               Case: 15-10116       Date Filed: 04/11/2017       Page: 1 of 26


                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                               ________________________

                                     No. 15-10116
                               ________________________

                          D.C. Docket No. 2:14-cv-14117-RLR



JORGE EMMANUEL MARTINEZ,

                                                                       Petitioner–Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                      Respondent–Appellee.

                               ________________________

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

                                      (April 11, 2017)


Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.

COOGLER, District Judge:
*
 The Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
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      Jorge Emmanuel Martinez (“Martinez”) appeals the district court’s denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and its refusal

to hold an evidentiary hearing regarding the ineffective assistance of Martinez’s

trial counsel for failure to investigate an alibi defense. Martinez entered a plea of

nolo contendere to a charge of lewd and lascivious battery under Fla. Stat.

§ 800.04(4)(a) based on improper sexual contact with a minor. After careful review

of the record and the briefs of the parties, and having the benefit of oral argument,

we affirm the district court on all issues raised on appeal.

                                           I.

      The factual information and procedural history that follow are derived from

the record before the state post-conviction courts that adjudicated Martinez’s state

petition and from Martinez’s federal petition filed in the district court.

                                          A.

      Martinez first met the alleged victim in this case, D.G.D., over the internet in

early summer 2006. At the time, the two were both minors; D.G.D. was fourteen

years old, and Martinez was seventeen years old. D.G.D.’s parents did not approve

of their daughter’s relationship with Martinez, so throughout the summer, Martinez

and D.G.D. met without her parents’ knowledge. More often than not, the two

would meet alone, although they sometimes saw each other in social settings with

others in their hometown of Sebring, Florida. At some point during the summer,


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the relationship became sexual, although Martinez and D.G.D. never had sexual

intercourse. That fall, Martinez began college at the University of South Florida

(“USF”) and continued to communicate with D.G.D. through phone calls and the

internet. Martinez turned eighteen on October 29, 2006. D.G.D. alleges that two

days later, on Tuesday, October 31, 2006, she met Martinez in the woods near her

house, and the two engaged in sexual contact short of intercourse.

      D.G.D. claims that a friend of Martinez’s drove Martinez from USF’s

campus in Tampa, Florida, to meet with D.G.D. in Sebring, Florida, the night of

October 31. According to D.G.D., Martinez’s friend, Diana Derek (“Derek”), got

lost on her way to pick Martinez up after the encounter, and D.G.D. spoke with

Derek on Martinez’s cellphone to give Derek directions to their location. A police

report in the record states that Derek gave a similar account to the police shortly

after the incident, and that her cellphone records indicated that eight calls were

placed between Derek’s cellphone and Martinez’s cellphone on October 31, 2006.

The last call was placed at 11:26 PM, less than half an hour after D.G.D. states that

the sexual contact occurred. This is the final alleged meeting between Martinez and

D.G.D. and the only assertion of sexual contact between the two after Martinez

turned eighteen.

                                          B.




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      D.G.D’s parents first reported the October 31, 2006, incident to law

enforcement on November 13, 2006. They also sought a restraining order against

Martinez for stalking D.G.D, which was denied. After an investigation that

consisted of interviews with D.G.D., Martinez, and several witnesses, including

Derek, law enforcement declined to initiate criminal proceedings against Martinez

because there was insufficient evidence to file charges against him. At D.G.D.’s

parents’ request, the investigation was re-opened in November 2007.

      Law enforcement interviewed Martinez once again on December 10, 2007.

The interview lasted several hours and was not recorded, but at some point,

Martinez admitted that he had engaged in sexual contact with D.G.D. after his

eighteenth birthday. Martinez later contended that this confession was coerced

because law enforcement represented to him that if he admitted to the sexual

contact, “the incident would be put to bed and no adverse consequence would

follow.” The next day, on December 11, 2007, Martinez contacted law

enforcement and recanted his previous statement by denying any sexual contact

with D.G.D. after his eighteenth birthday. Martinez also asserted an alibi for

October 31, 2006, stating that he would not have been in Sebring, Florida, visiting

D.G.D. because it was homecoming week at USF. However, he told the

investigator that he did not know of any witnesses who could corroborate that alibi.




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      In early 2008, Martinez’s family retained attorney Robert Gray (“Gray”) to

represent him. Martinez was charged by information on February 21, 2008, with

lewd or lascivious battery under Fla. Stat. § 800.04(4)(a), for sexual contact that

occurred between October 31, 2006, and November 1, 2006. At the time the

alleged offense occurred, the statute provided that anyone who “engage[d] in

sexual activity with a person 12 years of age or older but less than 16 years of age”

was guilty of lewd or lascivious battery and could be imprisoned for a maximum of

fifteen years and required to register as a sex offender. On October 29, 2008,

Martinez entered a plea of nolo contendere at a plea hearing, which the trial court

accepted after reviewing with Martinez his signed plea form.

      The court again discussed Martinez’s plea at his sentencing hearing on

January 28, 2009. When the prosecutor noted that Martinez had denied any sexual

activity with D.G.D. in his sex offender evaluation, Martinez replied that he was

innocent and that he had confessed to law enforcement because he wanted to bring

an end to the criminal proceeding and the harassment he had experienced due to

that proceeding. Gray then represented to the court that he had reviewed the

potential constitutional challenge to Martinez’s confession with Martinez and that

he was able to provide “information regarding witnesses which would tend to cast

doubt upon the circumstances that [were] alleged.” However, Gray also stated that

Martinez preferred to enter the nolo contendere plea than to proceed to trial and


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risk incarceration, a statement that Martinez affirmed. Thus, on February 5, 2009,

pursuant to the plea agreement, Martinez was sentenced as a youthful offender to

two years’ community control and four years’ probation and was required to

register as a sex offender.

      Martinez did not then appeal his conviction but on March 20, 2009, filed a

motion in the trial court to reduce or modify his sentence under Fla. R. Crim. P.

3.800(c). The motion was denied after a hearing on March 24, 2009. On October

30, 2009, Martinez, through counsel, filed a motion for post-conviction relief under

Fla. R. Crim. P. 3.850. In this motion, Martinez asserted, among other claims, that

Gray had provided ineffective assistance of counsel by not pursuing an alibi

defense on Martinez’s behalf. In support of his motion, Martinez attached sworn

affidavits from Derek and another fellow USF student that, according to Martinez,

prove that he did not meet with D.G.D. on October 31, 2006, but was instead

nearly one hundred miles away on the campus of USF for its homecoming week at

the time of the alleged sexual contact.

      In her affidavit, which was sworn to on October 12, 2009, Derek confirmed

that she drove Martinez to Sebring, Florida, to visit a friend. Derek spoke with the

friend on the phone before the trip and noted that the girl was “excited” to see

Martinez. Derek recollects, however, that this trip occurred prior to USF’s

homecoming. Another friend of Martinez’s, Lynn Martrell McPhearson


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(“McPhearson”), stated in his affidavit, which was sworn to on July 31, 2009, that

he saw Martinez during the day on October 31, 2006, because the two lived in the

same dorm. McPhearson asserts that he took a photograph with Martinez before

leaving for a Halloween party that night between 10:00 PM and 11:00 PM and saw

Martinez in the dorm when he returned around 3:00 AM on November 1, 2006.

      Pursuant to a court order, Martinez filed an amended motion for post-

conviction relief on August 3, 2010, to which he attached the sworn statements

from Derek and McPhearson and an additional affidavit from another friend and

USF student, Sadiya Sassine (“Sassine”). Sassine stated in her affidavit, which was

sworn to on January 26, 2010, that she saw Martinez at a party sometime in

October 2006 and that he was wearing a costume. She also stated that Martinez

was still at the party when she left and that she usually left parties in college

between 1:30 AM and 2:00 AM. Martinez asserted that the testimony of these

three witnesses demonstrated that he could not have been with D.G.D. in Sebring,

Florida, the night of October 31, 2006, because he was nearly one hundred miles

away in Tampa, Florida, on USF’s campus that night. The state post-conviction

court denied Martinez’s claim without holding an evidentiary hearing in an order

dated October 28, 2010, stating that Martinez had waived any defenses by entering

the nolo contendere plea.




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      After an evidentiary hearing on Martinez’s remaining grounds for post-

conviction relief, the court denied Martinez’s claims on April 6, 2011. Martinez

appealed the denial to the Second District Court of Appeal. In his brief to that

court, Martinez maintained that Gray’s “[f]ailure to file [a] Motion to Suppress,”

“[f]ailure to investigate and present [the] alibi defense,” “[f]ailure to properly

advis[e] [Martinez] on the Romeo and Juliet Statute,” and “[f]ailure to inform

[Martinez] that he had thirty (30) days to set aside [the] nolo contendere plea”

demonstrated “[t]he ineffectiveness of counsel in failing to investigate, research

and advis[e] his client properly.” The state appellate court stated in its opinion that

it was addressing only the issue of whether Martinez’s trial counsel had been

ineffective by concluding that Florida’s “Romeo and Juliet” statute did not apply to

Martinez. It reversed the lower court on that issue and remanded the case so that

the lower court could conduct an appropriate hearing to determine whether to

apply the sex offender designation. The court discussed none of Martinez’s other

claims and ended its opinion with “Affirmed in part, reversed in part, and

remanded.” Martinez filed a motion for rehearing on March 22, 2013, asserting

that the state appellate court had improperly failed to consider Martinez’s other

claims, including the claim related to the alibi defense. This motion was denied on

April 29, 2013. Upon remand for consideration of the sex offender designation, the

lower court conducted a hearing and at its conclusion required Martinez to register


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as a sex offender because the testimony indicated that the sexual relationship was

non-consensual. Martinez did not appeal this determination.

       Martinez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the Southern District of Florida on March 20, 2014. As grounds for his

petition, Martinez alleges that he received ineffective assistance of counsel because

his trial counsel failed to investigate an alibi defense, failed to move to suppress

what Martinez contends was his illegally obtained confession, and failed to advise

Martinez of his post-conviction rights. Martinez also argued that his post-

conviction counsel had been ineffective by failing to preserve the issue of his trial

counsel’s ineffective assistance. At the time he filed his petition in federal court,

Martinez continued to pursue alternative remedies in state court, such as seeking to

have his probation modified or terminated early. 1 It is unclear whether Martinez is

still actively seeking relief in state court, but his six-year sentence would have been

fully served in early 2015, although the sex offender registration requirement

remains.

       United States Magistrate Judge Frank J. Lynch, Jr. issued a report and

recommendation denying Martinez’s petition—without an evidentiary hearing—on

November 20, 2014. Martinez filed his objections to the report and

1
  Although we question whether Martinez actually exhausted his claim in the state courts before
filing his federal petition, we will not address exhaustion because the Secretary affirmatively
represented to the district court that the alibi claim was exhausted. See 28 U.S.C. § 2254(c),
(b)(3).
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recommendation on December 8, 2014. District Judge Robin L. Rosenberg

summarily adopted the report and recommendation in an order issued on December

11, 2014. Martinez then applied for a certificate of appealability, which the district

court granted “as to [his] claims concerning ineffective assistance of counsel” on

April 22, 2015.

                                          II.

      Martinez argues that Gray provided ineffective assistance of counsel because

he failed to contact USF, at Martinez’s request, to obtain a school calendar for the

Fall 2006 semester and his class schedule for Tuesday, October 31 and

Wednesday, November 1, 2006. Martinez claims that he attempted to obtain the

documents himself at some point during Gray’s representation of him, but the

university’s legal department informed him that his attorney needed to present the

request since the documents were for use in pending criminal litigation. He also

states that he asked Gray to request the documents and provided him with contact

information for a university attorney named Henry Lavandera, but Gray never

followed through with obtaining the documents. As a result, Martinez argues, he

was “unaware of the existence of any exculpatory alibi witnesses” at the time he

entered his nolo contendere plea. He contends that he did not “learn of the

availability of an alibi defense” until his post-conviction counsel contacted USF

and discovered that October 31, 2006, was during USF’s homecoming week.


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Because of this information, Martinez avers that he was able to obtain affidavits

from Derek, McPhearson, and Sassine that accounted for his whereabouts that

night. Had he known of these witnesses at the time he entered his plea, Martinez

claims, he would have instead rejected the plea and proceeded to trial.

                                             A.

       This Court reviews de novo the district court’s “denial of a state prisoner’s

federal habeas petition.” Landers v. Warden, Attorney Gen. of Ala., 776 F.3d 1288,

1293 (11th Cir. 2015). However, where, as here,2 the state court adjudicated the

habeas petitioner’s claim on its merits, we are prohibited from granting the petition

“unless the state court’s decision ‘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.’” Id. (quoting 28 U.S.C. § 2254(d)). This limited review

mandates deference to the decisions of the state courts and is conducted on “the

record . . . before the state court that adjudicated the claim on its merits.” Cullen v.

Pinholster, 563 U.S. 170, 181; 131 S. Ct. 1388, 1398 (2011). Even if we disagree

with the state court’s determination or consider it “incorrect,” we cannot grant




2
  Both parties represent that Martinez’s petition should be reviewed under § 2254(d), which by
its terms applies only to an adjudication on the merits. We therefore assume without deciding
that the Florida state courts addressed Martinez’s claim on the merits.
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relief unless the state court’s decision was “unreasonable—a substantially higher

threshold.” Schriro v. Landrigan, 550 U.S. 465, 473; 127 S. Ct. 1933, 1939 (2007).

      Under this Circuit’s precedent, the relevant state court “decision” to be

reviewed under § 2254(d) is “the last adjudication on the merits,” even if that

adjudication provides no reasoned opinion. Wilson v. Warden, Ga. Diagnostic

Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted sub nom.,

Wilson v. Sellers, No. 16-6855, 2017 WL 737820 (U.S. Feb. 27, 2017). In Wilson,

a majority of the en banc court held that if the last adjudication does not explain

the state court’s reasoning, the federal court “must determine what arguments or

theories supported or . . . could have supported[] the state court’s decision; and

then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the

Supreme Court. Id. (quoting Harrington v. Richter, 562 U.S. 86, 102; 131 S. Ct.

770, 786 (2011)). Stated more simply, we “must consider whether the outcome of

the state court proceedings permits a grant of habeas relief.” Gill v. Mecusker, 633

F.3d 1272, 1288 (11th Cir. 2011). Under Wilson, a reasoned state court opinion

that precedes a summary affirmance may be an example of an argument to support

the affirmance, but we cannot “assume that the summary affirmances of state

appellate courts adopt the reasoning of the court below.” 834 F.3d at 1238, 1239;

see Tharpe v. Warden, 834 F.3d 1323, 1336 n.20 (11th Cir. 2016) (reviewing


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Georgia Supreme Court’s denial of certificate of probable cause using reasoning of

lower court for denying post-conviction relief because “we must affirm if there is

any reasonable basis for doing so and [the lower appellate court] provided such a

reasonable basis”).

      Prior to Wilson, other panels in this Circuit “looked through” a summary

affirmance and reviewed “the last reasoned state court decision” to address the

issue. See, e.g., Adkins v. Warden, Holman CF, 710 F.3d 1241, 1250 & n.6 (11th

Cir. 2013), cert. denied, 134 S. Ct. 268 (2013). The Wilson majority rejected this

“look through” approach for decisions rendered on the merits. 834 F.3d at 1235. It

distinguished the Supreme Court’s holding in Ylst v. Nunnemaker, 501 U.S. 797,

803; 111 S. Ct. 2590, 2594 (1991)—that we should presume that “[w]here there

has been one reasoned state judgment rejecting a federal claim, later unexplained

orders upholding that judgment . . . rest upon the same ground”—as applicable

only when the lower court applied a procedural default. Wilson, 834 F.3d at 1235.

The Supreme Court recently granted certiorari in Wilson. See Wilson v. Sellers, No.

16-6855, 2017 WL 737820 (U.S. Feb. 27, 2017). Nonetheless, the en banc decision

remains law in this Circuit unless and until the Supreme Court overrules it. See

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

                                         B.




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       In denying Martinez post-conviction relief, the trial-level state court

reasoned that Martinez had waived the opportunity to present his alibi defense by

entering the nolo contendere plea. We do not disagree. See United States v.

Matthews, 168 F.3d 1234, 1242 (11th Cir. 1999) (“[B]y accepting a guilty plea[,] a

defendant waives all non-jurisdictional defenses.”). However, Martinez argued

below—and continues to argue—that he was denied effective assistance of counsel

because his trial counsel failed to investigate his alibi defense.3 He asserts that he

would not have entered the plea and would have gone to trial if Gray had properly

investigated the defense and informed him of the potential witnesses. We have

previously held that an ineffective assistance of counsel claim that goes to the

voluntary nature of the defendant’s plea is not waived “simply by entering a plea”

because this is contrary to Hill v. Lockhart, 474 U.S. 52; 106 S. Ct. 366 (1985).

Arvelo v. Sec’y, Fla. Dep’t of Corr., 788 F.3d 1345, 1348 (11th Cir. 2015). Rather,

a defendant is entitled to adequate representation while considering whether to

make a voluntary plea. See Hill, 474 U.S. at 56–57; 106 S. Ct. at 369. Thus, to the

extent that the state post-conviction court found that Martinez’s nolo contendere

plea foreclosed his claim that his counsel was ineffective for failing to investigate



3
  In his amended motion to the state post-conviction court, Martinez styled his claim as follows:
“Trial counsel provided ineffective assistance of counsel in failing to pursue a defense of alibi.”
He explained, “My counsel’s performance was ineffective in not investigating my defense of
alibi and I was prejudiced by his failure when I had a viable defense and should have gone to
trial rather than plead to an offense that I did not commit.”
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the alibi defense and improperly advising him to enter into a plea agreement, that

decision misapplies Hill.

      Instead, pursuant to Hill, the Florida post-conviction courts should have

evaluated “whether counsel’s advice ‘was within the range of competence

demanded of attorneys in criminal cases’” by applying the two-part test set forth in

Strickland v. Washington, 466 U.S. 668; 104 S. Ct. 2052 (1984). 474 U.S. at 56–

57; 106 S. Ct. at 369; see Arvelo, 788 F.3d at 1348 (conducting the analysis in this

manner). Nonetheless, we must uphold the state appellate court’s summary

affirmance if an alternate basis supports its denial of relief. See Wilson, 834 F.3d at

1235. We therefore assess Martinez’s claim under Strickland, presuming that the

state court “know[s] and follow[s] the law.” See id. at 1238 (quoting Woods v.

Donald, 135 S. Ct. 1372, 1376 (2015)).

                                          C.

      In order to show that he was denied effective assistance of counsel in

violation of the Sixth Amendment, a defendant must demonstrate both that his

counsel’s performance was deficient and that he was prejudiced by the deficient

performance. Strickland, 466 U.S. at 687; 104 S. Ct. at 2064. Counsel’s

performance is deemed to be deficient where it falls “below an objective standard

of reasonableness” and is “outside the wide range of professionally competent

assistance.” Johnson v. Sec’y, Fla. Dep’t of Corr., 643 F.3d 907, 928 (11th Cir.


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2011). This is a highly deferential standard, and a reviewing court presumes that

counsel acted reasonably in his representation of the defendant. Id. Even where

counsel’s performance was deficient, to be successful on his claim, a defendant

must also show that “but for his counsel’s deficient performance, there is a

reasonable probability that the result of the proceeding would have been different.”

Id. (citing Strickland, 466 U.S. at 694; 104 S. Ct. at 2068).

      A petitioner alleging prejudice with respect to the plea process must

demonstrate a reasonable probability that he would have gone to trial rather than

enter the plea, but for counsel’s errors. Lafler v. Cooper, 566 U.S. 156, 163; 132 S.

Ct. 1376, 1384–85 (2012). Further, the decision to reject the plea must have been

“rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372; 130 S.

Ct. 1473, 1485 (2010). Where the petitioner bases counsel’s deficiency on his

failure to investigate exculpatory evidence, we consider the likelihood that counsel

would have changed the plea recommendation as a result of the investigation. Hill,

474 U.S. at 59; 106 S. Ct. at 370.

      Applying Strickland under § 2254(d), “the question becomes whether ‘there

is any reasonable argument that counsel satisfied Strickland’s deferential

standard.’” Johnson, 643 F.3d at 911 (quoting Richter, 562 U.S. at 105; 131 S. Ct.

at 788). “[T]he question is not whether counsel’s actions were reasonable.”

Richter, 562 U.S. at 105; 131 S. Ct. at 788.


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      Martinez has not demonstrated that Gray’s performance was deficient. A

defendant’s counsel has a general duty “to reasonably investigate avenues of

defense (or make a reasonable decision to not do so).” Blankenship v. Hall, 542

F.3d 1253, 1273 (11th Cir. 2008). Inherent in this duty to “conduct a substantial

investigation into any . . . plausible lines of defense,” Fortenberry v. Haley, 297

F.3d 1213, 1226 (11th Cir. 2002), is the notion that “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; 104 S. Ct. at 2066. The duty to investigate

particular facts or defenses is thus not absolute, but counsel’s decision not to

investigate must be reasonable under the circumstances. Everett v. Sec’y, Fla.

Dep’t of Corr., 779 F.3d 1212, 1249–50 (11th Cir. 2015), cert. denied, 136 S. Ct.

795 (2016). The information that a defendant’s attorney obtains from the defendant

with regard to any possible defenses is relevant to this inquiry. Pooler v. Sec’y,

Fla. Dep’t of Corr., 702 F.3d 1252, 1269–70 (11th Cir. 2012) (citing Strickland,

466 U.S. at 691; 104 S. Ct. at 2066). Counsel’s performance is deemed to be

deficient only if the petitioner can show that “no competent attorney” would have

failed to pursue the defense, given the facts known to counsel at the time. See

Premo v. Moore, 562 U.S. 115, 124; 131 S. Ct. 733, 741 (2011).




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      Here, the district court found that Gray’s performance was not deficient

because Gray was “generally aware of” potential alibi witnesses at Martinez’s

sentencing and because Martinez himself was in the best position to discover the

witnesses. Reviewing the merits of the alibi, the district court concluded that the

affidavits “d[id] not conclusively establish [Martinez’s] innocence.” Martinez

points out that the record is void of evidence that Gray had investigated the alibi

defense before Martinez entered his nolo contendere plea, but the Secretary

responds that Martinez “had no viable alibi evidence” at that time and thus cannot

prove that Gray performed deficiently by not adequately investigating the alibi.

      Martinez concedes that he knew about a potential alibi defense at the time he

pled nolo contendere. Indeed, he first asserted an alibi for the night of October 31,

2006, on December 11, 2007, the day after he made the allegedly coerced

inculpatory statement to police. The police report detailing these statements, which

itself is dated February 4, 2008, states that Martinez told the police that “the week

of 10/31/06 was the USF Homecoming week and there was no way that he could

have had the time to come to Sebring to be with [D.G.D.] then.” Martinez

indicated to the police at that time that he was unaware of any witnesses who could

confirm he was in Tampa, rather than in Sebring, the night of the alleged lewd and

lascivious battery.




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      Thus, Martinez had already asserted an alibi when Gray began to represent

him in mid-February 2008. By his own account, Martinez shared with Gray the

details of this alibi when requesting that Gray obtain the school calendar and his

class schedule from USF. Once he learned of the possible alibi defense from his

client, Gray had a professional duty either to investigate the alibi or to make a

reasonable choice not to investigate it. See Blankenship, 542 F.3d at 1273. If “no

competent attorney” would have made the choice not to further investigate the

defense, then Gray’s performance was deficient. See Premo, 562 U.S. at 124; 131

S. Ct. at 741.

      Despite the fact that he told Gray about the existence of an alibi, Martinez

was not able to suggest to Gray any witness who might be able to corroborate it.

Nonetheless, Gray interviewed at least one of the individuals named as a potential

witness in the police report but apparently did not consider his statements to be

helpful to Martinez’s case. Martinez supplied Gray with no other information aside

from an instruction to obtain the academic calendar and his class schedule from

USF. Because Gray did not do so, Martinez claims that he entered the plea without

knowledge that he had a potential alibi defense, rendering the plea involuntary.

      Martinez does not explain, however, exactly how these documents would

have assisted him in preparing the defense. He contends in his petition that the

documents were necessary to recollect events, but the record shows that he already


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knew—as he told the police on December 11, 2007—that October 31, 2006, fell

during USF’s homecoming week. He also asserts that his own class schedule and

an academic calendar could be used to jog the witnesses’ memories, but he does

not explain how access to these documents allowed him to identify McPhearson

and Sassine, friends with whom he represents he kept in contact during the relevant

time period, as potential alibi witnesses in mid-2009 but not in late 2007 or early

2008. Notably, the photographs Martinez supplied with his state post-conviction

motion to substantiate the affidavits appear to have come from his MySpace

account, to which he presumably had access throughout Gray’s representation of

him. Additionally, according to a flyer in the record, the university’s homecoming

events for Tuesday, October 31, 2006, consisted of a blood drive, a carnival, and a

tug-o-war competition. None of the three affidavits mentions Martinez’s

attendance at any of these events, and it is unlikely that Martinez would need

information from his university to know that October 31, 2006, was Halloween or

that he attended a party. Yet Martinez essentially asks us to infer that his class

schedule and an academic calendar, once obtained by his post-conviction counsel,

caused him to recall that McPhearson and Sassine had not only seen him but had

taken photographs with him that night, which he had uploaded to his MySpace

account.




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      Thus, the available facts demonstrate that, at the time Martinez entered his

nolo contendere plea, he was aware of and had already asserted an alibi for the

night of October 31, 2006—that he was on USF’s campus for its homecoming

week. However, he was unable to name any witness who might be able to

corroborate this alibi. Without names from his client beyond the potential

witnesses listed in the police report or any indication that Martinez’s class schedule

or an academic calendar would help him to ascertain where he was at 11:00 PM on

Halloween night, Gray did not pursue the alibi defense further. We do not find this

course of action to be professionally unreasonable given the deference we must

afford to counsel’s decisions.

      Moreover, contrary to Martinez’s suggestion, the alibi defense was not his

“only possible defense,” so Gray did not have an absolute obligation to “pursue [it]

until it b[ore] fruit or until all hope wither[ed].” Williams v. Head, 185 F.3d 1223,

1237 (11th Cir. 1999) (quoting Foster v. Dugger, 823 F.2d 402, 405 (11th Cir.

1987)). Gray’s failure to investigate the alibi does not render his representation of

Martinez inherently deficient. The record shows that Gray pursued several other

avenues on Martinez’s behalf during his representation, most notably the potential

suppression of Martinez’s inculpatory statement. Before Martinez entered his plea,

the prosecution had informed Gray that it would cease plea negotiations if Gray

filed a motion to suppress the confession. Gray also knew that even if the motion


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were successful, the prosecution could still use Martinez’s statements to impeach

him on the stand, if he were to go to trial. Perhaps most importantly, a guilty

verdict at trial exposed Martinez to a potential fifteen-year prison sentence, a

significantly greater punishment than the youthful offender sanctions Martinez

would receive pursuant to the plea agreement, even with an open plea. These and

other factors led Gray to advise Martinez that he should enter the plea rather than

go to trial. Under the circumstances, it cannot be said that “no competent attorney”

would have acted as Gray did here.

      Martinez has failed to show prejudice for similar reasons. Although he

represents that he would have gone to trial rather than enter the plea had the

testimony from Derek, McPhearson, and Sassine been available, it is doubtful that

such a decision would have been rational under the circumstances. If the three

witnesses testified at trial as they swore in their affidavits, only McPhearson

definitively states that he saw Martinez the day of October 31, 2006, at some point

before the 10:00 PM hour, when the two took a photograph, and at 3:00 AM in the

dormitory. Sassine recalls that she saw Martinez at a party sometime in October

2006, that he was wearing a costume, that he was still at the party when she left,

and that she usually left parties between 1:30 AM and 2:00 AM. Derek states that

she did drive Martinez to Sebring to visit a girl and that she is “fairly sure” she did

this before homecoming. Mindful that Tuesday, October 31, 2006, did occur prior


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to USF’s homecoming game that year, only Derek’s recollection that she and

Martinez left Tampa in “mid-to-late afternoon” suggests inconsistency with

D.G.D.’s testimony about the timing of the incident. However, as reflected in the

police report, Derek’s cellphone records and her statements to the police shortly

after the incident align with D.G.D.’s version of the events.

      Accepting the affidavits at face value and considering other evidence in the

record, then, Martinez’s potential alibi defense does not appear particularly strong.

Further, he had admitted to the police that he had engaged in sexual contact with

D.G.D. after his eighteenth birthday. Although Gray sought to suppress the

confession as illegally obtained, the trial court may have disagreed and allowed the

confession into evidence. Even if the motion were successful, the prosecution

could have used the confession to impeach Martinez on the stand, were he to

testify. Finally, by rejecting the plea offer and proceeding to trial, Martinez may

not have been entitled to youthful offender sanctions and risked a possible fifteen-

year prison sentence. The plea agreement, on the other hand, contemplated a six-

year sentence without incarceration. Even with the alibi evidence and the potential

suppression of the confession, it is unlikely that the choice to proceed to trial

would have been rational under the circumstances, and we doubt whether Gray

would have changed his recommendation given the substantially higher

punishment Martinez faced at trial.


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                                          D.

      In the event, however, that Wilson is determined to have been wrongly

decided, the result here would be the same. If we applied Ylst, we would “look

through” to the “last reasoned opinion” of the Florida state post-conviction court,

which we have already determined misapplied Hill. See supra part II.B. Martinez’s

petition would then receive de novo review, rather than the more deferential

§ 2254(d) review. See Wiggins v. Smith, 539 U.S. 510, 542; 123 S. Ct. 2527, 2546

(2003). But even without the presumption that the Florida state courts correctly

adjudicated Martinez’s claim, he has failed to show that he is entitled to habeas

relief for the same reasons described supra part II.C.

                                          III.

      Martinez also argues that the district court abused its discretion by denying

him an evidentiary hearing on his ineffective assistance of counsel claim relating to

the alibi defense. The additional opportunity to present information not before the

state courts that originally adjudicated the petitioner’s claims may be warranted if

an evidentiary hearing “could enable an applicant to prove the petition’s factual

allegations, which, if true, would entitle the applicant to federal habeas relief.”

Boyd v. Allen, 592 F.3d 1274, 1304 (11th Cir. 2010) (quoting Schriro, 550 U.S. at

474; 127 S. Ct. at 1940). However, the district court need not conduct an

evidentiary hearing if the record refutes the petitioner’s factual allegations,


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otherwise prevents habeas relief, or conclusively demonstrates that the petitioner

was not denied effective assistance of counsel. Schriro, 550 U.S. at 474. “Because

the deferential standards prescribed by § 2254 control whether to grant habeas

relief, a federal court must take into account those standards in deciding whether

an evidentiary hearing is appropriate.” Boyd, 592 F.3d at 1304 (quoting Schriro,

550 U.S. at 474; 127 S. Ct. at 1940).

      Further, absent a few narrow exceptions, a federal court cannot hold an

evidentiary hearing if the petitioner “failed to develop the factual basis of [his]

claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). He must “diligently

s[eek] . . . the opportunity to present evidence at each stage of his state

proceedings” by making “a reasonable attempt, in light of information available at

the time, to investigate and pursue claims in state court.” Pope v. Sec’y for Dep’t of

Corr., 680 F.3d 1271, 1288–89 (11th Cir. 2012). This normally requires that the

petitioner “request[] an evidentiary hearing at every appropriate stage in state

court.” Id. at 1289.

      Martinez did not request an evidentiary hearing in his state post-conviction

proceedings, instead contending that his motions and the attached exhibits

demonstrated that he was entitled to relief. Although Florida law does not require a

petitioner to request an evidentiary hearing in order to receive one, Jacobs v. State,

880 So. 2d 548, 550 (Fla. 2004) (citing Fla. R. Crim. P. 3.850(d)), we question


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whether Martinez’s failure to request the opportunity to present evidence to the

state post-conviction courts—despite the fact that his ineffective assistance claim

related to the alibi was ultimately denied without an evidentiary hearing—

constitutes sufficient diligence. Nonetheless, assuming Martinez did exercise

appropriate diligence, we have already determined that the facts he alleged in his

petition are either refuted by the record or do not demonstrate that Gray provided

ineffective assistance by not investigating the alibi defense. The district court thus

properly denied Martinez’s request for an evidentiary hearing.

AFFIRMED.




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