            Case: 12-10929    Date Filed: 02/01/2013   Page: 1 of 15

                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                         ________________________

                               No. 12-10929
                           Non-Argument Calendar
                         ________________________

                 D. C. Docket No. 3:09-cv-00921-HLA-MCR


RUDOLPH LUDAWAY,
                                                             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
                      _________________________

                              (February 1, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Rudolph Ludaway, a Florida prisoner proceeding pro se, appeals the district
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court’s denial of his habeas petition under 28 U.S.C. § 2254. After review, we

affirm.

                                  I. BACKGROUND

         This appeal involves Ludaway’s state court conviction for burglary. The

main issues are (1) whether the jury ever saw a Velcro strip portion of the leg

restraint that Ludaway wore under his pants, and (2) if so, whether his trial counsel

was ineffective for not objecting. We thus carefully detail what happened at his

trial.

A.       Jury Selection in Ludaway’s Criminal Trial in State Court

         In Florida, Ludaway was charged with burglary of an unoccupied structure

or conveyance, in violation of Florida Statute § 810.02(4). In 2006, Ludaway

proceeded to a jury trial during which Ludaway wore a restraint on his right leg

under his pant leg.1

         During jury selection, Ludaway and his trial counsel met in the jury

deliberation room to discuss which jurors to strike. Upon exiting that room,

Ludaway’s restraint malfunctioned and became caught in his right pant leg.

According to Ludaway, this prevented him from bending his leg and exposed a

Velcro strip on the leg restraint below the bottom of Ludaway’s pant leg. Thus,

Ludaway had to walk to defense counsel’s table while a Velcro strip on his leg

         1
        The record does not show why Ludaway was restrained for trial or who made the
decision that Ludaway should be restrained for trial.

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restraint was exposed. At this time, the jury venire was seated in the first three

rows of the courtroom, facing the jury deliberation room.

         When Ludaway sat down at counsel’s table, his trial counsel passed him a

handwritten note which read, “[T]hey said pull your pants leg down, it got stuck

up.” Ludaway attempted to pull his pant leg down but it remained caught in the

leg restraint. Trial counsel then wrote a note to Ludaway advising him to “just

leave it.” Nothing else was done to ensure the Velcro portion of the leg restraint

was concealed, and Ludaway’s trial counsel did not bring it to the trial court’s

attention. A jury was selected and impaneled. No portion of the restraint was

visible at any other time during Ludaway’s trial.

B.       Evidence at Ludaway’s Criminal Trial in State Court

         Because prejudice is an issue here, we review the evidence at Ludaway’s

trial.

         Officer Erika Foley of the Jacksonville Sheriff’s Office testified that on

September 24, 2005 at about 11:30 p.m., Officer Foley and several other officers

were dispatched to a reported burglary in progress at a construction site. Officer

Foley described the construction site as a fenced-in area containing approximately

three trailers. After the officers established a perimeter around the site, Officer

Foley discovered a broken window on one of the trailers. Officer Foley thought

the window was broken because the window’s screen was bent and lying on the


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ground, and she saw small glass shards at the top of the window frame.

      Through the broken window, Officer Foley observed Ludaway pacing back

and forth inside the trailer. Officer Foley watched as Ludaway threw two items out

of the window. Officer Foley later determined that these items were a piece of

survey equipment and a silver radio. Officer Foley also saw other items on the

ground outside the broken window, including food, a coffee maker, more survey

equipment, and coffee filters. Via her radio, Officer Foley advised the other

officers about what she observed and learned that a K-9 officer had arrived.

      Officer M.T. Summers, the K-9 officer, testified next. Officer Summers and

his dog were dispatched to the burglary in progress on September 24, 2005. Upon

arrival, Officer Summers was told someone could still be inside the trailer. Officer

Summers and his dog jumped the fence in the back of the construction area and

came around to the front side of the trailer and the broken window. Walking

around the trailer, Officer Summers saw something thrown out from the broken

window: a level in a bright orange case. Officer Summers then saw Ludaway and

ordered him out of the trailer. Ludaway complied by climbing out of the broken

window, as the other doors and windows of the trailer were locked. After securing

Ludaway, Officer Summers determined that no one else was inside the trailer.

      On cross-examination, Officer Summers testified that he smelled “a little

bit” of alcohol on Ludaway. But on redirect examination, Officer Summers stated


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that Ludaway responded to all of Summers’s commands, was able to exit the

window without difficulty, and generally followed his instructions “to the letter.”

      Next, the jury heard testimony from Quentin Hill, a project administrator for

the construction company that operated the construction site. From several

photographs taken at the scene, Hill positively identified the objects outside the

trailer as belonging to the construction company. Hill indicated that each of those

items were inside the trailer when he left the site earlier that day. Hill identified

the fence surrounding the site in another photograph, and noted that the barbed

wire on top of the fence surrounding the construction site was beaten down. When

Hill left the construction site on September 24, 2005, the trailer was locked and no

one other than an inspector was allowed inside. Hill testified that Ludaway was

not someone permitted inside the trailer and was not permitted to have any of the

items found outside the trailer.

      The defense called as its only witness Henry Scott. On the night of

September 24, 2005, Scott threw a birthday party for Ludaway that went from

about 7:00 p.m. to 10:00 p.m. Scott did not know if Ludaway was drinking earlier

that day, but when Scott saw him at the party, Ludaway was “wasted.” The last

time Scott saw Ludaway that night was between 9:30 and 10:00 p.m. when Scott

left the party. On cross-examination Scott testified that he did not know what

Ludaway did after leaving the party.


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      The jury found Ludaway guilty of burglary.

C.    Ludaway’s Sentencing in State Court

      After trial but before being sentenced, Ludaway wrote a pro se letter to the

state trial court judge recounting the incident during jury selection in which his leg

restraint became partially exposed. Ludaway claimed he was prejudiced by the

selected jurors observing him restrained.

      At Ludaway’s sentencing, Ludaway’s counsel brought up the pro se letter

regarding the leg restraint. The state trial court acknowledged that it had received

Ludaway’s letter, but the court determined that the issue was a collateral matter

that would have to be established through a postconviction Florida Rule of

Criminal Procedure 3.850 motion as it “wasn’t brought to [the court’s] attention

during the trial.” The state trial court advised Ludaway that the issue was

preserved for postconviction proceedings.

      The state trial court adjudicated Ludaway a habitual felony offender due to

his prior criminal record and sentenced Ludaway to a term of eight years’

imprisonment.

      In Ludaway’s direct appeal, Florida’s First District Court of Appeal

summarily affirmed Ludaway’s burglary conviction.

D.    Ludaway’s 3.850 Proceedings in State Court

      Proceeding pro se, Ludaway then filed a motion for postconviction relief


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pursuant to Florida Rule of Criminal Procedure 3.850. Ludaway’s 3.850 motion

claimed, among other things, that he received ineffective assistance of counsel

because trial counsel (1) failed to inform the trial judge during jury selection that

the jury venire observed Ludaway’s leg restraint and (2) failed to object to

Ludaway’s “shackling” throughout the trial.

       The state 3.850 court 2 granted Ludaway an evidentiary hearing on his

ineffective-assistance claim and denied his other claims without a hearing.

       At the evidentiary hearing, Ludaway proceeded pro se, and both Ludaway

and his trial counsel, Allison Graham, testified.

       Ludaway recounted the leg-restraint incident during jury selection and

submitted Graham’s handwritten notes that she passed to Ludaway at counsel’s

table. As to her first note, “they said pull your pants leg down, it got stuck up,”

Ludaway stated that he did not know who “they” referred to, but he assumed it

referred to one of the bailiffs who brought it to counsel Graham’s attention on the

way into the courtroom.

       Ludaway testified that he tried but failed to conceal the leg restraint, and that

Graham eventually told him to leave it as it was. When questioned as to whether

any juror saw the leg restraint, Ludaway said it was “inevitable,” as the jurors

watched him enter the courtroom and walk toward counsel’s table, and Ludaway

       2
      The same state court judge who presided over Ludaway’s trial also presided over
Ludaway’s 3.850 proceedings.

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had to stop to try to conceal the restraint.

      The state called Ludaway’s trial counsel, Graham, to testify. Graham said

Ludaway’s account of what happened was “mostly accurate.” Graham testified

that before she and Ludaway entered the courtroom, a bailiff told her that

Ludaway’s pant leg had gotten stuck or that the restraint had slid down his leg. As

a result, Graham testified, a Velcro strip was visible beneath the cuff of Ludaway’s

pant leg. Graham asked Ludaway if he could pull up the restraint, but he could

not. Graham and Ludaway then entered the courtroom. The jury panel was seated

in the audience and was not yet in the jury box. Graham and Ludaway went to sit

at counsel’s table.

      When Ludaway began to fiddle with his pant leg, Graham passed him a note

instructing him to leave it alone, so that Ludaway would not draw attention to it.

Graham admitted that she did not bring the visibility of Ludaway’s restraint to the

court’s attention, but she also could not recall any juror looking at Ludaway’s leg.

Graham conceded that she could have requested that the court strike the panel and

call a new one.

      On cross-examination by Ludaway, Graham agreed that it was possible that

the jurors saw the bottom of Ludaway’s pant leg (and thus the exposed Velcro

strip) once Ludaway sat at counsel’s table. The 3.850 judge at this point

interjected, stating that “[t]hey could not have seen [Ludaway’s] leg . . . after [he]


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sat down at that table. . . . It was concealed by the table.” Ludaway disagreed:

“We don’t know.”

      When Ludaway pressed Graham as to why she did not inform the trial judge

of the exposed restraint, Graham stated: “I don’t remember specifically what my

thought process was, but I don’t—I didn’t have any reason to believe that anybody,

if they had seen the Velcro, would know what it was for and would therefore be

prejudiced against [Ludaway].”

      After the evidentiary hearing, the 3.850 court denied Ludaway’s ineffective-

assistance claim. The 3.850 court found that, during jury selection, a portion of

Ludaway’s leg restraint—a Velcro strip—was exposed to the jury venire. But the

3.850 court also found that “there [was] no proof that any specific member of

[Ludaway’s] jury panel saw the Velcro strip, much less that such jury member

could have known what it was.”

      Moreover, the 3.850 court found the evidence against Ludaway

“overwhelming,” as he was caught by law enforcement inside the construction

office, “it having been broken into at a late evening hour.” Thus, the 3.850 court

concluded, “[Ludaway] has totally failed to demonstrate that, but for his attorney’s

failure to call to the attention of the Court [the visibility of Ludaway’s restraint], a

different trial outcome would have resulted.” Accordingly, the 3.850 court denied

Ludaway’s 3.850 motion.


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       Ludaway appealed pro se the denial of his 3.850 motion. Florida’s First

District Court of Appeal affirmed per curiam without written explanation. 3

E.     Ludaway’s Federal Habeas Petition

       In September 2009, Ludaway filed his pro se § 2254 petition. Ludaway’s

§ 2254 petition raised nine claims, including an ineffective-assistance claim

premised on trial counsel’s failure to (1) inform the state trial judge that the jury

observed Ludaway’s leg restraint and (2) object to Ludaway’s “shackling” for trial.

Although Ludaway says his leg restraint was visible, Ludaway does not challenge

the 3.850 court’s fact finding that only the Velcro strip portion of his leg restraint

was exposed.

       The district court denied Ludaway’s § 2254 petition. As to Ludaway’s

ineffective-assistance claim, the district court concluded that Ludaway had not met

his burden under the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), to show

either deficient performance or prejudice. First, trial counsel’s performance was

not deficient when she decided not to bring the visibility of the Velcro portion of

Ludaway’s leg restraint to the state trial court’s attention. Second, Ludaway failed

to show prejudice because the evidence against him was overwhelming. Thus, the

       3
         When the last state court rendering judgment affirms without explanation, we presume
that the judgment rests on the reasons given in the last reasoned decision. Ylst v. Nunnemaker,
501 U.S. 797, 803-05, 111 S. Ct. 2590, 2594-95 (1991).


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district court concluded that the state 3.850 court did not unreasonably apply

clearly established federal law when it rejected Ludaway’s ineffective-assistance

claim.

         The district court granted a certificate of appealability on Ludaway’s

ineffective-assistance claim.

                                   II. DISCUSSION

A.       AEDPA

         We review a district court’s denial of a § 2254 habeas petition de novo as to

questions of law and mixed questions of law and fact. Rhode v. Hall, 582 F.3d

1273, 1279 (11th Cir. 2009). Like the district court, we also review the state

habeas court’s decision. See Putnam v. Head, 268 F.3d 1223, 1240 (11th Cir.

2001).

         Under 28 U.S.C. § 2254(d), as amended by AEDPA, a federal court may not

grant habeas relief on a state prisoner’s claim that was denied on the merits in state

court unless the state court decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) “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).

         Under the “contrary to” clause of § 2254(d), a federal habeas court may


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grant a petitioner habeas corpus relief if the state court arrives at a conclusion

opposite to that reached by the Supreme Court on a question of law or if the state

court, on a set of materially indistinguishable facts, decides a case differently than

the Supreme Court has. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct.

1495, 1523 (2000). Under the “unreasonable application” clause, a federal court

may grant a petitioner habeas corpus relief if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case. Id.

B.     Ludaway’s Ineffective-Assistance Claim on Appeal

       On appeal, Ludaway claims that his trial counsel rendered ineffective

assistance of counsel when she (1) failed to object or call to the state trial court’s

attention the potential visibility of Ludaway’s leg restraint during jury selection

and (2) failed to object to Ludaway’s wearing of a leg restraint during the trial. 4

       The merits of Ludaway’s ineffective assistance of counsel claim are

governed by the standard announced in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984). See Williams, 529 U.S. at 390, 120 S. Ct. at 1511. Under

Strickland, Ludaway must show both (1) that his “counsel’s performance was



       4
         In his brief on appeal, Ludaway also argues that his trial counsel provided ineffective
assistance when she failed to raise before the trial court the issue of whether the state proved a
prima facie case of burglary. Because neither the district court nor this Court granted Ludaway a
certificate of appealability on this issue, we do not consider it here. See 28 U.S.C. § 2253(c);
Hodges v. Att’y Gen., Fla., 506 F.3d 1337, 1340-42 (11th Cir. 2007).

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deficient” and (2) that “the deficient performance prejudiced the defense.” 466

U.S. at 687, 104 S. Ct. at 2064. Prejudice is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. And since a habeas petitioner must show

both deficient performance and prejudice, a court may dispose of a Strickland

claim based on a determination that a defendant has failed to show either prong

without considering the other. See id. at 697, 104 S. Ct. at 2069.

      Moreover, we do not apply Strickland de novo, “but rather through the

additional prism of AEDPA deference.” Lawrence v. Sec’y, Fla. Dep’t of Corr.,

700 F.3d 464, 477 (11th Cir. 2012). Thus, “the pivotal question is whether the

state court’s application of the Strickland standard was unreasonable.” Id. (internal

quotation marks and alteration omitted).

      We need not reach the performance issue here because Ludaway cannot

meet the prejudice prong in any event. For two reasons, we conclude that the state

3.850 court’s decision finding that Ludaway failed to demonstrate prejudice was

not contrary to or an unreasonable application of Strickland or based on an

unreasonable determination of the facts.

      First, while the parties dispute whether any juror saw Ludaway’s leg

restraint, the state 3.850 court found—and Ludaway does not dispute—that the

only visible part of the restraint was a Velcro strip at the bottom of Ludaway’s pant


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leg. No evidence was presented in the 3.850 proceedings that indicated a juror

would know the significance of the Velcro strip. And Ludaway does not argue that

any portion of his leg restraint was visible at any time in the trial other than during

jury selection. Thus, any jury observation of the Velcro strip was brief and

unlikely to lead the jury to believe Ludaway was restrained.

       Second, the evidence of Ludaway’s guilt was overwhelming. Two police

officers testified that they discovered Ludaway in the construction trailer late at

night and watched him throw objects—identified as belonging to the construction

company—out of the locked construction trailer. The construction company’s

project administrator testified that Ludaway was not a person permitted inside the

trailer or on the construction site.

       On this record, we cannot say that the state 3.850 court’s conclusion that

Ludaway failed to show prejudice was contrary to or an unreasonable application

of Strickland. Nor was it based on an unreasonable determination of the facts in

light of the state court evidence. Accordingly, we affirm the district court’s denial

of Ludaway’s § 2254 petition.5


       5
         Ludaway also argues that, even if a juror did not see the leg restraint, his trial counsel
was ineffective for not objecting to the use of any leg restraint during trial. It is not clear from
the order on Ludaway’s 3.850 motion that the state 3.850 court considered this specific
ineffective-assistance claim. In the 3.850 proceedings, Ludaway did not put forth any evidence
that he was prejudiced by the restraining itself, even if it was not seen by a juror. Thus, even
under de novo review, we conclude that Ludaway’s claim fails on the prejudice prong. See
Rompilla v. Beard, 545 U.S. 374, 390-93, 125 S. Ct. 2456, 2467-69 (2005) (examining whether
the petitioner showed prejudice under Strickland de novo because the state court had failed to

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       AFFIRMED.




reach the issue after deciding counsel’s representation was adequate); see also Berghuis v.
Thompkins, 130 S. Ct. 2250, 2265 (2010) (concluding that even if AEDPA deference did not
apply to petitioner’s claim, petitioner was not entitled to federal habeas relief if on de novo
review of the record petitioner failed to show prejudice under Strickland).


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