I.
BACKGROUND AND PROCEDURAL HISTORY
Petitioner
was convicted of two counts of first-degree murder (counts
one and two), attempted first-degree murder (count three),
conspiracy to commit burglary (count four), armed burglary of
an occupied dwelling with an assault or battery (count five),
and robbery with a firearm (count six) (Doc. 8-7, Ex. 20). He
was sentenced to death on counts one and two, life in prison
on counts three, five, and six, and five years in prison on
count four (Doc. 8-8, Ex. 36). The Florida Supreme Court
affirmed the convictions but reversed the death sentences and
remanded for
resentencing to life in prison (Doc. 8-9, Ex. 43).
McCloud v. State, 208 So.3d 668 (Fla. 2016). The
Florida Supreme Court set out the factual background of this
case:
Robert McCloud appeals his convictions and sentences for the
first-degree murders of Dustin Freeman and Tamiqua Taylor.
During the afternoon of October 3, 2009, McCloud and Andre
Brown were driving around the Malibu neighborhood of Orlando,
Florida, when they ran into Joshua Bryson. The three visited
Major Griffin at his house, where a series of discussions
about “hitting a lick” or robbing known drug
dealer, Wilkins Merilan, began. Griffin and Bryson robbed
Merilan on Father's Day of the same year and believed he
held back large quantities of drugs and cash during that
encounter. Jamal Brown (not related to Andre Brown) later
joined the group, and the discussions culminated in a plot to
burglarize Merilan's house in Poinciana, Florida, while
Merilan was visiting Orlando.
That evening, before leaving Orlando, the men equipped
themselves with various firearms, including a .38 caliber
revolver, a .40 or .45 caliber semiautomatic, and a 9
millimeter semiautomatic. They then traveled to Poinciana in
two vehicles and, upon reaching Merilan's neighborhood
between 10 and 11 p.m., drove down his cul-de-sac to surveil
his house. The group then drove to the local Walmart and
parked there to further discuss their plan. They may have
made a second trip to Merilan's house and back to
Walmart. After traveling back to the neighborhood just past
midnight, Bryson positioned himself in his vehicle somewhere
in close proximity to Merilan's street, while the others
positioned themselves in Merilan's backyard. The group
realized that Merilan in fact was home and also that a party
was underway at an adjacent house. This caused them to pause
and wait for about three hours while refining their plan.
The group eventually decided to move forward with robbing
Merilan. The physical evidence shows that the front door was
kicked in and shots were simultaneously fired toward the
master bedroom. Merilan was immediately subdued, bound by his
wrists and ankles, and placed on the master bedroom floor.
Taylor, Merilan's girlfriend who was living with him, was
in the master bedroom. She was ordered to take Merilan's
three-year-old daughter, who was spending the weekend with
Merilan, and sit on the living room couch. Freeman,
Merilan's friend who was visiting from Miami, was in the
guest bedroom and was also bound and placed on the master
bedroom floor.
The group ransacked the house, collecting about $4,000 to
$5,000 in cash, $10,000 worth of marijuana, a .38 caliber
revolver, and possibly a small quantity of cocaine. Believing
more was in the house, they turned their attention to Merilan
and began demanding the whereabouts of the rest of his drugs
and cash. While still tied up and laying on the floor,
Merilan was kicked and had a forty-pound dumbbell dropped on
his head. His arms were sliced with a steak knife. Merilan
also had boiling water laced with bleach poured on his back;
the water seeped into the carpet and scalded his thighs,
stomach, and groin area. He indicated that the drugs and
money were in the tires of his Hummer vehicle in hopes that a
pedestrian would see the cohorts or that the vehicle's
alarm would activate. It was about that time that Bryson was
summoned to the house.
While somewhat conflicting, the evidence generally shows that
Merilan was either placed in the master bedroom closet or
broke his restrains and ran into it. A series of loud and
soft sounding gunshots subsequently rang out with multiple
shots being fired at the closet, where Merilan was sitting
with his back against the door. The shootings resulted in
Merilan being shot several times, including in the stomach,
testicle, and thigh. Freeman and Taylor were shot in the back
of the head at close range while on the master bedroom floor
and living room couch, respectively. The group subsequently
fled the Poinciana area in their vehicles and rendezvoused
back in Orlando, where they divided up the drugs and cash.
McCloud took the stolen firearm.
In investigating the crimes, the Polk County Sheriff's
Office (PCSO) focused on Bryson as a suspect after detecting
his fingerprint in the back compartment of Merilan's
vehicle. Bryson was arrested in Orlando on October 20, 2009.
He initially denied his involvement, but after being
confronted with the fingerprint evidence, he provided
deputies with a statement implicating McCloud, Griffin,
Andre, and Jamal as participants in the crimes. Griffin was
arrested the following day but did not provide a statement to
law enforcement officers. Andre was arrested one week later
and Jamal months thereafter; both provided statements
concerning the crimes.
McCloud was arrested on October 21, 2009. Orange County
Sheriff's Office (OCSO) deputies apprehended McCloud in
connection with an outstanding arrest warrant for an
unrelated offense and notified Polk County authorities. That
evening, PCSO Detective Troy Lung met them in a church
parking lot and provided McCloud with his Miranda
warnings, after which he agreed to speak with detectives.
McCloud was
then transported to OCSO facilities, where he was questioned
for the next several hours. During the interrogation, McCloud
made several admissions to PCSO Detectives James Evans and
Consuelo Gallegos-Bias in which he implicated himself in the
burglary and robbery but denied harming Merilan, Taylor, and
Freeman. Unbeknownst to McCloud, fifty-five minutes of his
interview with Gallegos-Bias was video recorded.
McCloud and the other four men were charged by separate
indictments, each alleging two counts of first-degree murder,
and one count each of attempted first-degree murder,
conspiracy to commit burglary, armed robbery, and armed
burglary of an occupied dwelling with an assault or battery.
Griffin was deemed legally incompetent to stand trial and
diagnosed as intellectually disabled; thus, he was
statutorily ineligible for the death penalty. Bryson, Andre,
and Jamal entered into negotiations with the State and, among
other terms, agreed to plead “no contest” to two
counts of second-degree murder and testify truthfully in all
proceedings concerning each codefendant. Bryson's
agreement also included an imprisonment term of ten years,
and Andre's and Jamal's agreements each included
fifteen years. Bryson, Andre, and Jamal testified at
McCloud's trial, but Jamal insisted on cross-examination
that his testimony was false.
McCloud argued throughout the trial proceedings that his
video-recorded statement with Detective Gallegos-Bias was
involuntary and thus inadmissible because it was elicited
through excessively coercive tactics by law enforcement
officers. He further denied having any participation in the
various crimes and admitted that he only engaged in the
earlier stages of the discussions that occurred in Orlando on
the afternoon of October 3, 2009. Also, McCloud insisted that
at the times of the actual robbery, burglary, murders, and
attempted murder, he was babysitting a child or children in
the Apopka/Maitland area while his wife was in the hospital.
He testified and called other witnesses in support of this
alibi.
McCloud, 208 So.3d at 672-75 (footnote omitted).
Petitioner was re-sentenced to life in prison on the two
murder convictions (Id., Ex. 48).
Petitioner
filed a motion for postconviction relief under Florida Rule
of Criminal Procedure 3.850 (Id., Ex. 50). The
motion was stricken (Id., Ex. 51).
Petitioner filed another Rule 3.850 motion (id., Ex.
52) which was denied (Id., Ex. 53). The denial was
affirmed on appeal (Id., Ex. 57). McCloud v.
State, 286 So.3d 759 (Fla. 2d DCA 2019).
Petitioner
filed his federal petition in this Court (Doc. 1) in which he
alleges five grounds for relief.
II.
GOVERNING LEGAL PRINCIPLES
Because
Petitioner filed his petition after April 24, 1996, this case
is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Penry v. Johnson, 532 U.S
782, 792 (2001); Henderson v. Campbell, 353 F.3d
880, 889-90 (11th Cir. 2003). The AEDPA “establishes a
more deferential standard of review of state habeas
judgments,” Fugate v. Head, 261 F.3d 1206,
1215 (11th Cir. 2001), in order to “prevent federal
habeas ‘retrials' and to ensure that state-court
convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002);
see also Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (recognizing that the federal habeas court's
evaluation of state-court rulings is highly deferential and
that state-court decisions must be...
