                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3680
                                    ___________

Thomas Mark Zinna,                       *
                                         *
                   Appellant,            *
                                         * Appeal from the United States
       v.                                * District Court for the Eastern
                                         * District of Missouri.
Dave Dormire, Superintendent,            *
Jefferson City Correctional Center,      *      [UNPUBLISHED]
                                         *
                   Appellee.             *
                                    ___________

                              Submitted: April 10, 2001

                                   Filed: April 18, 2001
                                    ___________

Before BOWMAN and FAGG, Circuit Judges, and PIERSOL,* District Judge.
                           ___________

PER CURIAM.

       Thomas Mark Zinna was convicted of second-degree burglary, stealing firearms,
and second-degree property damage in Missouri state court. He was sentenced as a
persistent offender to imprisonment for forty years and six months. After exhausting




      *
       The Honorable Lawrence L. Piersol, United States District Judge for the District
of South Dakota, sitting by designation.
his state court remedies, Zinna filed a federal habeas petition. The district court**
denied relief, but granted a certificate of appealability on one claim: whether trial
counsel was ineffective in failing to call coperpetrator Billy Long as a witness. During
a state postconviction hearing, Long testified he would have told the jury Zinna was not
involved in the robbery because he was sleeping at a motel at the time. At the same
hearing, Zinna's trial attorney testified that several days before trial, Long told him, "I
am going to hurt you. I am not going to help you." The state postconviction court
found the attorney discussed the possibility of Long testifying with Zinna and he chose
not to call Long as a witness as a matter of trial strategy. The court also heard Long's
testimony and found he lacked credibility.

       On appeal, Zinna concedes the record supports the attorney's testimony at the
postconviction proceeding, but argues Long's testimony there rendered counsel's
decision not to call Long at trial unreasonable. We conclude the state courts did not
unreasonably apply federal law in denying Zinna postconviction relief because the
performance of Zinna's attorney was not deficient. See 28 U.S.C. § 2554(d)(1);
Strickland v. Washington, 466 U.S. 668, 689-90 (1984). Besides, Zinna cannot
establish the allegedly deficient performance prejudiced him, given the overwhelming
evidence of his guilt. See id. at 694-95. We thus affirm the district court's denial of
Zinna's habeas petition.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



      **
         The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

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