Santiago v. Sec'y
| Decision Date | 02 February 2018 |
| Docket Number | No. 16-13657,16-13657 |
| Parties | JOSE F. SANTIAGO, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 8:15-cv-01196-EAK-TBM
Appeal from the United States District Court for the Middle District of Florida
Before MARCUS, ROSENBAUM and HULL, Circuit Judges.
Jose Santiago, a Florida prisoner, who was convicted of murder, attempted murder, opposing an officer with violence, and fleeing or eluding, appeals from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition as to his convictions. This Court granted a certificate of appealability ("COA") as to whether Santiago's trial counsel was ineffective for failing to object to the trial court's instructing the jury on the forcible felony exception to self-defense, which Santiago contends was erroneous. After careful review, we affirm.
On July 26, 2000, in Florida state court an indictment charged Santiago with first-degree murder of Kevin Hayes (Count 1) and attempted first-degree murder of Derrick Phillips (Count 2). On August 29, 2001, Santiago was further charged with another count of attempted first-degree murder of George Smith (Count 3), two counts of aggravated assault on a law enforcement officer, (Counts 4 & 5), obstructing or opposing an officer with violence (Count 6), and felony fleeing to elude (Count 7). All of the charges stemmed from a July 20, 2000 incident outside of a bar known as "The Garage" in Tampa, Florida, where Santiago shot two people. Santiago's gunshots injured Derrick Phillips and killed Kevin Hayes. Santiago then attempted to flee the scene. Santiago pled not guilty and proceeded to trial.
At trial in July 2002, the evidence revealed that Santiago was involved in an ongoing dispute with an individual named George Smith. Sometime in 1998 or 1999, Smith's car was stolen. Although the car eventually was recovered, the rims were removed and remained missing. Two or three weeks before the shooting, Smith noticed a vehicle parked at a gas station with the same rims as those stolen from his car. Smith stopped and spoke to the driver of the vehicle who turned out to be Santiago. Smith took down Santiago's license plate number. Smith told Santiago that he believed the rims were his stolen rims, but Santiago did not believe him. Smith spoke to Santiago for about 10 minutes about the rims. Smith testified that the conversation never became heated and that no threats were exchanged.
On July 20, 2000, Smith and two friends, including victim Derrick Phillips, went to The Garage bar in Tampa. Santiago was also at the bar with some of his own friends. Shortly after they arrived, Smith and his friends approached Santiago's group, and they again discussed the rims for about 5 minutes. Smith reiterated that he believed Santiago had his rims. Santiago again denied that the rims were Smith's. According to Smith, this conversation, like the one at the gas station, never became heated and no threats were exchanged between the two groups. In contrast, Santiago testified that during this discussion, Smith andPhillips "started . . . hollering like they wanted to fight," and before they walked away, Phillips said, "[W]e'll take care of this when we get out the club."
Santiago's friend Chike Tim was also present on the night of the shooting and witnessed the conversation inside the bar. At trial, Tim testified that Smith and his friends had "surrounded" Santiago to talk to him about the rims. Initially, they were just talking, but at some point the situation escalated. Tim thought that Smith and his friends "were going to like jump [Santiago], like, fight," and thus Tim and Santiago's friends intervened to break up the argument. Another friend of Santiago's, Thomas Booker, likewise testified that the conversation between Santiago and Smith initially "wasn't really hostile," but that it ended with Smith threatening to call the police to take his rims back from Santiago.
At the end of the night, when the bar started to empty out, both groups began heading to their respective cars. Smith testified about what happened next. Smith was standing by his car in the parking lot, and then he saw Santiago standing by his own car. At that time, no words were exchanged between the two men.
At some point, Derrick Phillips walked away from Smith's car and past Santiago's car. According to Smith, Phillips did not approach Santiago's car or talk to Santiago. Smith yelled at Phillips that it was time to leave, and Phillips began walking back toward Smith's car. As Phillips walked past Santiago's car,Smith saw Santiago draw a gun, which he described as a chrome-plated revolver, and shoot Phillips twice in the back.
Smith began to run away, but turned back at one point and saw Santiago point the gun in his direction and fire another shot (the third shot). Smith testified that did not hear any other shots fired that night. Neither Smith nor Phillips had a gun. Phillips likewise testified that he was not armed and that he did not see Smith with a gun that night.1 Other witnesses also testified that they did not see Phillips or anyone else with a gun at the time of the shooting.
At trial, Santiago testified and gave a very different account. According to Santiago, after leaving the club and going to his car, he sat down in the driver's seat and closed his eyes for a few minutes. When Santiago opened his eyes again and reached to close his passenger-side door, someone came up to the passenger side of his car, stuck a gun in the car, and said "Chico, give it up." Santiago testified that he opened the driver's side door to get out of the car, but another person came up behind him and punched him in the head.
Santiago then moved to try and get out of the car on the passenger side, but the person with the gun fired a shot into his car. At that point, Santiago grabbed his own gun and fired two shots. Although Santiago later claimed he acted in self-defense, Santiago stated that he was not aiming at anyone when he fired and was just trying to scare off the person who shot at him. Santiago then heard another shot go off, dropped his gun, and attempted to flee in his car so he would not get shot.
Booker, Santiago's friend, testified that he saw Smith, Phillips, and a third person approaching Santiago's car from different sides while Santiago was sitting in his car with the doors closed. It looked to Booker like the three men were "going to jump" Santiago. Booker started to approach Santiago's car himself, but hesitated when he saw Phillips reach into his pants like he was reaching for a gun. Booker acknowledged, however, that he never actually saw a gun. As Booker turned to face the third person who was approaching Santiago's car, he heard a shot and dropped to the ground. Booker then heard a second shot and saw Phillips fall to the ground. Other evidence showed these were Santiago's two shots into Phillips's back.
As Booker started to crawl away, Booker heard a third shot and saw another person—the deceased victim Kevin Hayes—fall to the ground. Hayes was not involved in the dispute between Smith and Santiago. Booker testified that he then saw Smith run up to Phillips, pick something up (which Booker assumed was a gun), and put it in his (Smith's) car.
Law enforcement officers in the area of the bar responded immediately and were able to stop Santiago from fleeing the scene. Officers recovered a revolver from Santiago's car, which contained three spent shell casings and two live rounds of ammunition. Gunshot residue was found on Santiago's hands, and ballistics testing later confirmed that the shot that killed Hayes was fired from Santiago's gun. The two shots into Phillips's back also came from Santiago's gun.
A search of Smith's car did not reveal any firearms, bullets, or shell casings. Detective Julia Massucci testified that (1) she found no evidence that there was more than one shooter that night or (2) that anyone other than Santiago and the officers at the scene was armed.2 Although Santiago claimed the incident started with a shot into his car, there was no evidence of any such shot into Santiago's car.3
Following the close of the evidence, the state court instructed the jury. In relevant part, the state court gave the following instructions regarding self-defense and that a defendant is justified in using deadly force while resisting another's attempt to murder him, stating:
The state court then gave the following exception to the self-defense instruction, which provides that deadly force is not justified if the defendant himself was attempting to commit a forcible felony, stating:
However, the use of force likely to cause death or great bodily harm is not justifiable if you find that Jose Fabian Santiago was attempting to commit, committing, or escaping after the commission of murder.
This latter instruction is known as the forcible felony exception to self-defense. Santiago's trial counsel did not object to these instructions.
The jury found Santiago guilty of the...
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