             Case: 13-12283     Date Filed: 03/17/2014   Page: 1 of 10


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12283
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:12-cv-60231-RNS



FRANKLIN MONFISTON,

                                                               Petitioner-Appellant,

                                      versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (March 17, 2014)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:

      Franklin Monfiston, a state prisoner proceeding pro se, appeals the district

judge’s denial of his habeas petition under 28 U.S.C. § 2254. We affirm.
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                                   I. BACKGROUND

A. State Court Conviction and Direct Appeal

      In August 2002, Monfiston was charged with being a felon in possession of

a firearm (Count 1), carrying a concealed firearm (Count 2), and reckless driving

(Count 3). At trial, Broward County Sheriff’s Office Detectives Christopher Wirth

and Christopher Hickox testified that, on July 16, 2002, they were on patrol in a

white, unmarked car when they observed Monfiston driving behind them, going

approximately 20 to 25 miles per hour faster than the detectives’ car. Monfiston

passed the detectives’ car. Monfiston’s car moved between lanes of traffic, cut off

several cars, and one vehicle had to swerve to avoid a collision.

      The detectives activated their emergency lights and followed Monfiston into

a parking lot. Monfiston slowly drove almost a complete lap in the lot before

stopping. While Monfiston was driving around the lot, Detective Wirth saw him

“reach[ ] down into the center console, manipulat[e] something or put[ ] something

in between the seats.” R at 1233. After Monfiston stopped the car, the detectives

ordered him to exit; Monfiston initially did not comply. He eventually exited his

car, and Detective Hickox placed him in handcuffs. Detective Wirth found a

loaded handgun under a t-shirt in the center console. After Detective Hickox read

his Miranda1 rights, Monfiston told the detectives he had bought the gun from a


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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“crack addict.” R at 1246. He said he was carrying the gun for protection

“because he had a beef with some people recently.” R at 1246.

      Monfiston’s defense was that he did not know the gun was in the car. He

testified that, on the day of his arrest, he was picked up by his brother, Clovis

Monfiston, because Monfiston’s car was in the shop. Intending to buy some

toiletries for his girlfriend and then go home, Monfiston borrowed his brother’s

car. He did not check the contents of the car, when he took it. The car had a

manual transmission; the gear shift was in front of a storage compartment between

the front seats. Monfiston acknowledged changing lanes and going around the

detectives because they were driving too slowly, but he denied driving 70 miles per

hour. He saw the flashing lights behind him but did not think he had done

anything wrong. Although he drove away, when the detectives put a spotlight on

him, he stopped. Monfiston denied going into the middle compartment of the

vehicle. He testified he had advised the detectives he was a convicted felon, and

he would not be “running around” with a gun. R at 1366. He denied telling the

detectives he had bought the gun from a “crackhead.” R at 1367. Monfiston also

denied being read his Miranda rights and maintained he did not see a t-shirt over

the center console. He recalled speaking to his brother about the charge, and his

brother confirmed the firearm belonged to him.




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      After a jury trial, Monfiston was found guilty on Counts 1 and 2 and

acquitted of the reckless driving offense in Count 3. He was sentenced as a

habitual-felony offender to a term of 30 years of imprisonment on Count 1 and

concurrent 10 years of imprisonment on Count 2. Monfiston appealed and raised

two claims of trial error. Florida’s Fourth District Court of Appeal (“Fourth

DCA”) affirmed. Monfiston v. State, 886 So. 2d 238 (Fla. Dist. Ct. App. 2004)

(per curiam).

B. State Post-Conviction Proceedings

      In March 2005, Monfiston filed a Florida Rule of Criminal Procedure 3.850

motion for post-conviction relief in state court. He raised multiple claims,

including ineffective assistance of counsel. Monfiston asserted his counsel was

ineffective because he failed to investigate, depose, and call his brother, Clovis

Monfiston, as a witness. As an attachment to his motion, Monfiston submitted an

affidavit by his brother, in which his brother stated Monfiston had borrowed his car

on the day in question, but he had forgotten to remove his handgun. His affidavit

also stated he “was unable to testify on [Monfiston’s] behalf for other matters.” R

at 568. The state post-conviction judge denied the Rule 3.850 motion, because the

failure to call a witness who was unavailable to testify could not prejudice the

outcome of a defendant’s trial. The Fourth DCA initially affirmed. Monfiston

filed a motion for rehearing and attached a second affidavit by his brother. In his


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affidavit, his brother stated, at the time of Monfiston’s trial, he was incarcerated in

Broward County Jail, was available to testify, and would have testified had he been

subpoenaed. On rehearing, the Fourth DCA reversed the post-conviction judge’s

summary denial and remanded for an evidentiary hearing on the ground that

Monfiston had stated a sufficient claim that his counsel rendered ineffective

assistance by failing to argue the detectives’ Miranda warnings were deficient.

Monfiston v. State, 946 So. 2d 1194 (Fla. Dist. Ct. App. 2006) (per curiam). The

decision by the Fourth DCA did not refer to Monfiston’s claim regarding counsel’s

failure to interview or call his brother. See id.

      Pursuant to remand instructions, the state post-conviction judge held an

evidentiary hearing. The judge thereafter entered an order denying the claim and

found Monfiston had failed to establish deficient performance or prejudice

pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The

state post-conviction judge decided she would not reconsider testimony or

evidence regarding Monfiston’s claim that counsel failed to depose, investigate, or

otherwise call his brother to testify, because that claim previously had been raised

and rejected and was not before her on remand. The Fourth DCA affirmed the

denial and found no error in the post-conviction judge’s failure to reconsider

evidence for failing to call Monfiston’s brother to testify. Monfiston v. State, 69

So. 3d 977 (Fla. Dist. Ct. App. 2011) (per curiam).


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C. Federal Habeas Petition

       In February 2012, Monfiston filed this pro se petition for habeas relief under

28 U.S.C. § 2254. He raised only one claim for relief: his trial counsel had

rendered ineffective assistance by failing to interview, depose, or call his brother as

a witness at his trial. Monfiston argued the state post-conviction judge denied his

Rule 3.850 motion on grounds that (1) he had not alleged his brother was available

to testify at his trial, and (2) his brother stated in his affidavit that he “was unable

to testify on [Monfiston’s] behalf due to other matters.” R at 11. He argued the

state post-conviction judge improperly denied him leave to amend his pleadings to

include an allegation that his brother was available to testify, in violation of Florida

law.

       After the State’s motion in opposition and Monfiston’s response were filed,

a magistrate judge issued a report and recommendation (“R&R”), recommending a

denial of Monfiston’s petition. The magistrate judge determined Monfiston could

not establish ineffective assistance, because Clovis Monfiston’s affidavits did not

provide exculpatory information, and Clovis Monfiston’s proffered testimony

would have been cumulative to Monfiston’s trial testimony. The magistrate judge

also concluded Clovis Monfiston’s affidavits should be viewed with suspicion,

because they were self-serving, and his first affidavit conflicted with his second

affidavit. The district judge adopted the R&R and denied Monfiston’s petition.


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On appeal, we consider only the claim on which the district judge granted

Monfiston a certificate of appealability (“COA”): “whether Monfiston’s trial

attorney was legally ineffective.” R at 1540. 2

                                    II. DISCUSSION

       Monfiston argues his trial counsel rendered ineffective assistance by failing

to investigate, depose or interview, and call his brother as a witness.3 Monfiston

argues the state post-conviction judge erred by failing to hold an evidentiary

hearing, because (1) his brother owned the car and had admitted he owned the gun

and had hidden it in the car, and (2) Monfiston conveyed these facts to counsel.

He also asserts the judge erred by (1) focusing only on counsel’s failure to call his

brother as a witness, without addressing counsel’s initial failure to investigate,

interview, or depose his brother, and (2) failing to allow Monfiston to amend his

pleadings to allege his brother was available to testify.

       On appeal from a district judge’s denial of habeas relief, we review

questions of law and mixed questions of law and fact de novo and findings of fact
       2
          See Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1340 (11th Cir. 2007) (providing
our review is limited to the issues specified in the COA).
        3
          Monfiston attempts to raise two other arguments on appeal that we find meritless. First,
Monfiston has abandoned his argument regarding equal protection and due process by failing to
elaborate on this claim for relief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(recognizing, although pro se briefs are to be liberally construed, a pro se litigant who offers no
substantive argument on an issue in his initial brief abandons that issue on appeal). Second,
Monfiston’s argument concerning when a witness may be deemed “unavailable” under the
Confrontation Clause is misplaced, because there is no suggestion Monfiston had a right to
confront Clovis Monfiston, who was not a witness against him. See, e.g., Crawford v.
Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004) (explaining the Confrontation Clause
applies to witnesses “against the accused”).
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for clear error. Burgess v. Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1315 (11th

Cir. 2013). A district judge may not grant habeas relief on claims previously

adjudicated in state court, unless the adjudication resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal

law, or resulted in a decision based on an unreasonable determination of the facts

in light of the evidence presented in the state-court proceeding. 28 U.S.C.

§ 2254(d); Burgess, 723 F.3d at 1315. Findings of fact by a state judge are

presumed to be correct; a habeas petitioner must rebut that presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1); Pope v. Sec’y, Dep’t of Corr.,

680 F.3d 1271, 1284 (11th Cir. 2012), cert. denied, 133 S. Ct. 1625 (2013). A

state judge’s determination of the facts is unreasonable only if no fair-minded jurist

could agree with the determination. Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d

1172, 1192 (11th Cir. 2013). Review under § 2254 is limited to the record that was

before the state judge, who adjudicated the claim on the merits. Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011).

      To establish ineffective assistance of counsel, a defendant must show

(1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). Prejudice is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.


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at 694, 104 S. Ct. at 2068. Because a habeas petitioner must show both deficient

performance and prejudice, a judge may dispose of a Strickland claim based on a

determination that a defendant has failed to show either prong. Id. at 697, 104 S.

Ct. at 2069.

      Although Monfiston repeatedly focuses on his trial counsel’s alleged

deficiency in failing to investigate his brother, he does not challenge the

proposition that failing to call an unavailable witness would not have changed the

outcome of his trial. See id. at 694, 104 S. Ct. at 2068. Monfiston raised this

ineffective-assistance claim in his state motion for post-conviction relief. The state

post-conviction judge concluded Monfiston could not establish prejudice on this

claim, because the record showed Clovis Monfiston was unavailable to testify at

Monfiston’s trial. Monfiston has not satisfied his burden under § 2254(d) of

showing clear and convincing evidence that, based on the record before the state

post-conviction judge, no fair-minded jurist could agree with the state judge’s

finding Clovis could not or would not have testified had he been called. See 28

U.S.C. § 2254(d), (e); Lee, 726 F.3d at 1192; Pope, 680 F.3d at 1284.

      Relevant to this ineffective-assistance claim, the record before the state

judge consisted of (1) Monfiston’s allegation in his Rule 3.850 motion that his

brother “would have testified” consistently with Monfiston’s claim he did not

know about the gun, R at 548, and (2) Clovis Monfiston’s first affidavit that


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corroborated Monfiston’s allegations and included a statement that he “was unable

to testify on [Monfiston’s] behalf for other matters,” R at 568. See 28 U.S.C.

§ 2254(d), (e)(2); Cullen, 131 S. Ct. at 1398. To the extent Monfiston now seeks

to rely on his December 2012 affidavit, or Clovis Monfiston’s later affidavits, any

such reliance is misplaced, because these documents were not part of the record

when the state judge disposed of the ineffective-assistance claim on the merits.

See 28 U.S.C. § 2254(d), (e)(2); Cullen, 131 S. Ct. at 1398.

      Monfiston’s arguments regarding his trial counsel’s failures have no bearing

on the state judge’s dispositive factual finding that Clovis Monfiston was

unavailable to testify. Similarly, his arguments regarding the alleged prejudice he

suffered assume Clovis Monfiston was available to testify, without demonstrating

clear and convincing evidence the state judge’s finding to the contrary was

unreasonable, based on the record. Although Monfiston argues the state judge

should have held a hearing on his trial counsel’s actions and permitted his brother

to testify, these arguments assume the state judge’s prior dispositive factual finding

was wrong. The district judge’s determination was not based on a pleading

deficiency, but rather was based on a factual determination that Clovis Monfiston’s

2003 affidavit clearly established he was not available to testify.

      AFFIRMED.




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