
instruction because Petitioner was not charged with an additional
forcible felony.

Id. at 7.

And, in Ground Three, Petitioner

submits that appellate counsel rendered ineffective assistance by
failing to argue on direct appeal that the trial court erred in
reading the forcible-felony jury instruction to the jury.

Id. at

8.
In Response, Respondent acknowledges that Grounds One and
Three were “preserved for federal review.” Response at 14, 18.
With

regard

to

the

trial

court

error

claim

in

Ground

Two,

Respondent argues the claim was not preserved because it was not
raised

on

direct

appeal

defaulted.

Turning

to

and

the

is

merits

consequently
of

Grounds

procedurally-

One

and

Three,

Respondent appears to recognize that the forcible-felony jury
instruction in this case may have been read to the jury in error,
but argues that “the substantial evidence of guilt in this claim
rebuts any possibility of prejudice derived from the erroneous
instruction.”

Id. at 14.

In response to Ground Three, Respondent

further argues that relief is only available upon a showing of
fundamental

error,

which

Petitioner

cannot

show.

Id.

(citing Martinez v. State, 981 So. 2d 449 (Fla. 2008)).

- 14 -

at

18

Notably, both the Florida courts and the federal courts
approach claims involving the forcible-felony instruction, Florida
Statute § 776.041, with caution.

See Fana v. Sec’y Dep’t of Corr.,

4 F.Supp.3d 1295 (M.D. Fla. Mar. 17, 2014) (granting § 2254 habeas
petition finding deficient performance and prejudice, and trial
court error, attributable to felony-exception jury instruction
being improperly read when there was not a second felony), rev’d,
Fla. Dep’t of Corr. v. Fana, 593 F. App’x 954 (11th Cir. 2014)
(finding district court did not afford state court’s opinions
proper deference); Stamer v. Sec’y Dep’t of Corr., Case No. 8:08cv-2152, Doc. #20 (M.D. Fla. Oct. 28, 2011) (denying § 2254 habeas
petition

raising

a

claim

that

appellate

counsel

rendered

ineffective assistance in failing to assert a claim of fundamental
error based on the forcible felony self-defense instruction);
Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004) (reversing
and remanding Florida conviction finding fundamental error in
providing the forcible-felony jury instruction), disagreed with,
Martinez v. State, 981 So. 2d 449 (Fla. 2008) (resolving an
appellate court split and finding under Florida law the erroneous
reading

of

the

forcible-felony

jury

instruction

does

not

constitute fundamental error unless it deprives a defendant of a
fair trial).

- 15 -

Florida Statute § 776.041 is entitled “Use or threatened use
of force by aggressor” and provides self-defense is not available
to a person who:
(1) Is attempting to commit, committing, or
escaping after the commission of, a forcible
felony; or
(2)
Initially provokes the use of
against himself or herself, unless:

force

(a) Such force is so great that the person
reasonably believes that he or she is in
imminent danger of death or great bodily harm
and that he or she has exhausted every
reasonable means to escape such danger other
than the use of force which is likely to cause
death or great bodily harm to the assailant;
or
(b) In good faith, the person withdraws from
physical contact with the assailant and
indicates clearly to the assailant that he or
she desires to withdraw and terminate the use
of force, but the assailant continues or
resumes the use of force.
Fla. Stat. § 776.041 (2004).

Subsection (2) precludes the initial

aggressor from asserting self-defense where he or she is the
individual who provoked the use of force.

See Martinez v. State,

981 So. 2d 449, 452 (Fla. 2008) (discussing § 776.041 and deciding
it is not automatically fundamental error when subsection (1) of
the instruction is read absent an additional felony so long as the
defendant is not deprived of a fundamentally fair trial).

As the

Florida Supreme Court noted in Martinez, § 776.041 was amended in
2006 to reflect that the forcible-felony instruction should be
given “only if the defendant is charged with more than one forcible

- 16 -

felony.”

Id. (citing In re Standard Jury Instructions in Criminal

Cases, No. 2005-4), 930 So. 2d 612, 614 (Fla. 2006) (emphasis in
original)).
Turning to Ground One, Petitioner’s ineffective assistance of
counsel claim stemmed from counsel’s alleged failure to object to
the forcible-felony instruction. Of import here are the Florida
courts’ orders denying Petitioner relief, which Fana, 593 F. App’x
954, reminds us are entitled to deference.

It is well established

that even a state court’s summary adjudications without a written
opinion explaining the state court’s reasoning is entitled to
deference under § 2254(d).

Supra at 7; Harrington v. Richer, 562

U.S. 86, 98-99 (2011).
First, the postconviction court summarily denied Petitioner’s
claim of ineffective assistance of trial counsel raised in the
Rule 3.850 motion and adopted the State’s response.
(citing Exh. 13).

Exh. 14

The postconviction court recognized the proper

standard of review, citing to Strickland.

Exh. 14.

The State had

noted in response that defense counsel’s performance could not be
deemed ineffective under Strickland, because counsel did discuss
the applicability of § 776.0411 (1) and the parties ultimately
agreed on the instructions that were read to the jury.

Id. at 4.

Turning to the prejudice requirement in Strickland, the State
argued that the evidence of Petitioner’s guilt was overwhelming.
Id.

The State pointed out that the record showed there was no

- 17 -

testimony to support Petitioner’s testimony that he acted in selfdefense.

Id.

This Court finds that the postconviction court’s decision was
neither

contrary

Strickland.

to,

nor

an

unreasonable

application

of

Nor did the postconviction court’s decision amount

to an unreasonable determination of the facts based on the evidence
presented.

The

postconviction

Strickland

standard

was

court

applicable

to

recognized
Petitioner’s

that
claim

the
of

ineffective assistance of counsel and adopted the State’s response
reasonably

applying

the

Strickland

standard

to

find

neither

deficient performance, nor prejudice.
The record supports the postconviction court’s finding that
defense counsel’s performance was not deficient, as defined in
Strickland, when he failed to formally object to the forciblefelony instruction.

The record shows that Petitioner’s defense

counsel, Mr. Hollander, questioned the applicability of subsection
(1) in this case.

Exh. 22, Vol. 5 at 924.

Defense counsel,

however, acknowledged that subsection (2) applied in this case.
Id.

Defense counsel then successfully argued, and the State

conceded, to deleting subsection 2(b) from the jury instructions.
Id. at 924-925.

Additionally, the parties agreed, due to defense

counsel’s urging, that the victim’s name, Sonia Lopez, be added to
the instructions under subsection 2(a).

Id. at 925.

Thus, the

postconviction court’s decision finding counsel did not perform

- 18 -

deficiently by failing to formally object to the instruction was
reasonable and not contrary to Strickland.
Turning to the prejudice component of Strickland, the record
also supports a finding that the postconviction court’s decision
was a reasonable application of and was not contrary to Strickland.
To

show

prejudice,

a

petitioner

must

establish

a

reasonable

probability that, but for counsel’s errors, the result of the
proceeding

would

have

been

different.

Supra

at

11-12.

A

reasonable probability is a probability sufficient to undermine
confidence in the outcome.

Id.

Based upon counsels’ and the court’s discussions at the bench,
the trial court read the jury the relevant jury instructions for
premeditated murder and the lesser-included offenses, and the
instructions on self-defense.
relevant

part,

the

trial

judge

Exh. 22, Vol. 6 at 995.
also

read

the

following

instructions:
An issue in this case is whether
defendant acted in self-defense.
It is a
defense to the offense with which Bruce
Stoddart is charged, if the death of or injury
to Sonia Lopez resulted from justifiable use
of force likely to cause death or great bodily
harm.
A person is justified in using force
likely to cause death or great bodily harm, if
he reasonably believes that such force is
necessary to prevent imminent death or great
bodily harm to himself or another or the
imminent commission of aggravated battery
against himself or another.

- 19 -

In
jury

However, the use of force likely to cause
death or great bodily harm is not justifiable
if you find that Bruce Stoddart was attempting
to commit, committing or escaping after the
commission of first degree murder, second
degree murder, or manslaughter as previously
defined.
And
secondly,
that
Bruce
Stoddart
initially provoked the use of force against
himself, unless the force asserted toward the
defendant was so great that he reasonably
believed that he was in imminent danger of
death or great bodily harm and had exhausted
every reasonable means to escape the danger
other than using force likely to cause the
death or great body harm to Sonia Lopez.
Exh. 22, Vol. 6 at 995-996 (emphasis added).

Petitioner takes

issue with the italicized portion of the jury instructions because
he was only charged with premeditated murder and was not charged
with any other felonies.

Petitioner’s argument is well taken.

However, the postconviction court’s finding of no prejudice is
reasonable and not contrary to Strickland when considering the
overwhelming
Specifically,

evidence

of

Petitioner’s

Petitioner’s
own

recorded

guilt

in

this

confession

of

case.
guilt

introduced into evidence, which nowhere mentions that Petitioner
shot the victim because he was defending himself.

Accordingly,

Petitioner is denied relief on Ground One.
Ground Two concerns a claim that the trial court erred by
reading

the

forcible-felony

instruction

to

the

jury.

As

Respondent correctly points out, under Florida law Ground Two is
unexhausted and is now procedurally-defaulted because appellate

- 20 -

counsel did not raise this claim of trial court error on direct
appeal. Response at 18 (citing Childers v. State, 782 So. 2d 946
(Fla. 4th DCA 2001) (finding a claim that could have and should
have been raised on direct appeal is procedurally defaulted and
not subject to review in a rule 3.850 motion)). However, it is
well established that a petitioner may overcome a procedural
default by showing cause for the default and prejudice attributable
thereto, or demonstrating that the failure to consider the claim
will result in a fundamental miscarriage of justice.
11.

Petitioner

may

establish

the

requisite

Supra at 10-

cause

needed

to

overcome the procedural default of Ground Two, to the extent that
Petitioner was afforded counsel on his direct appeal, and argues
in

Ground

Three

that

appellate

counsel

rendered

ineffective

assistance for failing to raise this claim on direct appeal.

See

Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v.
Carrier, 477 U.S. 478 (1986) (noting ineffective assistance of
counsel may constitute cause to overcome a procedural default).
Thus, the Court will now turn to address Ground Three.
Petitioner

argues

appellate

counsel

rendered

ineffective

assistance by failing to argue that the trial court erred by
reading

the

Petition

at

forcible-felony
8.

In

reply,

jury

instruction

Petitioner

asserts

to
that

the

jury.

he

wrote

appellate counsel a letter requesting that appellate counsel raise
the claim that the trial court erred by reading the forcible-

- 21 -

felony instruction, but appellate counsel refused.

Reply at 5

(citation omitted).
Petitioner raised this claim of ineffective assistance of
appellate counsel as his second claim for relief in his state
petition for writ of habeas corpus, filed on December 28, 2010.
Exh. 8.

The appellate court denied Petitioner relief.

Exh. 10.

Thus, there is a state order entitled to deference.
The

Strickland

standard

assistance of appellate counsel.
535-536 (1986).

governs

claims

of

ineffective

Smith v. Murray, 477 U.S. 527,

This Court finds that the postconviction court’s

decision was neither contrary to, nor an unreasonable application
Strickland.

Nor did the postconviction court’s decision amount

to an unreasonable determination of the facts based on the evidence
presented.

Fana is instructive on Ground Three because similar

to the facts presented in Fana, Petitioner’s defense counsel also
did not lodge an objection to the jury instructions at trial.
Thus, on direct appeal, appellate counsel would not have obtained
relief for Petitioner by merely showing the jury instruction was
erroneous.

Instead, appellate counsel would have to show that

giving the forcible-felony instruction constituted fundamental
error.

See Fana, 593 F. App’x at 958.

Petitioner’s direct appeal was filed on February 9, 2007.

At

this point in time, the Second District Court of Appeal had
determined the reading of the forcible-felony instruction in the

- 22 -

absence of an additional felony constituted a fundamental error.
Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004), disagreed
with by, Martinez v. State, 981 So. 2d 449 (Fla. 2008) (reading of
the forcible-felony instruction is not always fundamental error).
Thus, based on case law in effect at the time of Petitioner’s
direct

appeal

in

the

Second

District

Court

of

Appeal,

which

governed appeals from the Twentieth Judicial Circuit, appellate
counsel’s

performance

Strickland.

See,

may

e.g.,

properly
Fana,

593

be

deemed

F.

deficient

App’x

at

956

under

(finding

appellate counsel was not deficient to not anticipate what law was
going to be in the Fourth District Court of Appeal).
Even

if

this

Court

presumes

appellate

counsel

rendered

deficient performance, the appellate court reasonably rejected
Petitioner’s

claim

on

the

prejudice

prong

of

Strickland

considering the gravity of the evidence establishing Petitioner’s
guilt.

Further, in 2008 the Florida Supreme Court in Martinez

ruled contrary to precedent from the Second District Court of
Appeal and determined that the erroneous reading of the forciblefelony instruction did not automatically constitute fundamental
error, unless the instruction deprived the defendant of a fair
trial.

981 So. 2d at 455.

a fair trial.
weak

Here, Petitioner was not deprived of

Petitioner’s claim of self-defense was extremely

considering

the

victim’s

children’s

eyewitness

testimony

reflected that their mother did not point a gun toward Petitioner.

- 23 -

The only evidence supporting Petitioner’s theory of self-defense
was

his

in-court

self-serving

testimony,

which

was

in

fact

contradicted by his recorded statement of guilt provided to law
enforcement

officials.

This

Court

flatly

rejects

Petitioner’s

argument presented in his reply “that prejudice must be presumed
when appellate counsel does not raise a claim a defendant requests
counsel to raise.”

Reply at 4-5.

“Experienced advocates have

emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most
on a few key issues.”
(1983).

Jones v. Barnes, 463 U.S. 745, 751-752

Accordingly, Petitioner is denied relief on the merits

of Ground Three.

Further, because Petitioner has not established

the requisite cause in Ground Three to overcome the procedural
default of Ground Two, Ground Two is dismissed as procedurallydefaulted.
B.

Ground Four

Petitioner argues that his due process rights and right to a
fair trial were violated when the state lost the results of the
fingerprint exam done on the shotgun, which Petitioner claimed the
victim aimed at Petitioner.

Petition at 10.

Petitioner argues

that this evidence was crucial to his defense of self-defense.
Id.
In Response, Respondent states that the claim was raised on
direct appeal. Response at 19-20.

- 24 -

Respondent clarifies that the

report

at

issue,

consisting

of

fingerprints

lifted

off

Petitioner’s Mosseberg shotgun, 3 was discovered by the State thirty
minutes before it alerted defense counsel.
(citing Exh. 22, p. 832).

Response at 19-20

Respondent further notes that the trial

court did not hold a Richardson hearing because defense counsel
did not request one, and the state had no intention of using the
report concerning the shotgun.

Id.

Defense counsel was satisfied

that the state was not going to use the evidence.
A

review

of

Petitioner’s

direct

appeal

Id.
reveals

that

Petitioner raised this argument only in terms of a violation of
Florida law.

Exh. 4.

The federal dimension of Petitioner’s claim

was not raised on direct appeal.

Id.

Petitioner argued on direct

appeal that the trial court abused its discretion by not conducting
a hearing under Richardson v. State, 246 So. 2d 71 (Fla. 1971).
Petitioner further argued that the failure to make a Richardson
inquiry “must be considered per se reversible error because a
reviewing court is in no position to determine from a cold record
whether a discovery violation is harmless.”

Exh. 4 at 22.

The

argument focused on the nature of the alleged discovery violation
under Florida law and never alerted the State court to the federal
dimension of this claim.

Notably, Petitioner “scatter[ed] some

makeshift needles in the haystack,” McNair, 416 F.3d 1302-03,

3There

was never a question that the gun used in the murder
was a handgun, not a shotgun.

- 25 -

following the “conclusion” portion of the appellate brief by
arguing “[a]s a result of the foregoing issues, the Appellant did
not receive a fair trial as is required by the U.S. Constitution,
and therefore requests a reversal of his conviction.”
24.

Exh. 4 at

Such an argument was insufficient to exhaust the federal

dimension of Ground Four.

Consequently, the Court finds Ground

Four is now procedurally defaulted.
(state

procedural

rule

prohibiting

See Fla. R. Crim. P. 3.850(c)
return

to

state

court

to

challenge trial court’s failure to conduct a hearing on alleged
discovery violation). Petitioner has not shown cause, prejudice,
or a fundamental miscarriage of justice to overcome the procedural
default.
Alternatively,
barred,

the

even

ground

if

does

Ground
not

Four

warrant

was

not

relief.

procedurally
A

state’s

interpretation of its own laws or rules provides no basis for
federal habeas corpus relief because no federal constitutional
question is presented.

28 U.S.C. § 2254(a); Krasnow v. Navarro,

909 F.2d 451 (11th Cir. 1990).

Whether the trial court violated

Richardson by failing to hold a hearing on the alleged discovery
violation is a matter of state law and is not cognizable on federal
habeas corpus review.
For the first time in Petitioner’s reply brief, Petitioner
cites to Brady v. Maryland, 373 U.S. 83, 87 (1963) and argues that
the

State’s

suppression

of

favorable

- 26 -

evidence

upon

request

violates the Due Process Clause.

Reply at 6.

Petitioner also

raises an ineffective assistance of defense counsel claim related
thereto, which was not previously raised.

Id. at 7.

The problem

for Petitioner is there is no support whatsoever for his belated
contentions in his Reply that the report contained favorable
evidence

for

Petitioner.

See

Response

at

22-25

(review

of

evidence presented in this case including: no one saw the victim
with a

shot gun; Petitioner’s recorded statement to the police

in which he stated the shotgun was empty and there were no more
shells in the house).

Ground Four is dismissed as procedurally

defaulted or in the alternative as not raising a federal claim.
Ground Five
Petitioner argues that the trial court erred by permitting
his

post-arrest

confession

into

evidence.

Petition

at

12.

Petitioner acknowledges that he was read his Miranda rights and
signed and initialed the Miranda waiver form indicating that he
understood those rights.

Id.

However, Petitioner claims he

subsequently invoked his right to counsel when he stated, “I want
to talk to a lawyer or something.”

Id.

In Response, Respondent argues that this claim is unexhausted
and procedurally defaulted because this alleged trial court error
claim was not raised on direct appeal.

Response at 25.

The Court

agrees with Respondent that Ground Five is unexhausted and now
procedurally defaulted.

Petitioner did not raise this claim of

- 27 -

trial court error on direct appeal.

Exh. 4.

Ground Five is now procedurally defaulted.
3.850(c).

Petitioner

has

not

shown

cause,

Consequentially,
Fla. R. Crim. P.
prejudice,

or

a

fundamental miscarriage of justice to overcome the procedural
default.

To the extent he attempts to show cause by arguing trial

counsel rendered ineffective assistance of counsel, such a claim
is also unexhausted and therefore is insufficient to establish
cause to overcome the procedural default.
529 U.S. 446, 453 (2000).

Edwards v. Carpenter,

Moreover, the record shows defense

counsel did attempt to suppress Petitioner’s statement, but the
trial court denied the motion.
Alternatively, the trial court’s decision to deny suppression
was not contrary to or an unreasonable application of United States
Supreme Court precedent.

Davis v. United States, 512 U.S. 452

(1994) held that law enforcement officials are free to question a
suspect after he or she waives Miranda rights and need not cease
questioning when the suspect makes an “ambiguous or equivocal
[reference]

in

that

a

reasonable

officer

in

light

of

the

circumstances would have understood only that the suspect might be
invoking the right to counsel.”

Id. at 458 (emphasis added).

Here, the trial court found Petitioner’s request for counsel was
ambiguous.

Accordingly, Petitioner is in the alternative denied

relief on the merits of Ground Five.
ACCORDINGLY, it is hereby

- 28 -

ORDERED:
1.

The Florida Attorney General is DISMISSED as a named-

Respondent.
2.
DENIED.
Two

is

The Petition for Writ of Habeas Corpus (Doc. #1) is
Grounds One and Three are denied on the merits.
dismissed

as

procedurally

defaulted.

Ground

Ground
Four

is

dismissed as procedurally defaulted, or in the alternative, as
raising a State law claim only.

Ground Five is dismissed as

procedurally defaulted, or in the alternative, denied on the
merits.
3.

The Clerk of Court shall terminate all pending motions,

enter judgment accordingly, and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability on either petition.

A prisoner

seeking to appeal a district court's final order denying his
petition for writ of habeas corpus has no absolute entitlement to
appeal but must obtain a certificate of appealability (“COA”).

28

U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 184 (2009).
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
demonstrate

that

28

To make such a showing, Petitioner “must

reasonable

jurists

- 29 -

would

find

the

district

court’s

assessment

of

the

constitutional

claims

debatable

or

wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the
issues presented were adequate to deserve encouragement to proceed
further”,

Miller-El

v.

(2003)(citations omitted).

Cockrell,

537

U.S.

322,

335-36

Petitioner has not made the requisite

showing in these circumstances.

Finally, because Petitioner is

not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.

DONE and ORDERED in Fort Myers, Florida on this
of March, 2017.

SA: ftmp-1
Copies: All Parties of Record

- 30 -

31st

day