FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 19, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-16775

________________________

D. C. Docket No. 06-01158-CV-EAK-MSS

ANTHONY LAMARCA,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL OF THE STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 19, 2009)

Before BIRCH, BLACK and WILSON, Circuit Judges.

BLACK, Circuit Judge:
Anthony Lamarca seeks a certificate of appealability (COA) to appeal three

claims from his 28 U.S.C. § 2254 federal habeas corpus petition. Lamarca, a

Florida prisoner under a sentence of death, was convicted of first-degree murder in

1997. In a 57-page order, the district court denied Lamarca’s § 2254 petition, in

which he set forth six claims for relief, and declined to issue a COA. Lamarca

timely applied for a COA with this Court. We deny the application for a COA

because Lamarca has failed to make a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2). 

I. BACKGROUND

In November 1997, Lamarca was convicted of the first-degree murder of

Kevin Flynn, and in February 1998, he was sentenced to death. In two opinions,

the Florida Supreme Court summarized the facts adduced at trial, which we

reproduce in pertinent part below. See Lamarca v. State, 785 So. 2d 1209 (Fla.

2001) (Lamarca I); Lamarca v. State, 931 So. 2d 838 (Fla. 2006) (Lamarca II).

On the afternoon of December 2, 1995, Anthony Lamarca met his daughter

and son-in-law, Tonya and Kevin Flynn, at a neighborhood bar for Tonya’s

birthday. Lamarca had recently been released from prison for a 1984 conviction

for kidnapping and attempted sexual battery with a weapon. Lamarca asked

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Tonya to borrow the keys to her car, but Kevin refused and offered to drive

Lamarca home instead. The two left the bar at approximately 7:45 p.m.

Later that night, at approximately 8:30 p.m., Lamarca returned to the bar

alone and told Tonya that she had to pick up Kevin at Joseph Lamarca’s home in

Hudson County. Joseph Lamarca is Anthony Lamarca’s father. When they

arrived at the otherwise unoccupied house, Lamarca raped Tonya. He then

appeared from a back room with a rifle in his hand and told Tonya that he was

going to kill himself. He instructed her to stay put until she heard gunshots. After

he left the room, Tonya fled to a nearby phone booth and reported that she heard

shots being fired at a nearby residence. She gave the police Joseph Lamarca’s

address. When the police arrived at Joseph’s house, they discovered the front door

looked as though it had been kicked in, and after obtaining Joseph’s permission to

search the residence, they found a rifle.

The police began searching for Anthony Lamarca. One detective saw

Lamarca walking along a road and then observed him drop the objects he was

carrying and run away. Another detective arrived at Lamarca’s trailer at 2:15 a.m.

on December 3. The detective looked through the bedroom window and saw the

victim’s body. Upon entering the trailer, he found Kevin’s body on the bedroom

floor, bullet casings matching the rifle recovered from Joseph’s residence, and

3
blood splattered throughout the house. Lamarca was eventually arrested in

Washington state.

At trial, Stephanie Parker testified that on the night in question she heard a

car drive up, she looked out her window, and she saw Lamarca and another man

walking from the car to the front door of Lamarca’s trailer. They appeared to be

arguing because of their hand gestures. Parker stated she then fell asleep and her

father subsequently awakened her at the behest of the police.

Jeremy Smith testified Lamarca arrived at Smith’s home the morning after

the murder, and said, “I did it. I killed him.” Smith asked who he had killed, and

Lamarca said, “Kevin . . . it really sucked, but I had to do it.” At the time

Lamarca’s case was being investigated, Smith was waiting to be sentenced for

violating probation. 

James Michael Hughes, Lamarca’s former fellow inmate, testified Lamarca

told him in July 1995 that Lamarca was planning to kill his son-in-law because he

had raped Lamarca’s daughter. Hughes had charges pending against him in

Charlotte County at the time Lamarca’s trial took place. 

At the penalty phase, Lamarca requested to represent himself and refused to

present any mitigating evidence. The trial judge appointed Lamarca’s guilt phase

counsel as standby counsel. At the court’s request, Lamarca’s counsel made a

4
statement of the mitigation she would have presented if Lamarca had not waived

his right to counsel and to present mitigation. The jury voted 11 to 1 to impose the

death penalty, and the trial court agreed with this recommendation. The court

found one aggravating factor, prior convictions for the violent felonies in 1984,

and determined the mitigating evidence did not outweigh this factor. The trial

court sentenced Lamarca to death. In 2001, the Florida Supreme Court affirmed

Lamarca’s conviction and sentence. Lamarca I, 785 So. 2d at 1217. 

In 2002, Lamarca filed a motion to vacate the judgment and sentence under

Florida Rule of Criminal Procedure 3.851, raising 23 claims. The trial court

1

considered 22 claims during a five-day evidentiary hearing. On September 12,

2

2003, the trial court denied Lamarca’s motion. Lamarca appealed the trial court’s

order denying relief to the Florida Supreme Court. He also filed a state habeas

corpus petition, raising four grounds for relief. In 2006, the Florida Supreme

Court affirmed the trial court’s order and denied Lamarca’s habeas petition. 

Lamarca II, 931 So. 2d at 857. 

 Two of these claims were rejected at a case management conference, and one claim was 1

added after the conference.

 The evidentiary hearing took place at two separate times. On May 29, 2003, the trial 2

court conducted a four-day evidentiary hearing. On June 27, 2003, the court heard additional

testimony.

5
Lamarca then filed a petition for federal habeas corpus relief in the United

States District Court for the Middle District of Florida. In his petition to the

3

district court, Lamarca raised six claims: (1) Lamarca received ineffective

assistance of counsel at the guilt phase of his capital trial, (2) the State failed to

disclose exculpatory evidence to the defense and presented false and misleading

testimony, (3) Lamarca was deprived of his right to present a defense by the trial

court’s limitation and exclusion of evidence and abridgement of Lamarca’s crossexamination of Tonya Flynn, (4) Lamarca was deprived of his right to a fair trial

by the trial court’s allowance and admission of certain collateral acts, (5) Lamarca

was deprived of his right to a fair trial by an improper remark made by the

prosecution, and (6) Lamarca’s sentence of death was unconstitutional because the

State committed prosecutorial misconduct in the presentation of Lamarca’s prior

felony conviction. The district court denied relief on all claims and declined to

issue a COA. The court later denied Lamarca’s motion to alter or amend the

judgment and again concluded Lamarca was not entitled to a COA. Lamarca has

filed an application for a COA with this Court with respect to the first three claims

from his federal habeas petition. 

 Lamarca filed his first petition for a writ of habeas corpus with the district court on June

3

22, 2006, and subsequently submitted three amended petitions to the court. On March 26, 2008,

Lamarca filed his third and final amended petition for a writ of habeas corpus.

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II. STANDARD FOR GRANTING A COA

This Court may issue a certificate of appealability “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Under this standard, a petitioner must show “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). 

The petitioner, however, is not required to show he will ultimately succeed on

appeal, Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 1039 (2003),

because when we consider an application for a COA, “[t]he question is the

debatability of the underlying constitutional claim, not the resolution of that

debate,” id. at 342, 123 S. Ct. at 1042. Accordingly, we “should not decline the

application for a COA merely because [we] believe[] the applicant will not

demonstrate an entitlement to relief.” Id. at 337, 123 S. Ct. at 1039.

To obtain a COA when the district court has denied a habeas petition on

procedural grounds without reaching the merits of the underlying constitutional

claim, the petitioner must show (1) “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling,” and (2) “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604. 

7
“Where a plain procedural bar is present and the district court is correct to invoke

it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id., 120 S. Ct. at 1604. 

III. DISCUSSION

A. Claim One: Lamarca Received Ineffective Assistance of Counsel at the

Guilt Phase of His Trial.

Lamarca maintains he received ineffective assistance of counsel because

(1) his trial counsel failed to investigate and present the evidence of the benefits

and motivations Jeremy Smith had to testify, (2) his trial counsel failed to

challenge and impeach the testimony of Tonya Flynn, (3) his trial counsel failed to

call Steve Slack as a witness to rebut the testimony of Tonya Flynn, and (4) his

trial counsel failed to call James Zaccagnino to rebut the testimony of James

Michael Hughes.4

 In his § 2254 petition to the district court, Lamarca also claimed he received ineffective 4

assistance of counsel because (1) his trial counsel failed to call Lori Galloway as a witness to

rebut the assertion that Lamarca fled the state of Florida after the murder of Kevin Flynn, (2) his

trial counsel failed to call a forensic expert to testify as to the absence of physical evidence of the

rape, (3) his trial counsel failed to investigate or effectively cross-examine the State’s ballistics

expert, and (4) his trial counsel failed to file a motion to suppress evidence seized from Joseph

Lamarca’s home after the murder. Lamarca has not requested a COA on claim 1 of his § 2254

petition with respect to these issues. Accordingly, we do not consider them. 

8
 The benchmark for judging a claim of ineffective assistance of counsel is

“whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064

(1984). To make such a showing, the petitioner must demonstrate (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced the

defense. Id. at 687, 104 S. Ct. at 2064. 

Under the first prong of the Strickland test, the petitioner must establish

“counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id., 104 S. Ct. at 2064. In

other words, the petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. Judicial

scrutiny of counsel’s performance is highly deferential, id. at 689, 104 S. Ct. at

2065, and “counsel cannot be adjudged incompetent for performing in a particular

way in a case, as long as the approach taken ‘might be considered sound trial

strategy,’” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en

banc) (quoting Darden v. Wainwright, 477 U.S. 168, 185, 106 S. Ct. 2464, 2474

(1986)). 

9
 Under the prejudice prong of Strickland, the petitioner “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, 466 U.S. at 694,

104 S. Ct. at 2068. 

1. Jeremy Smith

Lamarca claims his trial counsel was ineffective for failing to investigate

and present evidence of undisclosed consideration Smith received for his

testimony. Lamarca contends his counsel’s failure to discover Smith’s

misdemeanor retail theft conviction meant the jury was deprived of information

surrounding the State’s alleged assistance to Smith. He argues the district court

erred when it “narrowly examined” this claim “as simply a failure to impeach

Smith with a misdemeanor conviction.” 

The district court made two conclusions with respect to Lamarca’s claim

that his counsel failed to effectively impeach Smith. First, the district court

concluded the state courts cited the prevailing law (Strickland) and applied that

law to the facts of the case in a reasonable manner in determining Lamarca’s

counsel was not ineffective for failing to impeach Smith using the prior

misdemeanor conviction. Second, the district court concluded the claim, to the

extent it was based on the failure of Lamarca’s counsel to uncover and present

10
undisclosed consideration Smith received from the State, was procedurally

defaulted because the claim was not presented in state court and litigated as an

ineffective assistance of counsel claim. Only the second conclusion is pertinent 5

to our resolution of Lamarca’s application for a COA because, in his application,

Lamarca has not argued his trial counsel was ineffective for failing to impeach

Smith with the misdemeanor conviction itself.

The habeas statute requires petitioners to exhaust all available state law

remedies. 28 U.S.C. § 2254(b)(1)(A). “A petitioner must alert state courts to any

federal claims to allow the state courts an opportunity to review and correct the

claimed violations of his federal rights.” Jimenez v. Fla. Dep’t of Corr., 481 F.3d

1337, 1342 (11th Cir. 2007). “Thus, to exhaust state remedies fully the petitioner

must make the state court aware that the claims asserted present federal

constitutional issues.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).

 In his third amended § 2254 petition before the district court, Lamarca also argued trial 5

counsel was ineffective for failing to call Smith’s best friend, John Ehrke, as a witness to testify

Smith was “a known liar.” This claim, however, was not presented to the state courts in Smith’s

direct appeal, his 3.851 motion for post-conviction relief, or his state habeas corpus motion, and,

as the district court noted, Lamarca did not develop this claim during the state evidentiary

hearing. Accordingly, Lamarca has not fulfilled § 2254’s exhaustion requirements with respect

to this claim, and, to the extent Lamarca raises this issue in his application for a COA, we

conclude the district court’s assessment of this claim is not debatable among jurists of reason. 

See Slack, 529 U.S. at 484, 120 S. Ct. at 1604; 28 U.S.C. § 2254(b)(1)(A), (b)(3).

11
The only ineffective assistance of counsel claim with respect to Smith that

Lamarca raised in state court alleged his counsel failed to effectively

cross-examine Smith with prior convictions involving crimes of dishonesty. 

Although Lamarca did present a claim regarding Smith’s alleged undisclosed

consideration from the State, this claim asserted Brady and Giglio violations by

the State—not ineffectiveness by Lamarca’s counsel. In his application for a

COA, Lamarca does not address the district court’s conclusion that this portion of

his ineffective assistance of counsel claim was procedurally barred because it was

not exhausted in state court. He thus has failed to show “jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

See Slack, 529 U.S. at 484, 120 S. Ct. at 1604. We decline to issue a COA with

respect to this issue.

2. Tonya Flynn

Lamarca argues his trial counsel was ineffective for failing to impeach

Tonya Flynn with the lack of evidence supporting her allegations of sexual battery

and evidence contradicting her testimony about Lamarca breaking into his father’s

house in Hudson. Lamarca originally presented this ground for relief as claim 3 in

his 3.851 motion for post-conviction relief, in which he asserted his trial counsel

12
failed to effectively cross-examine Tonya Flynn regarding the alleged sexual

battery.

At trial, Lamarca was represented by Ron Eide and Nora McClure; Eide, a

20-year veteran of the Public Defender’s Office at the time of trial, handled the

guilt phase, while McClure, a 16-year veteran at the time of trial, was responsible

for the penalty phase. During the five-day state evidentiary hearing, Eide provided

extensive testimony regarding his trial preparation and strategy, including his

decisions regarding the cross-examination of Tonya Flynn. Based on this

testimony, the state trial court concluded Lamarca’s claim failed under Strickland.

In its order denying the claim, the court first addressed Lamarca’s contention that

trial counsel failed to effectively cross-examine Tonya Flynn concerning her

account of the sexual battery. The court noted Eide testified he deliberately

limited his cross-examination of Tonya to avoid “opening a door” for the State to

introduce additional incriminating evidence regarding the sexual battery, including

Tonya’s S.A.V.E. examination and DNA evidence reflecting Lamarca was a

possible donor to saliva found on Tonya’s breast, and “to permit [Lamarca] a

6

 Prior to Lamarca’s trial, defense counsel filed a motion to limine to exclude evidence

6

regarding the alleged sexual battery of Tonya Flynn, which was denied. During the State’s direct

examination of Tonya, the defense again objected to the introduction of any evidence related to

the sexual battery, and the court noted the objection for the record. Defense counsel then

attempted to impeach Tonya on the lack of physical evidence; however, the trial court, upon the

State’s objection, warned this line of questioning could waive defense’s objection and allow the

13
meaningful opportunity to tell his own story, a story that was credible and not

completely at odds with the other testimony offered in the case.” The court also

reviewed the trial transcript and noted Lamarca’s counsel “extensively argued the

lack of DNA evidence surrounding the sexual battery during closing arguments.” 

Finding trial counsel “was not inattentive to this issue, and was indeed fully aware

of the significance of the sexual battery,” the court determined the “tactical

decision to limit cross-examination of Tonya . . . was sound and well within the

range of prevailing professional standards.” 

The trial court then turned to a number of alleged inconsistent statements

Lamarca claimed his trial counsel should have used to impeach Tonya’s testimony. 

It concluded none of the statements provided a basis for an ineffective assistance

of counsel claim. Specifically, with respect to evidence in a police report

allegedly contradicting Tonya’s claim that Lamarca had kicked in the door to his

father’s home, the state trial court found “cross-examination would not have been

proper as the alleged inconsistency would not have undermined Tonya’s

credibility,” and “[Lamarca] failed to adduce evidence at the evidentiary hearing to

develop the significance of the alleged inconsistency.” Concluding its discussion

of this claim, the court stated, “as [Lamarca] has failed to demonstrate deficient

State to introduce additional evidence to corroborate and rehabilitate Tonya’s testimony.

14
performance or that [he] suffered prejudice, this claim fails under Strickland and is

therefore denied.”

On appeal, the Florida Supreme Court affirmed the trial court’s

determination with respect to this claim. Lamarca II, 931 So. 2d at 850. After

setting out the test for demonstrating ineffective assistance of counsel under

Strickland, id. at 846–47, the court noted Eide’s testimony regarding his strategic

decision to limit his cross-examination of Tonya Flynn “to avoid opening the door

to potentially incriminating information that would not otherwise have been

admissible,” recognized such decisions are “virtually unchallengeable,” and

accordingly rejected the claim, id. at 850.

In his § 2254 petition, Lamarca challenged the state courts’ conclusions that

his trial counsel was not ineffective for failing to impeach Tonya Flynn and

present evidence demonstrating the inconsistencies in her testimony. The district

court denied this claim on the merits, concluding Lamarca had not met his burden

of showing that the state courts’ decisions were “contrary to” or “an unreasonable

application of” Strickland, or that the state decisions’ were based on “an

unreasonable determination of the facts.” See 28 U.S.C. § 2254(d)(1)-(2). 

Jurists of reason would not debate the correctness of the district court’s

ruling. First, Lamarca does not explain, in neither his § 2254 petition nor his

15
application for a COA with this Court, how the state courts’ decisions were

“contrary to” or “an unreasonable application of” Strickland. In fact, Lamarca

does not even discuss the state courts’ legal conclusions in his § 2254 petition.

Second, Lamarca has failed to establish the state courts made “an unreasonable

determination of the facts.” Lamarca has not put forth any evidence, much less

clear and convincing evidence, to rebut the state courts’ determinations that Eide

made a strategic decision to limit his cross-examination of Tonya Flynn and that

the statements from the police report “would not have undermined Tonya’s

credibility.” See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear and convincing

evidence.”); Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998)

(“The question of whether an attorney’s actions were actually the product of a

tactical or strategic decision is an issue of fact, and a state court’s decision

concerning that issue is presumptively correct.”). Accordingly, no jurist of reason

would find the district court’s denial of this claim debatable, see Slack, 529 U.S. at

484, 120 S. Ct. at 1604, and Lamarca is not entitled to a COA with respect to it.

16
3. Steve Slack

Lamarca alleges trial counsel was ineffective for failing to call Steve Slack

as a witness to refute Tonya Flynn’s version of what occurred when she returned

to the bar after the alleged rape. Lamarca notes Slack told trial counsel, under

oath, that Flynn did not discuss her husband’s whereabouts with him or seem

concerned following the alleged sexual battery. Lamarca maintains this statement

contradicts Flynn’s trial testimony. Lamarca originally raised this ground for

relief in claim 9 of his 3.851 motion. 

At the state evidentiary hearing, Lamarca’s lead guilt phase counsel, Ron

Eide, testified he decided not to call Slack because Slack had been drinking on the

night of the murder and had provided inconsistent statements to investigators. 

Eide also believed Slack could have been a damaging witness for the defense;

Slack testified in his deposition that Lamarca was upset when he left the bar, that

Tonya Flynn was upset when she returned to the bar, and that Tonya said Lamarca

had raped Tina, his other daughter. After hearing both Eide’s and Slack’s 7

testimony, the state trial court found Eide’s explanation for not calling Slack “was

well within the range of prevailing professional standards,” and concluded

 Prior to trial, defense counsel filed a motion in limine to prohibit the State from 7

introducing evidence of the alleged sexual battery of Tina Lamarca, which the trial court granted.

17
Lamarca had failed to show, as required by Strickland, that his counsel’s

performance was deficient. 

 On appeal, the Florida Supreme Court affirmed, finding the decision not to

call Slack was a reasonable strategy. Lamarca II, 931 So. 2d at 849. The court

articulated the test for ineffective assistance of counsel under Strickland, id. at

846–47, and then considered Eide’s testimony at the state evidentiary hearing, id.

at 849. Concluding the facts underlying trial counsel’s assessment of Slack’s

credibility “were substantiated,” the court determined the claim was properly

denied. Id.

Lamarca again raised this claim in his § 2254 petition, arguing Slack could

have refuted Tonya Flynn’s testimony and his trial counsel was ineffective for

failing to present “this crucial contradicting impeachment information to the jury.” 

The district court rejected this claim, concluding Lamarca had “failed to cite any

clearly established federal law which establishes that the state court’s resolution of

this claim was improper or incorrect.” 

As with his ineffective assistance claim regarding the impeachment of

Tonya Flynn, Lamarca does not cite any case law, including Strickland, in his

discussion of this claim in his § 2254 petition. Furthermore, Lamarca does not

provide, in either his § 2254 petition or his application for a COA, clear and

18
convincing evidence to refute the state courts’ determinations that Eide made a

tactical decision not to call Slack and the facts underlying Eide’s assessment of

Slack’s credibility were substantiated. See 28 U.S.C. § 2254(e)(1); Provenzano,

148 F.3d at 1330. Accordingly, reasonable jurists would not debate the district

court’s conclusions that the state courts’ decisions were not “contrary to” or “an

unreasonable application of” Strickland, or based on “an unreasonable

determination of the facts.” See Slack, 529 U.S. at 484, 120 S. Ct. at 1604; 28

U.S.C. § 2254(d)(1)-(2). We decline to issue a COA with respect to this claim.

4. James Zaccagnino

 Lamarca argues trial counsel was ineffective for failing to present the

testimony of James Zaccagnino to rebut the testimony of James Michael Hughes. 

Hughes testified at trial Lamarca had told him that he was going to kill his

son-in-law. Hughes informed law enforcement Zaccagnino was present during the

conversation. When questioned, Zaccagnino stated he never heard Lamarca make

such a statement. Lamarca maintains Zaccagnino’s testimony would have

contradicted Hughes’s testimony. This ground for relief was presented to the state

courts as claim 8 in Lamarca’s 3.851 motion. 

The state trial court heard testimony from both Zaccagnino and Eide on this

claim at the evidentiary hearing. Eide testified he chose not to call Zaccagnino as

19
a witness because Zaccagnino had hearing difficulties, was a convicted felon

serving a life sentence, and could not say unequivocally he was in the prison yard

with Lamarca when the statements were made. Furthermore, Eide indicated he

was concerned about any mention of “prison yard” in front of the jury. The trial

8

court found this testimony credible. It also noted Zaccagnino had trouble hearing

at the evidentiary hearing, answering the first question asked of him incorrectly.

9

Based upon the testimony at the evidentiary hearing, the court concluded trial

counsel’s tactical decision “was well within the range of prevailing professional

standards.” It also determined Lamarca had failed to show the outcome would

have differed if Zaccagnino had testified. Accordingly, the trial court found the

claim failed under Strickland. 

The Florida Supreme Court upheld the trial court’s denial of this claim.

Lamarca II, 931 So. 2d at 849. After setting forth the standard under Strickland,

id. at 846–47, the court addressed each of Lamarca’s ineffective assistance of

counsel claims, including the failure to call Zaccagnino as a witness. With respect

to this claim, the court found the facts underlying trial counsel’s assessment of

 Prior to trial, defense counsel filed a motion in limine to prohibit the State from 8

introducting evidence or testimony regarding Lamarca’s criminal convictions and stints in prison,

which the trial court granted.

 Q: Okay. How are you employed? 9

 A: How am I doing? Pretty good.

20
Zaccagnino’s credibility were substantiated at the evidentiary hearing, and

determined the decision not to call Zaccagnino was a reasonable strategy. Id. at

849. It thus concluded the trial court properly denied the claim. Id.

In his § 2254 petition, Lamarca maintained his trial counsel was ineffective

for failing to call Zaccagnino as a witness, arguing his testimony would have cast

“significant doubt about the veracity of Hughes’ testimony.” According to

Lamarca, Zaccagnino’s testimony at the state evidentiary hearing “not only

rebutted Hughes [sic] testimony that Mr. Lamarca voiced the intent to kill his sonin-law, but also made it clear that Hughes had concocted his whole tale.” Lamarca

also noted, without citation to the record, that Zaccagnino’s hearing problems did

not exist in July 1995, the time of the alleged inculpatory statements. The district

court rejected this claim, concluding that Lamarca had failed to cite any factual

errors in the state court’s resolution of the claim and that the state courts applied

the correct Supreme Court precedent. 

No reasonable jurist would debate the district court’s assessment of this

claim. See Slack, 529 U.S. at 484, 120 S. Ct. at 1604. In his § 2254 petition,

Lamarca does not argue the state courts’ decisions were “contrary to” or an

“unreasonable application” of clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). Nor does Lamarca point to any “unreasonable determination of the

21
facts” on the part of the state courts. See id. § 2254(d)(2). Lamarca provides no

support for his contention that Zaccagnino did not have hearing problems in 1995,

and he ignores the state trial court’s conclusions regarding the credibility of Eide’s

and Zaccagnino’s testimony. Once again, Lamarca simply raises the same exact

arguments he presented to the state courts, without explaining how the state

courts’ resolutions of this claim were erroneous. We decline to issue a COA.

B. Claim Two: Lamarca’s Due Process Rights Were Violated When the State

Failed to Disclose Exculpatory Evidence to the Defense and Presented

False and Misleading Testimony

Lamarca claims the State violated his due process rights for not disclosing

benefits James Michael Hughes and Jeremy Smith received for their testimony and

for permitting false testimony from Hughes and Smith. In his COA application,

Lamarca maintains the finding of the state courts and the district court that a deal

is a requirement for a Brady violation is contrary to and an unreasonable

application of clearly established law, citing United States v. Bagley, 473 U.S.

667, 105 S. Ct. 3375 (1985). He asserts “[t]he delay in sentencing Hughes [until

after Lamarca’s trial] in and of itself was a fact that was required to be disclosed.” 

Lamarca also argues communications between the prosecution in his case and the

prosecution in Hughes’s case should have been turned over to the defense. With

respect to Smith, Lamarca claims the State should have disclosed that one of its

22
prosecutors was present at Smith’s sentencing hearing. Lamarca raised this claim

in two parts of his 3.851 motion—claim 8 and claim 12—in which he alleged

Hughes and Smith received “deals,” “benefits,” or “agreements” from the State. 

Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963),

“the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” A

prosecutor’s obligation to disclose evidence pursuant to Brady, however, is not

limited to the disclosure of potentially exculpatory evidence; rather, due process

also requires disclosure of impeachment evidence for cross-examination purposes. 

Bagley, 473 U.S. at 676, 105 S. Ct. at 3380. Thus, when the credibility of a

witness is at issue, the prosecution also is required to disclose “evidence of any

understanding or agreement as to a future prosecution.” Giglio v. United States,

405 U.S. 150, 154–55, 92 S. Ct. 763, 766 (1972). Furthermore, under Giglio, the

prosecution has a duty to correct false statements “[w]hen a witness conceals,

through false testimony, his bias against the defendant, and the Government

knows the witness has testified falsely.” United States v. Meros, 866 F.2d 1304,

1309 (11th Cir. 1989).

23
To prevail on a Brady claim, the petitioner must establish “(1) the

government possessed evidence favorable to him; (2) the defendant did not

possess the evidence and could not have obtained it with reasonable diligence; (3)

the government suppressed the favorable evidence; and (4) the evidence was

material.” Davis v. Terry, 465 F.3d 1249, 1254 (11th Cir. 2006). Evidence is

material if there is a reasonable probability that a different result would have

occurred had the evidence been disclosed. Kyles v. Whitley, 514 U.S. 419, 433,

115 S. Ct. 1555, 1565 (1995). In turn, a “reasonable probability” is understood to

be “a probability sufficient to undermine confidence in the outcome.” Bagley, 473

U.S. at 682, 105 S. Ct. at 3383.

After a five-day evidentiary hearing during which “much was made . . . over

whether Hughes received a benefit or promise in exchange for his testimony,” the

state trial court determined Lamarca had “failed to meet [his] burden of proving

that Hughes received anything of benefit in exchange for his testimony,” and thus

denied this claim with respect to Hughes. The court similarly rejected the claim

with respect to Smith, concluding the claim was based on “speculation” and

Lamarca had failed to show that any promises were made to Smith, that the State

withheld any evidence of a “deal,” and that the State permitted false testimony by

allowing Smith to testify he received no benefits in exchange for his testimony. 

24
The Florida Supreme Court affirmed on appeal. In its discussion of this

claim, the court explained the controlling law under Brady and Giglio, before

analyzing, in great detail, the trial court’s findings and the evidence presented by

Lamarca. Lamarca II, 931 So. 2d at 851–53. Based upon its review, the court

concluded “the record d[id] not support Lamarca’s claim that the State suppressed

deals made with either Hughes or Smith in exchange for their testimony.” Id. at

852. Because “the record contradict[ed] Lamarca’s allegations” and the trial

court’s decision was “supported by competent, substantial evidence,” the Florida

Supreme Court denied Lamarca’s Brady and Giglio claims. Id. at 853. 

Lamarca raised these Brady and Giglio claims before the district court in his

§ 2254 petition. He asserted “the state possessed favorable information . . . which

would have impeached prosecution witnesses Hughes and Smith—the only

witnesses who testified that Mr. Lamarca had planned and confessed to killing

Kevin Flynn.” He also maintained “the prosecution allowed false statements to go

uncorrected as both Hughes and Smith each testified that they had not received

any deal.” The district court denied Lamarca relief on these grounds, noting the

state courts found there were no undisclosed deals or agreements with Hughes or

Smith, and Lamarca failed to establish, by clear and convincing evidence, these

factual findings were erroneous.

25
Jurists of reason would not debate the district court’s assessment of

Lamarca’s Brady and Giglio claims. See Slack, 529 U.S. at 484, 120 S. Ct. at

1604. The state courts articulated the correct law under Brady and Giglio and then

considered whether the State had offered a benefit or reward to, or made a deal or

agreement with, either Hughes or Smith. Accordingly, Lamarca has failed to show

the state courts’ analyses were “contrary to” or “an unreasonable application of”

clearly established federal law. See 28 U.S.C. § 2254(d)(1). Furthermore, the

state courts made factual findings that there were no deals made or rewards offered

in exchange for Hughes’s or Smith’s testimony, and Lamarca has not refuted these

findings by clear and convincing evidence. See id. § 2254(e)(1). Thus, Lamarca

has not demonstrated the state courts’ decisions were “based on an unreasonable

determination of the facts.” See id. § 2254(d)(2). We conclude Lamarca has not

made a substantial showing of the denial of a constitutional right, see id.

§ 2253(c)(2), and he is not entitled to a COA on this claim.

C. Claim Three: Lamarca’s Due Process Rights Were Denied by the Trial

Court’s Limitation and Exclusion of Evidence and Abridgement of His

Cross-Examination of Tonya Flynn.

Lamarca asserts the trial court denied him the right to defend against the

charges by not allowing him to present evidence that Tonya and Kevin Flynn were

getting a divorce, that Tonya argued with Kevin regarding his excessive drinking

26
and sexual inadequacy, and that Tonya had engaged in an affair during a brief

separation from Kevin a month and a half prior to the murder. Lamarca contends

the district court’s determination that the exclusion of this evidence was harmless

error is debatable among jurists of reason. Furthermore, Lamarca maintains the

Florida Supreme Court and the district court’s conclusions were contrary to or

unreasonable applications of clearly established law, citing Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824 (1967). 

Under both Florida and federal law, a trial court’s decision to exclude

evidence at trial is reviewed for abuse of discretion. Salazar v. State, 991 So. 2d

364, 373 (Fla. 2008); United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir.

2002). A trial court’s discretion regarding evidentiary issues, however, is subject

to the requirements of the United States Constitution. See United States v.

Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). Among these requirements is a

defendant’s right to present a defense. See Chambers v. Mississippi, 410 U.S. 284,

294, 93 S. Ct. 1038, 1045 (1973) (“The right of an accused in a criminal trial to

due process is, in essence, the right to a fair opportunity to defend against the

State’s accusations.”). Thus, when a trial court’s evidentiary rulings deprive a

defendant of his right to present a defense, such rulings amount to constitutional

error. Id. at 302–03, 93 S. Ct. at 1049.

27
A constitutional error, however, does not require an automatic reversal of a

defendant’s conviction and sentence. See Chapman, 386 U.S. at 21–22, 87 S. Ct.

at 827. Rather, some constitutional errors may be “so unimportant and

insignificant that they may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the conviction.” See id. at 22, 87

S. Ct. at 827. Under the harmless-error standard articulated in Chapman and its

progeny, a conviction may be affirmed only “if the reviewing court conclude[s]

that, on the whole record, the error was harmless beyond a reasonable doubt.” 

United States v. Hasting, 461 U.S. 499, 508, 103 S. Ct. 1974, 1980 (1983). Put

differently, the reviewing court must consider “whether there is a reasonable

possibility that the evidence complained of might have contributed to the

conviction.” See Chapman, 386 U.S. at 24, 87 S. Ct. at 828 (quoting Fahy v.

Connecticut, 375 U.S. 85, 86, 84 S. Ct. 229, 230 (1963)). This standard is more

stringent than the harmless-error standard used in habeas proceedings, under

which a court must determine whether the error “had substantial and injurious

effect or influence in determining the jury’s verdict.” See Brecht v. Abrahamson,

507 U.S. 619, 622–23, 113 S. Ct. 1710, 1713–14 (1993) (rejecting the Chapman

standard in collateral proceedings and adopting a “less onerous” test). 

28
Lamarca first argued the trial court’s ruling limiting the evidence of Tonya

Flynn’s marital problems and extramarital affair violated his due process rights in

his direct appeal of his conviction and sentence to the Florida Supreme Court. 

Lamarca’s defense at trial was that Tonya Flynn murdered her husband. Prior to

trial, however, the trial court granted in part the State’s Motion in Limine to

exclude allegations that the Flynns were getting a divorce or that Tonya had an

extramarital affair. In his direct appeal, Lamarca argued the trial court’s exclusion

of this evidence limited his ability to establish Tonya Flynn had a motive to kill

her husband, thus violating his due process rights to present evidence in support of

his defense. 

In its decision affirming Lamarca’s conviction and sentence, the Florida

Supreme Court concluded the trial court abused its discretion in excluding the

evidence in question. Lamarca I, 785 So. 2d at 1213. The court, however, found

the abuse of discretion amounted to harmless error in light of the evidence

supporting Lamarca’s guilt, citing State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.

1986). Lamarca I, 785 So. 2d at 1214. Lamarca again raised this issue in his

§ 2254 petition, and the district court agreed with the Florida Supreme Court’s

determination, concluding Lamarca had failed “to demonstrate that the Florida

Supreme Court’s harmless error analysis was inconsistent with any decision from

29
the United States Supreme Court or was an unreasonable application of any such

precedent. The sufficiency of the Florida Supreme Court’s harmless error analysis

is clearly established by a review of that Court’s opinion.” 

No jurist of reason would conclude the decision of the district court was

“debatable or wrong.” See Slack, 529 U.S. at 484, 120 S. Ct. at 1604; 28 U.S.C.

§ 2254(d)(1). First, on direct review, the Florida Supreme Court used the

harmless-error standard from DiGuilio, which, in turn, relies on Chapman. See

DiGuilio, 491 So. 2d at 1134–35 (“[W]e adopted the correct rule from Chapman

and Hasting that constitutional errors, with rare exceptions, are subject to harmless

error analysis. The harmless error test, as set forth in Chapman and progeny,

places the burden on the state, as the beneficiary of the error, to prove beyond a

reasonable doubt that the error complained of did not contribute to the verdict or,

alternatively stated, that there is no reasonable possibility that the error contributed

to the conviction.”). Second, the district court articulated the correct harmlesserror standard for habeas proceedings, citing to Brecht and noting “constitutional

error will be considered harmless in a habeas proceeding unless the error had

substantial and injurious effect or influence on the verdict or sentence.”

Finally, under either the Chapman or Brecht standard, the trial court’s error

was harmless in light of the other evidence supporting Lamarca’s conviction. 

30
Indeed, evidence adduced at trial establishing Lamarca’s guilt included his

agitated state on the night of the murder; Tina Lamarca’s testimony that Lamarca

had told her that Kevin Flynn did not want Lamarca around Tonya Flynn or his

child anymore; eyewitness accounts of Lamarca departing the bar with Kevin and

in Kevin’s car, and Lamarca later returning to the bar alone and with Kevin’s car;

the testimony of Stephanie Parker, who saw Lamarca and another man “arguing

about something” outside Lamarca’s trailer that night; the discovery of Kevin’s

body in Lamarca’s trailer early the next morning; Lamarca’s possession of the .22

rifle used to commit the murder in the days prior; Tonya Flynn’s testimony that

she saw Lamarca with the murder weapon after he raped her; the retrieval of the

murder weapon from Joseph Lamarca’s home; Lamarca’s access to an ammunition

box with .22 rounds; the discovery of a knife that Lamarca had carried prior to the

murder near Kevin’s body; Lamarca’s statement five months before the murder

that he wanted to kill Kevin; his statement to a friend the morning after the murder

that he killed Kevin, that it “sucked,” but that he had to do it; and his flight from

law enforcement, which eventually took him to the state of Washington. 

Accordingly, no reasonable jurist would debate the district court’s conclusion that

the error did not have “substantial and injurious effect or influence in determining

the jury’s verdict.” See Brecht, 507 U.S. at 623, 113 S. Ct. at 1714; Slack, 529

31
U.S. at 484, 120 S. Ct. at 1604. Lamarca is not entitled to a COA with respect to

this claim.

IV. CONCLUSION

Lamarca has failed to make a “substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2). Accordingly, we deny his

application for a COA.

DENIED.

32