# Kleckley v. State of Florida

> District Court, S.D. Florida · October 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10121143

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-62972-CIV-ALTMAN

ROBERT KLECKLEY,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.
_________________________________/

ORDER

In his petition for writ of habeas corpus under 28 U.S.C. § 2254, Robert Kleckley challenges
the constitutionality of his state-court convictions for attempted first-degree murder and shooting into
an occupied vehicle. See Petition [ECF No. 1]. We referred the matter to Magistrate Judge Lisette M.
Reid, see Order Referring Case [ECF No. 18], who issued a Report and Recommendation (“R&R”),
suggesting that we: (1) “dismiss Claims 4, 5, 6, 7, 8, 9, and 10 [of the Petition] as time-barred” and (2)
“deny the remaining claims—Claims 1, 2, 3, and 11—on the merits.” Order Adopting R&R [ECF No.
20] at 1 (citing R&R [ECF No. 19] at 7, 17). Since it appeared that Kleckley didn’t file any objections
to the R&R, we adopted Magistrate Judge Reid’s recommendations on July 28, 2022. See id. at 6 (“The
R&R [ECF No. 19] is ACCEPTED and ADOPTED.”).
A few days later, Kleckley filed a Motion to Alter or Amend the Judgment pursuant to FED.
R. CIV. P. 59(e). See Rule 59(e) Motion [ECF No. 22]. Kleckley claimed that he failed to file timely
objections because he “never received a copy of Magistrate Judge Reid’s R&R.” Id. at 1. After the
Respondent conceded that it “had no good faith basis to contest [Kleckley’s] assertion that he did not
receive the report and recommendation,” Response to Rule 59(e) Motion [ECF No. 24] at 2, we
partially vacated our Order Adopting R&R and granted Kleckley another opportunity to “file
objections to Magistrate Judge Reid’s recommended disposition of Claims 1, 2, 3, and 11,” Order
Granting in Part Rule 59(e) Motion [ECF No. 25] at 3.1 Kleckley has now filed his Objections to the
R&R. See Objections [ECF No. 26]. After conducting a de novo review of the Petition, Magistrate Judge
Reid’s R&R, and Kleckley’s Objections, we again adopt the R&R in full and overrule the Objections.
THE LAW

A. Review of a Report and Recommendation
When a magistrate judge’s “disposition” has been properly objected to, district courts must
review that disposition de novo. FED. R. CIV. P. 72(b)(3). But, when no party has timely objected, “the
court need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (cleaned up). Although Rule 72
itself is silent on the standard of review, the Supreme Court has acknowledged that Congress’s intent
was to require de novo review only where objections have been properly filed—and not when neither
party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended
to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those findings.”).
“A party filing objections must specifically identify those findings objected to and the specific
basis for such objections.” Hidalgo Corp. v. J. Kugel Designs, Inc., 2005 WL 8155948, at *1 (S.D. Fla. Sept.
21, 2005) (Jordan, J.). Therefore, the “[f]ailure to object to the magistrate [judge]’s factual findings

after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.
1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).

1 We didn’t, however, allow Kleckley to file objections to Magistrate Judge Reid’s recommended
disposition of Claims 4–10—the same claims we (and Magistrate Judge Reid) found untimely. We
bifurcated the claims in this way because we already “conducted our own de novo review of Claims 4–
10 and concluded that all of these claims were untimely. If Kleckley had objected to the timeliness of
these claims, in other words, we would have conducted the same de novo review and reached the same
conclusion—viz., that Claims 4–10 are time-barred.” Order Granting in Part Rule 59(e) Motion [ECF
No. 25] at 2 (emphasis in original & cleaned up).
B. Ineffective Assistance of Counsel
The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel
for his defen[s]e.” U.S. CONST. amend. VI. “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.
668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must

demonstrate “that (1) his counsel’s performance was deficient and ‘fell below an objective standard of
reasonableness,’ and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec’y, Fla. Dep’t of
Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). This same standard
applies to alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t
of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel
is evaluated under the same standard as for trial counsel.”).
To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel
would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315
(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have
acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed
deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (quoting White v. Singletary, 972 F.2d
1218, 1220 (11th Cir. 1992)).

As for the second prong (prejudice), “a defendant is prejudiced by his counsel’s deficient
performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting
Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. To succeed on this prong, a defendant must
show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687.
ANALYSIS
We’ll start by briefly summarizing what Kleckley’s claims are and what Magistrate Judge Reid’s
R&R said about each. In Claim 1, Kleckley alleges that the attorney who represented him during his
state resentencing hearing should have disclosed a conflict of interest that “adversely affected the

performance of counsel.” Petition at 5–6. In the R&R, Magistrate Judge Reid found that, even if
Kleckley’s conflict allegations were true, Kleckley wasn’t prejudiced by counsel’s failure to disclose the
conflict. See R&R at 13 (“As such, even assuming, arguendo, that Petitioner’s allegations in Claim 1 were
true, there is nothing in front of this Court indicating that Petitioner was prejudiced because of
counsel’s failure to disclose his prior representation of Petitioner.”).
In Claim 2, Kleckey blames his lawyer for failing to cross-examine the victim, Miguel
Rodriguez, about his identification of Kleckley as the perpetrator. See Petition at 7 (“Petitioner
contends that these questions would have shown that Mr. Rodriguez described someone totally
different from the Petitioner.”). Magistrate Judge Reid roundly rejected this claim, explaining that
resentencing “was not an opportunity for Petitioner to question the victim regarding his identity,” and
adding that “the sentencing court would have rejected any attempt by counsel” to ask the questions
Kleckley now proposes. R&R at 14.

In Claim 3, Kleckley chastises his counsel for failing to call Dorothy Jones to testify at his
resentencing about “the impact the Petitioner had and has on other inmates as well as citizens in
society.” Petition at 7. Magistrate Judge Reid again found that Kleckley hadn’t shown prejudice since
“[t]he resentencing court heard from Petitioner’s other family and friends,” and because there was
“clear evidence” that “any additional testimony would not have changed the outcome of the
resentencing hearing.” R&R at 15.
Finally, in Claim 11, Kleckley challenges the trial court’s finding that he qualified for an
enhanced sentence as a “habitual felony offender.” Petition at 17. Magistrate Judge Reid determined
that this claim merely attacks the state court’s adjudication of a state-law matter—and, thus, “is not
cognizable in [a] federal habeas petition.” R&R at 15–16 (quoting Branan v. Booth, 861 F.2d 1507, 1508
(11th Cir. 1988)).
Kleckley objects to Magistrate Judge Reid’s recommended disposition of all four claims.2 As

to Claim 1, he asks us to presume prejudice because he was represented, at the resentencing, by a lawyer
against whom he had previously “filed an ineffective assistance of counsel claim[.]” Objections at 2.
With respect to Claim 2, he argues that the questions his lawyer should have asked on cross-
examination of the victim were necessary “to determine if Petitioner was a danger to society,” and (he
adds) the “validity of his conviction” was “fair game” in any hearing about whether he qualified as a
“habitual felony offender.” Id. at 3–4. As for Claim 3, he contends that the cumulative nature of
Dorothy Jones’s testimony “is not a [basis] for denial.” Id. at 5. Finally, with respect to Claim 11, he

2 Kleckley also objects to our decision to limit the scope of his objections to Claims 1, 2, 3, and
11, and has filed a motion for reconsideration on this issue. See Second Rule 59(e) Motion [ECF No.
27] at 2 (“Petitioner contends that it would be manifestly unfair to prevent him from objecting to the
R&R, where the factual question would evade review.”); see also Objections at 8 (“Petitioner brings to
the Honorable Court’s attention that he does not waive his right to object to claims 4, 5, 6, 7, 8, 9, and
10.”). Kleckley contends that he should still be allowed to object to these claims because “the Court
overlooked that the timeliness determination hinges on a factual matter.” Second Rule 59(e) Motion
at 1.
Timeliness, however, is a legal issue (or, at least, a mixed question of law and fact). Cf. Joseph v.
Conway, 567 F. App’x 56, 57–58 (2d Cir. 2014) (“The timeliness of a habeas petition presents a question
of law that we review de novo. . . . [We] ultimately review de novo the legal determination of whether on
those facts the petition was timely filed[.]”). In any event, as we explained in our prior order, there’s
no dispute on the central timeliness question we confront here—viz., whether the state court issued
one (or multiple) judgments—because the record is clear that the state court never amended its original
judgment after resentencing. See Order Adopting R&R at 5 (“[T]he state court never superseded its
original judgment (from June 12, 2000) with a new judgment.”). That said, we acknowledge that
Kleckley has preserved his objections to Claims 4–10 for the purposes of any future appeal. See 11th
CIR. R. 3-1 (“A party failing to object to a magistrate judge’s findings or recommendations . . . waives
the right to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions[.]”).
maintains that his sentence as a habitual felony offender “exceeds the maximum authorized by law,”
which means that he’s been illegally detained “in violation of the Constitution.” Id. at 7. We’ll address
each objection in turn.
A. Claim 1
Kleckley’s first claim is that the attorney who represented him during his resentencing, Joseph
Chloupek, was ineffective because he was operating under a conflict of interest. The source of that

conflict goes back a number of years—to when Chloupek represented Kleckley on his direct appeal.
See Direct Appeal Initial Brief [ECF No. 12-1] at 47 (submitted on behalf of Kleckley by “Joseph R.
Chloupek, Assistant Public Defender”). After Kleckley lost that appeal, he filed a habeas petition in
which (among other things) he challenged Chloupek’s failure to order the transcripts of his sentencing
hearing. See Petition at 5 (“The bases for such conflict in said case had arisen with regard to a Habeas
corpus Petitioner filed on or about November 29, 2001, alleging ineffective assistance of Appellant
Counsel on Mr. Chloupek[.]” (errors in original)). And the conflict is actual and ongoing, Kleckley
says, because he prevailed in that collateral attack—which is to say, the Fourth DCA agreed with
Kleckley that Chloupek had, in fact, rendered ineffective assistance. See Kleckley v. State, 810 So. 2d
1081, 1081 (Fla. 4th DCA 2002) (“This case involves Robert Kleckley’s petition for writ of habeas
corpus alleging ineffective assistance of appellate counsel for failing to order or have transcribed the
sentencing transcripts. . . . We find Kleckley’s petition legally sufficient, and grant relief.”). The Fourth

DCA further held that “the trial court may appoint appellate counsel to assist Kleckley with preparing
the record on appeal and his initial brief” for a subsequent appeal that would “address sentencing
only.” Ibid. As far as we can tell, the state trial court never gave Kleckley a new appellate lawyer (nor
did Kleckley request one), and Kleckley himself didn’t challenge the legality of his sentence until, at
least, January 12, 2006. See Motion to Correct Illegal Sentence [ECF No. 12-2] at 29–31. When the
Fourth DCA ultimately held that Kleckley should be resentenced on Count 2, see Kleckley v. State, 4 So.
3d 1290, 1290 (Fla. 4th DCA 2009), Chloupek once again represented him at his resentencing.
Magistrate Judge Reid was “at a loss to understand how counsel’s prior representation of the
same individual can constitute a conflict of interest.” R&R at 12. But her recommendation mainly
focused on Kleckley’s failure to show prejudice under Strickland. See ibid. (“Clearly, Petitioner was not
prejudiced by counsel’s supposed failure to inform the court of the purported conflict.”). We agree
with Magistrate Judge Reid’s result—though (as we explain in note 3, infra) we quibble a bit with how

she got there.
In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court “establishe[d] a two-part test that
we use to evaluate whether an attorney is constitutionally ineffective due to a conflict of interest. To
show ineffectiveness under Cuyler, a petitioner must demonstrate: (a) that his defense attorney had an
actual conflict of interest, and (b) that this conflict adversely affected the attorney’s performance.”
Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th Cir. 2001) (citing Cuyler, 446 U.S. at 348–49). To show
an “actual conflict of interest,” the petitioner “‘must make a factual showing of inconsistent interests’
or point to ‘specific instances in the record’ to suggest an actual impairment of his or her interests.”
Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (quoting Smith v. White, 815 F.2d 1401, 1404
(11th Cir. 1987)). A “speculative or merely hypothetical conflict” of interest will not suffice. Lightbourne
v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987). Even if defense counsel “labored under an actual
conflict of interest,” the petitioner still needs to establish that “this conflict adversely affected the

representation he received.” Reynolds, 253 F.3d at 1343. The Eleventh Circuit uses a three-part test to
evaluate an alleged conflict’s “adverse effects.” It asks: (1) whether “the defense attorney could have
pursued [an] alternative strategy”; (2) whether “[the] alternative strategy was reasonable”; and (3)
whether “the alternative strategy was not followed because it conflicted with the attorney’s external
loyalties.” Ibid. (citing Freund, 165 F.3d at 860).3
We’ll assume (without deciding) that Kleckley’s prior successful challenge of Chloupek’s
representation resulted in an actual conflict of interest. Still, Claim 1 fails because Kleckley has failed
to allege that this conflict “adversely affected counsel’s representation.” McConico v. State of Ala., 919
F.2d 1543, 1549 (11th Cir. 1990). In the Petition, Kleckley “asserts this actual conflict of interest
adversely affected the performance of counsel . . . because counsel limited Petitioner’s ability to bring

evidence to obtain a lesser sentence.” Petition at 6; see also Objections at 2 (“The Respondent also
overlooked that the habitual sentence is discretionary not mandatory. And the sentencing judge made
it clear that he based his decision on the testimony he heard that day. Petitioner alleged areas where
counsel was deficient [due] to the actual conflict.”). In saying so, however, Kleckley identifies two—
and only two—additional sources of evidence that (in his view) Chloupek should have pursued at the
resentencing: One, he says that Chloupek should have “cross-examine[d] state witness Miguel
Rodriguez” both about his in-court identification of Kleckley during the trial and about Kleckley’s
(alleged) rehabilitation; two, he claims that Chloupek should have called Dorothy Jones as a defense
witness. Petition at 6. These are, of course, the very same arguments Kleckley has advanced in Claims
2 and 3 of his Petition—both of which we address (and reject) in more detail below.
Suffice it to say here, though, that Kleckley cannot prevail on Claim 1 because neither of these
proposed strategies were reasonable—and because the second wasn’t really an alternative strategy at all.

3 Both Kleckley and Magistrate Judge Reid appear to conflate Cuyler’s “adverse effect” requirement
with Strickland’s “prejudice” prong. But “an adverse effect resulting from a conflict is not the same
thing as prejudice in the run-of-the-mill Strickland sense.” Ochoa v. United States, 45 F.4th 1293, 1299
(11th Cir. 2022) (cleaned up). And the Eleventh Circuit has been clear that “prejudice is presumed
only if the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s
performance.” Freund, 165 F.3d at 860 (cleaned up); see also United States v. Novaton, 271 F.3d 968, 1011
(11th Cir. 2001) (“In the absence of a showing of an ‘adverse effect,’ prejudice is not presumed to
flow from a conflict of interest.”); Ruffin v. Kemp, 767 F.2d 748, 752 (11th Cir. 1985) (“The case law is
clear that actual prejudice need not be shown. Once a habeas petitioner has proved the existence of
an actual conflict, only an adverse impact on the attorney’s performance need be shown.”).
With respect to the first—the cross of Mr. Rodriguez—there simply was no opportunity to cross-
examine the victim at the resentencing, which was all about whether Kleckley was (as the State argued)
a “habitual felony offender,” and which had nothing to do with whether the victim was telling the
truth when he identified Kleckley as the perpetrator all those years before. This latter question—about
the veracity of the victim’s identification—was conclusively resolved by the jury’s verdict at trial. See
Verdict [ECF No. 12-1] at 93–96 (showing that the jury, consistent with the victim’s testimony, found

Kleckley guilty of both charges). We cannot say that Kleckley was “adversely affected” by his lawyer’s
failure to do something he couldn’t have done in any case. See, e.g., United States v. Mers, 701 F.2d 1321,
1331 (11th Cir. 1983) (“Failing to adopt a strategy . . . may well give rise to an actual conflict of interest,
but to do so the strategy must have been an option realistically available to trial counsel.” (emphasis added));
see also Tuomi v. Sec’y Fla. Dep’t of Corr., 980 F.3d 787, 797 (11th Cir. 2020) (“Tuomi cannot show adverse
effect because [filing] a Rule 3.800 motion was not a viable alternative under Florida law. . . . Thus,
Tuomi’s counsel pursued the only form of relief available to Tuomi under the circumstances, which
was to seek to withdraw his negotiated plea on the ground that it was involuntary.”).
Nor would it have made sense for Chloupek to question the victim about Kleckley’s character.
In his statement at the resentencing, the victim expressed his unambiguous view that Kleckley should
be resentenced to life in prison. See Resentencing Tr. [ECF No. 13-2] at 27 (“I wish that the sentence
stay as a life sentence because of what I’ve been through. This whole situation really changed my life.

. . . And at this moment I strongly feel in my heart because of everything I’ve been through and what
was decided in Court that the sentence stay and he keep a life sentence.”). Counsel thus had no reason
to believe that the victim might have been open to any suggestion that Kleckley had been (as he now
claims) fully reformed. And any questions along those lines may very well have backfired. Again,
Kleckley cannot have been “adversely affected” unless he can point to an “alternative strategy” that
would have been reasonable for counsel to pursue. See Reynolds, 253 F.3d at 1343 (asking, among other
things, whether “[the] alternative strategy was reasonable”).
As for the second thing Kleckley thinks Chloupek should’ve done—call Ms. Jones to the stand
during the resentencing—Kleckley has been clear that Ms. Jones would’ve simply reiterated the very
same things the four other defense witnesses had already said.4 See Petition at 7 (“Petitioner contends
[Dorothy Jones] would have testified to the impact the Petitioner had and has on other inmates as
well as citizens in society. [Jones] would have testified to the classes the Petitioner facilitated[.]”). But,

despite hearing from those four other witnesses, the state judge (as we’re about to see) found that
Kleckley qualified as a “habitual felony offender” and sentenced him accordingly. Resentencing Tr.
[ECF No. 13-2] at 52–53 (“I find it necessary to sentence the defendant for [the] protection of the
public as [a] habitual felony offender.”). Calling a fifth witness to repeat what these four witnesses had
already said—in testimony the state judge had already rejected—isn’t an “alternative” strategy at all,
much less a reasonable one. In other words, an alternative strategy cannot be reasonable if it would have
added nothing at all. See Freund, 165 F.3d at 860 (defining a “reasonable alternative strategy” as one
which “possess[es] sufficient substance to be a viable alternative” (quoting United States v. Fahey, 769
F.3d 829, 836 (1st Cir. 1985))). What’s more, even if we assume that putting Ms. Jones on the stand
would’ve constituted an “alternative strategy”—and even if we agree that calling Ms. Jones would’ve
been a reasonable thing to do—Kleckley hasn’t suggested that Chloupek failed to call Ms. Jones because
doing so would have “conflicted with the attorney’s external loyalties.” Reynolds, 253 F.3d at 1343. And

how could he—when Chloupek did elicit substantially the same testimony from four other witnesses?
We therefore OVERRULE Keckley’s objection on Claim 1.
B. Claim 2
In Claim 2, Kleckley argues that counsel was ineffective “for failing to cross examine [the]
State witness” at the resentencing hearing. Petition at 6. Kleckley proposes that counsel should have

4 For more detail on all this, see our discussion in Section C, infra.
asked the witness—the victim in this case—questions about (1) how he identified Kleckley as the
perpetrator and (2) whether he thought Kleckley had been rehabilitated. See id. at 6–7 (“Petitioner
contends counsel should have asked the following questions: ‘What was your description of the culprit
that committed this crime the first time you talked to the detective?’ . . . ‘Does he (the victim) feel the
Petitioner has shown signs of rehabilitation?’”). As Magistrate Judge Reid explained, Claim 2 suffers
from a dispositive flaw:

Again, Petitioner appears to misconstrue the limits of the resentencing hearing. This
was not an opportunity for Petitioner to question the victim regarding his identity, or
to relitigate his substantive defenses from trial. The sole issue at resentencing was
whether Petitioner should be sentenced as a habitual felony offender. As Respondent
notes, this was not an opportunity for Petitioner to re-try his case. The sentencing
court would have rejected any attempt by counsel to do so. Thus, Petitioner cannot be
prejudiced by his counsel’s choice not to have cross-examined the witness regarding
facts related to Petitioner’s guilt or innocence as if they were at trial, or for questions
the victim would have no knowledge of, such as whether Petitioner would function in
society. Therefore, the allegations in Claim 2 do not constitute ineffective assistance
of counsel.

R&R at 14. Kleckley resists Magistrate Judge Reid’s conclusion, asserting that “[t]he questions asked
were to expose facts that clearly bring into issue the validity of the conviction, as the same was both
fair game given statements of the prosecution and for consideration to impose a habitual offender
sentence.” Objections at 3–4. We disagree.
Under Florida and federal law, “a defendant’s rights at sentencing differ considerably from his
pre-conviction rights.” Peters v. State, 984 So. 2d 1227, 1232 (Fla. 2008) (quoting United States v. Jackson,
453 F.3d 302, 305 (5th Cir. 2006)). Put bluntly, “the defendant has no right to confront witnesses at
sentencing.” United States v. DeAngelis, 243 F. App’x 471, 474 (11th Cir. 2007). It’s true that a defendant
“does have a right to rebut information relevant to his character and record that is admitted against
him at the sentencing hearing.” Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1074 (11th Cir.
2013). But the victim’s testimony at resentencing was limited to a brief statement, in which (as we’ve
said) he asked that Kleckley be resentenced to life in prison. See Resentencing Tr. [ECF No. 13-2] at
27 (“I wish that the sentence stay as a life sentence because of what I’ve been through. This whole
situation really changed my life. . . . And at this moment I strongly feel in my heart because of
everything I’ve been through and what was decided in Court that the sentence stay and he keep a life
sentence.”).5 Indeed, a careful review of the victim’s statement reveals that he offered no factual details
that could be rebutted or challenged on cross-examination at all. See generally ibid. And (notably)
Kleckley had a full opportunity to allocute at resentencing. See id. at 45–47. Since Kleckley had no right

to transform his resentencing into a redo of his trial, counsel wasn’t ineffective for failing to conduct
a cross-examination.6 See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005)
(“[Counsel] is not ineffective for failure to raise a meritless argument.”). We therefore OVERRULE
Kleckley’s objection as to Claim 2.
C. Claim 3
In Claim 3, Kleckley says that counsel was ineffective for not calling Dorothy Jones to testify
at his resentencing. According to Kleckley, Jones would have provided essential testimony about “the
classes Petitioner facilitated,” “the degrees the Petitioner had earned,” “the effects he has had on other
inmates and citizens,” and “his plans to create a non-profit organization to help Youthful Offenders
and rehabilitated men and women”—all of which (he insists) would have convinced the state court
that “the Petitioner is not a threat to society, but a moral individual who’s able to contribute to those
who are lost and struggling.” Petition at 7–8. Noting that the state court had already “heard from

Petitioner’s other family and friends,” Magistrate Judge Reid determined that there was no reasonable

5 As we’ve explained, Kleckley never indicates that the victim would’ve supported his rehabilitation
narrative at all. And that’s probably because, as Magistrate Judge Reid noted, there’s no reason to
believe that the victim had any personal knowledge of any supposed reformation in Kleckley’s
character. In any event, the victim’s specific request at resentencing—that Kleckley be resentenced to
life in prison—strongly suggests that, if asked, the victim would not have supported Kleckley’s position.
6 As an aside, we note that Kleckley’s trial counsel extensively cross-examined the victim at trial about
his identification, rendering any additional cross at resentencing fairly redundant. See Trial Tr. [ECF
No. 13-1] at 278–80, 284–86.
probability that Jones’s “additional testimony would have changed the outcome of the resentencing
hearing.” R&R at 15. Kleckley objects and maintains that Jones’s testimony “was corroborative but
not cumulative.” Objections at 5.
We adopt Magistrate Judge Reid’s conclusion. After all, “even if [Jones’s] testimony had been
presented, there is no reasonable probability that the outcome would have changed[.]” Clisby v. State of
Ala., 26 F.3d 1054, 1057 (11th Cir. 1994). The purpose of Kleckley’s resentencing was simple: to

determine whether he should be resentenced as a habitual felony offender on Count 2. See Kleckley, 4
So. 3d at 1290 (“We reverse the summary denial of appellant’s claim that his habitual sentence imposed
for count two is illegal[.]”). Under Florida law, the resentencing court had the discretion not to impose
a “habitual felony offender” sentence—even if Kleckley otherwise qualified for that designation—so
long as it determined “that it is not necessary for the protection of the public to sentence a defendant
. . . as a habitual felony offender[.]” FLA. STAT. § 775.084(4)(e); see also Sol v. State, 268 So. 3d 749, 750
(Fla. 4th DCA 2019) (“Section 775.084 also states that the trial court must sentence the defendant as
a habitual felony offender unless the court finds that such a sentence is not necessary for the protection
of the public.” (cleaned up)).
Kleckley’s counsel called four witnesses during the resentencing hearing, and all four provided
the same (purportedly crucial) testimony that Kleckley now says Dorothy Jones would have given.
Alva Nelson testified that Kleckley “was like a mentor to my son,” and that, during his time in prison,

Kleckley “gave his life to Christ” and began “studying law and singing in the choir.” Resentencing Tr.
[ECF No. 13-2] at 29–30. Ventry Rich testified that Kleckley “took a lot of courses since he’s been [in
prison]. He [has] finished his high school education. He [has] won several certificates since [he’s] been
there.” Id. at 35. Kimberley Kleckley explained that her brother helped her get a GED and has “totally
changed. He has accomplished so much for himself” while in prison. Id. at 38, 40. And Shelia Major
testified that Kleckley had devoted himself to his religion, and that, if he were released, she would’ve
support him financially until he could find permanent employment. Id. at 43–44. Kleckley himself then
took the stand and confirmed that his goal after leaving prison would be to “further my education”
and to speak to “battered kids or troubled kids so they won’t make the same mistakes I made.” Id. at
46. Despite all this testimony about Kleckley’s progress as an individual and his exemplary personal,
academic, and spiritual growth, the resentencing judge found it “necessary to sentence the defendant
for protection of the public as [a] habitual felony offender.” Id. at 52–53.

Given the testimony Kleckley already presented at the resentencing, we agree with Magistrate
Judge Reid that Jones’s testimony would have been quite cumulative. Again, all four witnesses spoke
about the education Kleckley received in prison, his positive relationship with family and friends, his
religious awakening, and the various other ways in which he’d changed (for the better) while in prison.
See generally id. at 28–45. Kleckley also talked about his own accomplishments in prison and discussed
his plans to mentor troubled youth in the future. See id. at 45–46. In the face of all this, the state judge
was unmoved. See id. at 52–53. And Kleckley’s already told us that Dorothy Jones’s testimony would
have merely repeated many of the same themes the state judge already rejected: that, for example,
“Petitioner is not a threat to society, but a moral individual who’s able to contribute to those who are
lost and struggling.” Petition at 8.
Since Jones’s testimony would have been “merely cumulative of the humanizing evidence
[counsel] actually presented[,] adding it to what was already there would have made little difference.”

Wong v. Belmontes, 558 U.S. 15, 22 (2009); see also Downs v. State, 740 So. 2d 506, 516 (Fla. 1999) (“[T]o
the extent Downs offers additional facts not previously presented at the resentencing hearing, such
facts are cumulative to the evidence presented by Downs during the resentencing proceeding and,
therefore, are insufficient to warrant relief under Strickland.”). We thus OVERRULE Kleckley’s third
objection.
D. Claim 11
Claim 11 challenges the legality of the state court’s finding that Kleckley qualified as a habitual
felony offender. See Petition at 18 (“Petitioner avers that from the face of the record, the trial court
violated the Petitioner’s due process when the trial court nullified the clearly legislative intent under
[FLA. STAT. §] 775.084(1)(a)3, which excludes felonies committed pursuant to section 893.13[.]”).
Magistrate Judge Reid found that Claim 11 solely concerns “Florida state statutory guidelines on who

constitutes a habitual felony offender, and a Florida court’s application of the same when sentencing
a defendant provides this Court no basis to review such a decision.” R&R at 16.
That’s exactly right. “A state’s interpretation of its own laws or rules provides no basis for
federal habeas corpus relief, since no question of a constitutional nature is involved.” McCullough v.
Singletary, 967 F.2d 530, 535 (11th Cir. 1992); see also Branan, 861 F.2d at 1508 (“This limitation on
federal habeas review is of equal force when a petition, which actually involves state law issues, is
‘couched in terms of equal protection and due process.’” (quoting Willeford v. Estelle, 538 F.2d 1194,
1198 (5th Cir. 1976))). For this reason, our Circuit’s district courts uniformly refuse to review a state
court’s imposition of a habitual-felony-offender sentence. See, e.g., Moore v. Sec’y of Fla. Dep’t of Corr.,
2011 WL 1576210, at *6 (M.D. Fla. Apr. 26, 2011) (Howard, J.) (“Moreover, to the extent that
Petitioner claims his habitual felony offender sentence is illegal due to the trial court’s lack of subject
matter jurisdiction, such a claim presents an issue purely of state law that is not cognizable on federal

habeas review.”); Jorge v. Jones, 2018 WL 10788538, at *31 (S.D. Fla. Oct. 22, 2018) (White, Mag. J.)
(“[A]ny challenge to the validity of the petitioner’s enhanced sentence as a habitual felony offender is
not cognizable in this federal proceeding. It is well settled that a state’s interpretation of its own rules
or statutes does not raise a federal constitutional issue unless it rises to a level of denial of fundamental
due process.”), report and recommendation adopted, 2018 WL 10788536 (S.D. Fla. Dec. 19, 2018) (King,
J.). And, while Kleckley obliquely claims that his “habitual felony offender sentence does violate the
United States Constitution,” he never suggests that he was denied due process. Objections at 7. And
that’s probably because, whatever the outcome, the state court gave Kleckley a fair shot at
resentencing: He afforded him competent counsel, allowed him to testify, and permitted him to call
four witnesses who would support his view of the equities. See generally Resentencing Tr. [ECF No.
13-2]. Kleckley’s Claim 11 objection is, therefore, OVERRULED.

EVIDENTIARY HEARING
We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record precludes
habeas relief under the limitations of § 2254(d), a district court is not required to hold an evidentiary
hearing.” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (cleaned up); see also Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (“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.”). Since the
transcript of Kleckley’s resentencing fully disposes of his objections, we don’t think we’d benefit from
any further factual development.
CERTIFICATE OF APPEALABILITY
A Certificate of Appealability (“COA”) is appropriate only where the movant makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,
therefore, the movant must show that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a

district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the
court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid
claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural
ruling.’” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d
1196, 1199 (11th Cir. 2000)). Because reasonable jurists wouldn’t find our resolution of the Petition’s
claims to be debatable or wrong, we DENY any request for a COA.
x Kx
Having conducted a de novo review of the R&R, the record, and the applicable law, we hereby
ORDER AND ADJUDGE as follows:
1. Magistrate Judge Reid’s R&R [ECF No. 19] is ACCEPTED and ADOPTED.
2. Kleckley’s Objections to the R&R [ECF No. 26] are OVERRULED. Claims 1, 2, 3,
and 11 of the Petition [ECF No. 1] ace DENIED.
3. Any requests for an evidentiary hearing or a certificate of appealability ace DENIED.
4. Any other pending motions are DENIED as moot, and all deadlines are
TERMINATED.
5. The Clerk of Court shall CLOSE this case.
DONE AND ORDERED in the Southern District of Florida this 20th day of October 2022.

{aK
UNITED STATES DISTRICT JUDGE
cc: Robert Kleckley, pro se
counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121143. Public record. Not legal advice.