                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           August 31, 2005
                             No. 05-10919
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                    D. C. Docket No. 03-62134-CV-AJ

ROBERT M. BOEHM,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James V. Crosby,

                                                        Respondent-Appellee.


                       ________________________

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

                            (August 31, 2005)

Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
       Robert Boehm, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his petition for habeas corpus relief, brought pursuant to 28

U.S.C. § 2254.1 For the following reasons, we affirm.

                                                 I.

       Boehm was charged by information with burglary and grand theft. Before

the trial, Boehm’s counsel filed a motion in limine to exclude the introduction of

any evidence of similar crimes and to prevent witnesses from testifying that Boehm

was on drugs. The trial court granted the motion. The evidence at trial included

the following. There was evidence that Boehm and codefendant David Stevens

drove to the victim’s apartment and used a key in Boehm’s possession to enter the

apartment. After the theft, Boehm and Stevens sold some of the stolen items and

then returned to Boehm’s motel, where they were found by police. Boehm told

Stevens to run, but the two men were caught and arrested. The police conducted a

pat-down search of Boehm, and found jewelry taken from the victim’s apartment.

When questioned, Boehm did not appear intoxicated, and he admitted that he was

in possession of a key to the apartment. The jury found Boehm guilty of burglary

of a dwelling and grand theft. He was sentenced as a habitual offender to thirty



       1
         Boehm filed his petition after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and
therefore, the provisions of that act govern this appeal.

                                                 2
years for the burglary and ten years for the grand theft, to run concurrently.

Boehm’s conviction was affirmed on direct appeal. Boehm v. Florida, 747 So.2d

945 (Fla. Dist. Ct. App. 1999).

         Boehm filed several motions in state court for post-conviction relief

pursuant to Fla.R.Crim.P. (“Rule”) 3.850, raising inter alia, ineffective assistance

of counsel on the basis that his attorney did not raise voluntary intoxication as a

defense at trial. Boehm’s motions were denied by the trial court and an appeals

court. After exhausting his state administrative remedies on the issue of ineffective

assistance of counsel, Boehm filed the instant § 2254 habeas petition in federal

court.

         The magistrate judge issued a recommendation to deny relief, finding that

Boehm’s conclusory statements that counsel knew Boehm was high on drugs were

insufficient to show that Boehm was unable to form the intent necessary to commit

the crimes. The magistrate judge further noted that Boehm’s assertion that he was

intoxicated to the point that he was unable to form the necessary intent to commit

the offense was further undercut by the fact that he entered the apartment with a

key that he had acquired prior to the burglary.

         Over Boehm’s objections, the district court adopted the magistrate judge’s

recommendation, adding that the court would not consider additional facts that



                                            3
Boehm had failed to allege in his state post-conviction motions. Boehm requested

a certificate of appealability, which the district court granted solely on the issue of

whether trial counsel rendered ineffective assistance of counsel in not informing

Boehm of, and not presenting, an intoxication defense.

                                                  II.

       Boehm argues that he was prejudiced by trial counsel’s failure to present a

voluntary intoxication defense.2 Boehm maintains that had counsel presented the

defense, the outcome of the trial would have been different.

       We review a district court’s denial of a habeas petition de novo. Nelson v.

Schofeld, 371 F.3d 768, 769 (11th Cir. 2004). We have further noted that “our

review is greatly circumscribed and is highly deferential to the state courts”

pursuant to § 2254 of the AEDPA. Crawford v. Head, 311 F.3d 1288, 1295 (11th

Cir. 2002). As amended by the AEDPA, 28 U.S.C. § 2254 states:

       (d) An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the claim–(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


       2
         Boehm argues in his reply brief that he was entitled to an evidentiary hearing. Because
he raises this issue for the first time in his reply brief, we need not address it. Herring v. Sec’y
Dep’t of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005).

                                              4
      evidence presented in the State court proceeding.


28 U.S.C. § 2254(d). The Supreme Court has explained the requirements in

§ 2254 as follows:

      Under the ‘contrary to’ clause, a federal habeas court may grant the
      writ if the state court arrives at a conclusion opposite to that reached
      by this Court on a question of law or if the state court decides a case
      differently than this Court has on a set of materially indistinguishable
      facts. Under the ‘unreasonable application’ clause, a federal habeas
      court may grant the writ if the state court identifies the correct
      governing legal principle from this Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

      To prevail on a claim of ineffective assistance of counsel, Boehm must show

that: (1) counsel’s performance fell below an objective standard of reasonableness;

and (2) but for the deficiency in representation, there is a reasonable probability

that the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). To satisfy the deficient

performance prong, the petitioner has the burden to prove that counsel made errors

so serious that he was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Id. at 687. There is a strong presumption that counsel’s performance

was reasonable and adequate, with great deference being shown to choices dictated

by reasonable strategy. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). To



                                           5
satisfy the prejudice prong, Boehm must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland, 446 U.S. at 694.

       If we are convinced that the prejudice prong cannot be satisfied, we may

decline to address whether counsel’s performance was objectively unreasonable.

Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995). We utilize this approach

here, because we are convinced that Boehm is unable to show prejudice.3 Under

Florida law, to prevail in using the voluntary intoxication defense, “the defendant

must come forward with evidence of intoxication at the time of the offense

sufficient to establish that he was unable to form the intent necessary to commit the

crime charged.” Linehan v. State, 476 So.2d 1262, 1264 (Fla. 1985).4 Generally,

juries are not persuaded by an intoxication defense. See Odom v. Florida, 782

So.2d 510, 512 (Fla. Dist. Ct. App. 2002) (citing Evans v. Meyer, 742 F.2d 371

(7th Cir. 1984)) (Padovano, J., concurring).


       3
         Although we need not reach the performance prong, we note that there is evidence in
the record that not raising the voluntary intoxication defense was a matter of counsel’s trial
strategy. In particular, a key defense at trial was that Boehm did not participate in the burglary,
but was merely assisting Stevens in selling the property. Thus, a defense of voluntary
intoxication would have been inconsistent with the defense of non-participation.
       4
         At the time of Boehm’s offense, voluntary intoxication was available as a defense under
Florida law to specific intent crimes such as burglary. See Straightwell v. Florida, 834 So.2d
918, 920 (Fla. Dist. Ct. App. 2003). As of October 1, 1999, Florida law was changed to
eliminate the defense of voluntary intoxication. See Fla. Stat. Ann. § 775.051; Lewis v. Florida,
817 So.2d 933 (Fla. Dist. Ct. App. 2002).

                                                  6
      Here, the evidence at trial was inconsistent with the use of the voluntary

intoxication defense. In particular, there was testimony that Boehm did not appear

intoxicated at the time of his arrest. Boehm fails to demonstrate a reasonable

probability that the outcome of his trial would have been different if counsel had

presented the voluntary intoxication defense. For the foregoing reasons, we hold

that Boehm cannot show that he received ineffective assistance of counsel, and we

AFFIRM the denial of habeas relief.

AFFIRMED.




                                          7
