Lamarca v. Secretary, Dept. of Corrections

• Decision Date: 19 May 2009
• Docket Number: No. 08-16775.,08-16775.
• Citation: 568 F.3d 929
• Parties: Anthony LAMARCA, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

568 F.3d 929

Anthony LAMARCA, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.

No. 08-16775.

United States Court of Appeals, Eleventh Circuit.

May 19, 2009.

Linda McDermott (Court-Appointed), McClain & McDermott, P.A., Wilton Manors, FL, for LaMarca.

Scott Andrew Browne, Tampa, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

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 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 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 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.¹ The trial court considered 22 claims during a five-day evidentiary hearing.² On September 12, 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.

Lamarca then filed a petition for federal habeas corpus relief in the United States District Court for the Middle District of Florida.³ In his petition to the 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 cross-examination 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.

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, 146 L.Ed.2d 542 (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, 154 L.Ed.2d 931 (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. "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

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, 80 L.Ed.2d 674 (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...