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                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10700
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:10-cv-00055-GKS-GJK



STEVEN GARRETT STODDARD,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (February 17, 2015)

Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      Steven Garrett Stoddard, a Florida prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus, in which he

challenged his 1997 convictions for false imprisonment, sexual battery, and

battery. On appeal, Stoddard argues the following: (1) the state trial court violated

his right to be free from double jeopardy by imposing multiple punishments for the

same act of sexual battery; and (2) his trial counsel rendered ineffective assistance

by failing to investigate and present two witnesses—Lisa Adams and Olivia

McCready—who would have supported his defense that the sex acts at issue were

consensual and that the victim fabricated the sexual-battery charges. Upon careful

review of the record and the parties’ briefs, we affirm the district court’s denial of

Stoddard’s § 2254 petition.

                                          I.

A. Underlying Criminal Trial

      In August 1996, Stoddard was charged by information with one count of

attempted second-degree murder (Count 1); one count of kidnaping (Count 2);

two counts of sexual battery (Counts 3 and 10); six counts of sexual battery by use

or threat of a deadly weapon (Counts 4-9); and two counts of battery (Counts 11-

12). A jury trial was held in May 1997.

      At trial, the testimony showed that Stoddard and the victim, Dawn Lahood,

met in a drug treatment center in 1996 and began a consensual, dating relationship
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thereafter.   They lived together for a short period, but Lahood ended the

relationship because Stoddard had become possessive. Stoddard then moved into

his parents’ house before the events giving rise to this case.

       On July 31, 1996, Stoddard knocked on Lahood’s door and threatened to use

crack or commit suicide if she did not let him inside. Lahood made clear that she

no longer had romantic feelings for Stoddard, but she agreed to accompany him to

meet an acquaintance whose car Stoddard had borrowed.

       After meeting with the acquaintance and having lunch, during which

Stoddard expressed his desire to get back together with Lahood, Lahood and

Stoddard drove the car to Norman’s, a bar in Cocoa, Florida. They had several

drinks, and Stoddard became intoxicated. Lahood drove them to pick up the

acquaintance from work, and after that, Lahood allowed Stoddard to return to her

apartment until he was sober enough to go to his parents’ house. According to

Lahood, nothing romantic had occurred that day. She was angry at Stoddard, and

she had not acted in a flirtatious, romantic, or sexually inviting manner towards

him.

       When Lahood and Stoddard arrived at Lahood’s apartment, Stoddard

immediately took off all of his clothes and “crawled in” Lahood’s bed. Lahood

made two calls to Stoddard’s sister about Stoddard.          During the second call,

Stoddard grabbed the telephone and “smashed” it on the floor. Lahood attempted
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to leave the apartment, but Stoddard immediately grabbed the back of her shirt,

pulled her back inside, locked the door, and threw her onto the sofa-bed.

Following this, according to the state post-conviction court,

             Defendant gagged Lahood, put his mouth on her vagina,
             put his fingers into her vagina, and put his penis into her
             vagina. He tied her to the bed with her stockings.
             Lahood convinced the Defendant to let her go to the
             bathroom, where she locked herself in, but the Defendant
             kicked the door in. When the Defendant entered the
             bathroom, he choked her. The Defendant next pushed
             her onto the couch, and then penetrated her vagina with
             his penis and two candles. He penetrated her anus with a
             hair brush.

      At some point between when Lahood was gagged and when she went to the

bathroom, Stoddard cut the gag from her mouth with a knife. He then told Lahood

“that he could just cut himself and then put [Lahood’s] fingerprints on the knife

and then stab [her] and kill [her] with it and then call the police and say that it was

just self-defense.”

      Lahood further testified that, later in the evening, Stoddard wanted

something to drink, and Lahood suggested that they go to a store. They left

Lahood’s apartment barefoot, but the store was closed, so Lahood and Stoddard

went to a nearby bar instead. Lahood eventually called the police from a pay

phone outside the bar. After a police officer arrived, Lahood accompanied the

officer to her apartment and then to a hospital.

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      The state trial court admitted dozens of photographs taken at the hospital on

July 31 showing injuries to Lahood’s face, neck, shoulder, chest, breasts, back,

stomach, hips, legs, and feet, including scratches, bruises, bite marks, and cigarette

burns. In addition, an emergency-room doctor, who examined Lahood early in the

morning following the night of July 31, testified that Lahood had injuries

consistent with non-consensual intercourse, such as redness, abrasions, and slight

blood around the openings of her vagina and anus. According to the doctor,

Lahood also had bruises on her body that were less than 24 hours old. The

prosecution introduced a videotaped interview between Stoddard and a detective

following Stoddard’s arrest that same night, in which Stoddard claimed that the sex

was consensual and that he and Lahood had previously engaged in “kinky” or

“rough” sex involving Stoddard’s tying up of Lahood and insertion of objects into

her vagina.

      Stoddard did not testify or present any witnesses in his defense. After the

state rested its case, Stoddard’s trial counsel, Robert Segal, told the court that the

defense had subpoenaed Olivia McCready and that both parties had some difficulty

contacting her. Segal had learned the previous evening that McCready had a

chemotherapy treatment earlier that morning, and, as a result, was unable to testify.

He said that McCready was “a very important witness for the defense” and

explained that McCready would have testified that Lahood told her that Lahood
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had “engaged in and enjoyed rough sex.” Following a recess, Segal stated that he

had been unable to secure McCready’s presence.

      During closing arguments, defense counsel argued that the sexual encounter

between Stoddard and Lahood was consensual and that Lahood had fabricated the

accusations to get rid of Stoddard and in retaliation for threatening to have her

daughter kept from her, being a financial burden on her, and trying to control her.

      The jury returned a verdict as follows: Count 1 (attempted murder), not

guilty;   Count 2 (kidnaping), guilty of the lesser-included offense of false

imprisonment; Counts 3 and 10 (sexual battery), guilty; Counts 4-7 and 9 (sexual

battery by use or threat of a deadly weapon), guilty of the lesser-included offense

of sexual battery; Count 8 (sexual battery by use or threat of a deadly weapon), not

guilty; and Counts 11-12 (battery), guilty. Stoddard was sentenced to prison for a

total term of 52 years, which was subsequently reduced to a total term of 25 years’

imprisonment and 15 years’ probation. After sentencing, Stoddard filed a direct

appeal, and the Florida Fifth District Court of Appeal affirmed without a written

opinion. Stoddard v. State, 711 So. 2d 560 (Fla. Dist. Ct. App. 1998).

B. Post-Conviction Proceedings in State Court

      Stoddard filed a motion for state post-conviction relief under Rule 3.850,

Fla. R. Crim. P., which he later amended and supplemented. He argued, among

other things, that his multiple convictions for sexual battery violated double
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jeopardy and that his trial counsel was ineffective for failing to secure or call Lisa

Adams and Olivia McCready as witnesses at trial.

       In support of his ineffective-assistance claims, Stoddard submitted

affidavits 1 from Adams and McCready, and they both testified at an evidentiary

hearing.2 Adams, who was working at Norman’s on July 31, 1996, testified that

she had seen Lahood and Stoddard, who were the only two patrons in the bar that

afternoon, “hugging and kissing” and “just all over each other.” Thus, according

to Stoddard, Adams’s testimony contradicted Lahood’s testimony about the events

at Norman’s and supported his position that the later sex acts were consensual.

       Stoddard contended that McCready’s testimony would also have supported

his defense that the sex between Stoddard and Lahood was consensual and that

Lahood fabricated the sexual-assault charges to exact retribution. In her affidavit,

McCready, who lived in the same apartment complex as Lahood and Stoddard,

stated that Lahood had told McCready that she and Stoddard had a “very good sex

life” and, on a different occasion, that she was going to “get even with” Stoddard

       1
         Adams’s and McCready’s affidavits, which were executed in March and April 2000,
respectively, are in the form of transcripts of interviews conducted by an investigator in October
1998.
       2
           Two evidentiary hearings were held in Stoddard’s Rule 3.850 proceeding. The judge
who presided over the first hearing passed away before issuing a ruling, and a second hearing
was conducted de novo before a new judge. Because McCready was unable to testify at the
second hearing due to health problems, the parties and the new judge agreed that McCready’s
testimony from the first hearing could be considered in conjunction with the testimony presented
at the second hearing.
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for being unfaithful. At the evidentiary hearing nearly ten years later, McCready

testified that she had discussed certain details with Lahood about Lahood’s sex life,

including that Lahood and Stoddard enjoyed “tough” or “rough” sex and that

Lahood had stated that “she was going to crucify” Stoddard.

      Segal also testified at the evidentiary hearing. When asked to describe his

trial strategy, Segal responded as follows:

             [A]fter having spoken to all the witnesses in the case and
             having done the investigation, the problem that seemed to
             keep cropping up in my mind was that the people that we
             had wanted to call as witnesses, while they could
             potentially help us, they could also potentially hurt us.

             I ultimately decided, in the context of what the State was
             going to produce, in the context of what Ms. LaHood
             actually testified to at trial, that the calling of witnesses
             was going to be a problem, a potential problem, to the
             extent that there were these bad things that were going to
             come up and potentially hurt Mr. Stoddard, and that we
             would do better maintaining the two closing arguments
             that were available to us at the time if we didn’t introduce
             evidence.
Segal explained that “having the first word and the last word is a valuable

psychological tool” for rebutting the state’s closing argument. At the time of

Stoddard’s trial, Florida law provided that “the defense had the right to concluding

closing argument if the defendant offered no evidence at trial other than his own

testimony.” In re Amendments to the Fla. Rules of Criminal Procedure–Final



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Arguments, 957 So. 2d 1164, 1166 (Fla. 2007). This rule has since been amended.

See id. at 1165-67.

      Segal testified that he had spoken with McCready and that he believed that

the value of her testimony would not have overcome the problems with having her

testify. For instance, according to Segal, Lahood had shown McCready bruises

allegedly caused by Stoddard; McCready had described Stoddard as “very

cunning”; Stoddard had borrowed money from McCready that he had never repaid;

McCready knew that Lahood and Stoddard both had “a lot of problems with drugs

and alcohol”; and having her testify would have caused problems with closing

arguments. In addition, Segal stated, the issues about which McCready could

testify were already in evidence through Lahood’s testimony and the videotaped

statement from Stoddard.

      When asked about Adams, Segal testified,

             We went to Norman’s to talk to her on one occasion and
             I don’t believe that she was there.

             I don’t remember whether we asked . . . the investigator
             at the Public Defender’s office[] to go speak with her. I
             don’t remember whether we did or did not end up talking
             to her.

Segal also testified that Adams would have been a witness to Stoddard’s

consumption of alcohol and that Stoddard had stated that he could not remember

some events from the night of July 31 because he was intoxicated.

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      According to Adams’s testimony, Stoddard had sent Adams a letter asking

for her help on the case, and Adams had tried to call Segal two or three times but

did not hear from him. When she tried again several months later, she was able to

get in touch with him or his office, but Segal never stopped by Norman’s to talk

with her as he said he would.

      In June 2007, the state court denied Stoddard’s motion for post-conviction

relief. The court found that Adams was a credible witness whose testimony would

have helped Stoddard’s consent defense and impeached Lahood’s testimony that

she did not act in a romantic or flirtatious manner toward Stoddard while at

Norman’s. Nevertheless, the court concluded that Segal’s strategic decision not to

call Adams was not outside the broad range of reasonably competent performance

under prevailing professional standards.      With regard to McCready, the court

likewise concluded that Segal’s strategic decision not to have her testify was not

deficient because Segal was concerned about calling her as a witness based on

negative comments that she had made about Stoddard. In any case, the court

concluded, Stoddard had not shown that he was prejudiced by the failure to call

McCready.

      The court further concluded that Stoddard had not shown a double-jeopardy

violation, as Stoddard had “repeatedly sexually assaulted [Lahood] in separate,

distinctive ways over hours.” The court explained, “[Stoddard] proceeded from
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one type of sexual battery to another type of sexual battery, forcing [Lahood] in a

particular position that required [Stoddard] to pause, think, re-position himself and

[Lahood], thus, forming a new intent on a different type of sexual battery.”

      The Florida Fifth District Court of Appeal affirmed the denial of Stoddard’s

post-conviction motion without a written opinion in November 2008. Stoddard v.

State, 1 So. 3d 193 (Fla. Dist. Ct. App. 2008).

C. Federal Habeas Proceedings under 28 U.S.C. § 2254

      Following the affirmance of the denial of his state post-conviction motion,

Stoddard sought federal habeas corpus relief pro se, pursuant to 28 U.S.C. § 2254,

in the United States District Court for the Middle District of Florida. In January

2013, the district court denied Stoddard’s § 2254 petition and denied a certificate

of appealability (“COA”). The court concluded that no double-jeopardy violation

occurred because Stoddard’s sex acts “were serial, distinct in character, and

[Stoddard] had sufficient time between each act to reflect and form a new criminal

intent.” As to Stoddard’s ineffective-assistance claims, the court stated that Segal

(1) had “testified that he had spoken with and investigated all of these witnesses”;

(2) had believed that calling them would damage Stoddard’s case; and (3) had not

wanted to lose first and last closing arguments by calling witnesses. The court

determined that Segal’s strategic decision not to call these witnesses was



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reasonable, and that, in any event, Stoddard had not shown prejudice in light of the

evidence presented at trial.

      Stoddard timely appealed, and a judge of this Court appointed counsel and

granted Stoddard’s request for a COA on his double-jeopardy claim and on

whether trial counsel was ineffective for failing to call Adams and McCready as

witnesses.

                                        II.

      On appeal from a district court’s denial of habeas relief, we review questions

of law and mixed questions of law and fact de novo, and we review findings of fact

for clear error. Burgess v. Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1315 (11th

Cir. 2013). Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a federal court may not grant habeas relief on claims that previously

were adjudicated in state court unless the adjudication resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, or 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);

Burgess, 723 F.3d at 1315.

      A state-court decision represents an unreasonable application of clearly

established federal law if the state court correctly identifies the governing legal

rule from Supreme Court cases but unreasonably applies the established law to the
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facts of the case. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174

(2003). The Supreme Court has repeatedly emphasized that “an unreasonable

application of federal law is different from an incorrect application of federal law.”

Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1411 (2011) (quotation

marks omitted).

      A state court’s determination of the facts is unreasonable only if no

fairminded jurist could agree with the determination. Lee v. Comm’r, Ala. Dep’t of

Corr., 726 F.3d 1172, 1192 (11th Cir. 2013), cert. denied, 134 S. Ct. 1542 (2014).

Findings of fact by a state court are presumed to be correct, and a habeas petitioner

must rebut that presumption by clear and convincing evidence.             28 U.S.C.

§ 2254(e)(1); Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir.

2012). In determining how the state courts resolved a habeas petitioner’s claims,

we look to the last state court that rendered a judgment in the case. Pope, 680 F.3d

at 1284-85.

                                         III.

      Stoddard first contends that he is entitled to relief on his double-jeopardy

claim because the state post-conviction court unreasonably found facts and

unreasonably applied the Supreme Court’s decision in Blockburger v. United

States, 284 U.S. 299, 52 S. Ct. 180 (1932). The evidence at trial, Stoddard

contends, established at most that Stoddard committed two sexual-battery offenses
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involving penile-vaginal penetration.      These two offenses were separated by

Lahood locking herself in the bathroom, which, Stoddard asserts, was the only

temporal break sufficient to have allowed Stoddard a chance to pause, reflect, and

form a new criminal intent. Because he was punished three times for the same

offense of penile penetration after this temporal break, Stoddard argues, the state

court unreasonably applied Blockburger in finding that the Double Jeopardy

Clause did not bar his multiple punishments for these offenses.

      “The Double Jeopardy Clause of the Fifth Amendment provides that no

person shall be ‘subject for the same offence to be twice put in jeopardy of life or

limb.’” Jones v. Thomas, 491 U.S. 376, 380, 109 S. Ct. 2522, 2525 (1989)

(quoting U.S. Const., amend. V)).       In addition to protecting against multiple

prosecutions for the same offense, the Clause also prohibits “multiple punishments

for the same offense imposed in a single proceeding.” Id. at 381, 109 S. Ct. at

2525 (internal quotation marks omitted).

      In the context of multiple punishments, the purpose of double jeopardy is

simply to “ensur[e] that the total punishment did not exceed that authorized by the

legislature.” Id. (quoting United States v. Halper, 490 U.S. 435, 450, 109 S. Ct.

1892, 1903 (1989)); Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678

(1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing



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court from prescribing greater punishment than the legislature intended.”).3

Therefore, in enforcing the federal double-jeopardy guarantee, we “must examine

the various offenses for which a person is being punished to determine whether, as

defined by the legislature, any two or more of them are the same offense.” United

States v. Dixon, 509 U.S. 688, 745, 113 S. Ct. 2849, 2881 (1993). In effect, we ask

whether the offenses are “sufficiently distinguishable to permit the imposition of

cumulative punishment.” Id. at 745, 113 S. Ct. 2881-82 (quotation marks omitted).

Where no clear legislative intent has been expressed, we apply the “same-elements

test” of Blockburger, which provides that two statutes are not the “same offense”

for purposes of double jeopardy if “each provision requires proof of a fact which

the other does not.” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182.

       Regarding the sexual-battery offenses of which Stoddard was convicted,

Counts 3, 6, 9, and 10 alleged that Stoddard placed his penis in, or in union with,

the victim’s vagina. It appears that Counts 6, 9, and 10 were based on actions after

the bathroom incident, whereas Count 3 was based on actions before that incident.




       3
           We disagree with the State’s contention that, because the analysis is limited to a review
of state law, Stoddard’s double-jeopardy claim is not properly before this Court. Although state
law governs the interpretation of a state criminal statute, federal law governs the evaluation of a
federal double-jeopardy claim. See Tarpley v. Dugger, 841 F.2d 359, 364-65 (11th Cir. 1988).
The fact that our review is narrow does not mean that the issue is not reviewable.


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See Fla. Stat. § 794.011(5) (1996).4 Therefore, if Counts 6, 9, and 10 were based

on a single criminal act, Stoddard’s convictions on these counts would appear to

violate the “same-elements test” of Blockburger and Florida law, because the

offenses required proof of the same elements. See Fla. Stat. § 775.021(4)(b)(1) 5;

Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. But Florida law provides that a

defendant may be punished multiple times under the same statute so long as the

offenses are each based on “distinct” criminal acts. See, e.g., State v. Drawdy, 136

So. 3d 1209, 1213 (Fla. 2014).

       To determine whether similar criminal acts are “distinct” under Florida law

for double-jeopardy purposes, courts look to spatial and temporal aspects of the

criminal conduct.       See State v. Paul, 934 So. 2d 1167, 1172-73 (Fla. 2006),


       4
           Although Fla. Stat. § 794.011 does not contain a clear statement of legislative intent,
the Florida legislature has instructed generally that its intent “is to convict and sentence for each
criminal offense committed in the course of one criminal episode or transaction and not to allow
the principle of lenity . . . to determine legislative intent.” Fla. Stat. § 775.021(4)(b); see Fla.
Stat. § 775.021(4)(a) (“Whoever, in the course of one criminal transaction or episode, commits
an act or acts which constitute one or more separate criminal offenses, upon conviction and
adjudication of guilt, shall be sentenced separately for each criminal offense . . . .”). Exceptions
to this rule of construction are, among other things, “[o]ffenses which require identical elements
of proof.” Id. § 775.021(4)(b)(1).
       5
          Stoddard properly concedes that his remaining sexual-battery convictions under Counts
4, 5, and 7 (for using his mouth, his fingers, and candles on Lahood’s vagina) do not violate
double jeopardy because they were based on distinct criminal acts. The Florida Supreme Court
has held that all of the acts proscribed by Fla. Stat. § 794.011(1)(h)—defining “sexual battery” as
“oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or
vaginal penetration of another by any other object”—are “distinct criminal acts that the Florida
Legislature has decided warrant multiple punishments.” State v. Meshell, 2 So. 3d 132, 135 (Fla.
2009).
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abrogated in part on other grounds by Valdes v. State, 3 So. 3d 1067, 1075-77

(Fla. 2009); R.J.R. v. State, 88 So. 3d 264, 267-68 (Fla. Dist. Ct. App. 2012). For

example, “courts look to whether there are multiple victims, whether the offenses

occurred in multiple locations, and whether there has been a ‘temporal break’

between offenses.” Paul, 934 So. 2d at 1173 (quotation marks omitted). Even

multiple criminal acts of a same type and character committed against the same

victim may be considered “distinct” for purposes of double jeopardy. Saavedra v.

State, 576 So. 2d 953, 956, 958 (Fla. Dist. Ct. App. 1991) (“However, the fact that

the same victim is sexually battered in the same manner more than once in a

criminal episode by the same defendant does not conclusively prohibit multiple

punishments.”). The key question in such a case is whether “the defendant had

time to pause, reflect, and form a new criminal intent between the occurrences.”

See Eaddy v. State, 789 So. 2d 1093, 1095 (Fla. Dist. Ct. App. 2001); Saavedra,

576 So. 2d at 958. We are bound to accept the Florida courts’ construction of that

State’s statutes. Hunter, 459 U.S. at 368, 103 S. Ct. at 679.

      By denying relief on Stoddard’s double-jeopardy claim, the state post-

conviction court implicitly determined that the evidence presented at trial was

sufficient to permit the jury to conclude that three distinct penile-vaginal criminal

acts occurred during the second series of events. Stoddard has not met his burden

of showing that this determination involved an unreasonable application of clearly
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established federal law, or was based on an unreasonable determination of the facts

in light of the evidence presented at his trial. See 28 U.S.C. § 2254(d); Burgess,

723 F.3d at 1315.

      The state court’s resolution of Stoddard’s double-jeopardy claim was not

based on an unreasonable determination of the facts given Lahood’s trial

testimony.   The trial transcript reflects the following exchange between the

prosecuting attorney (“Q”) and Lahood (“A”) concerning events after the

bathroom:

             Q.     Can you approximate for this jury how many times
                    he put his penis in your vagina after the time with
                    the incident with the knife and him talking about
                    the knife?

             A.     Over and over and over and over again. I—
The prosecutor continued,

             Q.     When you said that his penis went into your vagina
                    over and over and over, was it more than three
                    times?
             A.     Yes.

             Q.     At various different times when he would stop, do
                    something else and then come back and put his
                    penis in your vagina was more than three times
                    [sic]?

             A.     Yes.
             Q.     Okay. How did the incident all come to an end?


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            A.     We—I was laying there pretending like I was
                   asleep and he finally stopped, got up, went into the
                   kitchen.
      In sum, Lahood’s testimony supports a determination that Stoddard

penetrated her with his penis at least three times, and that the acts of penetration

were separated by Stoddard stopping, doing something else, and then returning.

Given this testimony, as well as the length of time that Stoddard and Lahood were

at the apartment, it would not have been unreasonable for the state court to find

that there was a temporal break between acts of penetration sufficient under

Florida law for Stoddard “to pause, reflect, and form a new criminal intent between

the occurrences.” Eaddy, 789 So. 2d at 1095; see White v. State, 924 So. 2d 957,

959 (Fla. Dist. Ct. App. 2006) (defendant had sufficient time to form a new

criminal intent where the criminal acts were separated by the victim going to and

returning from the bathroom).       Moreover, Stoddard’s statements during his

recorded interview indicate that he and Lahood had engaged in intercourse in “a

couple of different positions,” which also supports the state court’s finding of

distinct acts of penile penetration. See Saavedra, 576 So. 2d at 958; see also Paul,

934 So. 2d at 1172-73. The fact that some of Lahood’s testimony—that the

incident ended when Stoddard “finally stopped, got up, went into the kitchen”—

could be interpreted as supporting Stoddard’s contention that he was on the bed the



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entire time does not demonstrate that a contrary finding was unreasonable. See

Lee, 726 F.3d at 1192.

      Because the state court concluded that Stoddard committed distinct criminal

acts of sexual battery under Florida law during the series of events after the

bathroom, and the factual determinations underlying that decision were not

unreasonably found, we cannot say that the state decision was contrary to, or

involved an unreasonable application of, federal law, given that the double-

jeopardy guarantee “does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.” See Hunter, 459

U.S. at 366, 103 S. Ct. 673, 678. In sum, Stoddard has not established a right to

habeas relief on his double-jeopardy claim. See 28 U.S.C. § 2254(d); Burgess, 723

F.3d at 1315.

                                      IV.

      Regarding his ineffective-assistance claims, Stoddard argues that his trial

counsel, Robert Segal, was ineffective for failing to develop Adams as a witness

because “she was one of the only witnesses that saw Lahood and Stoddard just

hours before the alleged sexual batteries occurred.” With regard to McCready,

Stoddard contends, Segal was ineffective because her testimony would have

showed that Lahood enjoyed rough sex and that she had a motive for fabricating

rape charges. The failure to call Adams and McCready as witnesses prejudiced his
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defense, Stoddard argues, because the jury did not hear relevant exculpatory

evidence suggesting that Lahood was a willing participant. 6

       We review de novo a claim of ineffective assistance of counsel, which is a

mixed question of law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th

Cir. 2009). To establish ineffective assistance of counsel, the defendant must

show: (1) counsel’s performance was deficient; and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984).

       Counsel’s performance is deficient only if it falls below the wide range of

competence demanded of attorneys in criminal cases. Id. at 687-89, 104 S. Ct. at

2064-65. This requires a showing of “errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770, 787 (2011) (quotation

marks omitted). When a claim implicates both AEDPA and Strickland’s highly

deferential standards, our review is “doubly” deferential. Id. at __, 131 S. Ct. at

788.

       6
          The State contends that the issue specified in the COA is not “subject to federal review
under the AEDPA” because it does not reference the deferential standards of review required by
AEDPA. The COA asks, “Whether the district court erred in denying Mr. Stoddard’s claim that
trial counsel was ineffective for failing to call witnesses Lisa Adams and Olivia McCready?”
Regardless of the wording of the COA, we apply AEDPA’s deferential standards of review. See,
e.g., McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (stating that this Court
“will construe the issue specification [in the COA] in light of the pleadings and other parts of the
record” (quotation marks omitted)).
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      In evaluating counsel’s effectiveness, we are guided by several

considerations: (1) a strong presumption exists that counsel’s performance might

be considered sound trial strategy; (2) strategic choices made after a thorough

investigation are virtually unchallengeable, and (3) those strategic choices made

after less than complete investigation are reasonable to the extent that reasonable

professional judgments support the limitations on investigation. Strickland, 466

U.S. at 689-91, 104 S. Ct. at 2065-66. We must not only give counsel the benefit

of the doubt, but must also “affirmatively entertain the range of possible reasons

[Stoddard’s] counsel may have had for proceeding as he did.” Pinholster, 131 S.

Ct. at 1407 (internal quotation marks omitted).

      Prejudice is a reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. The likelihood of a different result must be substantial, not just

conceivable. Richter, 562 U.S. at __, 131 S. Ct. at 792. The petitioner bears the

burden of proof on both prongs of an ineffective-assistance claim. Johnson v.

Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001).

      Here, the state post-conviction court found that Segal investigated Adams

and other witnesses at Norman’s but made a strategic decision not to call Adams

because he did not want to lose first and last closing arguments and because

Adams witnessed Stoddard consuming alcohol. With regard to McCready, the
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court determined that Segal made a strategic decision not to have her testify

because Segal was concerned about negative aspects of her potential testimony and

because her testimony did not outweigh the value of retaining multiple closing

arguments. Because the question of “whether an attorney’s decision is ‘strategic’

or ‘tactical’ is a question of fact,” we first review whether the state court’s factual

determinations were reasonable and then proceed to the legal question of the

reasonableness of counsel’s strategic decision. Debruce v. Comm’r, Ala. Dep’t of

Corr., 758 F.3d 1263, 1273 (11th Cir. 2014); see also Wood v. Allen, 558 U.S. 290,

299-302, 130 S. Ct. 841, 848-50 (2010) (reviewing the state court’s determination

that defendant’s counsel made a “strategic decision” not to pursue mitigation

evidence as a factual determination under § 2254(d)(2)).

      First, Stoddard’s contention that Segal failed to adequately investigate

Adams’s testimony is not supported by the record. The evidence presented at

Stoddard’s post-conviction evidentiary hearing supported the court’s finding that

Segal or someone at his direction investigated potential witnesses at Norman’s and

that Segal was aware of the potential benefits of such testimony. See Rhode v.

Hall, 582 F.3d 1273, 1283 (11th Cir. 2009) (counsel may hire investigators to

conduct interviews of potential witnesses). In light of the record, the fact that, at

the time of the evidentiary hearing in 2007, Segal did not recall speaking with

Adams ten years earlier—or that Adams did not recall personally speaking with
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Segal—does not render unreasonable the state court’s determination that Segal

conducted an adequate investigation of Adams’s testimony. See, e.g., Chandler v.

United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc) (“An

ambiguous or silent record is not sufficient to disprove the strong and continuing

presumption [in favor of competence.]”) While Stoddard contends that Segal

should have investigated Adams’s potential testimony further, neither Adams’s nor

Stoddard’s testimony included facts regarding specific information that they had

provided to Segal that purportedly should have triggered the need for further

investigation. Because we “must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct,” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, Stoddard has not shown

that, under the facts known to Segal at the time, no reasonable attorney would have

failed to further investigate Adams.

      Second, the state court’s factual determination that Segal made a strategic

decision not to call Adams and McCready was not unreasonable.               Nor has

Stoddard shown that the court’s determination that Segal did not have a “hard and

fast rule about preserving opening and closing arguments” was unreasonable based

on the evidence. At the evidentiary hearing, counsel testified that he was aware of

the potential value of the testimony but believed that it did not outweigh losing the

ability to do two closing arguments. Indeed, counsel described the ability to argue
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twice as a “valuable psychological tool” for rebutting the state’s closing argument. 7

Segal explained that, after interviewing “all the witnesses in the case and having

done the investigation, the problem that seemed to keep cropping up in my mind

was that the people that we had wanted to call as witnesses, while they could

potentially help us, they could also potentially hurt us.” For that reason, Segal

believed that the better course was “maintaining the two closing arguments that

were available to us at the time if we didn’t introduce evidence.”                     Segal’s

testimony, which the state court credited, supports the court’s finding that Segal

made a case-specific, strategic decision not to present evidence in order to retain

first and last closing argument. See Cole v. State, 700 So. 2d 33, 36 (Fla. Dist. Ct.

App. 1997) (holding that a “blanket policy regarding first and last closing

argument without examining the circumstances and potential defenses of each

case” is per se deficient, but noting that a “case-specific tactical decision” may be

reasonable).

       Finally, given the strong presumption that counsel’s decisions might be

considered sound trial strategy, Stoddard has not shown that the state court

unreasonably applied Strickland in finding that Segal’s performance was not

       7
          While the trial transcript reflects that Segal may have intended to call McCready as a
witness but was simply unable to, we cannot conclude, given her unavailability, that he would
have done so if she had been present. In addition, Stoddard states in his opening brief that
“Segal knew that McCready possessed exculpatory evidence, but intentionally did not call her as
a witness at trial.”
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deficient. See Richter, 562 U.S. at __, 131 S. Ct. at 788; Strickland, 466 U.S. at

689-91, 104 S. Ct. at 2065-66. While the witnesses’ testimony likely would have

helped Stoddard’s defense, Segal was faced with the dilemma, due to Florida law

applicable at the time, of deciding whether the value of the testimony was worth

more than retaining a rebuttal closing argument. See In re Amendments to the Fla.

Rules of Criminal Procedure–Final Arguments, 957 So. 2d at 1166. Viewing this

trade-off in conjunction with “the point that ‘[w]hich witnesses, if any, to call, and

when to call them, is the epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess,’” Evans v. Sec y, Fla. Dep 't of Corr., 699 F.3d

1249, 1268 (11th Cir. 2012) (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th

Cir. 1995) (en banc)), we cannot say that the state court unreasonably applied

Strickland in concluding that Segal’s performance was not deficient.8

B.     Prejudice

       Even assuming counsel’s performance was deficient, Stoddard has not

shown that the state court unreasonably determined that Stoddard did not establish

prejudice. As explained above, to meet Strickland’s prejudice prong, Stoddard

must show that it was “reasonably likely” that, but for counsel’s deficient
       8
           Because Stoddard has not shown error in the state court’s determination that counsel’s
performance was not deficient, he cannot establish cumulative prejudice. See Evans, 699 F.3d at
1269 (“While the prejudice inquiry should be a cumulative one as to the effect of all of the
failures of counsel that meet the performance deficiency requirement, only the effect of counsel’s
actions or inactions that do meet that deficiency requirement are considered in determining
prejudice.”).
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performance, the result of the proceeding would have been different. Richter, 562

U.S. at __, 131 S. Ct. at 792.       The likelihood of a different result must be

substantial, not just conceivable.      Id.    Stoddard bears a heavy burden of

establishing prejudice based on the failure to call witnesses “because often

allegations of what a witness would have testified to are largely speculative.”

Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) (internal quotation

marks omitted).

      We conclude that Stoddard has failed to meet his burden of showing

prejudice for several reasons.      First, neither Adams nor McCready had any

knowledge of what occurred at Lahood’s apartment after 5:00 p.m. on July 31,

1996. Second, the physical evidence as well as the testimony from third parties

was consistent with Lahood’s account of events at the apartment. In particular,

Lahood had numerous injuries, including bruises that were less than 24 hours old

and abrasions that were, according to the emergency room doctor, consistent with

non-consensual intercourse. Moreover, an officer testified that, when he came into

contact with Lahood on the night of July 31, he “could tell that there had been

some kind of traumatic event” because Lahood was flushed, crying, and had

numerous injuries, and that, when the officer saw Lahood’s apartment, he believed

a “severe fight” had taken place. Third, the State represents that it was prepared to

call Stoddard’s sister as a rebuttal witness at trial in the event that Stoddard put on
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witnesses. According to the State, Stoddard’s sister would have corroborated that

non-consensual sex occurred.

      In sum, it was not unreasonable for the state court to conclude that Stoddard

was not prejudiced by the absence of Adams’s and McCready’s testimony, whether

considered separately or cumulatively. While it is conceivable that the result of the

proceeding would have been different had McCready and Adams testified,

Stoddard has not shown that the likelihood of a different result was “substantial.”

Richter, 562 U.S. at __, 131 S. Ct. at 792

                                         V.

      For the reasons explained above, we affirm the denial of Stoddard’s § 2254

petition.

      AFFIRMED.




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