United States District Court, M.D. Florida, Tampa Division
ORDER
STEVEN
D. MERRYDAY UNITED STATES DISTRICT JUDGE
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)
Background
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 ...