McCloud v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DENNIS L. MCCLOUD,

Petitioner,

v. Case No. 3:19-cv-591-MMH-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Dennis McCloud, an inmate of the Florida penal system,

initiated this action on May 16, 2019,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). McCloud is proceeding on an

amended petition (Amended Petition; Doc. 9). In the Amended Petition,

McCloud challenges two 2010 state court (Duval County, Florida) judgments

of conviction for sexual battery, lewd and lascivious molestation, and lewd and

lascivious exhibition. McCloud asserts six grounds as his basis for seeking

relief. See Amended Petition at 9-92.2 Respondents oppose the Petition. See

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned

by the Court’s electronic docketing system.

Answer to Amended Petition for Writ of Habeas Corpus (Response; Doc. 11)

with exhibits (Resp. Ex.). McCloud filed a brief in reply. See Answer to State’s

Answer to the Amended Petition for Writ of Habeas Corpus (Reply; Doc. 14).

This case is ripe for review.

II. Relevant Procedural History

In Duval County Case Number 2009-CF-14321, the State of Florida

(State) charged McCloud by way of amended information with sexual battery

(count one) and lewd or lascivious molestation (count two). Resp. Ex. B1 at 26.

In Duval County Case Number 2009-CF-14229, the State charged McCloud

with one count of lewd or lascivious exhibition. Resp. Ex. C1 at 6. The State

moved to join both cases for trial, which the circuit court granted. Resp. Ex. B1

at 24. At the conclusion of the trial, the jury found McCloud guilty as charged

in both cases. Resp. Exs. B1 at 55-56; C1 at 41. On November 2, 2010, the trial

court sentenced McCloud in Case Number 2009-CF-14321 to a life-term of

incarceration without the possibility of parole as to count one and a twenty-

five-year term of incarceration as to count two, with twenty-five-year minimum

mandatory sentences as to both counts. Resp. Ex. B1 at 65-71. The trial court

ordered the sentences to run concurrently. Resp. Ex. B1 at 69. In Case Number

2009-CF-14229, the trial court sentenced McCloud to a fifteen-year term of

incarceration and ordered the sentence to run concurrently with the sentence

imposed in Case Number 2009-CF-14321. Resp. Ex. C1 at 47-51.

McCloud appealed his convictions and sentences to Florida’s First

District Court of Appeal (First DCA). Resp. Exs. B1 at 78; C1 at 59. McCloud

moved to consolidate his appeals in both cases, Resp. Ex. B4, which the First

DCA granted, Resp. Ex. B5. On appeal, McCloud argued that the trial court

erred in admitting the victim’s child hearsay statement and fundamental error

occurred when the prosecutor made statements and asked questions

concerning McCloud’s attempt to purchase narcotics. Resp. Ex. C9. The State

filed an answer brief, Resp. Ex. B9, and McCloud filed a reply brief, Resp. Ex.

C11. On July 19, 2012, the First DCA affirmed the convictions and sentences

in a written opinion, Resp. Ex. B10, and issued the mandate on August 6, 2012,

Resp. Ex. B11.

On July 12, 2013, McCloud filed in Case Number 2009-CF-14321 a pro

se motion to correct an illegal sentence pursuant to Florida Rule of Criminal

Procedure 3.800(a) (Rule 3.800(a) Motion). Resp. Ex. B12. McCloud argued

that his sentences on counts one and two violated double jeopardy. Id. On

February 22, 2016, the postconviction court denied relief. Resp. Ex. B13.

On February 7, 2014, McCloud filed a motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850, which he later

voluntarily amended. Resp. Ex. E1 at 1-56. The postconviction court dismissed

the amended motion without prejudice and gave McCloud leave to amend. Id.

at 57-59. McCloud filed another amended motion (Rule 3.850 Motion), in which

he alleged his counsel was deficient for failing to: (1) object to the trial court’s

order permitting the admission of child hearsay; (2) object to the introduction

of the child hearsay evidence; (3) object to the prosecutor and State witness

vouching for the victim’s credibility; (4) request a Richardson3 hearing and call

a witness; (5) withdraw as counsel due to a conflict of interest; (6) object to the

prosecutor’s questions asking McCloud if the victims were lying; (7) make

proper closing arguments; and (8) adequately argue a motion for judgment of

acquittal. Id. at 62-91. McCloud also raised two grounds for relief related to

the cumulative effect of counsel’s errors. Id. The circuit court denied relief. Id.

at 311-26. The First DCA per curiam affirmed the denial of relief. Resp. Ex.

E6. Following the denial of McCloud’s motion for rehearing, Resp. Ex. E8, the

First DCA issued the mandate on February 28, 2019, Resp. Ex. E9.

III. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of—

(A) the date on which the judgment

became final by the conclusion of direct

3 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to

filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if

the applicant was prevented from filing by

such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could

have been discovered through the exercise

of due diligence.

(2) The time during which a properly filed application

for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.

28 U.S.C. § 2244(d).

“Equitable tolling can be applied to prevent the application of AEDPA's

statutory deadline when ‘extraordinary circumstances' have worked to prevent

an otherwise diligent petitioner from timely filing his petition.” Helton v. Sec'y

for Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001). A petitioner establishes

equitable tolling “only if he shows ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and

prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “As with any litigant, pro se

litigants ‘are deemed to know of the one-year statute of limitations’” and,

therefore, “confusion or ignorance about the law” does not constitute

extraordinary circumstances. Perez v. Florida, 519 F. App’x 995, 997 (11th Cir.

2013) (citations omitted).

In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the United States

Supreme Court held that a claim of actual innocence, if proven, provides an

equitable exception to the one-year statute of limitations. The United States

Supreme Court explained:

We hold that actual innocence, if proved, serves as a

gateway through which a petitioner may pass whether

the impediment is a procedural bar, as it was in

Schlup[4] and House,[5] or, as in this case, expiration

of the statute of limitations. We caution, however,

that tenable actual-innocence gateway pleas are rare:

"[A] petitioner does not meet the threshold

requirement unless he persuades the district court

that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty

beyond a reasonable doubt." Schlup, 513 U.S., at 329,

115 S.Ct. 851; see House, 547 U.S. at 538, 126 S.Ct.

2064 (emphasizing that the Schlup standard is

"demanding" and seldom met). And in making an

assessment of the kind Schlup envisioned, "the timing

of the [petition]" is a factor bearing on the "reliability

of th[e] evidence" purporting to show actual innocence.

Schlup, 513 U.S., at 332, 115 S.Ct. 851.

4 Schlup v. Delo, 513 U.S. 298 (1995).

5 House v. Bell, 547 U.S. 518 (2006).

Id. at 386-87. Importantly, the Court has “emphasized that the miscarriage of

justice exception is concerned with actual as compared to legal innocence.”

Sawyer v. Whitley, 505 U.S. 333, 339 (1992).

Respondents assert that this action is timely as to Case Number 2009-

CF-14321, but untimely as to Case Number 2009-CF-14229. Response at 6-8.

According to Respondents, McCloud’s Rule 3.800(a) Motion was only filed in

Case Number 2009-CF-14321, which coupled with his Rule 3.850 Motion,

sufficiently tolled the statute of limitations period prior to instituting this

action. Id. However, because McCloud did not file the Rule 3.800(a) Motion in

Case Number 2009-CF-14229, the statute of limitations expired in that case

prior to McCloud filing his Rule 3.850 Motion. Id.

McCloud argues that because these cases were consolidated for trial and

on direct appeal, both cases “should be afforded the same chance at relief

considering they are still consolidated.” Reply at 16. He further argues that he

should be entitled to equitable tolling because he is proceeding pro se and is

ignorant of the applicable laws. Id. McCloud also asserts that the failure to

address his claims would result in a miscarriage of justice because he is

actually innocent. Id. In support, McCloud contends that the jury never got to

hear a recorded statement from his son, C.M., which he claims rebuts the

testimony of the victims. He also asserts that he has a “suspicion that critical

physical evidence, which is the DNA Rape Kit’s result,” was not disclosed to

him. According to McCloud, he is also actually innocent because the prosecutor

conditioned prospective jurors during voir dire that he could be guilty without

physical evidence. Id.

As mentioned above, the First DCA affirmed McCloud’s conviction in

both cases on July 19, 2012. Resp. Ex. B10. McCloud had ninety days to file a

petition for writ of certiorari with the United States Supreme Court. See

Chamblee v. Florida, 905 F.3d 1192, 1198 (11th Cir. 2018). He did not seek

further review; therefore, his judgment became final for purposes of the one-

year statute of limitations on October 17, 2012. As such, McCloud had until

October 17, 2013, to file a federal habeas petition, unless he could take

advantage of § 2244(d)(2)’s tolling provision.

On July 12, 2013, 268 days into the one-year limitations period, McCloud

filed the Rule 3.800(a) Motion in Case Number 2009-CF-14321, which tolled

the statute of limitations in that case. Resp. Ex. B12. That motion was pending

until February 22, 2016, when the postconviction court denied relief. Resp. Ex.

B13. However, before the statute of limitations period could restart in Case

Number 2009-CF-14321, McCloud initiated Rule 3.850 proceedings in both

cases on February 7, 2014, which again tolled the statute of limitations in Case

Number 2009-CF-14321. Resp. Ex. E1 at 1-56. The denial of relief on his Rule

3.850 Motion became final on February 28, 2019. Resp. Ex. E9; see also Nyland

v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (noting pursuant to Florida law,

a circuit court’s denial of a postconviction motion is pending until the district

court of appeal’s mandate is issued). McCloud initiated the instant action

seventy-seven days later on May 16, 2019. As only 345 un-tolled days passed

since his judgment in Case Number 2009-CF-14321 became final, this action

is timely as to that case.

However, as to Case Number 2009-CF-14229, the statute of limitations

period expired prior to McCloud filing a postconviction motion in that case. As

McCloud did not file the Rule 3.800(a) Motion in that case, he did not have a

properly filed postconviction motion pending before October 17, 2013, and thus,

cannot take advantage of § 2244(d)(2)’s tolling provision. See Webster v. Moore,

199 F.3d 1256, 1259 (11th Cir. 2000) (holding “[a] state-court petition like

Webster's that is filed following the expiration of the limitations period cannot

toll that period because there is no period remaining to be tolled.”). Therefore,

this action is untimely as to Case Number 2009-CF-14229.

Regarding McCloud’s argument that this action is timely as to Case

Number 2009-CF-14229 because his two cases were consolidated for trial and

on direct appeal, the Court finds no basis of law to support this argument. How

a state court manages its docket for purposes of a trial or appellate direct

review does not alter a federal petitioner’s duties to comply with § 2244(d). The

consolidation for trial and direct review does not change the fact that these two

cases had separate charges, convictions, and sentences. Thus, they are

separate judgments for purposes of federal habeas review.

Next, as to McCloud’s argument for equitable tolling, he has failed to

show an entitlement to such equitable relief. See Perez, 519 F. App’x at 997;

Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990) (holding a petitioner’s

pro se status and poor advice by inmate law clerks did not establish cause for

purposes of overcoming procedural default). Lastly, as to McCloud’s

miscarriage of justice argument, the Court finds he has failed to establish his

actual innocence. McCloud’s argument concerning what could have been in a

DNA Rape Kit is insufficient to establish the existence of a miscarriage of

justice. He offers nothing more than speculation that there would be evidence

to exonerate him; however, such speculation does not constitute “reliable”

evidence for purposes of establishing actual innocence. See Hammond v.

Patterson, No. 1:12CV935-TMH, 2014 WL 2617276, at *3 (M.D. Ala. May 20,

2014), report and recommendation adopted, No. 1:12-CV-935-TMH, 2014 WL

2616212 (M.D. Ala. June 11, 2014) (concluding that claim of actual innocence

based on the speculative possibility that DNA testing of evidence might reveal

potentially exculpatory evidence was insufficient to establish actual

innocence). McCloud’s contention that the prosecutor impermissibly

conditioned prospective jurors during voir dire also does not establish

McCloud’s factual innocence, as this assertion does not constitute evidence and

is simply a legal argument challenging his conviction. See Sawyer, 505 U.S. at

339.

McCloud’s last argument in support of his actual innocence is his claim

that the jury never got to hear a recorded statement from C.M. Notably,

McCloud has failed to provide the Court with this recorded statement or any

evidence to support that C.M. actually made the statements McCloud alleges

he made. As such, McCloud has failed to present reliable evidence in support

of his assertion. Moreover, in the Amended Petition, McCloud alleges that C.M.

would have only been able to provide conflicting testimony regarding D.M.’s

testimony concerning an uncharged event. Amended Petition at 59-64. As

C.M.’s testimony would not have established McCloud’s factual innocence as to

the charged offense in Case Number 2009-CF-14229, McCloud has failed to

establish his actual innocence. In light of the above analysis, this action is due

to be dismissed to the extent it attacks McCloud’s conviction and sentence in

Case Number 2009-CF-14229. With this in mind, the Court will address the

claims raised in the Amended Petition to the extent they challenge McCloud’s

conviction and sentence in Case Number 2009-CF-14321.

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “It

follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary

hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully

developed in the record before the Court. Because the Court can “adequately

assess [McCloud’s] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not

be conducted.

V. Governing Legal Principles

A. Standard of Review

The AEDPA governs a state prisoner’s federal petition for habeas corpus.

See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600,

642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of

AEDPA is to ensure that federal habeas relief functions as a guard against

extreme malfunctions in the state criminal justice systems, and not as a means

of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)

(quotation marks omitted)). As such, federal habeas review of final state court

decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill

v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “was 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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“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.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was 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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[6] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.

Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited

to the record that was before the state court that adjudicated the claim on the

merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time

it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

6 The Eleventh Circuit has described the interaction between §

2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821

F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[7] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[8] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

7 Coleman v. Thompson, 501 U.S. 722 (1991).

8 Wainwright v. Sykes, 433 U.S. 72 (1977).

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[9]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

9 Murray v. Carrier, 477 U.S. 478 (1986).

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “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, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question 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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference--this one to a state court’s decision--when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, McCloud argues that the cumulative impact of his trial

counsel’s errors prejudiced him at trial. Amended Petition at 24-44. Where all

individual claims are meritless, the claim of cumulative error is also without

merit. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). As

the Court explains below, each of McCloud’s individual claims lack merit.

Therefore, his claim of cumulative error fails. See id. Accordingly, relief on the

claim in Ground One is due to be denied.

B. Ground Two

McCloud asserts that his trial counsel was deficient for failing to

withdraw when she became aware of a conflict of interest. Amended Petition

at 45-55. He alleges his counsel, a former prosecutor, suffered from a conflict

of interest because in her former role, she prosecuted McCloud on domestic

violence charges, the victim of which was the mother of the victim in Case

Number 2009-CF-14321, Marlaina Gut. Id. Although McCloud waived this

conflict prior to trial, he contends that he did so involuntarily. Id. McCloud

asserts that counsel failed to advise him that the mother of one of the victims,

who he characterizes as his counsel’s former “client,” would not be involved in

his current criminal case Id. at 29-30. According to McCloud, the State called

Gut as a witness, but his counsel failed to inform the trial court that Gut was

her former “client” and that she needed to withdraw or zealously defend

McCloud against Gut’s testimony. Id. at 25, 29-30. McCloud maintains that

counsel failed to withdraw or cross-examine Gut. Id. As to the latter point,

McCloud asserts that his counsel’s strategy at trial was that Gut influenced

the victim to bring the charges against him. Therefore, he contends counsel

should have developed this defense further via cross-examining Gut on her

influence over the victim and Gut’s mental health. Id. at 35-39.

Respondents contend that McCloud failed to properly exhaust this claim

because he raised the claim here as violating the Sixth and Fourteenth

Amendment but on appeal of the denial of his Rule 3.850 Motion, he asserted

violations of the Fifth and Fourteenth Amendment. Response at 12-14.

McCloud counters that both in the Rule 3.850 Motion and on appeal of the

denial of the motion, he argued ineffective assistance of counsel; therefore,

even though he may not have specifically cited to the Sixth Amendment he

gave the state courts an opportunity to address the claim he raises here. Reply

at 6-14.

The record reflects McCloud raised a substantially similar claim in his

Rule 3.850 Motion. Resp. Ex. E1 at 79-81. In his initial brief on appeal,

McCloud challenged the denial of relief on this claim and alleged violations of

his Fourth, Fifth, and Fourteenth Amendment rights in the title of his section

addressing this claim. Resp. Ex. E4 at 28-34. Although McCloud may not have

specifically cited to the Sixth Amendment, he specifically argued his counsel’s

ineffectiveness in the same manner he does now. As such, he fairly presented

this claim of ineffective assistance of counsel to the state courts. See Preston

v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (noting that “a

petitioner need not use magic words or talismanic phrases to present his

federal claim to the state courts.”). Based on this record, the Court concludes

that McCloud properly exhausted the claim in Ground Two.

As the claim is exhausted, the Court next turns to whether deference is

owed to the state court’s adjudication of this claim. In denying relief, the

postconviction court wrote:

At the evidentiary hearing, counsel testified that she

worked as an Assistant State Attorney for one year

prior to her employment with the Public Defender.

Counsel testified she did not prosecute a domestic

violence case against Defendant prior to representing

him, and had never met Ms. Gut prior to Defendant’s

felony case. During cross-examination, postconviction

counsel presented the charging document from

Defendant’s domestic violence case, containing

counsel’s name. Counsel testified she was the division

chief at the time she worked at the Office of the State

Attorney, but had no recollection of working on the

domestic violence case despite her name on the

document. Counsel testified that she did not know

anything about the domestic violence case so it did not

impact her representation of Defendant. During

Defendant’s testimony at the evidentiary hearing, he

testified the trial court made him aware of this

conflict. A transcript from a pretrial status hearing

held on March 31, 2010 reveals that the trial court did

make Defendant aware of the conflict and Defendant

knowingly, voluntarily, and intelligently waived the

conflict.

The Court finds Defendant has failed to meet his

burden of demonstrating an actual conflict of interest

affected counsel’s performance. It is clear from her

testimony at the evidentiary hearing and a review of

the trial transcripts that counsel zealously

represented Defendant. Defendant maintains this

conflict prevented counsel from cross-examining Ms.

Gut during her rebuttal testimony. Counsel, however,

gave a reasonable explanation for her decision not to

cross-examine Ms. Gut during her rebuttal testimony,

refuting Defendant’s argument that the conflict of

interest hindered her performance in his case.

Further, Defendant waived the conflict prior to

counsel beginning work on his case. The Court finds

no actual conflict of interest existed to warrant relief

under Strickland. Accordingly, Defendant is not

entitled to relief.

Resp. Ex. E1 at 320-21 (footnotes and record citations omitted). The First DCA

affirmed the denial of relief without a written opinion. Resp. Ex. E6.

To the extent that the First DCA decided the claim on the merits,10 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, McCloud is not entitled to relief

on the basis of this claim.

The Eleventh Circuit has explained that:

To establish a violation of the defendant's Sixth

Amendment right to counsel based on a conflict of

interest, a defendant must demonstrate: “(a) that his

defense attorney had an actual conflict of interest, and

(b) that this conflict adversely affected his attorney's

performance.” Reynolds v. Chapman, 253 F.3d 1337,

1342 (11th Cir. 2001) (citing Cuyler v. Sullivan, 446

U.S. 335, 348-49, 100 S.Ct. 1708, 64 L.Ed.2d 333

(1980)). The “mere possibility of conflict of interest

does not rise to the level of a Sixth Amendment

violation.” Buenoano v. Singletary, 74 F.3d 1078, 1086

(11th Cir. 1996). To show an actual conflict of interest,

a habeas petitioner “‘must make a factual showing of

inconsistent interests and must demonstrate that the

attorney made a choice between possible alternative

courses of action ...’ that favors an interest in

10 Throughout this Order, in looking through the appellate court’s per

curiam affirmance to the circuit court’s “relevant rationale,” the Court

presumes that the appellate court “adopted the same reasoning.” Wilson, 138

S. Ct. at 1194.

competition with that of the defendant. ‘If [counsel] did

not make such a choice, the conflict remained

hypothetical.’” Id. at 1086 n.6 (quoting Smith v. White,

815 F.2d 1401, 1404 (11th Cir. 1987)); see also Freund

v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (en

banc) (“An ‘actual conflict’ of interest occurs when a

lawyer has ‘inconsistent interests.’” (quoting Smith,

815 F.2d at 1405)). “To prove adverse effect, a habeas

corpus petitioner must show: (1) the existence of a

plausible alternative defense strategy or tactic that

might have been pursued; (2) that the alternative

strategy or tactic was reasonable under the facts; and

(3) a link between the actual conflict and the decision

to forgo the alternative strategy of defense.” Pegg v.

United States, 253 F.3d 1274, 1278 (11th Cir. 2001).

Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 796 (11th Cir. 2020).

The record reflects that on March 31, 2010, counsel disclosed to the trial

court that she previously prosecuted McCloud for domestic violence, that she

spoke to McCloud about the matter, and McCloud was “wiling to waive any

sort of conflicts.” Resp. Ex. E1 at 596. The trial court then inquired with

McCloud about whether he was willing to waive the conflict and McCloud

represented that he was waiving the conflict. Id. at 596-97. Based on this

record, the circuit court was correct to conclude that McCloud waived this

conflict of interest. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (a

defendant’s “[s]olemn declarations in open court carry a strong presumption of

verity.”); Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (holding

a court may deny postconviction relief on claims that are refuted by sworn

representations the defendant made to the trial court). McCloud’s waiver of

this conflict defeats his claim that counsel was ineffective for failing to

withdraw due to this conflict.

Moreover, even if McCloud had not waived this conflict, he has failed to

establish that the conflict adversely affected his counsel’s performance.

McCloud has not demonstrated that counsel had inconsistent interests

between him and Gut. According to McCloud, counsel’s failure to cross-

examine Gut showed the adverse effect of the conflict. However, at the

evidentiary hearing, counsel testified that she did not think it was wise to

cross-examine Gut. Counsel thought cross-examination could have potentially

opened the door to more damaging testimony concerning marital problems

between McCloud and Gut. Resp. Ex. E1 at 327-28, 631, 638-42. Instead,

counsel believed a strategy down-playing the short rebuttal testimony would

work better for the defense. Id. The Court finds that this strategy was

reasonable. McCloud has failed to demonstrate that counsel had a competing

interest regarding Gut, let alone that the competing interest led counsel to

choose the strategy she did. As such, he cannot demonstrate an adverse effect.

In light of the above analysis, the claim for relief in Ground Two is due to be

denied.

C. Ground Three

Next, McCloud contends that his trial counsel was ineffective for failing

to request a Richardson hearing or move for a mistrial based on allegedly

undisclosed testimony from one of the victims, D.M., and Gut. Amended

Petition at 56-73. Specifically, McCloud contends that D.M.’s testimony “that

on a date unspecific [sic], she was forced to perform oral sex on Movant in order

to be allowed to go to the swimming pool” was not properly disclosed. Id. at 56.

Additionally, D.M. “testified that C.M. was present during the incident and

was told by D.M. that she had to comply with Movant’s demands because she

had promised A.O. that they would be going to the pool together.” Id. As to Gut,

she testified in rebuttal to McCloud’s trial testimony that she and he were not

watching a movie together during the time D.M. alleged McCloud molested

her. Id. at 64-72. According to McCloud, this testimony was false and never

disclosed, and counsel should have requested a Richardson hearing and raised

a Giglio11 violation. Id. McCloud also argues that counsel should have called

C.M. as a witness to rebut the testimony of Gut and D.M. Id. at 59-64, 67.

Respondents contend that McCloud failed to exhaust this claim because

at the evidentiary hearing he waived the portion of the claim regarding a

Richardson hearing. Response at 14-17. Additionally, Respondents argue that

McCloud failed to cite to any federal statutes or case law in the Rule 3.850

Motion and otherwise failed to argue a violation of the federal constitution. Id.

11 Giglio v. United States, 405 U.S. 150 (1972) (holding a prosecutor

violates a defendant’s due process rights where he or she knowingly presented

false testimony).

McCloud counters that his arguments presented in the Rule 3.850 Motion and

on appeal put the state courts on notice that he was alleging an ineffective

assistance of counsel claim under Strickland. Reply at 6-14.

The record reflects that McCloud raised a similar claim of ineffective

assistance of counsel in his Rule 3.850 Motion, Resp. Ex. E1 at 73-78, and

argued the matter in his initial brief, Resp. Ex. E4. The fact that McCloud

failed to specifically cite federal case law is not determinative, particularly in

light of the fact that Strickland governs claims of ineffective assistance of

counsel generally. See Preston, 785 F.3d at 457. As such, McCloud afforded the

state court an opportunity to address the merits of the instant claim. However,

as it relates to Respondents’ waiver argument, the Court agrees that McCloud,

through postconviction counsel, waived his argument that counsel was

ineffective for failing to request a Richardson hearing as to Gut’s testimony. At

the evidentiary hearing on McCloud’s Rule 3.850 Motion, counsel represented

the following to the postconviction court:

The Richardson issue of Ms. Gut. I’ve discussed with

my client and I think we can concede that that was not

a proper time to request a Richardson hearing. The

State did not have a duty to disclose Ms. Gut prior to

trial because she was not at issue; therefore, you know,

they had a right to call her and we can concede that

issue as to the Richardson hearing of Ms. Gut.

Resp. Ex. E1 at 678. Based on this representation, McCloud waived his

argument as to the need to request a Richardson hearing as to Gut’s testimony.

Therefore, this portion of the claim is due to be dismissed as unexhausted.

Turning next to the portions of the claim that McCloud properly

exhausted, the record reflects that the postconviction court denied relief. Id. at

315-19. As to whether counsel should have requested a Richardson hearing as

to D.M.’s testimony, the postconviction court explained:

At the evidentiary hearing, counsel testified that her

strategy at Defendant’s trial was to show that family

members influenced the minor victim to fabricate the

claims against Defendant. Counsel testified she

discussed this strategy with Defendant and he agreed

with that course of action. Prior to trial, counsel

deposed the minor victim and asked her about the

things Defendant had her do to him, what Defendant

did to her, and how many times. When the victim

testified to incidents not disclosed in her deposition,

counsel felt this information only strengthened the

defense and, as such, did not ask for a Richardson

hearing. Counsel testified she cross-examined the

victim about the set-up of the bedroom for the same

reason. Counsel stated if she had asked for a

Richardson hearing it would have been detrimental to

the strategy she formed for trial. During his testimony

at the evidentiary hearing, Defendant stated that

counsel discussed this strategy with him and that he

agreed. Upon review of the transcripts and hearing

counsel’s testimony as to her strategy, the Court finds

counsel’s decision not to ask for a Richardson hearing

strategic and reasonable. Thus, counsel was not

deficient, and Defendant is not entitled to relief.

Notably, the State argues in its Response that

the Amended Information charged Defendant with

committing a sexual battery and a lewd or lascivious

act upon the victim “on more than one occasions.”

Thus, the State maintains it did not commit a

discovery violation and [D.M.’s] testimony was

consistent with the charges alleged in the Amended

Information. The Court finds that even if counsel had

objected it would have been meritless.

Id. at 316-17 (record citations omitted). As to counsel’s alleged failure to call

C.M. as a witness, the postconviction court wrote:

Following the conclusion of his case, the trial court had

a colloquy with Defendant regarding whether he

wanted any further witnesses presented on his behalf

or had any other questions he wanted his lawyers to

raise in his case. Defendant stated under oath that he

did not. Accordingly, Defendant cannot now go behind

his sworn testimony to allege counsel was ineffective

for failing to call witnesses at trial when Defendant

made the decision not to call any further witnesses.

See Thomas v. State, 838 So. 2d 535, 541 (Fla. 2003)

(affirming denial of ineffective assistance of counsel

claim where trial court found that defendant agreed

not to call a witness and thus, could not claim

ineffective assistance of counsel based on his decision);

see also McIndoo v. State, 98 So. 3d 640, 641 (Fla. 4th

DCA 2012); Hall v. State, 10 So. 3d 170, 172 (Fla. 5th

DCA 2009). Accordingly, Defendant is not entitled to

relief.

Id. at 317-18 (record citations omitted). The First DCA affirmed the denial of

relief without issuing a written opinion. Resp. Ex. E6.

To the extent that the First DCA decided the claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, McCloud is not entitled to relief

on the basis of this claim.

“In assessing an attorney’s performance under Strickland, ‘strategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.’” Knight v. Fla. Dep’t of Corr., 936 F.3d

1322, 1340 (11th Cir. 2019) (quoting Strickland, 466 U.S. at 690). The Court

notes that “[t]he Supreme Court has mandated a highly deferential review of

counsel's conduct, especially where strategy is involved,” and “[i]ntensive

scrutiny and second-guessing of attorney performance are not permitted.”

Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (citing Strickland,

466 U.S. at 689-90)). The Eleventh Circuit has explained that:

Inquiries into strategic or tactical decisions challenged

as ineffective assistance of counsel involve both a

factual and a legal component. The question of

whether an attorney's actions were actually the

product of a tactical or strategic decision is an issue of

fact, and a state court's decision concerning that issue

is presumptively correct. By contrast, the question of

whether the strategic or tactical decision is reasonable

enough to fall within the wide range of professional

competence is an issue of law not one of fact, so we

decide it de novo.

Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998).

The postconviction court determined counsel’s actions in not requesting

a Richardson hearing were strategic. McCloud has not provided clear and

convincing evidence to overcome this factual determination; therefore, the

Court assumes under § 2254(e)(1) this factual finding is correct. The Court

finds that counsel’s decision not to request a Richardson hearing was

reasonable. At the evidentiary hearing on the Rule 3.850 Motion, counsel

testified that she felt D.M.’s testimony concerning the pool incident was

actually advantageous to the defense because it allowed her to further her

argument that the victim was influenced by family. Resp. Ex. E1 at 625-26.

Counsel felt that highlighting through cross-examination that D.M. failed to

disclose the incident during her deposition would add additional support to the

defense, as counsel was able to show the jury that D.M. changed her story

multiple times through the course of the proceedings. Id. Based on this

rationale, the Court finds counsel’s strategy was reasonable, and, therefore,

counsel did not provide deficient performance.

To the extent McCloud is raising a Giglio violation, he “must prove: (1)

the prosecutor knowingly used perjured testimony or failed to correct what he

subsequently learned was false testimony; and (2) such use was material, i.e.,

that there is any reasonable likelihood that the false testimony could have

affected the judgment.” Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1348

(11th Cir. 2011) (quotation marks and ellipsis omitted). Mere inconsistency in

testimony is insufficient to establish a Giglio claim. United States v. Stein, 846

F.3d 1135, 1149 (11th Cir. 2017). Here, McCloud has failed to prove either that

the testimony was false or that the prosecutor knew it was false. The mere fact

that the child victim did not disclose this specific incident during her deposition

does not establish that she lied at trial. McCloud has not provided any

additional facts to support his claim; therefore, he has failed to establish a

Giglio violation.

Finally, as to whether or not counsel was ineffective for failing to call

C.M. as a witness, the record refutes McCloud’s argument. After the defense

rested (and after D.M. gave the testimony at issue here), McCloud represented

to the trial court that he had no other witnesses he wanted to call, no further

questions he wanted his counsel to raise, and that he was satisfied with his

counsel’s performance. Resp. Ex. B3 at 258-59. Likewise, at the evidentiary

hearing, counsel testified that McCloud never asked her to call C.M. as a

witness. Resp. Ex. E1 at 648-49. In light of this record, McCloud’s claim that

he requested his counsel to call C.M. as a witness but she refused is refuted.

Moreover, McCloud has not offered the Court any supporting evidence as to

the substance of what C.M.’s testimony would have been. Accordingly, his

claim of prejudice is entirely speculative. See McKiver v. Sec’y, Fla. Dep’t of

Corr., 991 F.3d 1357, 1365 (11th Cir. 2021) (holding “that a petitioner's own

assertions about whether and how a witness would have testified are usually

not enough to establish prejudice from the failure to interview or call that

witness.”). As such, McCloud has failed to establish his counsel was deficient

for failing to call C.M. as a witness. For all of the foregoing reasons, relief on

the claim in Ground Three is due to be denied.

D. Grounds Four and Five

In both Grounds Four and Five, McCloud asserts claims regarding his

counsel’s failure to challenge the introduction of child hearsay evidence. As

Ground Four, McCloud argues that counsel was ineffective because she did not

object to the trial court’s alleged failure to make specific findings when it

granted the State’s motion to admit child hearsay statements. Amended

Petition at 74-81. McCloud contends that pursuant to Florida law, the trial

court was required to make specific findings regarding the reliability of the

child hearsay statement. Id. However, he asserts that the trial court instead

merely adopted the reasoning the State proffered at the hearing and signed

the order the State prepared on the matter. Id. According to McCloud, the

findings the State enumerated were insufficient because they were conclusory

and not case specific. Id. Concerning Ground Five, McCloud contends that his

counsel also should have argued against the admission of the child hearsay

evidence on the grounds that “it was offered only after the motivation to

fabricate was created by the new found attention being lavished upon the child

by the aunt, mother and family and friends.” Id. at 85.

Respondents contend both claims are unexhausted because McCloud

failed to cite to any federal law or caselaw when he presented this issue on

appeal. Response at 17-22. McCloud contends he exhausted the claims because

he articulated claims of ineffective assistance of counsel in his Rule 3.850

Motion and argued the denial of relief on appeal. Reply at 6-14. The record

reflects that McCloud raised substantially similar claims in his Rule 3.850

Motion. Resp. Ex. E1 at 63-70. McCloud also raised the denial of relief of these

claims on appeal. Resp. Ex. E4. Based on this record, the Court finds McCloud

properly exhausted the claims. See Preston, 785 F.3d at 457.

The Court next examines whether the state court’s ruling should be

afforded deference. The postconviction court denied relief as to the claim in

Ground Four, explaining:

The Court finds counsel was not deficient for failing to

object to the trial court’s Order on child hearsay.

Pursuant to section 90.803(23), Florida Statutes, and

Townsend,[12] the trial court’s Order was sufficiently

detailed. As such, counsel was not deficient for failing

to object to the trial court’s Order. See Schoenwetter v.

State, 46 So. 3d 535, 546 (Fla. 2010) (concluding

counsel cannot be deemed ineffective for failing to

make a meritless objection). Moreover, while the issue

was not preserved for direct appeal, the First District

Court of Appeal stated in its Mandate that the trial

12 Townsend v. State, 635 So. 2d 949, 975-58 (Fla. 1994)

court’s Order did contain sufficient findings.

Accordingly, Defendant cannot establish he was

prejudiced by counsel’s failure to preserve the issue for

appellate review. Defendant is not entitled to relief.

Resp. Ex. E1 at 313-14 (record citations omitted). As to the claim in Ground

Five, the postconviction court adopted the State’s response. Id. at 314-15. The

State relied on the following reasoning for requesting denial of the relief:

[T]he Defendant opines that his attorney should have

objected to the admission of the child hearsay

statement based upon it being an inadmissible prior

consistent statement because the statement was not

made until after there was a motive to fabricate. The

Defendant cited to the Ortuno[13] case to support his

argument that the child victim in the instant case had

been raised by a mentally ill mother and that once she

was living with her aunt in a more pleasant

environment, she fabricated the story in order to

remain with her aunt.

In Ortuno, the victim testified that she hated

living with the defendant and loved living with the

Uhricks. . . . The court noted that her motivation and

bias remained the same at trial as when she gave the

statement as the victim was still living with her foster

family. Id. The court also noted that the State offered

no corroborating evidence of, or eyewitness to, the

charged criminal acts. Id. Thus, the court refused to

admit the victim’s CPT interview and declared the

victim’s statement was inadmissible hearsay because

it was a prior consistent statement that was made

after there was a motive to [lie] and because there was

no corroborating evidence. Id.

In contrast, in the case sub judice, there was no

evidence that the victim had a motive to fabricate, and

13 Ortuno v. State, 54 So. 3d 1086, 1089 (Fla. 1st DCA 2011).

thus, her child hearsay statement was not

inadmissible hearsay in the form of a prior consistent

statement. Although, the victim stated during the

second interview that she was living with her aunt,

she clarified that it was just for a little while. [D.M.]

also stated during the second interview that she was

scared to ‘say things’ because she was afraid of going

to foster care. During the trial [D.M.] testified that she

was playing a lot of games at her aunt’s house, but

stated that most of the time she played the games with

her brother because her aunt’s son was a grown up in

college. Furthermore, the victim testified about her

motive for disclosure and stated that she disclosed to

her aunt because of the counseling that she had been

receiving since living with her aunt. Additionally,

unlike the Ortuno victim who hated her prior family

life, the victim in the case sub judice stated that her

mom would come to visit her at her aunt’s house and

that she loved her dad. Similarly, unlike the Ortuno

victim who testified she was frequently hungry at

home as there was no food, the Defendant testified

that on the day in question, the victim, her brother and

the victim’s friend played in the pool, shopped at Wal-

Mart, ate pizza and watched a Disney movie. Again,

unlike the Ortuno victim who was still living with her

foster family at the time of the trial, the aunt in the

instant case testified that at the time of the trial, the

victim was no longer living with her and that the

victim had been allowed to return to her mother

approximately one year after she first began living

with the aunt. Additionally, [D.M.] testified she was

living with her mother, her brother CM and her new

baby brother.

Finally, unlike the Ortuno case, in the case sub

judice, there was corroborating and/or eyewitness

testimony. Specifically, the victim’s friend, [A.O.]

testified that the Defendant did something bad to

[D.M.] and then indicated that [D.M.] had to suck the

Defendant’s private part. [A.O.] also testified that the

Defendant showed her his private part while in the

victim’s brother’s room. [A.O.] then testified that the

Defendant tried to get her to suck his private part but

that [D.M.] volunteered to take her place. [A.O.] stated

that after [D.M.] volunteered to take her place, [D.M.]

and the Defendant went into his bedroom and she

looked and saw [D.M.] sucking the Defendant’s private

part. It was [A.O.] who first told about what had

occurred as she told her mother a couple of days later.

Id. at 107-09 (record citations omitted). Without issuing a written opinion, the

First DCA affirmed the denial of relief. Resp. Ex. E6.

To the extent that the First DCA decided the claims on the merits, the

Court will address the claims in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of these claims were not contrary to clearly established federal law, did not

involve an unreasonable application of clearly established federal law, and

were not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Thus, McCloud is not

entitled to relief on the basis of these claims.

As to the claim in Ground Four, prior to trial, the State filed a Notice of

Child Hearsay Evidence seeking to admit testimony from Nicole Heise and

Laura Dill concerning statements the victim made to them. Resp. Ex. B1 at 23.

The trial court granted the request to admit the child hearsay testimony. Resp.

Ex. B1 at 34-35. On direct appeal, McCloud argued that the trial court’s child

hearsay order was insufficient under section 90.803(23), Florida Statutes.

Resp. Ex. C9. In affirming McCloud’s convictions and sentences, the First DCA

opined that although McCloud failed to preserve the issue for appeal, the order

contained “sufficient findings.” Resp. Ex. B10. As McCloud could not establish

fundamental error on direct appeal, his claim of prejudice fails. See Strickland,

466 U.S. at 694-95 (determining that the prejudice standard in ineffective

assistance of counsel claims should be lower than an outcome-determinative

standard under which a reviewing court must conclude whether an error more

likely than not altered the outcome of the case); Chandler v. State, 848 So. 2d

1031, 1046 (Fla. 2003) (“Because Chandler could not show the comments were

fundamental error on direct appeal, he likewise cannot show that trial

counsel's failure to object to the comments resulted in prejudice sufficient to

undermine the outcome of the case under the prejudice prong of the Strickland

test.”). Accordingly, because McCloud cannot demonstrate prejudice, relief on

the claim in Ground Four is due to be denied.

Concerning the claim in Ground Five, McCloud relies on a Florida case,

Ortuno, for the proposition that prior consistent statements are inadmissible

when the statements were made after the existence of a fact indicating a

motive to fabricate testimony. Amended Petition at 83. According to McCloud,

D.M.’s second CPT interview occurred after she had been sent to live with her

aunt. Id. He asserts that because D.M.’s mother had mental health issues and

because D.M. did not want to go into foster care, D.M. had a motive to fabricate

her testimony prior to her second CPT interview in which she accused McCloud

of lewd and lascivious behavior. Id.

The record reflects that D.M. had two interviews with CPT. Resp. Ex. B2

at 40-41. During the first interview, D.M. denied McCloud acted

inappropriately towards her, but at the second interview she told the

interviewer about McCloud’s molestation of her. Id. At the time D.M. gave the

second interview, she was living with her aunt, whom D.M. had confided in

about the molestation and who called CPT after hearing the details. Id.

However, at the time of trial, D.M. was again living with her mother and

brothers. Id. at 31. McCloud has failed to establish that D.M. had a motive to

lie. Her testimony at trial demonstrated that D.M. loved McCloud and did not

want him to go to jail. Id. at 40, 48. Also, D.M. no longer lived with her aunt at

the time of trial and would not have been able to given the fact that she had

been reunited with her mother. Moreover, the evidence against McCloud did

not come solely from D.M. One of D.M.’s friends, A.O., also personally observed

McCloud expose himself and force D.M. to conduct oral sex on him. Id. at 43-

47, 62-64. Of specific import to this issue, it was A.O. who told her mother

about the incident and her mother then reported it to police, which started the

investigation. Id. at 64-65. Based on this record, there is no evidence to suggest

D.M. had a motive to fabricate and, even if she did, admission of the second

CPT interview would have been harmless in light of A.O.’s testimony. For the

above reasons, the claim for relief in Ground Five is due to be denied.

E. Ground Six

Lastly, McCloud contends that his counsel was deficient for failing to

object to Nicole Heise’s testimony that vouched for the victim’s credibility.

Amended Petition at 89-92. McCloud argues that counsel should have objected

when Heise testified that she did not believe D.M. was truthful during D.M.’s

initial interview with CPT, in which D.M. denied any sexual abuse. Id.

According to McCloud, this created an inference that D.M.’s statements during

the second CPT interview alleging molestation against McCloud were truthful,

which is an improper opinion for an expert to give. Id. McCloud also contends

that the prosecutors vouched for D.M.’s credibility during closing arguments.

Id.

Respondents contend that McCloud did not raise this issue in his Rule

3.850 Motion and, therefore, did not exhaust this claim. Response 22-26.

McCloud contends that he did exhaust this claim. Reply at 6-14. The record

reflects that McCloud did in fact raise a substantially similar claim in this Rule

3.850 Motion. Resp. Ex. E1 at 71-72. He also raised the denial of relief on

appeal. Resp. Ex. E4. In light of this record, McCloud properly exhausted this

claim for relief. See Preston, 785 F.3d at 457.

Turning to the issue of whether deference should be afforded to the state

court’s adjudication of this claim, the postconviction court adopted the State’s

response in denying relief. Resp. Ex. E1 at 315. In the State’s response, it

argued the claim should be denied for the following reasons:

An expert in the area of investigative interviewing

possesses a unique ability, obtained through training,

education and experience, to conduct effective

information-gathering interviews with alleged child

sexual abuse victims. Correia v. State, 695 So. 2d 461,

463 (Fla. 4th DCA 1997). An expert in the area of

investigative interviewing would be able to assess the

validity of the accusation by comparing the child’s

account of the sexual abuse with certain patterns

commonly found in authentic accusations of abuse. Id.

Although an expert may not directly vouch for the

credibility of a witness, an expert may properly aid a

jury in assessing the veracity of a victim of child abuse

without usurping the jury’s exclusive function by

generally testifying about a child’s ability to separate

truth from fantasy; or by discussing various patterns

of consistency in the stories of child abuse victims and

comparing those patterns with patterns in the alleged

victim’s story. Id., citing Tingle v. State, 536 So. 2d

202, 205 (Fla. 1988), citing United States v. Azure, 801

F.2d 336, 340 (8th Cir. 1986) [sic]. Florida’s Supreme

Court reasoned that although by its very nature such

expert testimony to some degree will tend to bolster or

refute the credibility of the child victim; however, the

ultimate conclusion as to the victim’s credibility

always will rest with the jury and the expert is merely

equipping the jury with the knowledge necessary to

make this determination. Id. Likewise, an expert may

testify that it is common for children not to disclose

everything at once as they will tell a little bit at a time,

sometimes to test the waters to see how their parents

will react and then they will go on and tell what else

happened to them. Russ v. State, 934 So. 2d 527, 531

(Fla. 3[d] DCA 2006).

In the instant case, Ms. Heise’s testimony was

consistent with an expert aiding a jury in assessing the

credibility of a child abuse victim. Ms.Heise [sic]

testified that she had been employed with the Child

Protection Team for five years and had conducted over

700 forensic interviews with children. Ms. Heise was

initially asked whether the interview was successful

and she responded that she did not think that she had

received an accurate history because the victim was

very guarded and still upset. Ms. Heise also testified

that she had specialized training in forensic

interviewing, had a bachelor’s degree in psychology

and was working on her master’s degree. Although Ms.

Heise was asked whether [D.M.] was being truthful in

the first interview, and Ms. Heise indicated she was

not, she immediately reiterated that she did not

believe she was receiving accurate information [D.M.]

during the first interview. Specifically, Ms. Heise

indicated that she based her answer on the fact the

victim barely responded to any questions; barely

interacted, even on neutral topics and appeared

frightened. Ms. Heise also testified that based on her

experience as a trained forensic interviewer, it is not

unusual for a child to initially deny abuse because

disclosing is a traumatic event. Ms. Heise noted that

children usually disclose after they feel safe and

secure. Ms. Heise testified that [D.M.]’s demeanor,

interaction and communication in the second

interview was markedly different than in the first

interview. Ms. Heise testified [D.M.]’s behavior was

consistent with a child victim in that she was

embarrassed and uncomfortable talking about the

abuse. Ms. Heise further testified that it is common for

a child victim to act as [D.M.] did, such as hiding under

the table or spelling out the answers to the questions,

because they believe they are in trouble for disclosing

the abuse. Ms. Heise also told the jury that an initial

interview is usually not as forthcoming and usually

does not contain full disclosure because disclosure is

an ongoing process. Therefore, Ms. Heise’s expert

testimony did not exceed what the law allows in terms

of her assisting the jury in determining the veracity of

[D.M.]s testimony. Accordingly, the State submits that

Ground 3 of the Defendant’s Motion may be summarily

denied as the Defendant has failed to demonstrate

legal deficiency in his attorney’s failure to object to Ms.

Heise’s testimony.

Id. at 110-12 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without issuing a written opinion. Resp. Ex. E6.

The record reflects that the State presented evidence that McCloud

exposed himself to A.O. and A.O. witnessed D.M. performing a sexual act on

McCloud. Resp. Ex. B2 at 40-47, 60-65, 77-78. A.O. disclosed this information

to her mother, as a result of which an investigation ensued and Heise

interviewed D.M. Id. at 40-47, 91-129. D.M. denied McCloud acted improperly.

Id. After this first interview, D.M. was sent to live with her aunt. Id. at 84-85.

Following counseling, D.M. disclosed the sexual abuse to her aunt, who then

reported it to CPT. Id. at 86-87. Heise then conducted a second interview,

during which D.M. disclosed the sexual abuse. Resp. Exs. B2 at 129-74; Ex. B3

at 205-19. Both D.M. and A.O. testified at trial that McCloud sexually abused

D.M. and exposed himself to A.O. Resp. Ex. B2 at 33-47, 59-64. McCloud took

the stand and denied any improper conduct and testified that he was watching

a movie with his wife during the time frame D.M. and A.O. alleged. Resp. Ex.

B3 at 234-39. In rebuttal, the State called McCloud’s wife, Gut, who testified

they did not watch a movie together the night of the incident and that she was

actually asleep. Id. at 266-68.

Under Florida law, it is improper for an expert to opine directly on the

credibility of a child sexual abuse victim’s statement during a CPT interview.

Tingle v. State, 536 So. 2d 202, 205 (Fla. 1988); Ramayo v. State, 132 So. 3d

1224, 1226-28 (Fla. 3d DCA 2014). At trial, the following exchange occurred

during the direct examination of Heise:

Q. And was -- [the first interview] that you conduct

of [D.M.] was that successful?

A. [D.M.] appeared really guarded and still upset

and frightened, so I don’t feel we got an accurate

history from her at that time.

Q. Do you have an opinion on the truthfulness or

the veracity of her statement that she made that

day?

A. Excuse me?

Q. Do you have an opinion on the truthfulness of

her statement that she made that day?

A. I don’t feel she was truthful during that

interview.

Q. And why is that?

A. She barely responded to my questions, barely

interacted, just on neutral topics. She appeared

frightened and I don’t feel that that was

accurate information during that interview.

Resp. Ex. B2 at 93-94 (emphasis added). Based on this record, it does appear

as though Heise gave improper opinion testimony. See Tingle, 536 So. 2d at

205.

In light of the facts that the postconviction court’s denial of relief rested

on a finding that Heise did not give impermissible testimony and because the

First DCA did not provide a written opinion, the Court presumes the First DCA

affirmed the denial of relief based on the postconviction court’s finding. Wilson,

138 S. Ct. at 1192. However, in light of Tingle, it does not appear as if deference

should be owed to this adjudication. Nevertheless, under a de novo review,

McCloud is not entitled to relief because he cannot demonstrate prejudice. See

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (“Courts can, however, deny

writs of habeas corpus under § 2254 by engaging in de novo review when it is

unclear whether AEDPA deference applies, because a habeas petitioner will

not be entitled to a writ of habeas corpus if his or her claim is rejected on de

novo review.”). Here, not only did D.M. testify at trial that McCloud sexually

abused her, but there was an eyewitness, A.O., who also testified about

McCloud’s improper conduct. Moreover, the jury was given the opportunity to

view both of the CPT interviews and could readily assess D.M.’s credibility

based on these videos and the trial testimony. Additionally, the credibility of

McCloud’s trial testimony denying any wrongdoing was greatly diminished in

light of Gut’s rebuttal testimony. Based on this record evidence, there is no

reasonable probability the outcome of the trial would have been different had

Heise never given the testimony in question and had the prosecutor never

made comments based on that testimony. Accordingly, relief on the claim in

Ground Six is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If McCloud seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, McCloud “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 9) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

3. If McCloud appeals the denial of the Amended Petition, the Court

denies a certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from the

pending motions report any motion to proceed on appeal as a pauper that may

be filed in this case. Such termination shall serve as a denial of the motion.

4. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

January, 2022.

United States District Judge

Jax-8

C: Dennis L. McCloud #J42841

Counsel of record

51