Lucas v. Florida Department of Corrections

Filing 42

ORDER ADOPTING MAGISTRATE JUDGES REPORT AND RECOMMENDATION re 36 Report and Recommendations. Petitioners Objections, DE# 39 , are OVERRULED. Final Judgment is entered in favor of Respondent. The Petition for Habeas Corpus Relief, DE# 1 , and th e corresponding Amended Petition for Habeas Corpus Relief, DE# 10 , are DENIED. Certificate of Appealability: No Certificate of Appealability shall be issued. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all pending motions are DENIED as moot, and all deadlines are TERMINATED. The Clerk of Court is directed to CLOSE this case. Closing Case. Motions Terminated: 36 REPORT AND RECOMMENDATIONS on 28 USC 2254 case re 10 Amended Complaint filed by Eric Lucas Recommending that: 1.the federal habeas petition be DENIED on the merits; 2.final judgment be entered in favor of Respondent; 2.a certificate of appeala. Signed by Judge Beth Bloom on 10/8/2019. See attached document for full details. (ebz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-60383-BLOOM/Reid
ERIC LUCAS,
Petitioner,
v.
MARK S. INCH,
Respondent.
/
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Report and Recommendations of the
Honorable Lisette M. Reid. ECF No. [36] (“Report”). On July 23, 2019, Judge Reid issued the
Report recommending that the Petition for Habeas Corpus Relief, ECF No. [10] (“Petition”),1 be
denied on the merits, final judgment be entered in favor of Respondent, and that a certificate of
appealability be denied and the case be closed. ECF No. [36] at 60. The Report advised that any
objections to the Report’s findings were due within fourteen days of receipt of the Report. Id.
Plaintiff has timely filed objections to the Report. ECF No. [39] (“Objections”). This Court
has conducted a de novo review of the portions of the Report to which Petitioner has objected, in
accordance with 28 U.S.C. § 636(b)(1)(C), and the remainder of the Report for clear error, and
finds that the Objections are without merit and are therefore overruled. Taylor v. Cardiovascular
Specialists, P.C., 4 F. Supp. 3d 1374, 1377 (N.D. Ga. 2014) (citing United States v. Slay, 714 F.2d

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The Report notes that, although Petitioner was granted leave to file an amended complaint, see
ECF Nos. [10], [11], & [12], this “amended complaint did not change the substantive claims and facts raised
in the initial petition.” ECF No. [36] at 2 n.1. As such, the Report uses the initial petition, ECF No. [1], as
the operative petition. Id. For consistency, this Court does as well.

Case No. 18-cv-60383-BLOOM/Reid
1093, 1095 (11th Cir. 1983)). The Court first notes that most of Petitioner’s Objections are
improper, as they are either further expansions of arguments originally raised in the Petition and
considered by the Magistrate Judge or are merely disagreements with the Report’s findings. These
objections include:
1.

Petitioner’s Objection to the Report’s finding that an evidentiary hearing was
unwarranted. ECF No. [39] at 2-3.

2.

Petitioner’s objection to the Report’s finding that Claim One is without merit. Id.
at 4-23.

3.

Petitioner’s objection to the Report’s finding that Claim Two is without merit. Id.
at 24-25.

4.

Petitioner’s objection to the Report’s finding that Claim Three is without merit. Id.
at 25-27.

5.

Petitioner’s objection to the Report’s finding that Claim Four is without merit. Id.
at 27-33.

6.

Petitioner’s objection to the Report’s finding that Claim Five is without merit. Id.
at 33-34.

7.

Petitioner’s objection to the Report’s finding that Claim Six is without merit. Id. at
27-33.

8.

Petitioner’s objection to the Report’s finding that Claim Seven is without merit. Id.
at 34-43.

9.

Petitioner’s objection to the Report’s finding that Claim Eight is without merit. Id.
at 43-52.

10.

Petitioner’s objection to the Report’s finding that Claim Nine is without merit. Id.
at 34-43.

Upon review, these objections merely expand upon and reframe arguments already made
and considered by the Magistrate Judge in her Report, or simply disagree with the Report’s
conclusions. “It is improper for an objecting party to . . . submit [] papers to a district court which

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Case No. 18-cv-60383-BLOOM/Reid
are nothing more than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge. Parties are not to be afforded a ‘second bite at the apple’ when
they file objections to a [Report and Recommendations].” Marlite, Inc. v. Eckenrod, No. 10-23641CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors
Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). Nevertheless, these
objections have been considered and are overruled.
Petitioner also objects to the Report’s recommendation that Claim One, alleging that the
trial court erred in admitting hearsay evidence under the excited utterance exception, be denied as
meritless. Petitioner argues that the Report based its analysis on the doctrine of forfeiture by
wrongdoing, which is not recognized under Florida law. ECF No. [39] at 4-23. In the Report,
however, Judge Reid specifically finds that, although the admission of the hearsay evidence in
question does not violate the federally recognized forfeiture by wrongdoing doctrine, “even if the
forfeiture doctrine did not apply to [the admitted hearsay] statements, the testimony still would
have been properly admitted” under the excited utterance exception to the hearsay rule. ECF No.
[36] at 27-28. Thus, while this Court disagrees that the Report applied the incorrect standard in
evaluating Claim One, it is evident that this Claim was not evaluated solely under the doctrine of
forfeiture by wrongdoing. Petitioner’s objection is without merit and is overruled.
Similarly, Petitioner objects to the Report’s recommendation that Claim Two, regarding
improper prosecutorial comments, should be denied. Petitioner argues that this Claim was
reviewed under an improper standard of review for prosecutorial misconduct. ECF No. [39] at 24.
Specifically, Petitioner takes issue with the Report’s statement that the trial court instructed the
jury that counsels’ opening and closing statements were not evidence and that they should only

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Case No. 18-cv-60383-BLOOM/Reid
consider evidence presented at trial in rendering their verdict. Id. This statement, however, is not
reflective of the standard of review that the Report employed in making its recommendation.
Instead, the Report correctly set forth the relevant standard for prosecutorial misconduct:
The standard for federal habeas corpus review of a claim of prosecutorial
misconduct is whether the alleged actions rendered the entire trial fundamentally
unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642-45 (1974); Hall v.
Wainwright, 733 F.2d 766, 733 (11th Cir. 1984). In assessing whether the
fundamental fairness of the trial has been compromised, the totality of the
circumstances are to be considered in the context of the entire trial, Davis v. Zant,
36 F.3d 1538, 1551 (11th Cir. 1983). “Such a determination depends on whether
there is a reasonable probability that, in the absence of the improper remarks, the
outcome of the trial would have been different.” Williams v. Weldon, 826 F.2d
1018, 1023 (11th Cir. 1988).
ECF No. [36] at 29-30. Thus, Judge Reid applied the correct standard of review and Petitioner’s
objection is overruled.
Petitioner also objects to the Report’s recommendation to deny Claim Six, which alleges
that Petitioner’s counsel was ineffective for failing to object to a police officer’s identification of
Petitioner’s voice, resulting in the admission of Petitioner’s prejudicial prison calls, because the
State failed to establish the identity of the speaker on the call. ECF No. [39] at 27-33. In particular,
Petitioner argues that police officers may not testify on issues of voice identification when they do
so in their official capacity “because it leads the jury to believe that the witness is more credible
because they are a police officer.” Id. at 27.2 The Report, however, correctly states the general rule
2

The cases Petitioner cites in support of his argument are inapposite because they all involved law
enforcement officer testimony that either improperly asserted opinions as to defendants’ identities without
any personal knowledge or implicated defendants’ prior criminal history. See Evans v. State, 177 So. 3d
1219 (Fla. 2015), receded from in, Johnson v. State, 252 So. 2d 1114, 1118 (Fla. 2018); Day v. State, 105
So. 3d 1284 (Fla. 2d DCA 2013) (police identification testimony clearly implicated defendant’s prior
criminal history); Charles v. State, 79 So. 3d 233 (Fla. 4th DCA 2012) (officer’s identity testimony, not
based on any personal knowledge, invaded the fact-finding province of the jury); State v. Cordia, 564 So.
2d 601 (Fla. 2d DCA 1990) (approving police’s identification testimony based on personal knowledge);
Hardie v. State, 513 So. 2d 791 (Fla. 4th DCA 1987) (same). These cases are not applicable where, as here,
the officer identified Petitioner’s voice on prison calls based on his familiarity with Petitioner’s voice from
their prior interactions during the officer’s investigation in the instant case. See Johnson, 252 So. 3d at 1117

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Case No. 18-cv-60383-BLOOM/Reid
regarding voice identification: “Florida courts have consistently allowed law enforcement officers
to identify the voice of a defendant where the officer has gained familiarity with the voice,” when
that familiarity was acquired through interactions with a defendant during an ongoing criminal
investigation. ECF No. [36] at 42 (quoting Johnson, 252 So. 2d at 1118). Moreover, the officer’s
challenged identification testimony corroborated testimony from the prison’s Detention
Communications Coordinator, who detailed the number of prison calls made to Lauren Glushko
— Petitioner’s girlfriend — using Petitioner’s account. Id. Therefore, Petitioner’s objection is
without merit and is overruled.
Petitioner further objects to the Report’s finding that he failed to demonstrate the existence
of any factual disputes that would warrant an evidentiary hearing. ECF No. [39] at 51-52. This is
an objection to the Report’s ultimate conclusion and Petitioner has failed to identify any factual
disputes in existence. Thus, the objection is improper and must be overruled.
Lastly, Petitioner objects to the Magistrate Judge’s conclusion that Petitioner is not entitled
to a certificate of appealability. Id. at 52-53. Because the Court agrees with Judge Reid’s analysis
and conclusions, and further determines that all of Petitioner’s objections are without merit, the
Court agrees that a certificate of appealability should not be issued. Petitioner’s final objection is,
therefore, also overruled.
The Court has conducted a de novo review of Judge Reid’s Report, the record, the
applicable law, and is otherwise fully advised. See Williams v. McNeil, 557 F.3d 1287, 1291 (11th
Cir. 2009) (citing 28 U.S.C. § 636(b)(1)). Upon review of the record and the Report, the Court
finds Judge Reid’s Report to be well reasoned and correct. The Court agrees with the analysis in

(“When a witness is previously familiar with a defendant, they are permitted to identify the voice of the
defendant as a lay witness.”).

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Case No. 18-cv-60383-BLOOM/Reid
Judge Reid’s Report and concludes that Plaintiff’s Petition must be dismissed for the reasons
explained therein. The Court further concludes that an evidentiary hearing is not necessary to
resolve the Petitioner’s constitutional claims.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Judge Reid’s Report and Recommendations, ECF No. [36], is ADOPTED.
2. Petitioner’s Objections, ECF No. [39], are OVERRULED.
3. Final Judgment is entered in favor of Respondent.
4. The Petition for Habeas Corpus Relief, ECF No. [1], and the corresponding
Amended Petition for Habeas Corpus Relief, ECF No. [10], are DENIED. No
Certificate of Appealability shall be issued.
5. To the extent not otherwise disposed of, any scheduled hearings are CANCELED,
all pending motions are DENIED as moot, and all deadlines are TERMINATED.
6. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on October 8, 2019.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
The Honorable Lisette Reid
Counsel of record
Eric Lucas
Okeechobee Correctional Institution
Inmate Mail/Parcels

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Case No. 18-cv-60383-BLOOM/Reid
3420 NE 168th Street
Okeechobee, FL 34972

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