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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14394 Non-Argument Calendar ________________________
D.C. Docket No. 0:18-cv-60383-BB
ERIC LUCAS,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 8, 2021)
Before MARTIN, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 19-14394 Date Filed: 01/08/2021 Page: 2 of 16
Eric Lucas, a Florida prisoner proceeding pro se, appeals the district court’s
order denying his 28 U.S.C. § 2254 petition. This Court granted a certificate of
appealability (“COA”) on the following claim: “[w]hether Lucas’s trial counsel
provided ineffective assistance by failing to call Alisa Catoggio as an alibi witness,
and whether the district court abused its discretion in denying this claim without an
evidentiary hearing.” For the reasons explained below, we affirm the district court’s
denial of this claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2007, Lewisha Freeman was getting ready for work in her
apartment when she heard screams in the apartment hallway. Freeman opened her
apartment door and saw a woman, later identified as Lauren Glushko, Lucas’s
girlfriend, crying and yelling. Freeman also saw Lucas grab Glushko by the throat
but then let her go. Freeman went back inside her apartment to call the police, and
Glushko entered Freeman’s apartment, closing the door behind her. While Freeman
was calling the police, Lucas was screaming at Glushko from the hallway. Janet
Landry, Freeman’s boss, came down the hallway and told Lucas to leave, which
Lucas appeared to do. Approximately five minutes later, however, Lucas returned
and began yelling at Freeman through her apartment door. Lucas proceeded to bust
through Freeman’s door, entered her apartment, punched Freeman several times in
the head, and kneed Freeman in her eye, causing her injuries. Landry heard the
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commotion, entered the apartment, and tried to keep Lucas from continuing to hit
Freeman. Lucas eventually ran out of the apartment. Freeman later identified Lucas
as her assailant both in a photo lineup and in court.
Lucas was charged with burglary of a dwelling with a battery against
Freeman, in violation of Florida Statute § 810.02(1) and (2)(a), and aggravated
battery against Freeman, in violation of Florida Statute § 784.045. On August 28,
2008, Lucas’s first trial counsel withdrew from the case, and Lucas secured different
counsel on September 5, 2008. Immediately prior to trial, the State moved to admit
the out-of-court statements given by Glushko to Officer Thomas Stenger of the Fort
Lauderdale Police Department when he arrived at the scene. The State explained
that Lucas had made phone calls to Glushko from jail encouraging her to mislead
the State and claim a lack of memory of the incident and threatened her with
violence. The state trial court granted the State’s motion.
On August 3, 2009, the case proceeded to trial, and Freeman, Officer Stenger,
Detective Justin Moody, and Kathleen Casey, an employee of the Broward County
Sheriff’s Office, all testified. Additionally, over objection, the State published three
recorded phone calls Lucas made from jail to a number associated with Glushko.
After the State rested, Lucas moved for judgment of acquittal, which the trial court
denied. Lucas’s counsel rested the case without presenting any witnesses, to which
Lucas agreed following questioning by the trial court. The jury found Lucas guilty
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of both charges. Because Lucas was a prison releasee reoffender, the trial court
sentenced Lucas to concurrent sentences of life imprisonment for the burglary
charge and fifteen years’ imprisonment for the aggravated battery charge. Lucas
appealed to Florida’s Fourth District Court of Appeal, which affirmed his
convictions and sentence. Lucas v. State, 67 So. 3d 332 (Fla. Dist. Ct. App. 2011).
In January 2013, Lucas filed pro se a state postconviction motion raising
several ineffective assistance of counsel claims under Strickland v. Washington, 466
U.S. 668 (1984).1 None of those claims, however, were based on a failure to present
an alibi defense or call an alibi witness. Following litigation over whether one of
Lucas’s claims was sufficiently pled, 2 Lucas, now with the aid of counsel, raised a
fifth claim of ineffective assistance of counsel—failing to object to the introduction
of the jail calls on the basis that the State failed to establish Lucas’s identity on the
calls. The state postconviction court denied Lucas’s motion, the Fourth District
Court of Appeal affirmed and denied rehearing, and the Florida Supreme Court
denied discretionary review.
1 These claims included: (1) failing to consult or call an ophthalmologist to rebut the State’s case as to the permanent damage element of aggravated battery; (2) failing to object to the introduction of the jail calls on the basis that the State failed to establish Glushko’s identity on the calls; (3) failing to impeach Freeman, the victim, with the police report; and (4) failing to move to dismiss the aggravated battery charge as duplicate of the burglary with battery charge. 2 See Lucas v. State, 147 So. 3d 611 (Fla. Dist. Ct. App. 2014); State v. Lucas, 183 So. 3d 1027 (Fla. 2016). 4 USCA11 Case: 19-14394 Date Filed: 01/08/2021 Page: 5 of 16
On February 20, 2018, Lucas filed a petition under 28 U.S.C. § 2254. Then,
on March 8, 2018, Lucas filed an amended petition raising nine grounds for relief.
Of relevance to this appeal, ground eight of the amended petition asserted that Lucas
was provided ineffective assistance of counsel when his “counsel failed to present a
viable alibi defense that was available to [him].” Specifically, Lucas claimed that
his trial counsel was ineffective for failing to call Alisa Catoggio, who testified in a
deposition in which Lucas’s attorney did not participate and who was listed on
Lucas’s attorney list of potential witnesses. Lucas asserted that Catoggio would
have credibly testified that she was “continuously” with Lucas when the offense
occurred and that there was a reasonable probability the outcome of his trial would
have been different had Catoggio testified. In her deposition, Catoggio testified that
she was friends with and had a sexual relationship with Lucas and that, on the night
of the incident, she had picked Lucas up from a friend’s house because he was not
feeling well. Catoggio also testified that she and Lucas went to bed around 1:00 or
2:00 a.m. and that they both woke up around 8:00 a.m. when Lucas received a call
about the incident. Catoggio stated that Lucas asked her to drive to his apartment,
which was about fifty minutes away, to “check out” what had happened there and
that Lucas later told her he “had gotten into a fight” with “his ex-girlfriend Lauren.”
And Catoggio stated that Lucas’s attorney had contacted her. Lucas, however,
admitted that he did not raise this issue in his state postconviction proceedings,
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claiming he did not raise it because he was proceeding pro se when he filed his state
postconviction motion.
In response, the State argued that ground eight was both unexhausted and
procedurally barred because Lucas had not raised the claim in any state direct or
collateral proceeding, and any petition or motion Lucas could now file in state court
would be untimely or successive. The State also argued that, although Lucas initially
proceeded pro se when he filed his state postconviction motion, he was later
appointed counsel. Finally, the State argued that the claim was not substantial.
Specifically, the State contended that Catoggio’s testimony, if presented at trial,
would not have demonstrated a credible alibi defense, as her testimony would not
rule out Lucas going to his apartment complex after Catoggio fell asleep, attacking
Glushko and Freeman, and then returning to Catoggio’s home. The State also argued
that Catoggio’s credibility could be attacked because she admittedly refused an
opportunity to reveal this alibi to the police on the day of the incident or at any point
until seven months after Lucas’s arrest and because of her friendship and sexual
relationship with Lucas. As such, the State argued that a reasonable attorney could
find that pursuing an alibi defense would not be successful and, thus, Lucas’s claim
was not substantial and should be procedurally barred.
On July 23, 2019, the magistrate judge issued a report recommending that
Lucas’s petition be denied. As to ground eight, the magistrate judge noted that Lucas
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conceded the claim was unexhausted because it was never presented in state court
and determined that a future attempt to exhaust the claim would be futile under the
state’s procedural default doctrine. However, the magistrate judge determined that
it would evaluate whether ground eight was a “substantial” claim as Lucas had
demonstrated “sufficient cause”—that he was pro se when he filed his initial
postconviction motion—under Martinez v. Ryan, 566 U.S. 1 (2012). The magistrate
judge then concluded that ground eight was not a substantial claim. After analyzing
Catoggio’s deposition testimony, the magistrate judge found that it was unlikely she
would have been a credible witness at trial because: (1) she did not speak to the
police until more than seven months after Lucas’s arrest; (2) her sexual relationship
with Lucas; and (3) “material contradictions” within her statements, such as the
reasoning as to why she, and not Lucas, went to Lucas’s apartment after the incident.
Given Catoggio’s credibility issues and the facts of the case, the magistrate judge
determined that “a reasonable attorney could have found that pursuing an alibi
defense and presenting her as a witness based on her deposition testimony would
have been unsuccessful” and that there was nothing to suggest that the trial’s
outcome would have differed if she had testified. As such, because Lucas had not
demonstrated any prejudice under the second prong of Strickland, the magistrate
judge recommended a finding that ground eight was without merit and procedurally
defaulted from federal review. The magistrate judge also found that the “pertinent
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facts of this case [were] fully developed in the record” such that an evidentiary
hearing was not warranted. Finally, the magistrate judge recommended denying
Lucas a COA.
Lucas filed objections to the magistrate judge’s report, asserting that the
magistrate judge erred in denying his request for an evidentiary hearing, and
requested an evidentiary hearing. As to ground eight, Lucas disputed the magistrate
judge’s determination that it was unlikely Catoggio would be a credible witness and
argued that an evidentiary hearing was required to establish why his counsel failed
to investigate and present her as a material alibi witness.
The district court issued an order adopting the magistrate judge’s report and
recommendation. The district court overruled Lucas’s objections, explaining that
the objections were either “further expansions of argument originally raised in the
Petition” or “merely disagreements with the [r]eport’s findings.” Lucas appealed
and filed a motion for a COA in this Court. This Court granted a COA on the issue
of “[w]hether Lucas’s trial counsel provided ineffective assistance by failing to call
Alisa Catoggio as an alibi witness, and whether the district court abused its discretion
in denying this claim without an evidentiary hearing.”
II. STANDARD OF REVIEW
“When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
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of fact for clear error.” Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644, 651 (11th
Cir. 2014) (quoting Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir.
2006)). We review “[a] district court’s decision to grant or deny an evidentiary
hearing for abuse of discretion.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th
Cir. 2005).
III. ANALYSIS
On appeal, Lucas raises two issues. First, he argues that he was denied
effective assistance of counsel when: (1) his two attorneys failed to investigate,
interview, or call an alibi witness; (2) when an alibi defense was his only defense;
and (3) his counsel presented no other defense at trial. Second, Lucas contends that
he has shown cause for his failure to develop the facts in his state court proceedings
and that the actual prejudice from such failure to entitle him to a federal evidentiary
hearing. We address his arguments in turn.
A. Whether Lucas was denied ineffective assistance of counsel by failing to call Catoggio as an alibi witness
Lucas argues that the district court erred in denying his ineffective assistance
of counsel claim as to presenting an alibi defense based on Catoggio’s testimony.
First, as Lucas conceded below, he did not raise this claim in his state postconviction
proceedings and, thus, did not exhaust his state court remedies as to this claim. See
Duncan v. Henry, 513 U.S. 364, 365–66 (1995). “A state habeas corpus petitioner
who fails to raise his federal claims properly in state court is procedurally barred 9 USCA11 Case: 19-14394 Date Filed: 01/08/2021 Page: 10 of 16
from pursuing the same claim in federal court absent a showing of cause for and
actual prejudice from the default,” Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir.
1999), or a demonstration “that failure to consider the claims will result in a
fundamental miscarriage of justice,” Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d
1195, 1201 (11th Cir. 2016) (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). Procedural default of a claim may occur “if the petitioner simply never
raised a claim in state court, and it is obvious that the unexhausted claim would now
be procedurally barred due to a state-law procedural default.” Bailey, 172 F.3d at
1303. Florida law generally requires ineffective assistance claims to be raised on
collateral review and to be raised within two years after the judgment and sentence
becomes final. Sullivan, 837 F.3d at 1199; Fla. R. Crim. P. 3.850(b); see also Rigg
v. Warden, Blackwater River Corr. Facility, 685 F. App’x 812, 816 (11th Cir. 2017).
In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court
recognized an exception to the general procedural default rule. The Court held that
where a claim of ineffective assistance of trial counsel must be raised in an initial-
review collateral proceeding under state law, “a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Id. at 17. Thus, to demonstrate “cause” under
Martinez, a petitioner must establish: (1) a substantial claim of ineffective assistance
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of trial counsel; (2) the cause for the failure to raise the claim was lack of
postconviction counsel in the initial collateral review proceeding; (3) the state
collateral proceeding was the initial opportunity to review the claim; and (4) the
state’s law requires ineffective assistance of trial counsel claims to be raised in the
initial collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013). A
substantial claim is one that has “some merit.” Martinez, 556 U.S. at 14.
To establish a claim of ineffective assistance of counsel under Strickland, a
petitioner must demonstrate that (1) his counsel’s performance was deficient, i.e.,
that the “representation fell below an objective standard of reasonableness,” and (2)
he was prejudiced by the deficient performance, i.e., there was “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 688, 694). There is a strong presumption that counsel acted
effectively, and the reasonableness of an attorney’s strategic decision is judged from
an objective perspective, not from “counsel’s subjective state of mind.” Id. at 110.
Indeed, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S at 690–91. Thus, “counsel has a duty to make reasonable
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investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 691. The decision to call witnesses, if any, is “the epitome of
a strategic decision, and it is one that we will seldom, if ever, second guess.” Waters
v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995).
We agree with the district court’s determination that Lucas did not establish a
substantial claim of ineffective assistance of counsel based on his trial counsels’
decision not to raise an alibi defense through Catoggio’s testimony. While Lucas
claims that his counsel failed to investigate and prepare the alibi defense, his first
trial counsel was aware that Catoggio could serve as a potential witness, given her
inclusion on Lucas’s potential witness list and Catoggio’s own testimony that the
attorney had contacted her. Additionally, Catoggio’s deposition was filed on March
4, 2009—five months prior to trial—and was available to Lucas’s second trial
counsel, who ultimately decided not to depose Catoggio further or pursue an alibi
defense.
Moreover, as explained by the district court, the State could have attacked
Catoggio’s credibility based on her friendship and sexual relationship with Lucas as
well as internal inconsistencies with her deposition testimony. And Catoggio’s
deposition testimony did not completely foreclose the possibility that Lucas was at
the scene of the incident. Catoggio testified that she fell asleep around 1:00 or 2:00
a.m. and that Lucas woke her up around 8:00 a.m. The incident, however, occurred
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at around 5:30 a.m., and Catoggio’s home was only fifty minutes away from Lucas’s
apartment complex. Given these facts, the strategic decisions of Lucas’s trial
counsels not to investigate Catoggio further or call her as a witness to present an
alibi defense was well within the counsels’ reasonable professional judgment, and
thus, Lucas has failed to demonstrate that the counsels’ performances were deficient.
Finally, even if the performances of Lucas’s two trial counsels were deficient,
Lucas has not demonstrated prejudice. Freeman’s testimony and Glushko’s out-of-
court statements introduced at trial both identified Lucas as Freeman’s assailant.
Additionally, as evidenced by the calls Lucas made from jail, Lucas threatened
Glushko to prevent her from speaking about the incident. Based on the record in
this case, there is no reasonable probability that the result of Lucas’s trial would have
been different if Lucas’s counsel had raised the alibi defense. Lucas has therefore
failed to demonstrate that his claim is substantial under Martinez. Accordingly, this
claim is procedurally defaulted.
B. Whether the district court abused its discretion in denying the claim without an evidentiary hearing
Lucas further argues that he should be entitled to an evidentiary hearing on
his claim to develop his claim. In habeas proceedings, “[t]he burden is on the
petitioner . . . to establish the need for an evidentiary hearing.” Chavez v. Sec’y Fla.
Dep’t of Corrs., 647 F.3d 1057, 1060 (11th Cir. 2011) (alterations in original)
(quoting Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984)). In deciding 13 USCA11 Case: 19-14394 Date Filed: 01/08/2021 Page: 14 of 16
whether to hold an evidentiary hearing on a habeas claim, “a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas
relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). “[I]f the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing.” Id.; accord Chavez, 647 F.3d at
1060.
We find that the district court did not abuse its discretion in denying an
evidentiary hearing. Lucas argues that additional facts could be developed at an
evidentiary hearing, including why his first counsel did not appear at Catoggio’s
deposition and why his second counsel did not depose Catoggio or call her as a
witness. As explained above, however, the reasonableness of an attorney’s strategic
decision is judged from an objective perspective, not from “counsel’s subjective
state of mind.” Harrington, 562 U.S. at 110. Here, the facts Lucas seeks to develop
would serve to evaluate his counsels’ subjective state of mind, not the objective
reasonableness of their performances. Based on the state court record, it was well
within the counsels’ reasonable professional judgment not to pursue an alibi defense
based on Catoggio’s testimony. And Lucas has not shown any facts demonstrating
prejudice from his counsels’ failure to present an alibi defense. See Bester v.
Warden, 836 F.3d 1331, 1340 (11th Cir. 2016) (“Bester has not proffered any facts
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that would be relevant to [the prejudice] issue in this case. That is enough, by itself,
to rule out an evidentiary hearing.”). Thus, because this claim can be adequately
assessed without further factual development, the district court was not required to
hold an evidentiary hearing. See Schriro, 550 U.S. at 474; Turner v. Crosby, 339
F.3d 1247, 1275 (11th Cir. 2003).
Moreover, the district court was limited by 28 U.S.C. § 2254(e)(2), which
“restricts the discretion of federal habeas courts to consider new evidence when
deciding claims that were not adjudicated on the merits in state court.” Cullen v.
Pinholster, 563 U.S. 170, 186 (2011); accord Bester, 836 F.3d at 1340. Section
2254(e)(2) prohibits a district court from holding an evidentiary hearing if a
petitioner fails to develop the factual basis for a claim in state court proceedings,
unless the claim relies on: (1) “a new rule of constitutional law[] made retroactive”
or “a factual predicate that could not have been previously discovered through the
exercise of due diligence;” and (2) “the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2254(e)(2)(A)–(B). A finding of due diligence
“depends upon whether the prisoner made a reasonable attempt, in light of
information available at the time, to investigate and pursue claims in state court.”
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Crawford v. Head, 311 F.3d 1288, 1329 (11th Cir. 2002) (quoting Williams v.
Taylor, 529 U.S. 420, 435 (2000)).
Here, Lucas did not raise this claim in his state collateral proceedings.
Moreover, his claim is not based on a new rule of constitutional law, and, to the
extent Lucas asserts that he could not have discovered the claim’s factual predicate
through the exercise of due diligence, this is refuted by the record. The state court
trial docket reflects that Catoggio’s deposition testimony was filed months prior to
Lucas’s trial, and Lucas could have carefully reviewed that docket and requested a
copy of the deposition from the trial court. Furthermore, Lucas would certainly have
known of the facts surrounding Catoggio’s potential role as an alibi witness, as
Catoggio claimed to be with Lucas at her home before and after the incident
occurred. The district court therefore did not err in denying Lucas’s request for an
evidentiary hearing.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying Lucas’s
petition.
AFFIRMED.