Michael Locascio v. Secretary, Florida Department of Corrections , 685 F. App'x 837 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14378
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-22353-MGC
MICHAEL LOCASCIO,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 18, 2017)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Michael Locascio, a pro se Florida prisoner, appeals the denial of his
28 U.S.C. § 2254 habeas corpus petition, challenging his convictions for first-
degree murder, burglary with assault, armed robbery with a deadly weapon, and
conspiring to commit first-degree murder. A certificate of appealability (“COA”)
was granted on these two issues: (1) whether the prosecutor knowingly failed to
correct Jeffery Johnson’s false testimony that he had followed laboratory
protocol—that requires another DNA analyst to co-read DNA test results—before
he disseminated DNA test results, in violation of Locascio’s due process rights and
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972); and (2) whether
Locascio received ineffective assistance of counsel when trial counsel failed to
impeach Johnson as to this testimony. After careful review, we affirm the district
court’s denial of relief on these two claims.
I. BACKGROUND
A. Divorce Proceedings
Petitioner Michael Locascio killed his sister-in-law, Sylvia Locascio, known
as Maggie, who was in the midst of a bitter divorce with his brother, Edward
Locascio, Sr. Maggi and Edward Locascio lived in Miami, Florida, and Petitioner
Locascio lived in Charlotte, North Carolina. At trial, the State proved that
petitioner Locascio conspired with his brother Edward to kill Maggie the night
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before her deposition in the Florida divorce proceedings and to make it look like a
home-invasion robbery.
In June 2001, Maggie Locascio filed for divorce and obtained a domestic
violence restraining order against her husband. The restraining order required Ed
Locascio to move out of the marital residence and have no contact with Maggie
Locascio. Maggie remained in the marital home with the couple’s 19-year-old son,
Eddie Locascio. According to Eddie Locascio, around the time his parents
separated, his father told his mother, “I will kill you. I will end you. And I will
destroy you.” After this threat, Maggie Locascio changed the code for the home
alarm and both she and Eddie made it a habit to immediately re-alarm the house
after they had entered it.
By August 2001, Maggie Locascio’s divorce lawyer had uncovered marital
assets in excess of $3 million that Ed Locascio had hidden in shell corporations
and obtained a restraining order preventing Ed Locascio from touching these
assets. By October, the lawyer had also learned that Ed Locascio had a mistress
and was exploring how much money he had spent on this relationship. In mid-
October 2001, Ed Locascio was held in contempt for failing to comply with the
divorce court’s orders, including subpoenas to produce financial documents.
Meanwhile, petitioner Michael Locascio was living in North Carolina with
his wife and young son, but had not worked in over two years due to an injury. In
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the summer of 2001, as a result of their financial troubles, petitioner Locascio’s
wife told him she wanted a divorce.
B. Murder and Criminal Investigation
On October 30, 2001, police officers responding to a residential alarm call
found Maggie Locascio’s body inside her Miami home, where she was
bludgeoned, beaten, stabbed and strangled. Lying next to the victim’s body was
her purse and a heavy, metal baton, also called “an asp.” Large amounts of blood
were on the floor and the wall of the room.
Because DNA evidence ultimately tied petitioner Michael Locascio to the
murder, here is why there was so much blood evidence. According to the medical
examiner, Maggie Locascio’s injuries included stab wounds to her face, neck, and
front torso, lacerations to her head caused by a blunt object, a broken rib, and a
collapsed lung. The victim had defensive wounds on her forearms and hands and
cuts on her fingers consistent with the victim having grabbed the serrated edge of
the knife. The victim’s face was bruised and cut as if she had been punched, and
the side of her face had a bruise pattern consistent with the sole of a shoe. There
was also a footprint mark on the victim’s chest. The victim had wounds to the
back of her head where it hit the floor, which caused her brain to hemorrhage and
swell. The victim also had ligature marks on her neck and other signs of
strangulation.
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The pattern of blood on the floor and walls and the presence of blood on the
bottoms of the victim’s feet indicated that she had moved around while she bled
and also that she stood in her own blood. The medical examiner opined that
Maggie Locascio’s injuries did not cause immediate unconsciousness or death and
that she engaged in a prolonged struggle with her attacker that lasted several
minutes. Maggie Locascio ultimately died of a combination of loss of blood,
swelling of the brain, and lack of oxygen.
Around the time of the murder, two eyewitnesses, one a police officer and
the other a neighbor, noticed a suspicious, white pick-up truck with a camper top
near the victim’s home. Two days after the murder, another neighbor found a
gray/beige long-sleeved shirt (“the beige shirt”) draped over a gym bag in some
bushes in her yard in Miami. Inside the gym bag was a blood-stained knife,
surgical rubber gloves, a cloth baton holder, two sports drink bottles, credit cards
and identification belonging to Maggie Locascio, and a blue plaid short-sleeved
shirt (“the blue shirt”). Subsequent DNA testing revealed that DNA matching
petitioner Locascio was found on the beige shirt, the rubber gloves, and the baton
lying next to Maggie Locascio’s body.
Initially, Edward Locascio, Sr., the victim’s estranged husband, was the state
investigators’ main suspect, but surveillance camera footage and cell phone records
established that he could not have committed the crimes himself. A few days after
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the murder, an employee of Edward Locascio, Sr. advised investigators that
Edward’s brother, petitioner Locascio, owned a white pick-up truck with a camper
top. Although the Locascio brothers generally spoke only two or three times each
year, phone records showed 24 calls between the brothers in the month before the
murder.
At petitioner Locascio’s home in North Carolina, investigators impounded
his truck on November 4, 2011, and interviewed him and obtained a DNA sample
on November 6, 2001. Petitioner Locascio admitted being in Miami to visit his
brother during the time of the murder, but claimed that he was unable to see his
brother and returned to North Carolina. Video surveillance showed petitioner
Locascio ringing the doorbell at his brother’s apartment a couple of hours after the
murder, and a dark spot was visible on his lower back and buttocks.
At the time of his arrest, investigators found what appeared to be contact
dermatitis on petitioner Locascio’s buttocks and upper leg, which was consistent
with him sitting on a wet surface for an extended period of time. The search of
petitioner Locascio’s truck revealed that the seat covers had been removed,
exposing the foam, and the seats were damp. Carpeting from the bottom panel also
had been removed, and the floorboards seemed wet. Condensation and water were
found inside the truck.
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While in pretrial detention, petitioner Locascio admitted to a cellmate that he
had killed his sister-in-law because she was trying to take his brother’s money, and
Locascio stated that the victim got what she deserved. Petitioner Locascio also
offered money to two cellmates to plant DNA evidence, going so far as to provide
his DNA to a cellmate on a white t-shirt and inside a jail-issued pen. The cellmate
instead turned the white t-shirt and the pen over to investigators.
C. State Trial and Conviction
Petitioner Locascio’s trial began on February 21, 2006. During the trial, the
State put in evidence that petitioner Locascio’s DNA was on the beige shirt, the
rubber gloves, and the metal baton. This DNA evidence was disclosed well in
advance of trial. But before that DNA evidence came in, the State indicated that it
would also seek to introduce newly obtained DNA evidence.
On the third day of trial, the parties raised with the trial court the State’s plan
to introduce newly obtained DNA test results showing that petitioner Locascio’s
DNA was also on the blue shirt that was found inside the gym bag. During a side-
bar, defense counsel objected to the late discovery of this evidence.
The prosecutor explained that she delayed DNA testing on the blue shirt
because she believed the shirt belonged to either Edward Locascio, Sr. or his son
Eddie, rather than the petitioner. When Eddie advised the prosecutor a few months
before trial that he was unsure whether the shirt was his, the prosecutor sent the
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blue shirt for DNA testing. The initial results indicated that the DNA on the blue
shirt could have belonged to any of the three Locascio men. The prosecutor
instructed the crime lab to test a different portion of the blue shirt.
The prosecutor stated that the day before the trial began, February 20, 2006,
which was President’s Day, she received a call from the crime lab reporting that
DNA on the blue plaid shirt belonged to petitioner Locascio. The prosecutor then
called defense counsel and relayed this information to him. The prosecutor
explained to defense counsel that the results were preliminary and that she could
not get him a report until the results were co-read, i.e. reviewed and verified, by
another DNA analyst, Dr. Michael Hass, who was on vacation, as follows:
So I called [defense counsel] and I said, “Listen, it’s not
Eddie’s shirt “- - as you will see when he testifies, he’s in medical
school - -” but it’s your client’s, but I cannot get you a report on this
shirt because it hasn’t be coread because Michael [Hass] is on
vacation.”
So I said, “That would be preliminary, but I am not really
allowed to tell you this because the DNA examiner said it’s not
proper,” but I went the extra step and violated his confidence.
The state trial judge stated that the prosecutor was “wise” to have done so, and the
prosecutor advised the judge that she would receive the final report on Monday
(February 27, 2006), when Dr. Hass returned.
The state trial court concluded that it was necessary to hold a Richardson
hearing to inquire into the circumstances of the prosecutor’s late disclosure of the
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new DNA test results. 1 During the Richardson hearing, the prosecutor again
explained that it took four years to conduct DNA tests on the blue shirt because she
had labored under the mistaken belief that the blue shirt belonged to either Edward
Locascio, Sr. or his son, Eddie. The prosecutor did not obtain a DNA sample from
Edward Locascio, Sr. until late October 2005, lab testing did not begin until
January 2006, and the initial tests could not exclude any male Locascio.
On Friday, February 17, 2006, the prosecutor asked the lab analyst to test a
different part of the blue shirt. The lab analyst performed the test over the weekend
and called the prosecutor on Monday, February 20, 2006. The prosecutor
explained that she called defense counsel as soon as she received the results.
The state trial court concluded that the State’s failure to provide the DNA
evidence was inadvertent, but substantial. Turning to prejudice, the state court
noted that the state would be introducing evidence that the gloves, the beige shirt,
and the metal baton all had petitioner Locascio’s DNA on them. Defense counsel
argued that the protocol followed by the DNA analyst in testing those three pieces
of evidence was flawed. The prosecutor pointed out that the same DNA analyst,
Jeff Johnson, and the same co-reader, Dr. Hass, were involved in testing the blue
shirt. The state court concluded that there was no prejudice to petitioner Locascio
1
See Richardson v. State, 246 So. 2d 771, 775 (Fla. 1971) (providing that the trial court’s
inquiry into discovery violations includes whether the state’s conduct was inadvertent or willful,
whether the violation was trivial or substantial, and whether the violation prejudiced the
defendant’s ability to prepare for trial).
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because his attack applied to all the DNA evidence Jeff Johnson had tested, as
follows:
I am going to find . . . no prejudice because I still think
whatever theory you have attacking the State on the DNA remains the
same. It’s the same lab. It’s the same people involved. There’s three
other items.
I will put this on the record for any appellate court, if they ever
see it, if there had never been any DNA found and this came up, then
we are talking about something that I think the prejudice at that point
would be overwhelming.
You will be getting a copy of the report.
On Monday, February 27, 2006, Dr. Hass completed co-reading Johnson’s DNA
test results of the blue shirt, and the report was provided to defense counsel.
On March 9 and 10, 2006, the State’s DNA analyst Johnson testified.
Among other things, Johnson stated that: (1) during testing, DNA samples from the
handle of the metal baton and some of the rubber gloves were consistent with a
mixture of the victim’s DNA and petitioner Locascio’s DNA, blood on the knife
and the beige shirt matched the victim’s DNA, and a DNA sample from the collar
of the beige shirt matched petitioner Locascio’s DNA; (2) in his crime lab, reports
of lab results were given to another lab analyst to co-read the results to ensure they
were correct; (3) Johnson was not permitted to give lab results to anyone until they
were co-read because they were not official; and (4) Dr. Hass, the crime lab’s
technical director, co-read his results and agreed with his findings.
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Johnson further testified that he was asked later to test the blue shirt.
Johnson’s first cutting from the collar of the blue shirt did not contain enough
information for a full comparison, but a second cutting from the collar contained a
full DNA profile. The DNA on the second cutting matched petitioner Locascio’s
DNA and did not match the DNA of Edward Locascio, Sr. or his son Eddie.
After reviewing the DNA evidence, the prosecutor confirmed with Johnson
that the lab results were co-read by Dr. Hass before being provided to anyone, as
follows:
Q. All of these items, not just the white shirt, all of these items [were]
coread by Dr. Haas?
A. That is correct.
Q. Prior to any results being provided?
A. That is correct.
(Emphasis added).
During cross-examination, defense counsel asked Johnson about his last-
minute testing of the blue shirt, but did not ask Johnson about the premature
release of the DNA test results to the prosecutor before those results were co-read
by Dr. Hass. Instead, defense counsel’s cross-examination attempted to show
Johnson’s DNA testing was unreliable by emphasizing Johnson’s lack of
qualifications and his crime lab’s failure to use corroborative testing to confirm
results or to use other more-advanced methods of DNA analysis employed by other
crime labs.
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In addition, defense counsel questioned Johnson about his violation of an
anti-contamination protocol in 37 different criminal cases. In these 37 cases, Dr.
Hass, as the co-reader, discovered that Johnson’s control did not include a reagent,
an ingredient that ensures no contamination of the test. Johnson determined that
his error was due to his needing a new eyeglasses prescription, and he had to rerun
those tests. One of those 37 cases involved Johnson’s testing of the white t-shirt
that petitioner Locascio’s cellmate gave to investigators.
During closing arguments, the State argued, inter alia, that Johnson’s DNA
testing was reliable, in relevant part, because it was checked by Dr. Hass before it
was disseminated, as follows:
[Johnson] also told you something even very [sic] important
than what we give credit for doctors. He told you that his
information, his results cannot be disseminated to anyone, cannot be
told to me, cannot be told to the Court, until his work is checked.
Little different than when you go to the doctor and a medical doctor
looks at an EKG done by a technician and the EKS says you have a
heart attack and the doctor says, oh, the EKG says you had a heart
attack, I think we should do heart surgery. It’s up to you to get that
second opinion if you want or go with the opinion of a doctor that you
trust.
But in DNA it’s not protocol anywhere for the evidence to be
disseminated without a check of the work. He told you his work was
checked.
The jury found Locascio guilty on all counts, and he received a total
sentence of life imprisonment.
D. Direct Appeal
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On direct appeal, Locascio argued, inter alia, that (1) he was entitled to new
trial because of a pattern of prejudicial discovery violations by the state, including
the mid-trial revelation of the blue shirt; (2) Johnson’s testimony was improperly
bolstered by evidence that Dr. Hass had co-read the DNA results; and (3) the State
knowingly elicited false testimony from Johnson that he followed proper protocol
when in fact Johnson violated testing verification protocol by reporting results to
the prosecutor over the telephone before they were co-read by Dr. Hass. The
Florida Third District Court of Appeal (“Third DCA”) summarily affirmed
petitioner Locascio’s conviction.
E. State Habeas Corpus Petition
In February 2011, petitioner Locascio filed a pro se state petition for a writ
of habeas corpus in the Third DCA, raising claims of ineffective assistance of
appellate counsel for, inter alia, failing to raise on direct appeal the premature
dissemination of the DNA test results of the blue shirt. The Third DCA denied
relief.
F. Rule 3.850 Motion
In April 2011, petitioner Locascio filed a pro se motion for post-conviction
relief, pursuant to Florida Rule of Criminal Procedure 3.850, in the state trial court.
Petitioner Locascio’s Rule 3.850 motion claimed, in relevant part, that he was
denied due process at trial and that he received ineffective assistance of trial
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counsel for failing to correct “Johnson’s known false and perjured testimony”
about the premature dissemination of the DNA test results before they were co-
read, a violation of protocol. Petitioner Locascio contended that this “evidence of
the perjury” would have impeached “Johnson’s credibility as a competent and
trustworthy analyst” and cast doubt on the reliability of his DNA test results.
The state court denied relief. As to petitioner Locascio’s due process claim,
the state court found that the trial transcript, in particular the Richardson hearing,
“clearly shows that an appropriate inquiry was made,” and that the Third DCA had
already denied a similar claim that was raised in Locascio’s state habeas petition.
The Third DCA summarily affirmed. 2
G. Section 2254 Petition
Locascio filed this pro se § 2254 petition, raising, inter alia, Giglio and
ineffective assistance claims related to Johnson’s testimony that he followed the
co-read protocol before disseminating the DNA test results for the blue shirt.
Locascio argued that he was prejudiced by the prosecutor’s failure to correct
Johnson’s testimony and his trial counsel’s failure to impeach Johnson because
2
We need not decide here whether to look through to the state trial court decision or the
summary Third DCA decision because it does not matter to the result. This avoids any
complications if the U.S. Supreme Court agrees or disagrees with our decision in Wilson v.
Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1232-33 (11th Cir. 2016) (en banc), cert granted,
2017 WL 737820 (U.S. Feb. 27, 2017) (No. 16-6855).
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Johnson’s DNA evidence was the only evidence that placed him at the scene of the
crimes.
The State responded that the Florida court’s adjudication of both claims on
the merits was not contrary to or an unreasonable application of federal law. As to
the Giglio claim, the State noted that the trial court, at the Richardson hearing,
determined that Locascio was not prejudiced by the State’s mid-trial disclosure of
DNA results on the blue shirt because other DNA evidence found at or near the
scene implicated Locascio, and Locascio’s defense theory would not change
because of this additional DNA evidence. The issue of Johnson’s testimony was
raised on direct appeal and rejected. The State argued that the Florida appellate
court: (1) accepted the trial court’s finding that the prosecutor disclosed Johnson’s
unofficial results before the co-reading in order to provide the information to the
defense as quickly as possible; and (2) determined that premature dissemination
was acceptable under the circumstances given that Johnson’s results were co-read
and the final report provided to defense counsel, pursuant to protocol, before
Johnson testified at trial. For the same reasons, the State contended, Locascio was
not prejudiced by his defense counsel’s decision not to impeach Johnson on this
point.
The district court adopted the magistrate judge’s report recommending that
petitioner Locascio’s § 2254 petition be denied. As to the Giglio claim, the district
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court concluded that: (1) petitioner Locascio had not shown that the prosecutor
knowingly used false testimony because there was no evidence Johnson was the
lab worker who called the prosecutor and informed her of the unofficial DNA
results before they were co-read by Dr. Hass; and (2) in any event, Johnson’s
testimony that all the DNA results were co-read prior to being disseminated was
not material to either guilt or punishment because those results were subsequently
co-read by Dr. Hass and made official. As to the ineffective counsel claim, the
district court determined that even assuming trial counsel’s cross-examination of
Johnson was deficient, petitioner Locascio failed to show he was prejudiced for the
same reasons his Giglio claim lacked merit. This appeal followed.
II. DISCUSSION
A. Standard of Review
In examining the denial of a 28 U.S.C. § 2254 petition, “we review questions
of law and mixed questions of law and fact de novo, and findings of fact for clear
error.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007).
When a state court denies relief on a federal constitutional claim, we presume “that
the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.” See Harrington v. Richter, 562
U.S. 86, 99, 131 S. Ct. 770, 784-85 (2011). “A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as fairminded jurists could
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disagree on the correctness of the state court’s decision.” Id. at 101, 131 S. Ct. at
786 (quotation marks omitted).
We follow a “general framework of substantial deference” when reviewing
federal issues that state courts have decided. Diaz v. Sec’y for the Dep’t of Corr.,
402 F.3d 1136, 1141 (11th Cir. 2005). To grant a § 2254 petition, we must find
not only that the petitioner’s claims are meritorious, but also that the state court’s
judgment: “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that 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); Guzman v. Sec’y, Dep’t of Corr.,
663 F.3d 1336, 1345-46 (11th Cir. 2011).
B. Giglio Claim
To prevail on a Giglio claim, a habeas petitioner must prove that: “(1) the
prosecutor knowingly used perjured testimony or failed to correct what he
subsequently learned was false testimony; and (2) such use was material[,] i.e., that
there is any reasonable likelihood that the false testimony could have affected the
judgment” of the jury. Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008) (internal
quotation marks and ellipsis omitted); accord Guzman, 663 F.3d at 1348. The
false testimony is material if it “could . . . in any reasonable likelihood have
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affected the judgment of the jury.” Giglio, 405 U.S. at 154, 92 S. Ct. at 766. This
“could have” materiality standard “requires a new trial unless the prosecution
persuades the court that the false testimony was harmless beyond a reasonable
doubt.” Guzman, 663 F.3d at 1348 (quotation marks omitted).
Here, the state court’s denial of Locascio’s Giglio claim was not contrary to,
or an unreasonable application of, clearly established federal law. Locascio
identifies only one statement by DNA analyst Johnson that was false—that
consistent with protocol, all of his DNA results in the case were co-read by Dr.
Hass before they were provided to others. Locascio points out that earlier in the
trial, during a side bar, the prosecutor admitted that the crime lab had called her to
report preliminary results of the DNA testing on the blue shirt and that she then
immediately passed those results on to defense counsel. Dr. Hass had not yet co-
read those preliminary results because Dr. Hass was on vacation. Thus, Johnson’s
testimony was false with respect to the premature release of the DNA testing
results for the blue shirt.
Even assuming Johnson’s testimony on this point was knowingly false, it
was not material. It is not reasonably likely that the fact that the crime lab
(presumably Johnson) telephoned the prosecutor with the preliminary results of the
DNA testing on the blue shirt before the co-reading or the fact that Johnson lied
about it on the stand could have affected the jury’s judgment about whether
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Locascio was guilty or innocent. There was a valid reason for the “premature
dissemination,” as Locascio calls it, on February 20, which was to alert the parties
to the results as soon as possible because the trial had already started. Further, the
results were co-read by Dr. Hass and officially released to defense counsel on
February 27, only one week later, and ten days before Johnson’s March 10 trial
testimony about his DNA testing. Under these particular circumstances, it would
have been more troubling had the crime lab waited another week for Dr. Hass to
return from vacation and co-read the results.
Moreover, this one instance of “premature dissemination” does not call into
question all of Johnson’s DNA testing results, much less the DNA results for the
blue shirt, which in fact were co-read and confirmed by Dr. Hass one week later
and before the DNA evidence was actually introduced at trial. Locascio does not
point to any evidence suggesting that Johnson’s DNA testing of the blue plaid shirt
was flawed. And, as the state trial court determined during the Richardson
hearing, this new DNA evidence was cumulative of other DNA evidence that
implicated petitioner Locascio in the murder of Maggie Locascio.
Indeed, the State’s evidence of petitioner Locascio’s guilt included, among
other things, that petitioner Locascio traveled to Miami in his white pickup truck
just before Maggie Locascio’s murder, that two separate eye-witnesses saw a truck
matching petitioner Locascio’s truck near the murder scene around the time of the
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murder, that petitioner Locascio’s DNA was found on the handle of one of the
murder weapons left next to the victim’s body and also on a beige shirt and some
latex gloves found with another of the murder weapons, that shortly after the
murder, petitioner Locascio was captured on surveillance video with a dark stain
on the back of his clothing, that after petitioner Locascio returned to North
Carolina, the inside of his truck had been stripped of its seatcovers and washed,
and that while in pre-trial detention, petitioner Locascio admitted to a cellmate that
he had killed his sister-in-law. In light of this evidence, there is no reasonable
likelihood that the jury could have rejected all of the State’s DNA evidence and
acquitted petitioner Locascio, as he maintains, based on this one false statement by
Johnson.
To be sure, it would have been better if the prosecutor had stopped Johnson
and had him admit that, in fact, the preliminary results of one piece of evidence
were provided to her before Dr. Hass co-read them and then had Johnson explain
why and confirm that those results were co-read by Dr. Hass a week later and
before Johnson’s testimony. But, under the circumstances, the prosecutor’s failure
to do so in this case was not prosecutorial misconduct warranting a new trial. In
short, under Giglio’s materiality standard, Johnson’s testimony, even if false as to
the co-reading of the blue shirt DNA results, was not materially false and did not
require a new trial. Accordingly, the state court’s denial of petitioner Locascio’s
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Giglio claim was not contrary to, or an unreasonable application of, clearly
established federal law.
C. Ineffective Assistance Claim
To make a successful claim of ineffective assistance of trial counsel, a
defendant must show that: (1) his 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). 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.
Locascio argues that his trial counsel was ineffective when he failed to
impeach Johnson by asking him on cross-examination about his premature release
of the DNA testing results for the blue shirt. 3 It is not clear that defense counsel’s
performance was deficient. Even though defense counsel was aware that Johnson
was wrong when he testified that all of his DNA results were co-read by Dr. Hass
before they were released, there are reasons why defense counsel might not have
wanted to explore this misstatement with Johnson. Defense counsel knew that the
reason for the premature release of the preliminary DNA results was to make sure
3
Locascio also suggests in passing that his trial counsel also should have objected during
the prosecutor’s direct examination of Johnson and during her closing argument, but these issues
are outside the scope of the COA and were not raised in his § 2254 petition filed in the district
court. Thus, we do not address them. See Williams v. McNeil, 557 F.3d 1287, 1290 n.4 (11th
Cir. 2009).
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the parties—by then in mid-trial—had the results as soon as possible and could
prepare accordingly. Defense counsel also knew that those results had been co-
read by Dr. Hass subsequent to that release, and that he had obtained a lab report
with the official results. Furthermore, defense counsel’s strategy at trial was not to
question whether and when the DNA results were co-read, but rather to highlight
that co-reading was not the same as, and was inferior to, corroborative testing, and
to stress that neither Dr. Hass nor anyone else independently had corroborated
Johnson’s DNA testing. Getting Johnson to admit that his results on the blue shirt
were prematurely released before they were co-read by Dr. Hass would have done
little to advance this theory of the defense.
Alternatively, even assuming arguendo that defense counsel’s failure to
draw out this concession from Johnson on cross-examination was deficient, there
was a reasonable basis for the state court to deny relief. Notably, defense counsel
cross-examined Johnson vigorously and extensively on his qualifications, his crime
lab’s methods of DNA analysis, and, perhaps most importantly, on his admitted
violation of an anti-contamination protocol in 37 cases, including his testing of a
white t-shirt in Locascio’s case. Furthermore, as already discussed, the State
presented compelling evidence of guilt, including other DNA evidence inculpating
petitioner Locascio. As also already discussed, given the nature and circumstances
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of that particular protocol violation, it would not have cast doubt on the validity of
Johnson’s DNA testing or on the rest of the state’s evidence.
Accordingly, it cannot be said that but for defense counsel’s failure to
question Johnson about this one protocol violation, the outcome of petitioner
Locascio’s trial would have been different. For these reasons, the state court’s
denial of petitioner Locascio’s ineffective assistance of trial counsel claim was not
contrary to, or an unreasonable application of, Strickland. 4
AFFIRMED.
4
The Court denies petitioner Locascio’s pro se motion filed on November 16, 2016,
which we liberally construe as a motion for reconsideration of this Court’s November 3, 2016
order denying his motions to file a comprehensive appendix and to enlarge the record on appeal.
This Court generally does not consider material that was not before the district court. See CSX
Transp., Inc. v. Garden City, 235 F.3d 1325, 1330 (11th Cir. 2000). Furthermore, the Court had
full access to the entire district court record in reviewing petitioner’s claims on appeal.
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