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McCloud v. Secretary, Department of Corrections

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

March 27, 2018

SECRETARY, Department of Corrections, Respondent.



         Johnny Ray McCloud applies under 28 U.S.C. § 2254 (Doc. 1) for the writ of habeas corpus and challenges the validity of his state convictions for burglary of a dwelling and for petit theft. McCloud alleges three grounds of ineffective assistance of trial counsel and one procedural due process claim. The respondent admits the application's timeliness. (Doc. 9 at 6) Numerous exhibits (“Resp. Ex. ”) support the response. (Doc. 10)


         While walking his dog, McCloud's neighbor discovered McCloud and a woman stealing a sofa from the neighbor's “rental cottage” (also described at trial as a “shed”). (Resp. Ex. 4 at 6, Resp. Ex. 10 at 1-5) A jury convicted McCloud of second degree burglary of a dwelling, in violation of Section 810.02(3)(b), Florida Statutes, and petit theft, in violation of Section 812.014, Florida Statutes. As a prison release re-offender, McCloud serves fifteen years' imprisonment. (Resp. Ex. 1)

         In a per curiam decision without a written opinion the state appellate court affirmed McCloud's convictions and sentence. (Resp. Ex. 3) In another per curiam decision without a written opinion the state appellate court affirmed the summary denial of McCloud's Rule 3.850 motion to vacate. (Resp. Exs. 4-5, 9)

         Standards of review

         A federal court may not grant habeas relief on a claim adjudicated in state court unless the adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or the adjudication “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). To prevail on a claim under Section 2254, an applicant must demonstrate that the state court's decision possessed “no reasonable basis.” Harrington v. Richter, 562 U.S. 86, 98 (2011). If a state court's decision is unaccompanied by an opinion explaining the denial of relief, the habeas court determine which arguments or theories could have supported the state court's decision. Richter, 562 U.S. at 102.

         McCloud claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (internal quotation marks omitted). To demonstrate that counsel was constitutionally ineffective, an applicant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the applicant. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         “The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105 (internal quotation marks omitted). Accordingly, “[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105.

         Grounds one and three

         In ground one, McCloud argues that counsel rendered ineffective assistance by failing to investigate whether the neighbor's cottage (or shed) qualified as a “dwelling” under the burglary statute.[1] With citation to exhibits, McCloud argues that a reasonable investigation would have revealed (1) that the neighbor used the building only for storage for at least ten years, (2) that the building's electric meter was removed several years earlier, and (3) that Polk County's land development office stated that the structure should be demolished because it violated a code provision permitting only one house per lot. (Doc. 2 at 17-18) “Counsel has a constitutional, independent duty to investigate and prepare a defense strategy prior to trial.” Williams v. Allen, 598 F.3d 778, 792 (11th Cir. 2010). “However, this duty does not necessarily require counsel to investigate each and every evidentiary lead, ” and “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Williams, 598 F.3d at 793 (internal quotation marks omitted). “[A] court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Williams, 598 F.3d at 793 (internal quotation marks omitted).

         The state court reasonably rejected McCloud's failure-to-investigate claim. In moving for judgment of acquittal, counsel argued that the state failed to establish a “dwelling” because the building was “a dilapidated residence” in “rough” condition, the neighbor used the structure only for storage, and the neighbor conceded that he would not rent the property in its current condition. (Resp. Ex. 5 at 30-31) Counsel therefore knew the salient facts, and the Sixth Amendment required no additional investigation. Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999) (holding that counsel is not required to investigate all available mitigating evidence); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“[T]he issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.'”).

         Moreover, even if counsel performed a constitutionally inadequate investigation, her conduct caused no prejudice to McCloud. The controlling question is “the purpose of the structure” not the structure's habitability or its current use. Young v. State, 141 So.3d 161, 166-172 (Fla. 2013)[2] (holding that a structure retains its dwelling status even if the structure is uninhabitable during renovation); Perkins v. State, 682 So.2d 1083, 1085 (Fla. 1996) (“an empty house in a neighborhood is extended the same protection as one presently occupied”). The only facts that counsel failed to discover - a violation of the land development code and an absent electric meter - relate to the structure's habitability not to the structure's purpose.

         Ground three raises a similar claim: McCloud argues that counsel rendered ineffective assistance because she failed to impeach testimony that the structure “could be lived in with minor repairs.” (Doc. 1-3 at 8) But again, the testimony relates to habitability, and counsel is not ineffective for declining to impeach irrelevant testimony. Barwick v. Sec'y, Fla. Dep't of Corrs., 794 F.3d 1239, 1253 (11th Cir. 2015). McCloud ...

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