Dennis McCloud v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10671
Non-Argument Calendar
____________________
DENNIS L. MCCLOUD,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-00591-MMH-JBT
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2 Opinion of the Court 22-10671
____________________
Before G RANT, L AGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Dennis McCloud, representing himself, appeals the district
court’s denial of his petition for federal habeas corpus relief. He
argues that he received ineffective assistance of counsel at his trial
because his lawyer didn’t challenge improper expert testimony
about the credibility of a child witness or improper argument by
the state prosecutor. After careful consideration, we affirm.
I.
In 2010, a Duval County, Florida jury found McCloud guilty
of one count of sexual battery and one count of lewd or lascivious
molestation related to minor victim D.M., and one count of lewd
or lascivious exhibition related to minor victim A.O. The state cir-
cuit court imposed sentences totaling life in prison. The state ap-
pellate court affirmed McCloud’s convictions and sentences on di-
rect appeal. McCloud v. State, 91 So. 3d 940 (Fla. Dist. Ct. App.
2012). McCloud then filed motions for state postconviction relief,
which were denied. As relevant to the claim before us, the state
court of appeal summarily affirmed the denial of postconviction re-
lief. McCloud v. State, 263 So. 3d 1 (Fla. Dist. Ct. App. 2018).
McCloud filed a petition for federal habeas corpus relief pur-
suant to 28 U.S.C. § 2254, alleging among other things that his trial
attorney was ineffective for failing to object when the State elicited
expert testimony vouching for the credibility of D.M., one of the
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22-10671 Opinion of the Court 3
minor victims, and when the prosecutor vouched for D.M.’s truth-
fulness in closing argument. The district court denied McCloud’s
§ 2254 petition. We granted McCloud a certificate of appealability
on one issue: whether the district court erred by rejecting
McCloud’s claim that his trial counsel performed ineffectively by
failing to object to the state, and its witness, vouching for D.M.’s
credibility.
II.
We review the district court’s denial of a federal habeas pe-
tition de novo. Reed v. Sec’y, Florida Dep’t of Corr., 593 F.3d 1217,
1239 (11th Cir. 2010). Under § 2254, as amended by the Antiterror-
ism and Effective Death Penalty Act (AEDPA), a federal court may
not grant habeas relief on a claim that was adjudicated on the mer-
its in state court proceedings unless the petitioner shows that the
state court’s decision “was contrary to, or involved an unreasona-
ble application of, clearly established Federal law, as determined by
the Supreme Court of the United States;” or was “based on an un-
reasonable determination of the facts in light of the evidence pre-
sented” in the state court proceeding. 28 U.S.C. § 2254(d). “A state
court’s determination that a claim lacks merit precludes federal ha-
beas relief so long as ‘fairminded jurists could disagree’ on the cor-
rectness of the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (citation omitted).
III.
McCloud argues that his trial attorney provided ineffective
assistance of counsel by failing to object when the State’s expert
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4 Opinion of the Court 22-10671
witness testified that she did not believe D.M. was being truthful in
her initial statement exonerating McCloud, and when the prosecu-
tor separately vouched for D.M.’s veracity in her trial testimony
(which inculpated McCloud) during closing arguments. To prove
a Sixth Amendment ineffective-assistance-of-counsel claim, a peti-
tioner must demonstrate both that his counsel’s performance was
objectively deficient and that he suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To show preju-
dice under this standard, he must demonstrate “a reasonable prob-
ability 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.
Both the state circuit court and the state court of appeal re-
jected this claim on the merits in McCloud’s state postconviction
proceedings. But neither state court clearly explained its reason-
ing.1 Under the circumstances, we must determine what argu-
ments “could have supported” the state court’s decision, and then
“ask whether it is possible fairminded jurists could disagree” about
1 The state circuit court denied the claim “[u]pon a review of the State’s Re-
sponse, in conjunction with the record attachments provided with said Re-
sponse.” But the state court did not indicate whether it was adopting the
State’s response wholesale or whether it had other reasons for denying relief
in addition to the State’s arguments, which addressed only the performance
prong of the Strickland analysis. And the state court of appeal affirmed the
denial of postconviction relief in a one-word opinion. McCloud v. State, 263 So.
3d 1 (Fla. Dist. Ct. App. 2018).
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22-10671 Opinion of the Court 5
the correctness of that reasoning under relevant Supreme Court
precedents. Richter, 562 U.S. at 102.
It is possible, as the State argues in this Court, that the state
court of appeal affirmed the denial of postconviction relief on the
ground that the expert’s opinion on D.M.’s truthfulness and the
prosecutor’s argument on the same theme in closing were permis-
sible under Florida law. If so, we must accept that interpretation
of relevant state law—“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law ques-
tions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). And if the tes-
timony and argument were permissible under state law, then the
state court could have reasonably determined that defense coun-
sel’s failure to object was not objectively deficient performance un-
der the Strickland standard. See Meders v. Warden, Georgia Diagnostic
Prison, 911 F.3d 1335, 1354 (11th Cir. 2019) (failure to make an ob-
jection that will not be sustained is not ineffective assistance).
Alternatively, the state appellate court may have affirmed on
the ground that even if counsel’s performance was deficient,
McCloud could not demonstrate prejudice under Strickland be-
cause no reasonable probability existed that the outcome of the
trial would have been different if counsel had objected to the al-
leged “vouching” and the objections had been sustained. See Strick-
land, 466 U.S. at 687, 694. This rationale was not an unreasonable
application of Strickland either.
Even if the trial court had excluded the expert’s testimony
directly commenting on D.M.’s truthfulness, plenty of other
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evidence introduced at trial supported the jury’s conclusion that
McCloud sexually abused D.M. D.M. admitted at trial that she had
lied in her first interview with the Child Protection Team—when
she denied that anyone had ever touched her private parts or made
her touch their private parts—because she didn’t want to get
McCloud in trouble. She also testified in detail about how
McCloud sexually abused her, including on one occasion when her
friend A.O. was present. This testimony was generally consistent
with D.M.’s second interview with the Child Protection Team, in
which she disclosed things that McCloud made her do to his “pri-
vacy parts.”
The State’s expert testified that during the first interview,
D.M. was guarded, barely responding, upset, and frightened. The
expert also testified that it is not unusual for a child to initially deny
sexual abuse until the child feels more secure. Recordings of both
interviews of D.M. were played for the jury, so that the jury had
the opportunity to observe D.M.’s demeanor during those inter-
views and at trial and decide which statement to believe.
A.O. also testified at trial. She testified that she witnessed
McCloud sexually abuse D.M., and her description of the abuse
was entirely consistent with D.M.’s trial testimony. And finally,
McCloud’s testimony that he was watching a movie with his wife
during the time that A.O. and D.M. claimed he was molesting D.M.
was undermined when the State called his wife in rebuttal and she
denied his version of events. Given all this evidence of McCloud’s
guilt, the state court could have reasonably concluded that even if
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22-10671 Opinion of the Court 7
McCloud’s counsel had successfully objected to the State’s and the
State’s expert’s commentary on D.M.’s truthfulness, there was no
reasonable probability that the jury would have reached a different
verdict.
IV.
The district court did not err in rejecting McCloud’s claim
that his counsel provided ineffective assistance by failing to object
to testimony by the State’s expert and argument by the prosecutor
vouching for D.M.’s credibility. We therefore affirm the denial of
McCloud’s federal habeas petition.
AFFIRMED.2
2
McCloud has also filed a “Motion for Inquiry into Suspicious Matters,” in
which he asks us to inquire whether someone “filed a fraudulent motion on
[his] behalf.” Because we decide this case based only on McCloud’s and the
Secretary’s certified briefs, the motion is DENIED.
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