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Giardina v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

October 16, 2019

MICHAEL C. GIARDINA, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          MARY S. SORIVEN, JUDGE

         This cause comes before the Court on Michael C. Giardina's timely-filed petition for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1), motion to hear and rule (Doc. 31) and motion for a writ of mandamus, which the Court construes as a motion to hear and rule (Doc. 32). Giardina challenges his state conviction for aggravated battery, for which he is imprisoned for 15 years. Upon consideration of the petition, the response (Doc. 9) and Giardina's reply (Doc. 26), and in accordance with the Rules Governing Section 2254 Cases in the United States District Courts, the Court ORDERS that the petition is DENIED and the motions to hear and rule are DENIED as moot:

         HISTORY

         I. Factual Background[1]

         Laneal Padilla and her daughter Latanya Smart lived together in New Port Richey, Florida. Giardina, who was Smart's boyfriend, frequently stayed with Smart and Padilla. On July 28, 2006, Christopher Carpentier, who had previously dated Padilla, was visiting from out of state. Carpentier and Giardina had a verbal dispute about several matters, including allegedly missing rent money. After their argument, Giardina left the residence. Carpentier, carrying a large bag, walked approximately seven miles to a bus station. At some point, Carpentier decided to walk back to the home.[2] On the way, he picked up a wooden stick from a “for sale” sign to use as a walking stick.

         Carpentier arrived in the early morning hours of July 29, 2006. Smart and Giardina were outside the home. Padilla was coming out of the door, but she went back inside when she saw Carpentier approaching. According to Carpentier, while he was about 15 to 20 feet away from Giardina and Smart, he threw the wooden stick into the neighbor's yard and said, “Now we can bring this up out in the open and talk about it.” He took his bag off, and as he bent over to lay it on the ground, he felt a pain in his side. Carpentier saw Giardina close a folding knife and putting the knife in his pocket as he ran away.

         According to Giardina, Carpentier never threw the wooden stick on the ground. Carpentier “slung” his bag down, said, “We're going to handle this fucking problem right now, ” and held the stick above his shoulder while he was four to six feet away from Giardina. Giardina stabbed Carpentier with a knife because he was afraid that Carpentier was about to hit him with the stick. Padilla did not witness the stabbing and did not remember seeing a stick.[3]

         II. Trial and Direct Appeal

         Giardina was convicted after a jury trial of aggravated battery. (Doc. 11 Exs. 1, 3) The trial court sentenced him to 15 years in prison. (Doc. 11 Ex. 5) Giardina timely appealed his conviction and sentence. (Doc. 11 Ex. 6) After filing an initial brief, Giardina's appellate counsel filed a notice of supplemental authority, in which she gave notice of her intent to rely on a new decision of the Fourth District Court of Appeal, Novak v. State, 974 So.2d 520 (4th DCA 2008). (Doc. 11 Ex. 9) The state appellate court per curiam affirmed the conviction and sentence and denied Giardina's motion for rehearing. (Doc. 11 Exs. 10, 11)

         III. State Habeas Proceedings

         Giardina filed two habeas petitions under Florida Rule of Appellate Procedure 9.141, alleging ineffective assistance of appellate counsel. (Doc. 11 Exs. 12, 15) The state appellate court denied the petitions without discussion. (Doc. 11 Exs. 13, 16)

         Giardina later filed a petition for writ of habeas corpus, challenging the jury instructions in the Florida Supreme Court, which transferred his petition to the state circuit court. (Doc. 11 Exs. 27, 28) The state circuit court dismissed the petition on procedural grounds. (Doc. 11 Ex. 29) The state appellate court affirmed in a written opinion and addressed the merits of Giardina's claim. Giardina v. State, 160 So.3d 476 (Fla. 2d DCA 2015). The Florida Supreme Court declined to accept jurisdiction to hear Giardina's appeal. (Doc. 11, Ex. 38)[4]

         IV. State Postconviction Proceedings

         Giardina filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 11 Ex. 18) The state court entered an order denying some of his claims and directing the State to respond to the remaining claims. (Doc. 11 Ex. 19) After the State responded, the state court entered a final order denying Giardina's motion. (Doc. 11 Exs. 20, 21) The state appellate court per curiam affirmed the denial of relief. (Doc. 11 Ex. 24)

         STANDARDS OF REVIEW

         I. AEDPA

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(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.

         A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.

         AEDPA was meant “to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).

         The state appellate court affirmed the denial of postconviction relief and denied Giardina's state habeas petitions alleging ineffective assistance of appellate counsel without discussion. These decisions warrant deference under § 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent affirmance, “the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         II. Ineffective Assistance of Counsel

         Ineffective assistance of counsel claims are analyzed under the test established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id.

         Giardina must show that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. To demonstrate prejudice, Giardina must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105 (internal quotation marks and citations omitted); see also Burt v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review “gives both the state court and the defense attorney the benefit of the doubt.”). “The question [on federal habeas review of an ineffective assistance claim] ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

         “An ineffective assistance of appellate counsel claim is ‘governed by the same standards applied to trial counsel under Strickland.'” Corales-Carranza v. Sec'y, Fla. Dep't of Corr., 768 Fed.Appx. 953, 957 (11th Cir. 2019) (quoting Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013)). To establish prejudice when alleging ineffective assistance of appellate counsel, a petitioner must show a reasonable probability that, but for counsel's deficient performance, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000).

         DISCUSSION

         I. Self-Defense

         A. Background

         Giardina admitted that he stabbed Carpentier but claimed self-defense. In 2005, the Florida Legislature passed the “Stand Your Ground” law. Little v. State, 111 So.3d 214, 219-21 (Fla. 2d DCA 2013) (footnotes omitted) addressed the statute's passage:

Prior to the enactment of the Stand Your Ground law, the justifiable use of deadly force by and against a civilian was governed by section 776.012. Section 776.012, Florida Statutes (2004), permitted the use of deadly force if a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Section 776.031 governed the use of force in defense of others, and it permitted the use of deadly force if a person “reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.” In addition, the Florida Supreme Court recognized a common law duty to retreat that required a person to “retreat to the wall” or use “every reasonable means within his or her power to avoid the danger.” Weiand v. State, 732 So.2d 1044, 1049, 1050 (Fla. 1999). There was an exception to the duty to retreat for a person claiming self-defense in his or her own residence; that exception was part of the “castle doctrine.” Id.
In 2005, the legislature enacted the Stand Your Ground law which amended sections 776.012 and .031 and created sections 776.013 and .032. Ch. 2005-27, §§ 1-4, at 200-02, Laws of Fla. Section 776.012 still permits the justifiable use of deadly force if a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” § 776.012(1). But the Stand Your Ground law added language permitting the justifiable use of deadly force “[u]nder those circumstances permitted pursuant to s. 776.013.” § 776.012(2). It also eliminated the common law duty to retreat for persons justifiably using deadly force under either section 776.012(1) or 776.013. . . .
As for section 776.013, it is entitled “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” Subsections (1), (2), (4), and (5) of section 776.013 expand the “castle” to include a dwelling, residence, or occupied vehicle. . . .
Subsection (3) . . . applies to “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be.” § 776.013(3). It eliminates the duty to retreat for this law-abiding person. It also provides for the use of deadly force by this law-abiding person based upon the reasonable belief “it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Id. . . .

Section 776.013(3) applies when a person is (1) not engaged in unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these requirements would look to section 776.012(1) to determine whether the use of deadly force was justified.

         Giardina raises several claims concerning the “unlawful activity” language contained in § 776.013(3), and the corresponding jury instructions on the justifiable use of deadly force and the justifiable use of non-deadly force. The instructions provided to Giardina's jury stated that Giardina had no duty to retreat and had the right to stand his ground and meet force with force if he (1) was not “engaged in an unlawful activity”; (2) was attacked in a place where he had a right to be, and (3) reasonably believed the use of force was necessary to prevent death or great bodily harm to himself. (Doc. 11 Ex. 2 at 226-27, 228).

         These instructions were consistent with the standard instructions in effect at the time of Giardina's January 2007 trial. See Fla. Std. Jury Inst. (Crim.) 3.6(f), (g) (2006). In February 2008, the Fourth District Court of Appeal issued Novak and found that “a jury charged with the ‘unlawful activity' instruction might confuse the charged crimes with ‘unlawful activity' that precludes the justification of self-defense unless the defendant has retreated.” 974 So.2d at 522.

         Following Novak, the Florida Supreme Court amended standard instructions 3.6(f) and 3.6(g) “to include citations to Novak . . ., clarifying that the ‘no duty to retreat' rule applies to situations where the defendant was not engaged in unlawful conduct beyond that for which he asserts justification.” In re Standard Jury Instructions in Criminal Cases-Report No. 2009-01, 27 So.3d 640, 641 (Fla. 2010).[5] Giardina raises four claims concerning § 776.013(3) and the related jury instructions.

         B. Denial of a Fair Trial (Ground Twelve)

         In Ground Twelve, Giardina alleges that he was deprived of a fair trial “by virtue of a confusing and circular self-defense jury instruction.” (Doc. 1 at 21) As an initial matter, the Court finds that Giardina does not expressly raise a federal constitutional claim in his petition. To the extent his claim involves the application of Florida law, it is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (where the claim is merely that a jury instruction is incorrect under state law, federal habeas relief is not available); McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (“A state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.”); Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[A] habeas petition grounded on issues of state law provides no basis for habeas relief.”).

         To the extent Giardina's claim can be liberally interpreted as alleging a federal constitutional violation, and assuming that Giardina exhausted a federal claim, [6] he is not entitled to relief. Giardina challenged the “unlawful activity” jury instruction in the state habeas petition filed in the Florida Supreme Court. (Doc. 11 Ex. 27) The petition was transferred to the state circuit court, which concluded that Giardina had addressed the instruction in earlier proceedings and dismissed his petition because “[a] petition for writ of habeas corpus is not the proper vehicle for challenging the outcome of the prior proceedings.” (Doc. 11 Ex. 29 at 2) The state appellate court disagreed that the issue had been resolved in earlier proceedings, and instead concluded that the claim lacked merit in Giardina, 160 So.3d at 476:[7]

Michael C. Giardina appeals the denial of his petition for habeas corpus. This court ordered briefing from the State and has fully reviewed the record. At trial, the jury received a modified instruction on justifiable use of deadly force. On direct appeal, Mr. Giardina unsuccessfully argued that the trial court committed fundamental error by omitting a portion of the instruction explaining that deadly force can be permissible when defending against the imminent commission of a forcible felony by an aggressor. See Giardina v. State, 986 So.2d 608 (Fla. 2d DCA 2008) (table decision). In this petition for habeas corpus, which was filed in 2013, he argues that the trial court committed fundamental error resulting in a manifest injustice when it instructed the jury with standard language that he had no duty to retreat if he was not engaged “in an unlawful activity.” Although we agree with Mr. Giardina that this issue was not resolved in prior proceedings, we do not agree that this instruction on the duty to retreat was erroneous, much less that it resulted in the type of manifest injustice that caused the Fourth District to give relief in Furney v. State, 115 So.3d 1095 (Fla. 4th DCA 2013), which addressed the “forcible felony” jury instruction discussed in Martinez v. State, 981 So.2d 449 (Fla. 2008).[8]

         Federal habeas corpus review is very limited when reviewing the propriety of jury instructions from a state court trial. Accordingly, “[f]ederal habeas courts . . . do not grant relief, as might a state appellate court, simply because the instruction may have been deficient” under state law. McGuire, 502 U.S. at 72. Instead, relief may be granted on federal habeas review only when “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997) (stating that a federal habeas court's role in reviewing a state court jury instruction is “to determine whether any error or omission in the jury charge was so prejudicial as to amount to a violation of due process. . . . A defendant's right to due process is not violated unless an erroneous instruction, when viewed in light of the entire trial, was so misleading as to make the trial unfair.”); Jones v. Dugger, 888 F.2d 1340, 1343 (11th Cir. 1989) (“[I]mproper jury instructions can never be the basis for federal habeas corpus relief unless the instruction rendered the whole trial so unfair as to amount to a denial of due process.”); Jones v. Kemp, 794 F.2d 1536, 1540 (11th Cir. 1986) (“State court jury instructions ordinarily comprise issues of state law and are not subject to federal habeas corpus review absent fundamental unfairness.”).

         Giving deference to the state court's construction of its own jury instructions and considering the instruction in light of the trial as a whole, the “unlawful activity” language did not violate Giardina's right to due process by rendering his trial fundamentally unfair. The identified portion of the instructions, which were part of Florida's Standard Criminal Jury Instructions at the time of Giardina's trial, properly informed the jury under Florida law that Giardina had no duty to retreat if he was not engaged in an unlawful activity when he was attacked. The Fourth District Court of Appeal's later determination that a jury might confuse such “unlawful activity” with a charged offense does not establish that the instruction given in Giardina's case rendered the entire trial fundamentally unfair. Giardina has not cited, and this Court has not located, any authority providing that the “unlawful activity” instruction is so confusing as to cause fundamental unfairness.[9] Nor does Giardina establish that the later clarification to the instruction establishes that his trial was fundamentally unfair. In this regard, Giardina has not shown that the jury's verdict was based on a misunderstanding of what constituted “unlawful activity.” Further, as addressed, to prove that he acted in self-defense, Giardina had to establish that he reasonably believed the use of force was necessary to prevent death or great bodily harm to himself. (Doc. 11 Ex 2 at 226-27, 228) Thus, the jury's rejection of Giardina's self-defense claim could have been based on their view that Carpentier did not have a stick. Thus, Giardina's use of force could have been found to be unjustified because he would have had no reasonable belief that such force was necessary to protect himself from death or great bodily harm.

         Giardina fails to show that the state appellate court's decision was contrary to or involved an unreasonable application of clearly established federal law or was based on an ...


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