Menard v. Fla. Attorney Gen.

JAMES MATTHEW MENARD, Petitioner, v. FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.

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

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

May 20, 2020

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 felonymurder 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 onthis 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. Whenasked 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

...