Cruz v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 23 October 2020
• Docket Number: CASE NO. 8:17-cv-122-T-02AEP
• Parties: JIMMY CRUZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

JIMMY CRUZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

CASE NO. 8:17-cv-122-T-02AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

October 23, 2020

ORDER DENYING PETITION

The Court has before it Petitioner's habeas petition under 28 U.S.C. § 2254. No hearing is necessary. The Court denies the petition and denies a certificate of appealability.

Petitioner Jimmy Cruz entered into a negotiated guilty plea to manslaughter with a firearm, a reduced charge and agreed-upon 12-year prison sentence, followed by 10 years' probation. (A at 836).¹ This plea was entered after the trial court denied Cruz's motion to dismiss the charge based on Florida's "stand your ground"law.

Petitioner raises five grounds of ineffective assistance of trial counsel. He states counsel was constitutionally ineffective for failing to: 1) file for rehearing concerning the trial court's erroneous consideration of jury instructions; 2) properly argue the trial court's abuse of discretion considering his right not to testify, thereby allowing the State to shift the burden of proof to Petitioner; 3) object to the trial court's failure to properly weigh the credibility of witnesses; 4) adopt Petitioner's pro se motions to reconsider pretrial motions; and 5) avoid the cumulative prejudicial effect of these enumerated errors.

The State does not contest exhaustion or timeliness. The State argues that Petitioner has not shown by clear and convincing evidence that the state court decision is contrary to or involved an unreasonable application of clearly established federal law; nor has he shown an unreasonable determination of the facts in light of the evidence presented. The undersigned agrees. This is not a close case and Petitioner got exactly what he bargained for in his negotiated plea.

BACKGROUND FACTS

In 2011 Petitioner shot one Walter Revear in the head at a Tampa saloon, killing him. (A at 14-15). The State charged Petitioner with second degree murder while possessing and discharging a firearm. (A at 28-30).

As this was an affray, Petitioner's lawyer moved to dismiss the charge under Florida's "stand your ground" statute, section 776.032 of the Florida Statutes. (A at 104-19). The state circuit court held evidentiary hearings on this matter in June 2012. (A at 233-672). Seven witnesses testified. (A at 241-87; 288-386; 392-503; 505-34; 540-628).

The trial court denied the "stand your ground" motion to dismiss in July 2012 in a lengthy order. (A at 159-75). The court stated in part:

Section 776.032, Florida Statutes, commonly known as the "Stand Your Ground" statute, provides that where a person is justified in using force as permitted in Sections 776.012, 776.013, or 776.031, that person is immune from criminal prosecution and civil action for the use of such force, unless the victim is a law enforcement officer. See § 776.032, Fla. Stat. (2005). When a criminal defendant files a motion to dismiss [footnote 6 omitted] on the basis of the Stand Your Ground statute, the trial court must decide the factual question of whether the statutory immunity applies. See Dennis v. State, 51 So.3d 456, 458 (Fla. 2010) [footnote 7 omitted.] As such, when a motion to dismiss or other motion or petition filed pursuant to Rule 3.190(a), is properly filed, based on the Stand Your Ground statute, a trial court "must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist." See id. at 459, citing Peterson, 983 So.2d at 29. Upon presentation of live testimony at an evidentiary hearing, the trial court shall weigh the credibility of the witnesses, make findings of fact based on that evidence, and apply the preponderance of the evidence standard in making its final determination. See Horn v. State, 17 So.3d 836, 839 (Fla. 2d DCA 2009). Defendant bears the burden of showing by a preponderance of the evidence, that he is entitled to immunity under section 776.032, Florida Statutes. See Horn, 17 So.3d at 839; see also Peterson, 983 So.2d at 28.

(A at 168). The court then quoted from sections 776.012 and 776.013 of the FloridaStatutes (2005) and concluded, "Although Defendant argued for immunity under Sections 776.012 and 776.013, the Court finds that immunity under neither section is warranted, as Defendant did not prove by a preponderance of the evidence that he was entitled to such immunity." (A at 169). The court rejected the State's argument that Petitioner was not entitled to immunity because he was engaged in unlawful activity. (A at 169-70). However, the court found Petitioner was not justified in using deadly force for two reasons:

First, the Court finds that Defendant did not "meet force with force," as is required by Section 776.013(3), and that Defendant's use of deadly force was excessive under the facts and circumstances of this case. Second, the Court finds that Defendant did not have a reasonable belief that he or his brother, M. Cruz, were in danger of death or great bodily harm, so as to justify the use of deadly force. To justify the use of force, Section 776.013(3), Florida Statutes, requires an individual to "meet force with force, including deadly force." See § 776.013(3), Fla. Stat. (2005) (emphasis added.) This Court construes such language as a requirement that to justify the use of force, an individual must use an amount of force equivalent to that which is being responded to. Thus, to justify responding with force to prevent death or great bodily harm, or to prevent the commission of a forcible felony, an individual must respond with an amount of force comparable to that which was presented to the defendant. See § 776.013(3), Fla. Stat. (2005) [footnote 8 omitted.]

(A at 170).

The court concluded, "Simply put, the Court finds that Defendant brought a gun to a fist fight. Defendant responded, with deadly force, to a fist fight between his brother [M. Cruz] and the victim, J. Revear. No witness testified that J. Revear everpresented a gun to Defendant or M. Cruz, or that J. Revear ever threatened to shoot Defendant or M. Cruz. Vickers testified that J. Revear did not carry any weapons with him to the Interstate Lounge that night, and also did not acquire any weapons while he was there that night. (See Transcript p. 368). Vereen also testified that she never saw J. Revear with any weapons that night. (See Transcript p. 348). Detective Danny Rhodes testified that, through his investigation, he never recovered any weapon from J. Revear's body and never learned from any witness that J. Revear possessed any weapons that night. (See Transcript p. 127, 151, attached)." (A at 171).

The court observed there was conflicting testimony as to who initiated the fight between M. Cruz and Revear and whether M. Cruz even actually hit Revear, but all testimony "indicates that only fists were used between M. Cruz and J. Revear." (A at 171). The court rejected the testimony that M. Cruz was kicked once he fell to the ground and found more credible that M. Cruz was "punched only once by J. Revear." (A at 171). Any threat from the females who ignited tasers or presented mace had subsided by the time J. Revear punched M. Cruz. (A at 171). The court reviewed the testimony and the video regarding the conflict with the females who wielded the tasers and mace and found they were not part of the J. Revear group and were no longer threatening Cruz when the Revear conflict began:

[A]ll available evidence indicates that J. Revear was not involved in the altercation between the females and Defendant, and that the only threatDefendant was responding to at the time he shot J. Revear was a punch. Under these circumstances, the Court finds that Defendant's use of deadly force was excessive when compared to the type of force to which he was responding, which was, according to all available testimony, only the use of hands. The Court finds that Defendant did not meet force with force when he used a gun to respond to the force used by J. Revear against M. Cruz.

(A at 172).

The court also found any belief Petitioner had that he or his brother were in danger of death or great bodily harm was not reasonable:

To justify the use of deadly force in defense of others, a "person must be reasonably certain that the person whom they are defending is in immediate danger of death or great bodily harm." See Montanez v. State, 24 So.3d 799, 803 (Fla. 2d DCA 2010) (emphasis added). To be reasonably certain, a defendant must have known or should have known that death or great bodily harm was certain to occur. Id. This determination is in accord with an objective, reasonable person standard. See id. (citing Fla. Std. Jur Instr. Crim. 3.6(f) (2010), and explaining that under the objective, reasonable person standard, persons making claims of self-defense or defense of others must be judged by the circumstances with which they were faced at the time deadly force was used.) Defendant requests that this Court find that he had a reasonable belief that his brother was in danger of death or great bodily harm because of the hectic, intense crowd he faced that night at the Interstate Lounge. (See Transcript p. 420, attached). The Court declines to make such a finding.

(A at 172-73).

The court found M. Cruz was punched only once and neither the victim Revear, nor anyone else, threatened either Petitioner or his brother M. Cruz with a weapon. "Although M. Cruz testified he thought he saw someone with a gun, he could notconfirm who it was or that it was J. Revear. (See Transcript p. 268-69)." (A at 174). The only weapons out that night—the tasers and mace— "were no longer involved in the altercation at the time M. Cruz was punched." (A at 174). Based on these facts, a reasonable person in Cruz's position would not be in fear of death or great bodily harm. (A at 174). The record showed that Petitioner threw a drink at this rowdy, 1:30 a.m. crowd in the saloon parking lot, which...