John Lesko v. Secretary Pennsylvania Departm

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 15-9005

______

JOHN C. LESKO,

Appellant

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF

CORRECTIONS;

SUPERINTENDENT GREENE SCI;

SUPERINTENDENT ROCKVIEW SCI;

DISTRICT ATTORNEY WESTMORELAND COUNTY

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. No. 2-11-cv-01049)

District Judge: Honorable Cathy Bissoon, U.S. District Judge

______

Argued June 23, 2021

Before: KRAUSE, ROTH and FISHER, Circuit Judges.

(Filed: May 17, 2022)

Samuel J.B. Angell [ARGUED]

Timothy P. Kane [ARGUED]

Federal Community Defender Office for the Eastern District of

Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Thomas R. Grace, I

John W. Peck [ARGUED]

Elizabeth P. Ranger

Westmoreland County Office of District Attorney

2 North Main Street, Suite 206

Greensburg, PA 15601

Counsel for Appellee

______

OPINION OF THE COURT

2

______

FISHER, Circuit Judge.

Over 40 years ago, John Lesko went on a multi-day

killing spree with his friend, Michael Travaglia, ending the

lives of four individuals in Western Pennsylvania in a tragedy

dubbed the “Kill for Thrill” murders by the media. For the last

killing, Lesko was convicted of first-degree murder and

sentenced to death. After proceeding through many levels of

the Pennsylvania state courts and two rounds of federal habeas

proceedings, Lesko now asks this Court to grant him relief as

to both his conviction and sentence. Like the District Court

before us, we conclude that the 28 U.S.C. § 2254 petition fails

to entitle him to relief. We therefore will affirm.

I.

A. Factual History

In late December 1979 and early January 1980, John

Lesko and Michael Travaglia killed four unrelated individuals

without any apparent motive, except for a desire to kill. Their

first victim was Peter Levato, then 52 years old. On December

27, 1979, Lesko and Travaglia abducted Levato from the

Edison Hotel in downtown Pittsburgh. They entered Levato’s

car, held him at gunpoint, and bound his arms and legs. Lesko

and Travaglia then drove to a bridge, where they pushed

Levato, still bound, over the side and into the water. After

hearing Levato scream below, Lesko and Travaglia went to

search for him. They found him standing beneath a tree, at

which point Travaglia shot Levato once in the chest and twice

in the head, killing him.

3

Their next victim was 26-year-old Marlene Newcomer.

On January 1, 1980, Newcomer picked up Lesko and Travaglia

as they were hitchhiking. Inside the car, Lesko pointed a gun

at Newcomer and the pair ordered her to pull over, where she

was then handcuffed, put in the back seat, and covered with a

blanket. Lesko and Travaglia drove to a convenience store and

robbed it. They then returned to the car, where Lesko shot

Newcomer, missing with his first shot but shooting twice more,

killing her.

A day later, Lesko and Travaglia killed their third

victim, William Nicholls, age 32. At about 11:00 p.m. on

January 2, 1980, Lesko and Travaglia were together at a hot

dog shop in downtown Pittsburgh when they ran into 15-year-

old Ricky Rutherford, who would later testify for the

prosecution. Rutherford had used illegal drugs and drunk

alcohol with Travaglia before. At the hot dog shop, Lesko and

Travaglia asked Rutherford if he wanted to go partying with

them and he said he did. Travaglia then instructed Lesko and

Rutherford to wait for him in a nearby alley. The two went to

the alley, where Lesko told Rutherford that when they heard a

car horn, it would be Travaglia. Five or ten minutes later, a car

came down the alleyway and beeped its horn. Williams

Nicholls, the victim, was the driver of that car, and Travaglia

was sitting in the front passenger seat.

Rutherford entered the car and sat in the back seat.

Travaglia then pulled out a gun and shot Nicholls in the arm.

After Nicholls was shot, Lesko joined Rutherford in the

backseat of the car and when asked by Travaglia what the

gunshot sounded like, Lesko said that it sounded like a

firecracker. Travaglia ordered Nicholls, still in the driver seat,

to drive out of the alley and he complied. The group left

Pittsburgh and later stopped so Travaglia could take the wheel

and move Nicholls to the back. At Lesko’s direction,

4

Rutherford handcuffed Nicholls. Nicholls was then put into the

backseat next to Lesko, with Travaglia in the driver’s seat and

Rutherford in the passenger seat.

In the backseat, Lesko repeatedly punched Nicholls in

the face and chest, while calling him a “queer,” asking him if

wanted to perform oral sex on him, mocking the sound of his

voice, and threatening him with a knife. J.A. 554-55. Travaglia

also punched Nicholls, who begged his assailants to stop.

Instead, they laughed at him and continued to torture him until

he eventually passed out. Lesko and Rutherford then gagged

the unconscious victim.

The group drove to a frozen lake in the woods. There,

Lesko took Nicholls’ wallet, keys, and other personal effects.

Travaglia, taking Rutherford with him, went down to find a

heavy brick or rock, which Rutherford then carried back to the

car. They returned to the car, where Lesko had pulled Nicholls

out of the vehicle, his hands still shackled and his legs now

bound together by a belt. Travaglia broke a hole in the surface

of the frozen lake, and he and Lesko dragged Nicholls down to

the lake. Rutherford did not see what happened next, but

Travaglia and Lesko returned to the car without Nicholls.

Nicholls died at the lake that day.1

Lesko, Travaglia, and Rutherford drove away in

Nicholls’ stolen car. During the drive, Travaglia described how

they put Nicholls into the frozen waters, where he resurfaced

once, coughed, and then sank back down.

1

The record is not entirely clear as to Nicholls’s cause

of death—whether he died by drowning or some other cause—

but that is of limited importance here. Lesko pleaded guilty to

second-degree murder for his involvement in killing Nicholls.

See Commonwealth v. Lesko, 467 A.2d 307, 308 (Pa. 1983).

5

The group drove to Travaglia’s father’s house. There,

Lesko and Travaglia went inside and stole a gun. They returned

to the car and drove away, until Lesko realized that the gun was

loaded with only birdshot. They then returned to the house,

where Travaglia directed Rutherford to get a box of real bullets

from his father’s garage, which he did. They then drove away,

Travaglia driving, Lesko in the passenger seat, and Rutherford

in the back.

After driving around for some time in the early morning

of January 3, the group came upon a police officer parked at

the side of the road—21-year-old Leonard Miller. Travaglia

remarked, “Let’s have some fun with this cop,” and then sped

past him in the stolen car, honking the horn. J.A. 569. Officer

Miller did not pursue them, so Travaglia tried again, speeding

past him, running a red light, and sounding the horn once more.

This time, Officer Miller turned on his lights and gave pursuit.

Lesko told Rutherford to lay down in the back of the

car, “because it might turn into a shooting gallery.” J.A. 569.

Rutherford did so. Travaglia pulled the car off to the side of the

road, stopped, and rolled down his window. Officer Miller then

came up to the side of the car, where Travaglia shot him twice,

killing him. Before he died, Officer Miller returned fire,

ultimately breaking the passenger window. Travaglia, Lesko,

and Rutherford sped away, with Travaglia commenting on how

the cop fell when he was shot and Lesko stating that they would

have to get rid of the car because someone might notice the

broken window. The car broke down a few miles later and the

group began walking on foot. They were eventually able to get

a ride from an acquaintance of Travaglia.

Lesko and Travaglia returned to Pittsburgh, and that

evening, they came across Daniel Montgomery at the hot dog

shop downtown. Montgomery, who would later testify on

6

behalf of the prosecution, stated that Travaglia asked him to

accompany them to a hotel room across the street. There,

Travaglia confessed to Montgomery, “I shot a cop,” and Lesko

snickered and added, “I wanted to.” J.A. 679-80. Travaglia

then gave Montgomery the gun he had used to shoot Officer

Miller and asked him to keep it. Montgomery obliged, left the

hotel room, and returned to the hot dog shop, where he was

arrested by plain clothes police officers who recovered the gun.

Lesko and Travaglia were arrested later that night. Both

admitted to some role in the killings. Lesko confessed he was

present when Officer Miller was shot in a narrative which

largely tracked Rutherford’s account. He admitted that

Travaglia, Rutherford, and himself, while driving a stolen

vehicle, sped by Miller twice to draw his attention, but claimed

it was only to lure him away from a convenience store so they

could rob it. According to Lesko, he did not know Travaglia

would shoot Miller.

B. Procedural History

Lesko and Travaglia were arraigned for the killing of

Officer Miller, the last victim in the four-victim spree. The

Commonwealth charged first degree murder and sought the

death penalty. By the time trial came for the Miller killing,

Lesko and Travaglia had already been convicted of (1) first

degree murder for the killing of Levato, for which they were

sentenced to life in prison; (2) first degree murder for the

killing of Newcomer, for which they were also given a life

sentence; and (3) second degree murder for the killing of

Nicholls, for which sentencing was to be deferred until after

the Miller trial.

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1. Lesko’s 1981 Trial, Direct Appeal, and Petition for Post-

Conviction Relief

In 1981, Lesko and Travaglia were tried together in

Westmoreland County for the killing of Officer Miller.

Rutherford and Montgomery testified for the prosecution and

Lesko’s confession to the police was also introduced. The jury

also heard about Lesko’s role in killing Nicholls the night

before Officer Miller was shot. For the defense, Rabe F. Marsh,

III, a local attorney in private practice who had never tried a

capital case, was appointed as attorney for Lesko.

The jury found Lesko and Travaglia guilty of first-

degree murder. The case proceeded to a separate sentencing

trial. There, the jury found that the aggravating circumstances

surrounding the murder outweighed any mitigating

circumstances and imposed the death penalty as to both. The

Pennsylvania Supreme Court affirmed on appeal,

Commonwealth v. Travaglia, 467 A.2d 288 (Pa. 1983) (“Lesko

I”), and relief was denied on collateral review. See

Commonwealth v. Lesko, 501 A.2d 200 (Pa. 1985) (“Lesko

III”).2

2. Lesko’s First Habeas Petition

In 1986, Lesko, still represented by his appointed

lawyer, Marsh, filed his initial habeas petition under 28 U.S.C.

§ 2254. The District Court granted the petition on the ground

2

There have been more than a dozen decisions in

Lesko’s case. In his filings in the District Court, Lesko labeled

the decisions Lesko I through Lesko XIII. The District Court

adopted this convention, so we do as well, noting that not all

decisions are pertinent to the resolution of Lesko’s current

petition.

8

that Lesko’s right to a fair trial had been violated by the

introduction of evidence concerning his participation in the

Nicholls killing. However, on appeal, we concluded that this

evidence was probative of Lesko’s motive and intent and that

its introduction did not violate due process. See Lesko v.

Owens, 881 F.2d 44, 60 (3d Cir. 1989) (“Lesko VI”). We thus

vacated the District Court’s judgment and remanded for

consideration of Lesko’s other claims. On remand, the District

Court denied all remaining requests for relief.

Lesko appealed once more. Again, we vacated and

remanded. We held that he was entitled to: (1) an evidentiary

hearing regarding his claim that the introduction of his guilty

plea for the second-degree murder of Nicholls violated his due

process rights; and (2) a new sentencing trial, because the

prosecution had improperly appealed to vengeance and

commented on Lesko’s failure to testify. See Lesko v. Lehman,

925 F.2d 1527, 1555 (3d Cir. 1991) (“Lesko VIII”).

3. Lesko’s 1995 Resentencing Hearing and Second Death

Sentence

The Commonwealth held a new sentencing hearing in

1995. Seeking the death penalty once more, it sought to

establish four aggravating factors: (1) and (2) that Lesko had

previously been convicted of two other crimes that subjected

him to a life sentence or the death penalty, the Levato and

Newcomer murders; (3) that the victim in the immediate case

was a police officer killed while performing his duties; and (4)

that Lesko had a significant history of felony convictions

involving the use of violence. The Commonwealth presented

evidence showing Lesko’s role in killing Levato, Newcomer,

9

and Nicholls, though the Nicholls killing was offered only to

establish Lesko’s intent in killing Miller.3

In mitigation, Lesko—still represented by his appointed

lawyer, Marsh, alongside a new lawyer, Brian O’Leary, who

joined the team just days before the resentencing—called

several witnesses. They brought in a forensic social worker,

who presented Lesko’s background; two of Lesko’s family

members, his aunt and one brother; a clinical and forensic

psychologist who evaluated Lesko; a prison chaplain; and

Lesko himself.

The forensic social worker, Lois Nardone, testified

about her investigation of Lesko, which included interviews

with Lesko, his mother, his grandmother, his two brothers, his

two sisters, his aunt, two of his teachers, a prison chaplain, and

a social worker. She also reviewed relevant records. Based on

her research, she gave a disturbing biography. Lesko never

knew the identity of his father. His mother, Marion Fedorko,

raised Lesko, but was a “terrible” parent. J.A. 2295. She would

routinely have sex with strangers in front of Lesko; would go

out drinking, leaving the children home alone at night; and did

3

In Lesko’s first habeas proceedings, we remanded for

an evidentiary hearing on whether Lesko’s plea in the Nicholls

case was voluntary for the purpose of being considered as an

aggravating factor in the Miller case. On remand, the

magistrate judge who presided over that evidentiary hearing

determined—and the District Court agreed—that the plea was

involuntary for that purpose, because Lesko “had every reason

to reasonably believe that the plea agreement included a ‘non-

use’ provision” barring such use. Lesko v. Lehman, No. Civ. A.

86-1238, 1992 WL 717815, at *6 (W.D. Pa. Feb. 20, 1992).

Thus, the Nicholls killing was not itself an aggravating factor.

10

not provide habitable housing for Lesko and his siblings. The

“deplorable” housing conditions included disconnected

utilities, minimal food, and frequent moves—some 15 times

before Lesko was even 10 years old. J.A. 2296. Lesko suffered

greatly. At age five or six, he was wandering the streets at night

with his younger brother, Michael, often stealing food. The

children went to school only when they wanted, and when they

did, they appeared dirty and sleep deprived.

Nardone also testified about Lesko’s traumas. When he

was four years old, another boy set him on fire. He sustained

first- and second-degree burns and was hospitalized for more

than a month. At age six or seven, Lesko was molested while

he and his brother were attempting to earn money by shining

shoes in a bar.

Lesko was removed from his mother’s care when he

was nine and spent time in a few different facilities. He had “a

very difficult time” adjusting, reacting poorly when apart from

his younger brother, Michael, who Lesko viewed as a father

figure. J.A. 2300. At times, Lesko had to be restrained, because

he could not calm down. He would receive some visits from

his grandmother, but none from his mother. Lesko remained

institutionalized until just before his fifteenth birthday, when

he and Michael were placed in the custody of his grandmother.

There too, life was difficult. His grandmother’s daughter—an

alcoholic and a “very nasty drunk”—also lived at the home,

and she resented Lesko and Michael coming there. J.A. 2302.

She picked on Lesko, as the physically weaker of the two

children, and verbally abused him. Lesko did not cope well. By

age 15 or 16, he was heavily abusing drugs and alcohol, would

go for days without sleep, and would be unable to calm himself

down without substances. He did not regularly attend school.

He pleaded guilty to burglary. Eventually, his probation officer

told him that he should join the military or he would end up in

11

jail. Lesko joined the Marines, which led to a short period of

stability in his life. But, after boot camp was over and the rules

were relaxed, he went “AWOL” and was discharged. J.A.

2305-06. He returned to his grandmother’s home, where his

behavior worsened, with substance abuse becoming a daily

occurrence and his anger issues worsening.

According to Nardone, that anger intensified when

Lesko, in 1978 or 1979, learned that his other brother, Joey,

was released from an institution because he had been molested

there by a social worker. Lesko was filled with rage.

Paralleling this narrative which Nardone presented,

Lesko’s two testifying family members reiterated his awful

upbringing. His aunt, Anna Aikman, testified that the Lesko’s

mother’s home was a “pigsty,” often with no lights, gas, or

food. J.A. 2452. She confirmed that the children would be left

unattended; their mother would bring men home from the bars

and direct her children to steal from them; and that Lesko

suffered verbal abuse when he was living with his

grandmother. His brother, Michael, who also testified,

confirmed that they suffered severe neglect from their mother;

Lesko got heavily involved with drugs when he lived with his

grandmother and suffered verbal abuse there; and Lesko was

molested.

Lesko’s mitigation team also called Dr. Herbert Levit, a

forensic psychologist, who had examined Lesko and

performed a variety of psychological tests. Dr. Levit diagnosed

Lesko with borderline personality disorder: “a person who is

emotionally explosive at times, has erratic behavior, engages

in behavior which is contrary to societ[y’s] standards, is

frequently immature, and has had difficulty in adjusting.” J.A.

2410-11. He also opined that, at the time of the killings, Lesko

was suffering from polysubstance abuse, meaning that he was

12

using drugs and alcohol consistently and excessively such that

it impaired his functioning. He said that, despite better than

average intelligence, Lesko was emotionally a teenager at the

time of the crimes. According to Dr. Levit, Lesko suffered

from diminished capacity at that time—the “ability to think

clearly, rationally, logically and in a mature manner”—and his

ability to abide by the law was also impaired by the influence

of alcohol, drugs, and trauma. J.A. 2415-16.

By 1995, however, this unstable person was, apparently,

a thing of the past. Lesko’s lawyers offered the testimony of a

prison chaplain, who had witnessed the past 10 years of

Lesko’s life in prison and said that his behavior had been good

during that time. He had not used drugs or alcohol or fought

with other prisoners. Lesko had even taken an interest in

religion and had been a positive influence on other prisoners.

Lesko also took the stand in support of his own

mitigation case. He discussed being set on fire as child, the

time he was molested while shining shoes, his drug and alcohol

abuse, and the way he bounced from home to home as a child.

He also talked about the murders. Lesko said that, at the time,

he felt nothing when killing the victims, because he was under

the influence of drugs and alcohol and was upset from learning

that his brother Joey had been molested. He claimed that, since

being incarcerated, he had changed a great deal and now felt

remorse.

As in the first sentencing proceeding, the jury once

again voted for death. They unanimously found four

aggravating factors: that the victim was a police officer who

was killed during the performance of his duties; that Lesko had

a significant history of violent felony convictions; and that

Lesko had previously been convicted of two offenses

(murdering Levato and Newcomer) that each carried a

13

sentence of life imprisonment or death. One or more jurors

found the following mitigating factors: that Lesko was under

the influence of extreme mental or emotional disturbance;

Lesko’s service to others on death row; Lesko’s horrible

childhood; and that Lesko’s character had changed over the last

15 years of his confinement. The jury determined that the

aggravating factors outweighed the mitigating and voted for

death. Lesko appealed, but the judgment was affirmed. See

Commonwealth v. Lesko, 719 A.2d 217, 227 (Pa. 1998)

(“Lesko X”).

4. Lesko’s Second Round of PCRA Proceedings

Lesko sought relief under the Pennsylvania Post

Conviction Relief Act. After a six-day hearing, the PCRA

court, with a different judge presiding than during Lesko’s

original trial, granted relief, in part. It held (1) Lesko’s rights

were violated at the 1995 resentencing when counsel did not

offer expert testimony addressing whether he suffered brain

damage; (2) counsel was also ineffective there by failing to

adequately investigate and present a range of mitigating

evidence; (3) Lesko’s right to testify was violated when

counsel prevented him from testifying in his own defense at the

guilt phase; (4) the prosecution suppressed evidence that would

have allowed Lesko to impeach Montgomery and Rutherford

in violation of Brady v. Maryland; and (5) counsel performed

ineffectively by failing to adequately impeach Montgomery.

The PCRA court ruled that Lesko was entitled to a new guilt-

phase trial and sentencing hearing. The Supreme Court

reversed and dismissed Lesko’s PCRA petition.

Commonwealth v. Lesko, 15 A.3d 345, 356 (Pa. 2011) (“Lesko

XIII”). It held that his guilt-phase claims, except his Brady

claims, were all time-barred, and the Brady claims failed on the

14

merits. Id. at 360, 372-73. It also denied on the merits Lesko’s

sentencing claims. Id. at 417.

5. Lesko’s Second Habeas Petition

Lesko filed a second habeas petition—the one now at

issue. He raised 22 claims, challenging both his 1981 guilt-

phase trial and his 1995 resentencing. The District Court

denied relief on each without an evidentiary hearing. See Lesko

v. Wetzel, Civ. A. No. 11-1049, 2015 WL 249502 (W.D. Pa.

Jan. 20, 2015) (“Lesko XIV”). It did, however, grant a

certificate of appealability on Lesko’s claims that (1) the

Commonwealth violated his Brady rights by suppressing an

agreement between Montgomery and the prosecution, a

January 1980 police report, and information from Rutherford’s

juvenile file, and Lesko’s counsel performed ineffectively by

failing to adequately investigate and cross-examine

Montgomery and Rutherford; and (2) Lesko’s right to testify

was violated by his trial counsel. See id. at *24, *26. Lesko

moved to expand the certificate to cover additional claims. We

granted the motion as to two claims—(3) counsel performed

ineffectively by failing to properly investigate and present

mitigating evidence at resentencing; and (4) Lesko is entitled

to relief based on the cumulative effect of the purported guilt-

phase and sentencing errors. Third Cir. Ord. of May 3, 2018.

II.

A. Jurisdiction

We have jurisdiction to adjudicate Lesko’s claims

pursuant to 28 U.S.C. §§ 1291 and 2253(a). However, this case

presents a difficult question about the District Court’s

jurisdiction. In Lesko’s present habeas petition, he challenges

both his 1981 guilt-phase trial and 1995 resentencing. As to the

guilt-phase, Lesko argues (1) his Brady rights were violated

15

and (2) his right to testify was obstructed by his ineffective trial

counsel. As to his resentencing, Lesko argues (3) his legal team

was ineffective in investigating and presenting a mitigation

case and (4) he suffered prejudice from the cumulative effect

of their errors.

Lesko’s current habeas petition presented the first

opportunity in which he could challenge his resentencing.

However, he already litigated a petition contesting his guilt-

phase proceedings. Under AEDPA, a district court lacks

jurisdiction to consider claims presented in a “second or

successive habeas corpus application” unless a court of appeals

has authorized the petition in accordance with a restrictive

criterion.4 28 U.S.C. § 2244(b)(2), (b)(3)(A).

Lesko did not seek, let alone obtain, the requisite

authorization under this portion of the statute. Thus, the

question is whether the guilt phase challenges in his petition

constitute a prohibited second or successive petition. If so, the

District Court lacked jurisdiction to adjudicate it.

In Magwood v. Patterson, 561 U.S. 320 (2010), the

Supreme Court interpreted AEDPA’s second or successive

provision in a related scenario. There, the defendant was

4

Specifically, a court of appeals must certify that the

petition relies on either: (1) “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable[,]” or (2) newly

discovered facts which, if proven, would “establish by clear

and convincing evidence that . . . no reasonable factfinder

would have found the applicant guilty.” 28 U.S.C. §

2244(b)(2)(A)-(B). If the court of appeals finds that these

requirements are not satisfied, the petition must be dismissed.

Id. § 2244(b)(3)(C).

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convicted of murder and sentenced to death in state court. Id.

at 323. After exhausting state court remedies, he filed a federal

habeas petition, ultimately achieving vacatur of his sentence.

Id. The state court conducted an entirely new sentencing

proceeding, which ended in the same result: a death sentence.

Id. at 326. Magwood then filed a second habeas petition, this

time attacking his new sentence on the basis that he “did not

have fair warning that his offense could be punished by death.”

Id. at 327. The State argued that because Magwood could have

made a fair-warning argument in his initial habeas petition

after his first sentencing, but did not, his petition was second

or successive. Id. at 331. The Supreme Court disagreed. It

reasoned that “both § 2254(b)’s text and the relief it provides

indicate that the phrase ‘second or successive’ must be

interpreted with respect to the judgment challenged.” Id. at

332-33. Thus, where “there is a new judgment intervening

between the two habeas petitions, . . . an application

challenging the resulting new judgment is not ‘second or

successive’ at all.” Id. at 341-42 (internal quotation and citation

omitted).

Lesko’s present habeas petition indeed challenges his

new 1995 sentence, but also his undisturbed 1981 conviction.

The Magwood Court recognized the possibility of such a

scenario. Though the prisoner there did not seek to relitigate

his undisturbed conviction, the State argued that the Court’s

“reading of § 2244(b) would allow a petitioner who obtains a

conditional writ as to his sentence to file a subsequent

application challenging not only his resulting, new sentence,

but also his original, undisturbed conviction.” Id. at 342. The

Court refused to address the question, saying that it would not

speculate about what might arise in future cases. Id. Thus, it is

an open question whether a petition like Lesko’s, which attacks

17

both a new sentence and an undisturbed conviction, runs afoul

of the second or successive rule.

Since Magwood was decided, five Circuits have held

that the Magwood rule applies with equal force to cases like

this one, concluding that a second-in-time5 petition is not

second or successive as to an undisturbed conviction because

a new sentence creates a new judgment which has not yet been

challenged. See In re Gray, 850 F.3d 139, 141-43 (4th Cir.

2017); King v. Morgan, 807 F.3d 154, 158 (6th Cir. 2015);

Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281

(11th Cir. 2014) (per curiam); Wentzell v. Neven, 674 F.3d

1124, 1127-28 (9th Cir. 2012); Johnson v. United States, 623

F.3d 41, 45-46 (2d Cir. 2010). Despite AEDPA’s tightening of

habeas relief, these courts have concluded, Magwood compels

the conclusion that a prisoner who obtains relief as to his

sentence may nonetheless take another bite at the apple in

contesting his original conviction. See, e.g., Johnson, 623 F.3d

at 46 (“[W]here a first habeas petition results in an amended

judgment, a subsequent petition is not successive regardless of

whether it challenges the conviction, the sentence, or both.”).

Two Circuits, the Seventh and the Tenth, have ruled

otherwise. In Dahler v. United States, a pre-Magwood case,

the Seventh Circuit held that a habeas petition challenging an

error preceding resentencing “must be treated as a collateral

attack on the original conviction and sentence, rather than as

an initial challenge to the latest sentence.” 259 F.3d 763, 765

(7th Cir. 2001). Because Magwood expressly left this question

5

By “second-in-time,” we mean any numerically

second petition. All “second or successive” petitions are

“second-in-time,” but not all “second-in-time” petitions are

“second or successive” within the meaning of § 2244(b).

18

open, the Seventh Circuit has adhered to its precedent and held

that a second-in-time habeas petition is barred as second or

successive where it attempts to challenge a prisoner’s

undisturbed conviction after he already litigated a habeas

petition. See Suggs v. United States, 705 F.3d 279, 281-84 (7th

Cir. 2013). For its part, the Tenth Circuit has held that a

resentencing does not create a new judgment that resets

AEDPA’s one-year statute of limitation, 28 U.S.C.

§ 2244(d)(1), a related procedural hurdle housed in the same

section as the second-or-successive rule. See Prendergast v.

Clements, 699 F.3d 1182, 1187 (10th Cir. 2012). Prendergast,

however, relied on pre-Magwood precedent from our own

Circuit without mentioning Magwood. See id. at 1186-88

(citing Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004)).

We have not yet weighed in on this post-Magwood

debate about how to interpret § 2244, though we have

acknowledged the circuit split. Romansky v. Superintendent

Greene SCI, 933 F.3d 293, 299-300 (3d Cir. 2019). Now, after

careful consideration, we hold that the majority interpretation

of § 2244(b) is correct: a prisoner who receives relief as to his

sentence is not barred from raising, in a second-in-time habeas

petition, a challenge to an undisturbed conviction.

Notwithstanding the troubling implications for comity and

finality, we are persuaded the reasoning of Magwood compels

this conclusion.

The Supreme Court in Magwood held that a new

“judgment” resets the count for second-or-successive

purposes. See Magwood, 561 U.S. at 341-42. Before AEDPA,

the Court had stated on more than one occasion that “[a]

judgment of conviction includes both the adjudication of guilt

and the sentence,” Deal v. United States, 508 U.S. 129, 132

(1993) superseded by statute, Pub. L. 115–391, § 403(a), 132

Stat. 5221, as recognized in United States v. Davis, 139 S. Ct.

19

2319, 2324 n.1 (2019), emphasizing that a “[f]inal judgment in

a criminal case means sentence[;] [t]he sentence is the

judgment,” Burton v. Stewart, 549 U.S. 147, 156 (2007)

(quoting Berman v. United States, 302 U.S. 211, 212 (1937)).

And Magwood makes clear that the Court continues to read it

that way in the context of AEDPA. For purposes of a § 2254

petition, the Court explained, a “judgment” is that which

“authoriz[es] the prisoner’s confinement,” and custody “is

inextricable from the judgment that authorizes it.” Magwood,

561 U.S. at 332-33 (internal quotation omitted). Because both

a conviction and sentence are necessary to authorize a

prisoner’s confinement,6 and resentencing creates a new

judgment authorizing a prisoner’s continued confinement, a

petition challenging either component of that new judgment—

be it conviction or sentence—is not second-or-successive.7

Our decision in Romansky is not to the contrary. There,

we held that a habeas petitioner’s resentencing as to one count

6

True, a prisoner like Lesko whose original sentence is

vacated typically remains in custody pending resentencing, but

this is not because his conviction alone is sufficient to

authorize his confinement. Rather, it is because a federal court

has issued a conditional writ and delayed habeas relief “in

order to provide the State an opportunity to correct the

constitutional violation,” Hilton v. Braunskill, 481 U.S. 770,

775 (1987), and to “replace an invalid judgment with a valid

one,” Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J.,

concurring).

7

We interpret “judgment” only as that term appears in

the federal habeas statutes. We offer no view on what might

constitute a new or intervening judgment for purposes of other

statutes not presently before us.

20

of conviction “did not impose a new judgment” as to other

counts for which both the conviction and sentence remained

undisturbed, see Romansky, 933 F.3d at 300-01, and each count

of conviction for which a separate sentence was imposed

authorized its own confinement, each constituting a distinct

“judgment” for purposes of AEDPA. The Fifth Circuit has

adopted a similar approach, holding that, because vacating a

conviction and sentence for a lesser included offense did not

disturb either the conviction or sentence for the greater offense,

it did not constitute a new judgment.8 See In re Lampton, 667

F.3d 585, 588-89 (5th Cir. 2012); see also Patterson v. Sec’y

Fla. Dep’t of Corr., 849 F.3d 1321, 1325-26 (11th Cir. 2017)

(holding that only changes to sentences that authorize new

confinements constitute new judgments under Magwood).

Romansky thus stands for the proposition that a resentencing as

to one count of a conviction that makes no changes to the

confinements authorized by the other undisturbed counts does

not affect the “judgment” as to those counts and, hence, does

not reset the habeas counter. 933 F.3d at 300.

What we confront today, however, presents a different

question, one we anticipated in Romansky. There, we

suggested that where a court “undertake[s] a de novo

8

In contrast, the Second and Ninth Circuits treat the

convictions and sentences for multiple counts as “components”

of a single judgment such that a change to any resets the habeas

counter for all. See Wentzell, 674 F.3d at 1127; Johnson, 623

F.3d at 46. We see no reason, however, to treat separate counts

of conviction and sentences imposing separate confinements as

components of a single judgment merely because they were

handed down at the same time; rather, consistent with

Romansky, we will treat these are separate and distinct

judgments for purposes of AEDPA.

21

resentencing as to all counts of conviction if any count is

vacated on appeal . . . the resentencing might constitute a new

judgment as to every count of conviction.” Id. As we have

explained here, that reasoning is compelled by Magwood.

Resentencing creates a new judgment as to each count of

conviction for which a new or altered sentence is imposed,

while leaving undisturbed the judgments for any counts of

conviction for which neither the sentence nor the conviction is

changed. Lesko was resentenced as to all counts of his

conviction; as a result, his guilt-phase claims are not barred as

second-or-successive.

One of Lesko’s guilt-phase claims is not barred for a

second reason as well. In his present petition, Lesko contends

that his counsel rendered ineffective assistance by preventing

him from exercising his Sixth Amendment right to testify at his

1981 guilt-phase trial. That same lawyer, Rabe Marsh,

represented Lesko for nearly twenty years, including at

Lesko’s first guilt and sentencing trials, first direct appeal, first

PCRA proceedings, and first federal habeas proceedings, along

with his 1995 resentencing and the ensuing direct appeal. It

was only after Marsh withdrew in 1999 and Lesko obtained

new counsel that Lesko for the first time raised the issue of

Marsh’s ineffectiveness at trial. The PCRA court granted a

new trial and sentencing, but the Pennsylvania Supreme Court

reversed, denying his ineffective assistance claim—and all but

one of his other claims—as untimely. Lesko XIII, 15 A.3d at

359-73. Now, in his second round of federal habeas

proceedings, Lesko attempts to advance this claim once more.

Recognizing these circumstances to be unique, we

requested additional briefing on how the term “second or

successive” should be construed in such a situation and

whether Marsh, having continuously represented Lesko since

the guilt-phase trial, could be expected to argue his own

22

ineffectiveness either in Lesko’s state PCRA or initial federal

habeas proceedings. Lesko argued that he could not.

We agree. In Martinez v. Ryan, the Supreme Court

warned that “[a] prisoner’s inability to present a claim of trial

error is of particular concern when the claim is one of

ineffective assistance of counsel.” 566 U.S. 1, 12 (2012). And

we, along with several of our sister circuits, have recognized

that lawyers cannot be expected to argue their own

ineffectiveness. See United States v. Cocivera, 104 F.3d 566,

570 (3d Cir. 1996); see also Harris v. Comm’r, Ala. Dep’t of

Corr., 874 F.3d 682, 690 (11th Cir. 2017) (observing that a

lawyer’s “personal interest in not being found to have

performed ineffectively . . . conflicts with the interests of a

client asserting a claim based on his lawyer’s ineffectiveness”)

(internal quotation marks omitted); Combs v. Coyle, 205 F.3d

269, 276 (6th Cir. 2000) (“[C]ounsel cannot be expected to

raise his own ineffectiveness on appeal . . . .”); United States v.

Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996) (agreeing that

“forcing trial counsel to prove his own ineffectiveness” created

a conflict of interest); Ciak v. United States, 59 F.3d 296, 303

(2d Cir. 1995) (“We cannot expect ineffective assistance

claims to be raised on direct appeal—and therefore we should

not penalize a petitioner for failing to raise them—when a

petitioner’s counsel on direct appeal also represented him at

trial.”).

Here, attorney Marsh was operating under a conflict of

interest which effectively prevented him in either the state

PCRA or initial federal habeas proceedings from raising a

claim that he interfered with his client’s right to testify.

“Advancing such a claim would have required [counsel] to

denigrate [his] own performance”—something he “cannot

reasonably be expected to” do, as it would “threaten[] [his]

professional reputation and livelihood.” Christeson v. Roper,

23

574 U.S. 373, 378 (2015); see also Maples v. Thomas, 565 U.S.

266, 285 n.8 (2012) (explaining that a “significant conflict of

interest” arises when a lawyer’s “interest in avoiding damage

to [his] own reputation” is at odds with the petitioner’s

“strongest argument”); Model Rules of Prof’l Conduct 1.7 cmt.

10 (“[I]f the probity of a lawyer’s own conduct in a transaction

is in serious question, it may be difficult or impossible for the

lawyer to give a client detached advice.”).

Our conclusion that attorney Marsh could not have been

expected to raise a claim as to his own ineffectiveness at trial

has significant implications for our second or successive

analysis. The Supreme Court has held that “the § 2244(b)

restrictions simply do not apply to” certain claims based on a

prisoner’s inability to raise them in an initial habeas petition.

Stewart v. Martinez-Villareal, 523 U.S. 637, 642 (1998).

Likewise, we have previously stated that “a subsequent petition

. . . is clearly not a ‘second or successive’ petition within the

meaning of § 2244 if the claim had not arisen or could not have

been raised at the time of the prior petition.” Benchoff, 404

F.3d at 817. That is the case here: because Marsh was

operating under a conflict of interest when he filed Lesko’s first

habeas petition, the ineffectiveness claim “could not have been

raised at [that] time,” id, and Lesko’s first opportunity to raise

his counsel’s ineffectiveness was in his second-in-time

petition. Put differently, if Lesko’s petition were barred as

second-or-successive, he would, as a practical matter, have

never had a chance to bring that claim. Yet “[t]he right to the

effective assistance of counsel at trial is a bedrock principle in

our justice system.” Martinez, 566 U.S. at 12. We therefore

decline to interpret § 2244(b) in a way that allows for an

ineffective assistance counsel claim to completely evade

federal habeas review. Instead, we hold that a second-in-time

habeas petition is not second or successive to the extent it raises

24

an ineffective assistance of counsel claim that the prisoner

lacked opportunity to raise because the same counsel

represented him both at trial and in his first round of habeas

proceedings.9

As Lesko’s current habeas petition is not second or

successive with respect to his guilt-phase claims, the District

Court had jurisdiction to decide it, and we may proceed to

address the merits of his claims.

B. Lesko’s claim that his Brady rights were violated

We now turn to the merits of those guilt-phase claims.

Lesko first argues that the Commonwealth violated his Brady

rights by withholding evidence that he could have used to

impeach Montgomery and Rutherford. A Brady violation

occurs when the defendant demonstrates that (1) the evidence

was favorable to the accused, either because it was exculpatory

or had impeachment value; (2) the government withheld the

evidence, either willfully or inadvertently; and (3) the evidence

was material. Dennis v. Sec’y, PA Dep’t of Corr., 834 F.3d 263,

284–85 (3d Cir. 2016) (en banc).

This claim involves three pieces of evidence that the

Commonwealth did not produce before trial:

The first is a copy of an “agreement and statement of

intent” between the Westmoreland County District Attorney

9

We stress the narrowness of this holding. We simply

hold that in the rare circumstance where a conflict of interest—

like ripeness, Stewart, 523 U.S. at 644-45, or a procedural bar,

Slack v. McDaniel, 529 U.S. 473, 487-88 (2000)—makes it

impossible to bring a claim of trial ineffectiveness in a first

habeas petition, that claim is not second or successive when

raised in a subsequent petition with new counsel.

25

and Montgomery in which the district attorney agreed that he

would not prosecute Montgomery for any crimes against

property that were alleged to have occurred in December 1979

or January 1980. In exchange for this promise, Montgomery

agreed to advise and testify as a witness about the deaths of

Miller, Newcomer, and Levato.

The second piece of evidence is a police report prepared

by Trooper Michael K. Steffee of the Pennsylvania State Police

on January 8, 1980, recording his interview with Montgomery.

This interview occurred before Montgomery began to

cooperate with authorities. At this time, Montgomery told

Steffee that after he joined Lesko and Travaglia in the hotel

room, Travaglia asked if he wanted a gun, and “[t]hat is when

I should have known something was wrong.” J.A. 4734.

Montgomery went on to say, “I don’t know anything about the

cop getting shot or any armed robberies.” Id.

The last is Rutherford’s juvenile file. Lesko believes

that three pieces of this file are particularly important: (1) notes

reporting that on November 27, 1980, and December 29, 1980,

Rutherford was allowed to leave the Juvenile Detention Center

for five hours to spend time with his family; (2) a copy of a

letter from one of the prosecutors to Rutherford’s attorney

stating that “a disposition of this case prior to the completion

of the first trial in the matter of Michael Travaglia and John

Lesko would be too risky from a prosecution standpoint,” id.

at 4755; (3) an “Application to Transfer Case to Juvenile

Court,” in which Rutherford’s counsel claimed that transfer

was necessary because Rutherford’s “medical and psychiatric

condition require that, if convicted, he not be confined to

custody along with adults and that he be given adequate

opportunity for medical and psychiatric treatment.” Id. at 4762.

26

Lesko argues that, had the prosecution disclosed this

evidence, he would have been able to mount more effective

cross-examinations of Montgomery and Rutherford, which

would have helped his case in both the guilt and sentencing

phases.

The PCRA Court concluded that the Commonwealth

violated Brady with respect to these items. The Court

explained that this evidence would have called into question

testimony from Montgomery and Rutherford and undermined

the case that Lesko possessed the requisite intent for first-

degree murder. On appeal, the Pennsylvania Supreme Court

determined that Lesko’s claims concerning Montgomery’s

agreement and Rutherford’s juvenile file were time-barred, see

Lesko XIII, 15 A.3d at 371, and that the Steffee report was not

material, see id. at 372. The Supreme Court acknowledged that

Montgomery’s earlier statement that he knew nothing about a

police officer’s being shot would have been useful to impeach

his testimony that Travaglia had admitted to shooting an officer

and that Lesko had said he wanted to. However, the Court

concluded that “Montgomery’s earlier non-cooperation with

police would not have made his in-court testimony disappear,

nor would it have altered the overall volume of abundant,

independent evidence offered at the 1981 trial establishing

Lesko’s course of conduct and intent.” Id.

The District Court, addressing the claims in the § 2254

proceedings, agreed that the withheld evidence was not

material. Starting with Rutherford’s file, the Court found the

fact Rutherford received two short furloughs to be

insignificant. It also concluded that the attorney’s statement

about psychiatric conditions was mere boilerplate and that

Lesko had not shown that Rutherford had any such condition.

See Lesko XIV, 2015 WL 249502, at *18. The Court further

ruled that the prosecutor’s letter did not say anything that

27

Lesko did not already know because Rutherford testified at

some length that he was facing charges for murder and that the

district attorney had agreed that his case would be disposed of

in juvenile court if he testified truthfully in Lesko’s case. See

id. The Court also determined that Officer Steffee’s report was

cumulative of two other reports of police interviews with

Montgomery before he began cooperating in which he also did

not say that Lesko had made any incriminating comments. See

id. at *19. Likewise, the Court concluded that Montgomery’s

agreement was not material because his deal with the

prosecution was discussed in a hearing that was transcribed and

provided to Lesko, see id., and that Montgomery’s testimony

was of limited importance at trial, further reducing the value of

any evidence that could have been used to impeach him, see id.

at 20.

Here, Lesko argues that the crucial issue at trial was his

intent—i.e., that the prosecution in large part sought to prove

his intent through testimony from Montgomery and

Rutherford, and that the withheld evidence was material

because it would have caused the jury to question that

testimony. More specifically, Lesko contends that “[h]ad the

Steffee Report and the written agreement been disclosed,

defense counsel could have argued that Montgomery’s

testimony was fashioned to ensure the benefit of an extremely

favorable immunity deal, because Montgomery’s initial

account of his interactions with Lesko—before the deal was

worked out—was devoid of inculpatory evidence.” Br. at 47.

And “[t]he defense could have made similar arguments about

Rutherford’s testimony had the full benefits of his deal been

disclosed, i.e., that he literally walked away from two murder

charges shortly after Lesko’s trial.” Id. at 54. Lesko also argues

that “the juvenile file could have been used as evidence of

28

Rutherford’s psychiatric illness to challenge his credibility and

his ability to accurately report events.” Id.

The Commonwealth’s argument largely tracks the

District Court’s analysis. It contends that any inquiry into

Rutherford’s psychiatric condition would not have been

fruitful, that there is no evidence his brief furloughs affected

his testimony, that the Steffee report is cumulative, and that the

impeachment evidence concerning Montgomery is of limited

consequence. Br. at 39. The Commonwealth also argues that

“it should have been clear to [Lesko] that it is common practice

to keep pending charges open until the terms of the bargain

have been fulfilled, in this case, Rutherford’s testimony,” Br.

at 46, and that there was no secret deal to drop the charges after

Lesko’s trial, see id. at 46–47.

The key question is whether this undisclosed evidence

was material. The Pennsylvania Supreme Court concluded that

Officer Steffee’s report was not material and that decision is

entitled to AEDPA deference. See Harrington, 562 U.S. at 100.

Because the Supreme Court disposed of the other parts of the

claim—i.e., the written non-prosecution agreement with

Montgomery and the contents of Rutherford’s juvenile file—

on purely procedural grounds, we will review those aspects of

the claim de novo. See Thomas 570 F.3d at 114.

“The ‘touchstone of materiality is a reasonable

probability of a different result.’” Dennis, 834 F.3d at 285

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). “The

materiality of Brady material depends almost entirely on the

value of the evidence relative to the other evidence mustered

by the state.” Johnson v. Folino, 705 F.3d 117, 129 (3d Cir.

2013) (quoting Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir.

2010)). Nevertheless, “[t]he question is not whether the

defendant would more likely than not have received a different

29

verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict

worthy of confidence.” Kyles, 514 U.S. at 434. We consider

materiality based on the collective value of the withheld

evidence. See Dennis, 834 F.3d at 312.

At the outset, the guilt-phase evidence against Lesko

was reasonably strong, albeit largely circumstantial. Under

Pennsylvania law, the elements of first-degree murder are “that

a human being was unlawfully killed, that the accused was

responsible for the killing, and that the accused acted with a

specific intent to kill.” Commonwealth v. Pagan, 950 A.2d

270, 279 (Pa. 2008). Since Travaglia was the one to pull the

trigger, the Commonwealth pursued an accomplice-liability

theory against Lesko. “To establish Lesko’s accomplice

culpability for first degree murder, the Commonwealth was

required to prove that petitioner, with the intent of promoting

or facilitating the commission of first degree murder, aided,

agreed, or attempted to aid Travaglia in planning or

committing the murder of Officer Miller.” Lesko VI, 881 F.2d

at 53; see also Pagan, 950 A.2d at 279. Intent can be proved

solely through circumstantial evidence. See Pagan, 950 A.2d

at 279.

The most compelling evidence of Lesko’s intent—

which is what Lesko seeks to attack here—came from the

surrounding context. As we previously stated, in explaining the

importance of the evidence concerning the Nicholls killing—

The jury could only have fairly evaluated the

Commonwealth’s theory regarding Lesko’s state

of mind by hearing evidence tending to show that

Travaglia and Lesko had jointly embarked that

evening on a crime spree, that they had already

committed a homicide likely to command the

30

death penalty, and that they had in their

possession powerful evidence of their guilt of

that homicide. Moreover, to be in a position to

evaluate Lesko’s state of mind during the critical

moments during the Miller encounter, the jury

needed to hear sufficient details about these

matters to be able to appreciate the nature of the

evening’s joint undertaking, the relationship and

mood of the participants, and the extent of the

criminal exposure of those participants in their

apprehension by Miller.

Lesko VI, 881 F.2d at 54. This evidence—as well as the fact

that Lesko and Travaglia stopped to get another gun and Lesko

determined that birdshot was insufficient for their purposes—

strongly points toward Lesko’s guilt.

That evidence was reinforced by two statements from

Lesko. First, Rutherford testified that, when the car chase with

Miller began, Lesko warned him to “lay down in the back,

because it might turn into a shooting gallery.” J.A. at 589. This

statement, of course, tended to show that Lesko anticipated that

the episode with Miller would turn violent. Second,

Montgomery testified that, after Travaglia told him that he had

shot a cop, Lesko said, “I wanted to.” Id. at 680. This comment,

although made after the fact, also supported the notion that the

killing was a joint enterprise.

Lesko argues that the three pieces of Brady evidence

were material because they would have helped him impeach

Montgomery and Rutherford and thus cause the jury to

disbelieve their testimony. We will discuss the significance of

each piece of evidence in turn, then consider the importance of

the evidence in combination. See generally Kyles, 514 U.S. at

437 n.10 (“We evaluate the tendency and force of the

31

undisclosed evidence item by item. . . We evaluate its

cumulative effect for purposes of materiality separately and at

the end of the discussion[.]”).

1. Montgomery’s Non-Prosecution Agreement Is Not

Material

In this agreement, the Commonwealth promised that, in

exchange for Montgomery’s testimony in the Lesko trial, it

would not prosecute him for his involvement in property

crimes that occurred in December 1979 or January 1980. Lesko

argues the existence of this deal could damage Montgomery’s

credibility. See, e.g., Giglio v. United States, 405 U.S. 150,

154–55 (1972); Simmons v. Beard, 590 F.3d 223, 236 (3d Cir.

2009).

The force of this evidence is weakened by the fact that

Lesko possessed a copy of a transcribed hearing involving

Montgomery and the assistant district attorney that covered the

same ground. In that hearing, Montgomery affirmed that his

attorney had explained to him “the extent of the agreement and

statement of intent,” which “pertain[ed] to crimes and offense

generally described as offenses against property, such as

burglary, robbery and theft and similar crimes.” J.A. at 4444–

45. Montgomery went on to acknowledge that he was required

to answer the prosecution’s questions truthfully, and then gave

his account of his interaction with Lesko and Travaglia, which

was similar to his testimony at trial.10

10

Montgomery also testified that Lesko had told him the

day before the shooting that he and Travaglia had a contract to

kill a cop, which Montgomery said “scare[d] the hell out of

[him],” J.A. at 4461, and that Lesko stated, after the Officer

Miller killing, “I would shoot my own mother if the price was

32

Thus, the suppressed evidence is cumulative of

impeachment evidence that the Commonwealth did produce.

See Johnson, 705 F.3d at 129 (“Suppressed evidence that

would be cumulative of other evidence . . . is generally not

considered material for Brady purposes.”). Although the

agreement is somewhat more precise than the hearing

testimony, the marginal value of this added specificity does not

undermine the fairness of the trial. See, e.g., Landano v.

Rafferty, 856 F.2d 569, 574 (3d Cir. 1988) (considering

impeachment evidence immaterial under Brady where the

“marginal effect in diminishing [the witness’s] perceived

credibility would have been negligible”).

Moreover, Montgomery’s testimony, while helpful to

the prosecution, was not vital. Rutherford’s testimony was

much more important in establishing Lesko’s intent than

Lesko’s after-the-fact statement to Montgomery. Accordingly,

the evidence about the agreement and the statement of intent is

not material. See, e.g., Smith v. Cain, 565 U.S. 73, 76 (2012)

(“We have observed that evidence impeaching an eyewitness

may not be material if the State’s other evidence is strong

enough to sustain confidence in the verdict.”).

2. Officer Steffee’s Report is Not Material

In this document, Officer Steffee wrote that, when

questioned by police on January 8, 1980, Montgomery said, “I

don’t know anything about the cop getting shot or any armed

robberies.” J.A. 4734. This, of course, contradicts

Montgomery’s testimony at trial that Travaglia had told him

that he had shot a cop and that Lesko had said he wanted to,

and thus would have been useful impeachment evidence.

right.” Id. at 4466. For reasons that are not provided in the

record, Montgomery did not mention these statements at trial.

33

Again, however, the Commonwealth produced similar

materials to Lesko: police reports from January 4, 1980, and

January 5, 1980, in which Montgomery described how

Travaglia had given him the gun without mentioning a

shooting.

Lesko argues that Officer Steffee’s report would have

been somewhat more useful on cross-examination than the

other two reports because, unlike the other reports, it would

have allowed the defense to cross Montgomery about a

contradiction rather than a mere omission.

We cannot agree that Officer Steffee’s report is material

because in its absence, the trial still “result[ed] in a verdict

worthy of confidence.” Kyles, 514 U.S. at 434. The trajectory

of Montgomery’s statements is clear: he initially denied

knowing anything about Officer Miller’s shooting then, after

obtaining counsel and entering into a cooperation agreement,

changed course and testified that Lesko and Travaglia made

incriminating statements.11 The defense could have made this

point without Officer Steffee’s report; counsel could have

asked, for instance, “When the police interviewed you on

January 4 (or 5), 1980, you didn’t tell them that Lesko stated,

‘I wanted to,’ did you? You added these details to your

statement after you entered into an agreement with the district

attorney, right?” Those questions would have made the same

point—that Montgomery should not be believed because he

11

At the PCRA hearing, Montgomery readily admitted

to having changed his statements. When asked whether his

statement that Lesko and Travaglia had not told him about

killing anyone was true, he flatly responded, “No sir, that’s not

so, that they didn’t tell me that, because, yes, sir, it was told.”

J.A. 3691.

34

tailored his testimony to curry favor with the prosecution—as

any questions based on Officer Steffee’s report. See generally

United States v. Georgiou, 777 F.3d 125, 140 (3d Cir. 2015)

(“To the extent Appellant argues that additional information

about the intensity or duration of Waltzer’s substance abuse

may have impacted the trial’s outcome, he explains neither

why he did not probe these issues more fully on cross

examination, nor why such new information would have

changed the trial’s outcome when the substance abuse

evidence that was set out at trial did not.”).

In short, the added value of Officer Steffee’s Report is

too insignificant to render it material, a conclusion which is

reinforced by the relatively minor importance of

Montgomery’s testimony in the overall scheme of trial.

3. The Three Items in Rutherford’s Juvenile File Are

Not Material

Lesko next argues that, had the prosecution produced

Rutherford’s juvenile file, he could have impeached him based

on (1) his receiving two five-hour furloughs, (2) his attorney’s

stating in a legal filing that he had a psychiatric condition, and

(3) the prosecutor’s stating that the juvenile case should not be

disposed until after Lesko’s trial.

The first two items are not compelling. First, the jury

was informed that Rutherford was cooperating with the

Commonwealth and that, in return for his cooperation, his case

would proceed in Juvenile Court. It is unlikely that the fact that

he also received two short furloughs would have caused the

jury to view his testimony any differently. See United States v.

Walker, 657 F.3d 160, 186 (3d Cir. 2011) (concluding that

evidence of further non-prosecution was not material on the

ground that it would have “little, if any, probative value

because it is impeachment by the same avenue already taken

35

by the defendants, namely Rhoades’s motivation for testifying

against the Walkers as part of a bargained-for reduction in

criminal penalties” (quotation marks omitted)).

Second, the pertinent statement from Rutherford’s

Application to Transfer Case to Juvenile Court, in full,

provides that “the applicant’s medical and psychiatric

condition require that, if convicted, he not be confined to

custody along with adults and that he be given adequate

opportunity for medical and psychiatric treatment.” J.A. 4762.

This was one of four grounds that counsel claimed justified

transferring the proceedings to Juvenile Court; the filing did

not further elaborate upon any psychiatric condition.

This document would have been sufficient to permit

Lesko’s counsel to have asked Rutherford about his psychiatric

condition on cross-examination. In general, counsel must have

a “good faith basis” to ask a question on cross, see

Commonwealth v. May, 887 A.2d 750, 763 (Pa. 2005), and this

filing meets that standard. See generally Cogley v. Duncan, 32

A.3d 1288, 1292 (Pa. Super. Ct. 2011 (“The general rule is that

admissions of fact in pleadings are admissible, but that the

pleader’s conclusions of law are not admissions of facts in

issue.”) (citation omitted); cf. J.A. at 4150 (prosecutor’s

arguing at the PCRA hearing that “I would object to that, Your

Honor, because I don’t know how he would cross examine him

on an application that’s made by his lawyer and is not signed

by the witness himself.”).

Nevertheless, evidence of a witness’s mental health will

be material only if it “undermines [the witness’s] reliability

[]or calls into question his ability to perceive, remember and

narrate perceptions accurately.” Georgiou, 777 F.3d at 141

(citation and quotation marks omitted). Lesko has possessed

this document since at least 2002 but has never presented any

36

evidence that Rutherford suffered from a psychiatric condition

that would affect his ability to testify accurately. It is therefore

pure speculation to conclude that this document, either on its

own or as a way of prompting counsel to investigate the matter

further, would have served to undermine Rutherford’s

credibility. This is not enough to show materiality. See Riley v.

Taylor, 277 F.3d 261, 302 (3d Cir. 2001) (holding that

evidence was not material because its exculpatory nature was

too speculative); United States v. Brown, 250 F.3d 811, 817–

818 (3d Cir. 2001) (concluding that evidence was not material

in part because it showed only “the possibility of an alibi

defense” rather than “demonstat[ing] the [the petitioner] had

an alibi”).

Lesko’s argument about the letter from the prosecutor

to Rutherford’s counsel is somewhat more complicated. The

Commonwealth interprets the letter to say only that

Rutherford’s case in Juvenile Court would remain open until

after Lesko’s case had concluded. That fact was squarely

addressed at trial, so having another document making the

same point could not have affected the verdict. See, e.g.,

Walker, 657 F.3d at 186 (noting that cumulative impeachment

evidence is not probative).

Lesko also argues that the letter reflects an agreement

that all charges against Rutherford would be dismissed after

Lesko’s trial. We disagree. The letter purports to confirm a

telephone conversation between Rutherford’s attorney (John

Murtagh) and the prosecutor; the prosecutor states that it was

his “[f]eeling that a disposition of this case prior to completion

of [Lesko’s trial] would be too risky from a prosecution

standpoint.” J.A. 4755. The relevant section of the Juvenile Act

(both now and at the time the prosecutor wrote the letter) refers

to the outcomes of cases involving delinquent children as

“dispositions.” See 42 Pa. Cons. Stat. § 6352 (in section titled

37

“Disposition of delinquent child,” stating that “[i]f the child is

found to be a delinquent child the court may make any of the

following orders of disposition.”). Authorized “dispositions”

range from returning the child home with new conditions to

committing the child to an institution. See id. Thus, the most

natural reading of the letter is that it refers simply to resolving

Rutherford’s case, not dismissing the charges, as Lesko argues

here.

This interpretation is also supported by the other

evidence in the record. The letter followed a phone call

between the prosecutor and Rutherford’s attorney, Murtagh. In

an affidavit, Murtagh later stated that “[b]ased on [the

prosecutor’s] communication with me, I understand that the

Commonwealth believed that, if Mr. Rutherford’s case was

resolved before he testified against Mr. Lesko and Mr.

Travaglia, there was a substantial chance he would not testify

against them.” April 3, 2002, affidavit. This statement is

consistent with the Commonwealth’s interpretation of the

letter, not Lesko’s. Murtagh’s testimony at the PCRA hearing

was similar. Likewise, at the 1995 resentencing, Lesko’s

attorney asked Rutherford, “And you received no punishment

for these two murders because you made a deal with the

District Attorney, didn’t you?” J.A. 2165. Rutherford

responded, “The deal was that I would be tried as a juvenile.

There was no other deal.” Id.

In sum, Lesko has not shown that there was any

agreement to dismiss the charges against Rutherford.

Accordingly, this Brady claim also fails. See Simon v. Gov’t of

the V.I., 929 F.3d 118, 127 (3d Cir. 2019) (“[F]avorable

treatment alone is insufficient to state a Brady claim.”);

Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (“The

government is free to reward witnesses for their cooperation

with favorable treatment in pending criminal cases without

38

disclosing to the defendant its intention to do so, provided that

it does not promise anything to the witnesses prior to their

testimony.”).12

4. The Cumulative Prejudice Would Not Have

Affected The Verdict

Viewing the evidence in combination does not change

our analysis in a meaningful way. Even if the prosecution had

produced Montgomery’s agreement and Officer Steffee’s

report, it is unlikely that the jury would have doubted

Montgomery’s statement or changed its view of Lesko’s guilt.

The same is true as to Rutherford’s juvenile file. His furloughs

and his attorney’s statement concerning possible psychiatric

issues are of only trivial value as impeachment evidence.

Moreover, the natural interpretation of the letter between the

prosecutor and Rutherford’s attorney memorialized only an

agreement to wait to resolve the juvenile case until after

Lesko’s trial—information that was already shared with the

jury. Accordingly, Lesko has failed to show that this evidence

is material even when viewed collectively.

5. The Suppressed Evidence Did Not Affect The

Sentencing Phase

Lesko also argues that this evidence was material at the

sentencing phase. Again, we disagree. If anything, Lesko’s

argument is weaker in this context. The jury had already found

that Lesko was guilty of first-degree murder. At sentencing, the

12

As previously noted, the fact that the Commonwealth

had promised to resolve Rutherford’s case in Juvenile Court

after Lesko’s trial was cumulative of evidence already

presented to the jury. Thus, to the extent that this letter merely

restates that point, it was not material. See Johnson, 705 F.3d

at 129.

39

jury was focused on the statutorily prescribed aggravating and

mitigating factors, and it sentenced Lesko to death because it

concluded that the aggravating factors (that he committed

several previous violent felonies and killed two other

individuals before Officer Miller’s murder) outweighed the

mitigating factors (that he was under the influence of extreme

mental or emotional disturbance, had an awful childhood, and

had behaved well in prison). It is our opinion that this relatively

weak impeachment evidence would not have affected the

jury’s overall balance of those factors.13

13

In its COA grant, the District Court authorized Lesko

to appeal the denial of his claim that counsel had performed

ineffectively by failing to properly cross-examine

Montgomery and Rutherford. However, Lesko has not

presented any argument in support of that claim in his brief and

has therefore forfeited the claim. See, e.g., In re Wettach, 811

F.3d 99, 115 (3d Cir. 2016). Regardless, the claim lacks merit.

It is primarily directed toward counsel’s alleged deficient

performance in failing to cross-examine Montgomery more

fully. However, it is easy to see why counsel would have kept

his cross-examination of Montgomery brief: on direct

examination, Montgomery did not include the much more

damaging comments he made during the hearing about Lesko’s

saying that he had a contract to kill a police officer and that he

would kill his mother if the price were right. Further, there was

some indication that Montgomery had participated in prior

robberies with Lesko and Travaglia, and counsel could also

have reasonably wished to avoid informing the jury about those

incidents.

40

C. Lesko’s Claim That Trial Counsel Was Ineffective By

Violating His Right To Testify

On his second guilt-phase claim, Lesko contends his

counsel prevented him from testifying at his trial. The

possibility that Lesko would testify was first raised to the court

near the end of trial, when Lesko’s lawyer, Marsh, stated:

I would like to reiterate on the record what I

advised the Court this morning and off the record

this afternoon; that it was my advice to John

Lesko that if Michael Travaglia did not testify

that he should not testify. I have many good

reasons for it, both legal and tactical, and I am

not sure whether my client is going to follow my

advice. And I will need to spend some time with

him to find out what he wants to do. Hopefully,

he will follow my advice.

J.A. 1222-23. Travaglia conferred with his counsel and decided

not to testify. Marsh then said:

I have discussed with my client the possibility of

his taking the witness stand in his own behalf, so

he knows he has that right. He told me he does

wish to take the witness stand in his own behalf.

And I advised him that that is the wrong thing to

do in this case for legal and tactical reasons. He

has told me he will follow my advice reluctantly,

but he will follow my advice.

J.A. 1227. Lesko did not testify.

Lesko claims that his lawyer failed to properly advise

him that it was his decision whether to testify. Before the

PCRA court, Lesko testified that counsel “never discussed with

me that I had the right to testify,” even though Lesko expressed

41

his desire to do so. J.A. 4241. Lesko said he wanted to refute

Rutherford’s testimony that Lesko had said that the car was

about to become a shooting gallery shortly before Officer

Miller was killed, and also Montgomery’s testimony that

Lesko had said that he wanted to shoot the officer. According

to Lesko, Marsh closed the defense case without his consent

and without giving him a chance to take the stand.

Marsh offered little response to these allegations. In the

PCRA proceedings, he testified that he had no “independent

recollection” of Lesko’s desire to testify. J.A. 2874. The PCRA

court granted relief to Lesko, concluding that Lesko’s

recounting of how he wanted to testify was credible. The court

found that Lesko was prejudiced by counsel’s alleged

interference because he could not “rebut the testimony of Mr.

Montgomery and Mr. Rutherford that [Lesko] made statements

that demonstrated his intent to commit first degree murder.”

J.A. 168.

The Commonwealth appealed. The Pennsylvania

Supreme Court held that the claim was untimely and did not

address its merits. See Lesko XIII, 15 A.3d at 359-60. Lesko

then asserted the claim in his federal habeas proceedings. The

District Court assumed counsel had performed deficiently by

preventing Lesko from testifying but concluded that he had not

been prejudiced. It reasoned that even if Lesko took the stand

to deny making the statements Rutherford and Montgomery

attributed to him, he would not have been able to refute the

other evidence establishing his intent, “including the details of

the horrific crime spree the defendants embarked upon when

they abducted Nicholls, then murdered him, then stole the

handgun that would subsequently be used to kill Officer Miller,

then stole bullets that could be used with the gun, and then

goaded Officer Miller into chasing them.” Lesko XIV, 2015

WL 249502, at *25. The Court further determined that it was

42

unlikely that Lesko’s testimony about his side of the story

would have meaningfully advanced his defense. That is,

because Lesko’s statement to police after his arrest was

admitted as evidence, the jury already knew that he claimed the

plan had been only to draw Officer Miller away from the

convenience store to rob it; the jury simply did not credit that

account. See id. at *26.

Before us, Lesko once again claims that his counsel

rendered ineffective assistance by interfering with his right to

testify. Under Strickland v. Washington, 466 U.S. 668 (1984),

Lesko must show that counsel performed deficiently and that

he was prejudiced by that deficiency. Palmer v. Hendricks, 592

F.3d 386, 394 (3d Cir. 2010). Because the Pennsylvania

Supreme Court rejected this claim as time-barred and did not

address its merits, AEDPA’s deferential standards do not

apply. See id. at 400. However, the PCRA court’s factual

findings—that Lesko told Marsh he wanted to testify but

Marsh overrode Lesko’s decision—are still presumed to be

correct under § 2254(e)(1). See Nara v. Frank, 488 F.3d 187,

201-02 (3d Cir. 2007).

It is an open legal question whether the Commonwealth,

as opposed to a habeas petitioner, may rebut the presumption

of correctness. See id. at 202. Today, however, we need not

decide the question. Even if we were to accept the PCRA

court’s findings and conclude that counsel performed

deficiently by interfering with his client’s right to testify,

Lesko cannot prevail. He fails to establish prejudice. See

Palmer, 592 F.3d at 394 (courts may resolve a Strickland claim

by concluding that prejudice has not been established).

In evaluating prejudice, we consider Lesko’s proposed

testimony in the context of the other evidence presented at trial.

See id. at 399. Lesko argues that if he was allowed to testify,

43

there is a reasonable probability that the result would have been

different, because he “would have spoken to the central dispute

at trial, would have explained his state of mind and his

relatively minor role in the offense, and would have undercut

the credibility of the principal witnesses against him,”

Rutherford and Montgomery. Br. 59.

There is no question that a defendant’s own testimony

is significant. We have stated that it “is very likely to be highly

important” and, “‘as a general matter, it is only the most

extraordinary of trials in which a denial of the defendant’s right

to testify can be said to be harmless beyond a reasonable

doubt.’” Palmer, 592 F.3d at 399 (alteration omitted) (quoting

Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991)). At the

same time, a finding of prejudice is hardly foreordained. In

Palmer, we recognized the importance of the defendant’s

testimony but nevertheless concluded that the defendant failed

to establish prejudice. See id. at 394. There, counsel failed to

advise the defendant that he controlled the decision whether to

testify. See id. The defendant later asserted that had he been

properly advised, he would have told the jury his side of what

happened when a bar fight broke out and he fired a gun, killing

one person and injuring another. See id. at 388, 390. That

conclusory assertion, however, was insufficient to establish

prejudice. A mere “desire to tell his side of the story” was not

enough on its own. Id. at 395. Nor was his “conclusory

invocation of the words ‘self-defense”—an “unadorned legal

conclusion”—without detailed factual analysis of how the

testimony would have swayed a juror. Id. We also rejected the

contention that prejudice should be presumed or a reversal

automatic when a defendant’s right to testify has been violated.

See id. at 397. Rather, we applied the Strickland standard,

which requires that a defendant “affirmatively prove

prejudice.” Id. at 398 (quoting Strickland, 466 U.S. at 693).

44

Palmer is instructive. Lesko has repeatedly asserted that

it was critical for him to testify that he did not say the words

that Rutherford and Montgomery attributed to him. However,

a “stated desire to tell his side of the story ‘falls far short of

satisfying Strickland’s prejudice element.’” Id. at 400 (quoting

Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001)). Lesko

does go farther than the Palmer petitioner, saying he would

have denied Rutherford’s and Montgomery’s statements,

which the Commonwealth relied upon to show he possessed

the intent to commit first-degree murder. But ultimately, he

fails to show prejudice.

At the outset, is it questionable that the jury would

believe Lesko’s self-interested denials rather than the

testimony of Rutherford and Montgomery, especially because

Lesko apparently did not plan to contest the veracity of any

other part of their detailed factual narratives. Moreover, the

record indicates that Lesko would not have been a persuasive

witness. Brian O’Leary, co-counsel at Lesko’s resentencing,

who spent hours interviewing Lesko and saw him testify at his

1995 resentencing, has since described Lesko as having “a

flatness to his personality I had never encountered in a human

being before.” J.A. 3127. And, according to O’Leary, the

“pivotal moment” where the mitigation case was lost was when

Lesko crumbled under cross-examination. J.A. 3127. A

lawyer’s judgment about how effective his client’s

hypothetical testimony may have been is meaningful in

evaluating prejudice. See El-Tabech v. Hopkins, 997 F.2d 386,

390 (8th Cir. 1993). So too is the fact that a defendant projects

flatness when describing something so weighty as a violent

homicide. See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th

Cir. 2009) (holding that petitioner failed to establish prejudice

because, in part, he had a “flat” affect and would have

45

described the killing of his wife in a “matter-of-fact” and

“disinterested” manner).

Putting Lesko on the stand also came with other risks.

Even if he could effectively rebut Rutherford’s and

Montgomery’s statements by testifying that he did not know

Travaglia intended to shoot Officer Miller, Lesko still would

have faced hazardous cross-examination about the Nicholls

killing. Lesko’s confession to police showed that his role in it

was even greater—and more horrifying—than Rutherford

knew. While Rutherford’s testimony and Lesko’s confession

would congruently establish that Lesko beat, mocked, and

tortured Nicholls and that Nicholls perished at the lake after

Lesko and Travaglia dragged him away, cross-examining

Lesko with the details of his confession would paint the final

moments of Nicholls’ life in even more gruesome detail. Lesko

admitted to police that he had knocked Nicholls unconscious

but knew the man to still be alive when they dragged him down

to the lake. Lesko confessed that he knew the plan was to kill

Nicholls at the lake. Lesko admitted that he attached a 150-

pound brick to Nicholls by tying it to his torso before throwing

him head-first into the frozen waters. Lesko watched Nicholls

resurface once and then disappear back into the water, never to

return. A painstaking blow-by-blow of those details would

likely dispense of any sympathy the jury might have felt for

Lesko. Moreover, Lesko’s purposeful conduct in Nicholls’

torture and murder would also directly aid the prosecution in

establishing Lesko’s premeditated intent when he helped steal

Travaglia’s father’s gun, returned for lethal ammunition to

replace the birdshot inside it, and then participated in the

goading and killing of Officer Miller. Nicholls’ drawn-out

murder—which occurred just hours before Miller was

murdered—would only buttress the Commonwealth’s case that

Lesko knew and intended exactly what would transpire.

46

Lesko’s testimony may have opened the door to other

damning evidence as well. Though Lesko had been involved

in the Levato and Newcomer killings, evidence of those crimes

had been excluded as impermissible character evidence. But if

Lesko took the stand, he might have said something which

would have opened the door to this evidence coming in for the

permissible purpose of impeachment. Commonwealth v.

Nypaver, 69 A.3d 708, 716 (Pa. Super. Ct. 2013) (“A litigant

opens the door to inadmissible evidence” if his testimony

“creates a false impression refuted by the otherwise prohibited

evidence.”). This was a potentially catastrophic risk which we

properly consider in the prejudice analysis. See Smith v.

Dickhaut, 836 F.3d 97, 107 (1st Cir. 2016); Medley v. Runnels,

506 F.3d 857, 861 (9th Cir. 2007).

Finally, even assuming that the jury would have

believed Lesko over both Rutherford and Montgomery and that

Lesko would have somehow dodged the perils of cross-

examination, there still would be substantial evidence to

convict him of intentional, premeditated murder. The jury

knew that Lesko and Travaglia had jointly engaged in a multi-

day killing spree, had just stolen a gun which Lesko took pains

to ensure was equipped with the bullets necessary for a fatal

shooting, and had just intentionally killed Nicholls when they

made multiple efforts to get Officer Miller to chase them. This

is not a case where trial evidence was scant, see Nichols v.

Butler, 953 F.2d 1550, 1554 (11th Cir. 1992), nor was it one

where the defendant’s testimony would have been an

affirmative denial of involvement in the crime, see Owens v.

United States, 483 F.3d 48, 59-60 (1st Cir. 2007). “Strickland’s

second prong requires a petitioner to show that the errors were

‘sufficiently serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.’” Palmer, 592 F.3d at 394

(quoting Strickland, 466 U.S. at 687). On balance, the jury’s

47

decision to convict was not rendered unreliable by any

violation of Lesko’s right to testify.

D. Lesko’s Claim That Counsel Was Ineffective At His

Resentencing

Lesko also contests his 1995 resentencing, claiming

ineffective assistance of counsel. At resentencing, Lesko was

once again represented by Attorney Marsh—who had

previously represented Lesko in his initial guilt and sentencing

proceedings—as well as Brian O’Leary. According to

O’Leary, Marsh called him less than five days before jury

selection for the resentencing and asked him to be his co-

counsel. Despite never having handled a criminal matter or a

trial, O’Leary agreed. He soon realized that their “backs were

against the wall”: trial was just days away, and Lesko’s counsel

still did not have an expert report from their mental health

expert. J.A. 3036. O’Leary was in “panic” at the level of

preparation undertaken. J.A. 3036. He believed that Marsh had

failed to adequately prepare a mitigation case. O’Leary

interviewed Lesko and learned that “none of the people or

institutions that [he] had come to learn about in [his] interview

with [Lesko] had been contacted” directly by Marsh. J.A. 3045.

Marsh also failed to obtain Lesko’s records from Allegheny

County Children and Youth Services, and appeared “burnt

out,” with O’Leary describing the case as being like a “ball and

chain” for Marsh who just wished to be “relieved of [its]

burden.” J.A. 3125.

O’Leary sought to right the ship. He contacted several

of Lesko’s family members and other key characters, but the

limited time before trial did not allow for the extent of

interviewing and preparation O’Leary desired. He also

subpoenaed Lesko’s CYS records, but they did not arrive until

trial was already underway.

48

Marsh had made some efforts to present a mitigation

case, however. In 1992, he hired Alfonso Associates to

complete a psychosocial assessment of Lesko. As with other

parts of pre-resentencing preparation, this was not without

problems. According to the founder of Alfonso Associates,

Marsh failed to communicate and failed to pay the firm’s bill,

so in late 1992 or early 1993, they stopped working on Lesko’s

case. Once work resumed in October 1994, Alfonso’s founder

was “taken aback by the short time that [they] had,” and

decided to assign case worker Lois Nardone, who had a

master’s degree and some familiarity with the case, to handle

it. J.A. 3770. Nardone testified that she “was uncomfortable

with the amount of time” she had to work up the case, believing

it “insufficient.” J.A. 3897. During the four months she had to

prepare a social history report of Lesko, she also had little

communication with Marsh. And, because Alfonso previously

had trouble getting paid, the firm limited the amount of work

Nardone could do. Nardone later admitted that, based on her

constraints in time and funding, she “did an insufficient

investigation.” J.A. 3958.

Marsh also hired clinical and forensic psychologist Dr.

Herbert Levit to examine Lesko. After performing multiple

psychological tests, Dr. Levit diagnosed Lesko with borderline

personality disorder: “a person who is emotionally explosive at

times, has erratic behavior, engages in behavior which is

contrary to society’s standards, is frequently immature, and has

had difficulty in adjusting.” J.A. 2410-11. He further opined

that, at the time of the crimes, Lesko was suffering from

polysubstance dependence—he was using drugs and alcohol

consistently and excessively, to the point that his functioning

was impaired. According to Dr. Levit, Lesko, despite being 21

at the time of the murders, “was emotionally a teenager at

best.” J.A. 2414. He suffered from diminished capacity—the

49

“ability to think clearly, rationally, logically and in a mature

manner.” J.A. 2415. Dr. Levit concluded that Lesko was

“sufficiently under the influence of alcohol, drugs[,] and the

trauma of having discovered what happened to his [molested]

brother, which triggered off some of the feelings as to what

happened to himself, so that his ability to conform to [the law]

was justly impaired.” J.A. 2415-16.

Thus, at resentencing, Marsh and O’Leary presented a

multi-faceted mitigation case that included: (1) a sympathetic

narrative of Lesko’s life, as retold by investigator Nardone; (2)

family member testimony buttressing that narrative; (3) expert

testimony from a competent psychologist; and (4) Lesko’s own

words. The jury found four aggravating factors and four

mitigating factors, and ultimately voted for death.

Lesko claims his counsel performed ineffectively by

failing to prepare and present his mitigation case in three

overlapping and self-reinforcing ways. First, he says Marsh

and O’Leary failed to identify and advance an argument that

he suffered organic brain damage. Second, he says they failed

to interview or adequately prepare fact witnesses who knew

him. Third, he says they failed to timely acquire and use his

CYS records. Lesko also alleges that he suffered prejudice

from the cumulative effect of these errors.

The PCRA court granted relief, concluding that Lesko’s

counsel failed to develop and present mitigating evidence, and

that “there is a reasonable probability that the outcome of the

proceedings would have been different if [his] counsel had

adequately prepared.” J.A. 163. The Pennsylvania Supreme

Court reversed. It concluded that counsel was not deficient in

the mitigation case they did put on. Describing that mitigation

case, the Court observed that Lesko’s lawyers presented

persuasive testimony from Nardone, who detailed Lesko’s life

50

and trauma, and from Dr. Levit, who had been qualified as an

expert witness in several hundred court proceedings. See Lesko

XIII, 15 A.3d at 381–82. On balance, the Court found as to the

presentation of a mitigation case that counsel “undertook a

reasonable investigation and presented a compelling and partly

successful case in mitigation,” as evidenced by the jury finding

multiple mitigating factors. Id. at 381. As to organic brain

damage, the Court held, any qualms with Marsh’s failure to

discover it were properly directed at Dr. Levit, and counsel was

not ineffective for relying on a qualified expert who missed a

diagnosis. See id. at 382.

The Court further concluded that even if counsel had

performed deficiently, Lesko had not been prejudiced:

Faced with the aggravating circumstances where

the defendant has been found guilty of multiple

murders occurring within a one-week period,

including the cold-blooded murder of an on-duty

police officer, and the case in mitigation already

successfully presented, we simply cannot

conclude that Strickland relief can be premised

upon the additional mitigation evidence the

PCRA court found would have carried the day.

Id. at 385.14

14

The decision was not unanimous. Justice Saylor,

concurring in the judgment, found that counsel performed

deficiently but that Lesko had not been prejudiced. See id. at

417-18 (Saylor, J., concurring). Justice Todd dissented,

arguing that Lesko was entitled to a new sentencing hearing

because counsel performed ineffectively by failing to “retain a

neuropsychologist for the purpose of evaluating Lesko and

51

In Lesko’s habeas proceedings, the District Court ruled

that the Pennsylvania Supreme Court’s analysis was neither

contrary to nor an unreasonable application of federal law. “At

the very most, . . . Lesko only show[ed] that the Pennsylvania

Supreme Court arguably reached an incorrect result (although

this Court does not think so, particularly with respect to its

holding that Lesko was not prejudiced by counsel’s alleged

deficient performance).” Lesko XIV, 2015 WL 249502, at *38.

Focusing primarily on prejudice, the District Court held that,

given “the powerful aggravating circumstances presented by

the prosecution, the mitigating evidence that his defense

counsel did present, and the mitigating circumstances that the

jury did find,” Lesko could not show that the Pennsylvania

Supreme Court’s application of federal law was objectively

unreasonable. Id.

Recognizing that under AEDPA, our “‘review must be

doubly deferential’ in order to afford ‘both the state court and

the defense attorney the benefit of the doubt,’” Woods v.

Donale, 575 U.S. 312, 316-17 (2015) (per curiam) (quoting

Burt v. Titlow, 571 U.S. 12, 15 (2013)) (internal quotation

marks omitted), we agree with the District Court. To prevail on

an ineffective assistance of counsel claim, Lesko had to show

that his lawyers performed deficiently and that he was

prejudiced as a result. See Strickland, 466 U.S. at 687.

Deficient performance is shown by proving that the

representation “fell below an objective standard of

reasonableness” under “prevailing professional norms.” Id. at

688. Prejudice requires a showing of a reasonable probability

that, had counsel performed properly, at least one juror would

presenting testimony on organic brain damage.” Id. at 426

(Todd, J., concurring in part and dissenting in part).

52

have found the mitigating factors to outweigh the aggravating

factors. See Jermyn v. Horn, 266 F.3d 257, 309 (3d Cir. 2001).

But we review here not merely with this high standard in mind,

but also cognizant of the deference owed to the Pennsylvania

Supreme Court’s determinations under AEDPA. See

Harrington v. Richter, 562 U.S. 86, 101 (2011). So Lesko must

“show that the state court’s ruling on [his ineffectiveness

claim] was so lacking in justification that there was an error

beyond any possibility for fairminded disagreement.” Burt,

571 U.S. at 19-20 (alterations omitted) (quoting Harrington,

562 U.S. at 103). This standard presents a “formidable barrier

to federal habeas relief,” and here, at least as to prejudice if not

also performance, that barrier has not been cleared. Id.

1. Deficient Performance

In assessing deficient performance, we must keep in

mind the claim at issue: alleged deficiency in failing to develop

and present a mitigation case. Lawyers have “a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. In the death penalty context, prevailing

professional standards call for counsel to make “efforts to

discover all reasonably available mitigating evidence and

evidence to rebut any aggravating evidence that may be

introduced by the prosecutor.” Wiggins v. Smith, 539 U.S. 510,

524 (2003) (quoting ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases, Guideline

11.4.1(C) (1989) (emphasis in original)). The state supreme

court held that Lesko’s team did not run afoul of these duties,

as this was not “a case where counsel conducted minimal

53

investigation and failed to uncover evidence that was

immediately available.” Lesko XIII, 15 A.3d at 381.15

Instead, Attorney Marsh put on a significant mitigation

case and was successful in persuading the jury to find four

mitigating factors. He presented testimony from Dr. Levit,

who interviewed Lesko and his family members and conducted

psychological testing of Lesko. Dr. Levit diagnosed Lesko

with borderline personality disorder and stated his opinion that

Lesko was suffering from polysubstance abuse at the time of

the crimes, all of which led the jury to find as a mitigating

factor that Lesko was under the influence of extreme emotional

or mental disturbance pursuant to 42 Pa. C.S. § 9711(e)(2).

Marsh also presented an account of Lesko’s childhood,

including extensive and compelling testimony from Nardone

as to the conditions under which Lesko lived and the abuse he

suffered; this persuaded the jury to find that Lesko’s horrible

childhood was another mitigating factor pursuant to 42 Pa. C.S.

§ 9711(e)(8). In addition, he provided evidence of Lesko’s

change in character and service to others during his

incarceration, which persuaded jurors to find two additional

mitigating factors under 42 Pa. C.S. § 9711(e)(8).

Lesko contends that his legal team was constitutionally

required to do more. First, he argues that counsel should have

15

“[A] state court conclusion that counsel rendered

effective assistance is not a finding of fact binding on the

federal court”; rather, “it is a mixed question of law and fact.”

Strickland, 466 U.S. at 698. While “state court findings of fact

made in the course of deciding an ineffectiveness claim are

subject to the deference requirement” of § 2254(e)(1), id., the

Pennsylvania Supreme Court here did not make any such

findings related to counsel’s actions before and at resentencing.

54

obtained helpful mitigation testimony from more people who

knew him, specifically, eyewitnesses to his traumatic

upbringing, including siblings who did not testify, a neighbor,

CYS caseworkers, and a priest who supervised him when he

was institutionalized. He also asserts his counsel should have

performed more thorough examinations of those who did

testify. The Pennsylvania Supreme Court determined that

“defense counsel’s ‘decision not to seek more’ mitigating

evidence from the defendant’s background ‘than was already

in hand’ fell ‘well within the range of professionally reasonable

judgments.’” Lesko XIII, 15 A.3d at 386 (quoting Bobby v. Van

Hook, 558 U.S. 4, 11–12 (2009) (per curiam)).

This determination was not unreasonable. As noted

above, Attorney Marsh had retained investigator Nardone, who

interviewed many key figures in Lesko’s life: his mother,

grandmother, sisters, aunt, two teachers, a social worker, a

prison chaplain, and Lesko himself. Marsh testified that he

relied on Nardone to investigate Lesko’s background, which

was appropriate. See Rhode v. Hall, 582 F.3d 1273, 1283 (11th

Cir. 2009) (“Since [defendant’s] counsel hired investigators

who interviewed potential witnesses and shared all of their

information with counsel, we cannot say that counsel

performed deficiently by delegating the mitigation

investigation to them.”).

Contrary to Lesko’s contentions, it appears counsel

made a reasoned judgment in selecting certain individuals from

Lesko’s life to testify, while allowing Nardone to be the

conduit through which the broader arc of his life was told.

Informed, “strategic choices” like this “are virtually

unchallengeable,” Strickland, 466 U.S. at 690, and an

attorney’s decision not to call a witness “is precisely the sort of

strategic trial decision that Strickland protects from second-

guessing.” Sanders v. Trickey, 875 F.2d 205, 212 (8th Cir.

55

1989). Even Attorney O’Leary, who has been highly critical of

Marsh’s performance, reinforced that Marsh’s witness plan

was logical. See J.A. 3061 (“I remember thinking that if

[Nardone] testified well, and she was persuasive, and the jury

was with her, that that would be adequate.”). The decision not

to present additional witnesses is often rooted in strategic

judgment. “[T]here comes a point at which evidence from

more distant relatives can reasonably be expected to be only

cumulative, and the search for it distractive from more

important duties.” Bobby, 558 U.S. at 11. There would also be

risks in having Lesko’s troubled upbringing told through

family members who themselves might have mental and

credibility concerns, rather than through a professional, who

might appear more objective, organized, and composed.

Family members and inexperienced lay witnesses could testify

poorly or lose credibility upon cross-examination. Indeed,

Lesko’s own testimony exemplified these risks. See J.A. 3127

(Attorney O’Leary describing Lesko, as a witness, having “a

flatness to his personality I had never encountered in a human

being before.”). The jury might also wonder why other

members of the family—also having experienced trauma—

were able to conform their behavior to the law while Lesko was

not. While there are reasons to second-guess counsel’s

effectiveness, his witness strategy was not one of them. Thus,

the Pennsylvania Supreme Court’s ruling that counsel

performed adequately in investigating and presenting

mitigation witnesses was not unreasonable.

Next, Lesko, like our dissenting colleague, points out

that Lesko’s team at resentencing—which included

experienced forensic psychologist Dr. Levit—failed to

discover and present mitigating evidence showing that Lesko

suffered from physiological brain damage. His likely brain

damage was subsequently identified when Lesko’s new

56

counsel before the PCRA court retained Dr. Barry Crown, a

practitioner of clinical and forensic psychology and

neuropsychology. Dr. Crown opined that information in Dr.

Levit’s report should have prompted Lesko’s team to conduct

neuropsychological testing to evaluate whether he had brain

damage. For instance, Lesko’s scores fluctuated widely in the

tests that Dr. Levit did perform, a “very strong” indicator of an

organic impairment, according to Dr. Crown. J.A. 4039. Dr.

Crown also stated that other test results—including those

showing that Lesko’s executive functions were inhibited, that

his performance was on a primitive level, and that he was

diagnosed with borderline personality disorder—were “red

flags for brain damage.” J.A. 4044. Dr. Crown himself

concluded to a reasonable degree of neuropsychological

certainty that Lesko had brain damage—a materially different

diagnosis than Dr. Levit’s, and at the PCRA hearing, counsel

for the Commonwealth all but conceded that Dr. Crown was

correct. J.A. 2981 (“I think he’s established that there is

evidence of organic brain damage and it should be tested. I

think we’re beyond that now.”). This evidence is significant,

Lesko maintains, because it could have persuaded jurors to find

as yet another mitigating factor that Lesko’s capacity to

appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was substantially

impaired pursuant to 42 Pa. C.S. § 9711(e)(3).

The problem for Lesko’s argument, however, is that

Marsh was not ineffective in relying on a well-qualified

psychological expert in Dr. Levit, who simply missed the

diagnosis, and that was the basis the Pennsylvania Supreme

Court to conclude that his failure to discover and advance a

brain damage theory at resentencing did not violate Strickland.

We cannot say that conclusion is “so lacking in justification

that there was an error beyond any possibility for fairminded

57

disagreement.” Burt, 571 U.S. at 20 (alterations omitted)

(quoting Harrington, 562 U.S. at 103). As our sister Circuits

have persuasively stated, “An expert’s failure to diagnose a

mental condition does not constitute ineffective assistance

of counsel,” because a defendant “has no constitutional

guarantee of effective assistance of experts.” Earp v. Cullen,

623 F.3d 1065, 1077 (9th Cir. 2010) (expert’s failure to

conclude that defendant had organic brain damage is not

ineffective assistance of counsel). There is no question that

lawyers can and often do reasonably rely on experts, especially

in navigating a field in which they have no training. Nor can

lawyers be expected to catch every possible gap in an expert’s

analysis in a specialized discipline. See Clark v. Mitchell, 425

F.3d 270, 285 (6th Cir. 2005) (concluding that “[i]t was not

unreasonable for [the petitioner’s] counsel, untrained in the

field of mental health, to rely on the opinions of [the

psychological] professionals” counsel retained). Where, as

here, an expert’s report contains no deficiency evident to an

attorney untrained in the field, “forcing lawyers to second-

guess their experts . . . would effectively eliminate the

legitimate role experts play in guiding and narrowing an

attorney’s investigation.” Hendricks v. Calderon, 70 F.3d

1032, 1039 (9th Cir. 1995). It also “would raise the Sixth

Amendment hurdle well above the floor of minimal

competence, requiring attorneys to have the specialized

knowledge to evaluate an expert’s conclusions before relying

upon them in making strategic choices.” Id.16

16

The dissent would hold that Attorney Marsh’s

performance was constitutionally deficient for its failure to

develop this mitigating evidence. In brief, the dissent’s

argument is that the materials Attorney Marsh received from

58

Lesko contends that Marsh had reason to know that

brain damage was a possibility and thus, his reliance on Dr.

Levit was unreasonable. At the outset, we note that there was

no obvious signal which would indicate to counsel that Lesko

needed a brain evaluation beyond what their unquestionably

qualified psychological expert provided. In fact, before Dr.

Levit was even retained, Lesko had been examined by two

mental health experts, and neither indicated any organic brain

damage. Lesko retorts that Marsh received an article from

Professor Welsh White in 1992, which discussed the linkage

between child abuse and brain damage. Professor White, who

had previously assisted Marsh, also sent him a sample motion

to request neuropsychological testing. According to Lesko, this

information should have triggered counsel to dig further.

However, counsel did retain Dr. Levit, and reasonably relied

on him to address these matters. As Marsh explained: “I had to

rely on psychologists for that, to diagnose brain damage, or to

indicate to me that there was a possibility of brain damage.”

J.A. 2883.

Nothing in the materials Professor White provided

suggests that a psychologist like Dr. Levit cannot perform

neuropsychological testing. To the contrary, in the sample

affidavit therein, it was a clinical psychologist who concluded

that the defendant may have brain damage. Thus, Marsh’s

dependency on Dr. Levit to competently evaluate and diagnose

Professor White, which linked child abuse to brain damage,

should have prompted Marsh to second guess Dr. Levit’s

conclusions and to review Lesko’s CYS records. The dissent

would also hold that the Pennsylvania Supreme Court’s

application of Strickland to conclude his reliance on Dr. Levit

was not deficient was itself incorrect and unreasonable.

59

Lesko, while perhaps not peak advocacy, does not amount to

deficient performance, given the “strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689; see

Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir. 2001) (“[I]t was

objectively reasonable for [petitioner’s] trial counsel to rely

upon [a psychological expert’s] diagnosis and, further, trial

counsel’s failure to independently diagnose PTSD [where the

expert did not] was not unreasonable.”). Nor can we question

counsel’s decision to hire Dr. Levit over someone like Dr.

Crown. “The selection of an expert witness is a paradigmatic

example of the type of strategic choice that, when made after

thorough investigation of the law and facts, is virtually

unchallengeable.” Hinton v. Alabama, 571 U.S. 263, 275

(2014) (per curiam) (alterations, quotation marks omitted)

(declining to “launch federal courts into examination of the

relative qualifications of experts hired and experts that might

have been hired”).

Lesko attempts to shift blame for the missed diagnosis

onto his lawyer’s tardiness. He contends Marsh hampered Dr.

Levit’s evaluation by retaining him only days before

sentencing, which resulted in the report not being ready until

after resentencing proceedings had begun (though not before

the mitigation case was to be presented) and which would have

prevented the completion of additional neuropsychological

testing in time for resentencing had Dr. Levit ordered it. Cf.

Escamilla v. Stephens, 749 F.3d 380, 392 (5th Cir. 2014)

(concluding that counsel may have performed deficiently in

part because they “failed to obtain a psychological evaluation

for their client until after trial began”); Collins v. Sec’y of Pa.

Dep’t of Corr., 742 F.3d 528, 550 (3d Cir. 2014). While this

may very well be true, the problem is that Dr. Levit never

opined that Lesko had brain damage, never recommended

60

further testing, and never represented that his analysis was

rendered unreliable by a lack of time. Thus, even if counsel’s

tardiness itself fell below prevailing professional standards,17

it did not cause Dr. Levit to render the expert opinion he did,

nor did it render Marsh’s reliance on that opinion

unreasonable.18

For the reasons we have explained, assessed against the

“doubly deferential” standard under which we review an

ineffective assistance of counsel claim, Titlow, 571 U.S. at 15,

we cannot say that Marsh’s failure to procure a

neuropsychologist notwithstanding the findings of his well-

qualified expert was constitutionally deficient.

Lesko’s final argument gives us pause, however; the

record plainly shows that counsel, without excuse, failed to

timely acquire and use Lesko’s CYS records to advance his

mitigation defense. It appears that the need to obtain these

records never occurred to Attorney Marsh, or if it did, that he

did not prudently act on it. Although Attorney O’Leary

17

To be clear, we do not hold that the late-stage

retention of Dr. Levit was necessarily deficient. As the

Commonwealth has pointed out, some defense lawyers wait to

hire an expert (assuming procedural rules so permit) for

strategic reasons, to limit the time available to the

Commonwealth to hire its own expert. Commonwealth’s Br.

at 65. Reasonable strategic decisions are not to be second-

guessed under Strickland, even where those decisions may

prove to be clearly faulty in hindsight. Abdul-Salaam, 895 F.3d

at 266.

18

To the extent Lesko argues that this delay precluded

Dr. Levit from conducting a thorough review of Lesko’s CYS

records, we address that argument below.

61

ultimately realized the importance of this evidence, he had

joined the team just days before the resentencing and was

unable to acquire the records before the proceedings began.

This left counsel with insufficient time to integrate the records

into their mitigation case and prevented Dr. Levit from having

the opportunity to review those records in a timely fashion.

Lesko relies particularly on Dr. Levit’s testimony at the 1999

PCRA hearing, years after his report. After being confronted

with Dr. Crown’s findings, Dr. Levit testified that if he had

reviewed Lesko’s CYS records before preparing his report he

would have diagnosed Lesko with post-traumatic stress

disorder, failure to thrive syndrome, and substantial

impairment of his ability to appreciate the criminality of his

conduct and to conform his conduct to the requirements of the

law.

Lesko’s lawyers owed it to him to obtain his CYS

records. “Supreme Court precedent makes clear . . . [that]

defense counsel has a duty to obtain administrative records . .

. as part of the ‘obligation to conduct a thorough investigation

of the defendant’s background.’” Blystone v. Horn, 664 F.3d

397, 422 (3d Cir. 2011) (quoting Williams v. Taylor, 529 U.S.

362, 396 (2000)). “[J]uvenile records” are particularly

important, because they provide “the kind of rudimentary

background information that there can be no strategic reason

not to investigate.” Abdul-Salaam v. Sec’y of Pa. Dep’t of

Corr., 895 F.3d 254, 268 (3d Cir. 2018) (internal quotation

marks omitted). The Supreme Court has agreed that counsel

who “failed to conduct an investigation that would have

uncovered extensive records graphically describing [a habeas

petitioner’s] nightmarish childhood” performed deficiently.

Williams, 529 U.S. at 395. Here, Lesko’s lawyers had no

strategic reason nor “reasoned judgment” for failing to timely

subpoena his CYS records. Blystone, 664 F.3d at 423. And

62

once they did arrive, Marsh confessed that he probably spent

about only “an hour or so” reviewing the records, and that he

did not give them to Nardone or Dr. Levit. J.A. 2832; 2834-35,

3917. O’Leary was “not sure [he] even got to go through

them.” J.A. 3048.

In short, counsel’s inexplicable failure to obtain the

CYS records in a timely fashion (and resulting inability to use

them or to allow Dr. Levit to review them) raises doubts as to

his performance. But, as explained below, it did not cast doubt

on the significant and partially successful mitigation case that

counsel did put on, and we need not second guess the

Pennsylvania Supreme Court’s determination as to deficient

performance where, as here, Lesko has not shown that he

suffered prejudice as a result.19

19

The dissent would hold that Marsh’s performance was

ineffective “[b]ecause of [his] delay in obtaining and reviewing

records and in consulting Dr. Levit and because of Marsh’s

failure to follow up on the mitigating issue of brain damage.”

But this fails to give deference to the Pennsylvania Supreme

Court’s decision as required under AEDPA. See § 2254(d)(1).

Indeed, the dissent’s analysis reads like de novo review of

Lesko’s ineffective assistance of counsel claim. This is

improper for a federal habeas court. To obtain habeas relief, “a

state prisoner must show that the state court's ruling on the

claim being presented in federal court was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 562 U.S. at 103. The

Pennsylvania Supreme Court’s ruling undoubtedly meets this

standard. Moreover, the dissent elides the two inquiries for an

ineffective assistance of counsel claim. It is not enough for

63

2. Prejudice

In assessing whether Lesko established prejudice from

counsel’s ineffectiveness, the Court considers “whether all of

counsel’s unprofessional errors combined undermine our

confidence in the result.” Frey v. Fulcomer, 974 F.2d 348, 361

n.12 (3d Cir. 1992). The Pennsylvania Supreme Court

concluded that Lesko had not so shown, given the severity of

the aggravating circumstances when weighed against the

mitigating factors. As the District Court concluded, this

represents a reasonable application of Strickland.

As the state supreme court emphasized, the aggravating

factors reflected an exceptionally brutal set of facts. The jury

heard that Lesko had been involved in three other killings

before the one at issue, two of which served as aggravating

factors. Unlike during the guilt phase of the trial, the

prosecution was permitted to read to the jury Lesko’s

confessions to killing Nicholls and Newcomer. His statements

were chilling and devoid of remorse. He explained how

Newcomer, a “fat, gold or blond hair[ed]” woman, kindly

Lesko to show that Marsh’s performance was deficient. He

must also show that Marsh’s performance prejudiced his

defense. Wiggins, 539 U.S. at 534. This means that a

“defendant 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. As discussed in detail below, see discussion infra Part

II.D.2, Lesko has not shown prejudice, especially in light of the

substantial aggravating evidence weighing against him. See

Wiggins, 539 U.S. at 534 (“In assessing prejudice, we reweigh

the evidence in aggravation against the totality of available

mitigating evidence.”).

64

stopped her car to help him get out of a fog on New Year’s

Day. J.A. 1849. Lesko described how he handcuffed the

woman; how he shot his gun at her once, realizing he missed

when Newcomer started moaning in what Lesko said was an

attempt to fake a heart attack; and then proceeded to shoot

again, making sure no pulse remained after his second attempt.

Lesko’s description of the Nicholls killing was even

worse. When asked by the police how Nicholls responded to

being kidnapped and shot by Travaglia, Lesko said Nicholls

was acting “[l]ike a faggot.” J.A. 1909. He also spoke

flippantly about his role in the killing. Lesko explained that he

had punched Nicholls and knocked him unconscious, and then,

when asked how he knew Nicholls had still been alive at that

time, responded, “Because I never killed anybody yet with a

punch.” J.A. 1905. Lesko confessed that he “knew [he was]

going to kill [Nicholls] along with” the help of Travaglia and

Rutherford at the lake. J.A. 1903. While Rutherford’s

testimony for the prosecution could offer only a limited

account of how Nicholls died, Lesko did not spare any of the

gruesome details in his confession. He said that he and

Travaglia attached a 150-pound brick to Nicholls, “put his head

through the ice . . . and just threw him down.” J.A. 1906-07.

Nicholls bobbed up once, went back down, and then never

reappeared.

The prosecution was also able to present evidence that

Lesko’s claims of newfound remorse may have been

disingenuous. On cross-examination, Lesko admitted that,

back at the time of his first trial, he had told a newspaper

reporter that he “had a better chance of getting hit by a car than

getting the electric chair,” and that he “would be out of jail in

ten years.” J.A. 2573. If nothing else, Lesko’s own words

undermined any effort to engender sympathy for him. The

aggravation case was damning.

65

Meanwhile, as the Pennsylvania Supreme Court

explained, Marsh, despite his shortcomings, did present a

meaningful mitigation case. He presented Dr. Levit’s

testimony pointedly explaining how Lesko suffered from

diminished capacity, and the effects that could have. He

presented evidence of Lesko’s horrific childhood, including

testimony from Ms. Nardone and two family members

detailing how Lesko had been molested and set on fire. He

presented evidence that Lesko’s judgment had been impaired

by alcohol and drugs and that, when he committed the crimes,

he was deeply upset by news that his younger brother had also

been molested.

Lesko insists this was not enough, and that a much

stronger case could have been made absent counsel’s

deficiencies. He argues that the CYS records likely would have

painted an even more vivid picture of the childhood neglect

and trauma Lesko suffered and the failure of CYS to intervene

or otherwise protect Lesko and his siblings, to the extent jurors

did not already recognize that failure. He also contends, in

terms of cumulative prejudice, that if counsel had promptly

obtained the CYS records and shared them with Dr. Levit, Dr.

Levit might have ordered further testing to evaluate the

possibility of brain damage, strengthening Lesko’s argument

that he was “under the influence of extreme mental or

emotional disturbance,” 42 Pa. Cons. Stat. § 9711(e)(2) (listing

such disturbance as a mitigating circumstance), and likely

would have allowed counsel to claim that Lesko’s capacity “to

appreciate the criminality of his conduct or to conform his

conduct to the requirements of law was substantially

impaired,” id. § 9711(e)(3). In addition, he argues, with a

timely brain damage diagnosis, counsel might have foregone

Lesko’s own testimony, in which, as his lawyers subsequently

said, he made a poor witness.

66

The Pennsylvania Supreme Court assessed this new

mitigation evidence alongside the extensive aggravating

evidence. It concluded that the strength of the latter was fatal:

“[T]here is not a reasonable probability that a life sentence

would have been returned if only the mitigation evidence

presented at trial had been supplemented by the mitigation

evidence presented at the PCRA hearing, particularly given the

strength of the aggravating circumstances detailed above.”

Lesko XIII, 15 A.3d at 386. Given the uniquely compelling

aggravating circumstances to Lesko’s crimes, and the mixed

bag of additional mitigating evidence—some persuasive but

much of it cumulative—it was not unreasonable for the state

court to conclude that no reasonable juror would have voted

for life. “Strickland places the burden on the defendant, not the

State, to show a ‘reasonable probability’ that the result would

have been different,” a difficult burden to carry when

“powerful” aggravating evidence has been presented. Wong v.

Belmontes, 558 U.S. 15, 27-28 (2009) (per curiam) (holding

that additional mitigation evidence would not sway a juror to

vote for life, where the defendant brutally bludgeoned one

victim with a dumbbell bar 15 to 20 times and had previously

killed another execution style). As the Wong Court reasoned,

“[i]t is hard to imagine expert testimony and additional facts

about [the petitioner’s] difficult childhood outweighing the

facts of [a brutal] murder.” Id. at 27-28. Envisioning a swayed

juror “becomes even harder” “when the evidence that [the

petitioner] had committed another [heinous] murder . . . is

added to the mix.” Id. at 28. Luring, taunting, and killing a

police officer who is actively serving the community is, in

itself, a heinous crime that cries out for justice, and indeed, the

victim’s status as an on-duty officer is an aggravating

circumstance. And, here, we “add into the mix” three

additional murders—each chilling and horrific in its own

67

way—in a senseless killing spree that epitomizes a total

disregard for the value of life. As in other cases in which capital

sentences have survived both direct and habeas challenges, the

aggravating case here was truly “devastating.” Woodford v.

Visciotti, 537 U.S. 19, 26-27 (2002) (holding that a state court

decision rejecting a Strickland claim was not unreasonable,

where the aggravating circumstances of an execution-style

murder coupled with another attempted execution style-murder

and prior stabbing offenses were “so severe” and

“overwhelming”).

This is especially true given the role of the federal court

in reviewing a state court’s decision under AEDPA. As the

Supreme Court has reminded, “‘it is not enough to convince a

federal habeas court that, in its independent judgment, the

state-court decision applied Strickland incorrectly.” Id. at 27

(quoting Bell v. Cone, 535 U.S. 685, 699 (2002)). “The federal

habeas scheme leaves primary responsibility with the state

courts for these judgments, and authorizes federal-court

intervention only when a state-court decision is objectively

unreasonable.” Id. And here, “[w]hether or not we would reach

the same conclusion as [the Pennsylvania Supreme Court]” if

we were reviewing de novo, “‘we think at the very least that

the state court’s contrary assessment was not ‘unreasonable.’”

Id. (quoting Bell, 535 U.S. at 701). We simply cannot say, on

the record before us, that the state court’s no-prejudice

determination amounts to an “‘extreme malfunction[] in the

state criminal justice system,’” and proving only “‘ordinary

error’ or even . . . ‘a strong case for relief’” is not enough for

us to grant Lesko’s petition. Mays v. Hines, 141 S. Ct. 1145,

1149 (2021) (per curiam) (quoting Harrington, 562 U.S. at

102).

68

III.

For these reasons, we will affirm the District Court’s

denial of habeas relief.

69

FISHER, Circuit Judge, concurring.

I write separately to highlight the tension between the

conclusion we believe is required by the Supreme Court’s

textual analysis in Magwood and Congress’s likely intent in

drafting AEDPA. It is “our goal when interpreting a statute . .

. to effectuate Congress’s intent.” Hagans v. Comm’r of Soc.

Sec., 694 F.3d 287, 295 (3d Cir. 2012). And while the statutory

text and precedent compel our holding that Lesko’s guilt-phase

claims are not second or successive, that reading of § 2244(b)

in my view runs counter to “AEDPA’s goal of promoting

‘comity, finality, and federalism’ by giving state courts ‘the

first opportunity to review [the] claim, and to correct any

constitutional violation in the first instance.’” Jimenez v.

Quarterman, 555 U.S. 113, 121 (2009) (quoting

Carey v. Saffold, 536 U.S. 214, 220 (2002)).

In short, our interpretation of § 2244(b) allows a

petitioner who already had a full and fair opportunity to attack

his underlying conviction a second bite at the apple because a

discrete sentencing claim was meritorious. This result will

obtain even where the prisoner failed to initially raise the issue,

and even where evidence and witnesses are long gone.

Piecemeal litigation may increase at the cost of judicial

economy and efficiency. Federalism concerns also come into

play, including the need to respect the sovereignty of state

courts in adjudicating cases which implicate federal

constitutional rights. See Coleman v. Thompson, 501 U.S. 722,

730–31 (1991) (stressing the importance of respecting State

interests). Construing AEDPA’s second or successive rule as

we have may revive assumptions that state remedies are

inadequate and federal review is superior—a belief Congress

sought to lay to rest in passing AEDPA.

My reading of congressional intent is reinforced by

comparing § 2244(b) with its predecessor, the judge-made

1

abuse of the writ doctrine. As the Seventh Circuit explained,

that doctrine would likely have prevented a prisoner from

contesting an undisturbed conviction after resentencing. See

Suggs v. United States, 705 F.3d 279, 285 (7th Cir. 2013); see

also Magwood v. Patterson, 561 U.S. 320, 354 (2010)

(Kennedy, J., dissenting). While AEDPA did not directly

codify the doctrine, Congress borrowed principles from it

when creating the second or successive rule, and the pre-

AEDPA doctrine remains relevant to interpreting the statute.

See Benchoff v. Colleran, 404 F.3d 812, 813 (3d Cir. 2005)

(“[W]e will consult the abuse of the writ jurisprudence, which

predated the passage of § 2244, concluding that the doctrine

retains vitality as a tool for interpreting the term ‘second or

successive’ under § 2244.”).

Accordingly, I note that, compared to pre-AEDPA law,

AEDPA “placed more, rather than fewer, restrictions on the

power of federal courts to grant writs of habeas corpus to state

prisoners.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Indeed, “the new substantive standards governing the

allowance of second or successive applications are more

rigorous than the pre-AEDPA standard developed by the

courts.” In re Minarik, 166 F.3d 591, 595 (3d Cir. 1999). It is

thus peculiar for AEDPA to be more accepting of successive

petitions than the abuse of the writ doctrine. While it is true

that Magwood warns against putting too much weight on this

comparative reasoning, 561 U.S. at 333, it nonetheless

reinforces our view that if Congress intended to restrict rather

than expand successive petitions, it should amend AEDPA to

leave no doubt.

2

ROTH, Circuit Judge, dissenting in part.

I join the Majority in all Sections except Section II.D on

Ineffective Assistance of Counsel, including 1. Deficient

Performance and 2. Prejudice. As to Section II.D, I

respectfully dissent.

John Lesko brought this habeas petition, challenging his

conviction and sentence for first degree murder. He contends,

among other things, that his attorney was ineffective for his

failure to present available mitigating evidence of Lesko’s

organic brain damage which significantly impaired his ability

to appreciate the criminality of his conduct.

Lesko committed vicious acts. Nevertheless, under the

United States Constitution, when he was put on trial for those

acts, he was entitled to effective counsel1 and to the assistance

of a competent mental health practitioner who could conduct

an appropriate examination.2 Lesko’s attorney, however,

committed glaring errors. I cannot overlook the prejudicial

disservice that this attorney rendered over nearly 20 years from

his initial appointment in 1980 through Lesko’s 1995

resentencing and his direct appeal.

1

See Strickland v. Washington, 466 U.S. 668, 688 (1984).

2

See Ake v. Oklahoma, 479 U.S. 68, 80 (1985).

1

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Because a death sentence is based on the “uniquely

individual human being[],”3 my analysis of Lesko’s sentence

begins by examining his life. I am basing my account on the

facts that are available in Lesko’s Children and Youth Services

(CYS) records and that were known by Lesko’s CYS case

workers and his immediate family at the time of trial and of his

sentencings. In doing so, I am presenting facts that

demonstrate that, at the time of Officer Miller’s murder, Lesko

was suffering from organic brain damage that significantly

impaired his ability to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law.4

Attorney Marsh, however, did not have neuropsychological

testing of Lesko done. Despite the fact that he knew of the

existence of the CYS records in 1980, he did not subpoena or

review them until he did a cursory one hour review as the 1995

resentencing hearing was about to begin. Nor did he have them

examined to determine the need for psychological evaluation.

Moreover, although he had a sample motion to obtain

neuropsychological testing and had been informed of the

importance of it, he never had that testing done.

As the Majority has described, John Lesko grew up in a

miserable and chaotic environment. For his first nine years, he

3

Woodson v. North Carolina, 428 U.S. 280, 304 (1976); see

also Wayne Batchis, The Right’s First Amendment: The

Politics of Free Speech & the Return of Conservative

Libertarianism 51 (2016) (“[T]he judicial enterprise is a

human enterprise, not a mechanistic one.” (emphasis in

original)).

4

Appx. 141.

2

lived with his mother Mary Anne Fedorko and his four younger

siblings, Michael, Matilda, Kimberly, and Joseph. He does not

know who his father is.

Because Fedorko neither paid her bills nor maintained

her home, the family was frequently evicted. They had moved

about fifteen times before Lesko was nine years old. The

utilities were turned off most of the time. Despite having no

heat in the winter, Lesko and his siblings often wore only t-

shirts and simple pants. In the summer, “[t]he heat was

oppressive and the odor almost unbearable.”5 The home was

filthy. Sometimes there was no running water. CYS records

note in 1965 that the family’s living conditions were

“uninhabitable.”6 The windows, doors, and floors were falling

apart. There was garbage, bugs, urine, and feces from animals

and people everywhere; “one’s feet actually stuck to the floor

in the muck.”7 Some rooms were so filled with debris that they

were unusable. “[T]here [were] piles of dirty diapers in the

middle of the living room floor.”8 When Fedorko gave birth to

Joseph in 1966, she did not want to bring him home from the

hospital because she feared “the rats may harm” him.9 Lesko

at that time played with dead rats. The CYS case worker also

noted that Lesko had an unusual gait; she was sure that

something was wrong with him.

The filthy home was made worse by Fedorko’s neglect

as a parent. Fedorko would leave the children alone at home

5

Appx. 4600.

6

Appx. 4594.

7

Appx. 4619–20.

8

Appx. 4648.

9

Appx. 4607.

3

for days at a time while she went out drinking.10 The children

skipped school, roamed the streets at night, and stole for food.

When the children did go to school, they were dirty, sleep-

deprived, and “smell[ed] of urine.”11 Fedorko sometimes

brought Lesko and his brother Michael to bars with her and

taught them to steal from drunk customers. Lesko began

drinking alcohol by age eight.

The children’s schools often complained about their

health and hygiene, including lice. Fedorko insisted that the

schools were just “pick[ing] on” them.12 CYS received

complaints about Fedorko’s failure to care for the children

when they were sick, injured, or malnourished. The children

often had diarrhea because of the filth. Lesko had frequent ear

infections and high fevers. CYS workers once had to tell

Fedorko to take Lesko to the hospital to treat a severe ear

infection. When Joseph was just a few months old, he

developed “enormous sores on [his] penis” because Fedorko

neglected to seek follow-up care for his circumcision and “left

him lay in a filthy crib all day.”13

When Fedorko was home, she was “completely

overwhelmed”14 and abused the children. Along with their

filth and bug bites, the children had bruises from Fedorko

beating them. In a fit of anger, Fedorko once threw Kimberly

(then just a baby) across the room to her aunt Joann. Sexual

abuse was documented as well. A forensic social worker

10

Appx. 2295:10–15.

11

Appx. 4616.

12

Appx. 4623.

13

Appx. 4648.

14

Appx. 4620.

4

testified at Lesko’s resentencing that Fedorko often brought

home strange men from her drinking binges and had sex with

them on the couch in front of the children. Michael testified

that she made him and Lesko put their hands and a soda bottle

into her vagina. Lesko once witnessed Michael and Matilda

having sex.

The abuse did not stop at home. When he was four, a

teenager set Lesko on fire, hospitalizing him for a month.

When he was six or seven, a customer sexually molested Lesko

while he and Michael were shining shoes for money at a bar.

Despite many visits from CYS, no one stepped in to

help. A caseworker in March 1967 described Lesko as

“emotionally flat.” She explained, “It is [Lesko’s] seeming

withdrawal and other signs of disturbance that concern us.”15

Still, CYS did nothing. Former CYS employees later admitted

that the Commonwealth had failed Lesko and his siblings.

When Lesko was nine, Fedorko surrendered the children to

shelters.

Lesko’s upbringing caused early psychological

problems that worsened throughout his life. He “suffered

severe trauma” and had “persistent nightmares” and

nervousness from being set on fire.16 He also developed

separation anxiety. While in the hospital at age four, Lesko

was so distressed about being away from his mother that he

tried to run away; he was then confined in a restraining cage.

15

Appx. 152.

16

Appx. 4573–74.

5

At age five, Lesko showed behavioral issues and

struggled to follow social norms. During a 1965 CYS visit,

Lesko “r[an] wildly throughout the house and jump[ed] in and

out of the window onto the roof.”17 Neighbors complained that

he and his siblings often destroyed their property. At school,

Lesko’s teacher said he had “the most disgusting habits she had

ever seen in a boy.”18 He “was masturbating openly and very

frequently,” “smashes and dirties everything he touches or

handles,” “picks his nose and ears,” and ate “as if he has never

had any training at all.”19 Lesko’s classmates ostracized him.20

Lesko also developed an unhealthy bond with his

brother Michael. Lesko looked up to Michael as a father

figure. Despite being younger, Michael was physically larger

and could marginally better interact with other children at

school Lesko became extremely susceptible to Michael’s

influence. As Michael himself explained, Michael was the

“leader” and “could manipulate [Lesko] into [doing] whatever

[Michael] wanted to do.”21 Both Lesko’s abandonment issues

and his attachment to Michael increased over time.

These abandonment and attachment issues became

more acute when Lesko was sent to the shelters. Lesko and his

siblings were separated and moved around. Lesko struggled to

adjust without Michael and his mother. Then, when Lesko was

fourteen, he and Michael moved in with their grandmother,

Anna Ridge, and her alcoholic daughter, Joann. Joann verbally

17

Appx. 4598.

18

Appx. 4611.

19

Appx. 4611.

20

Appx. 4611.

21

Appx. 2465:4–14.

6

abused Lesko, calling him illiterate and an animal and his

mother a whore.22 When Fedorko sometimes visited him,

Lesko hoped that she would take him home to live with her

again, but she never did. While in the shelters, he blamed the

Commonwealth for keeping him away from his mother, but

when he lived with Ridge he did not know who to blame.

Lesko’s anger would keep him awake at night.

Under Michael’s guidance, Lesko used drugs and

dropped out of school in eleventh grade. At Michael’s

instigation, Lesko began stealing and shoplifting and got in

trouble with the law. His probation officer urged Lesko to join

the Marines. He did so and found some success. After boot

camp ended, however, the structure was relaxed, and he went

AWOL. He was discharged from the Marines and moved back

to Ridge’s home.23

In the next two years, Lesko suffered further crises. In

January 1979, Michael was convicted of burglary and

sentenced to eighteen months in prison. In October 1979,

Lesko sought treatment for his rage and abandonment issues,

but his anger worsened when he learned that his brother

Joseph’s social worker had been molesting Joseph for years.

Then, Ridge kicked Lesko out of her home for arguing with

Joann and her.

In October 1979, Lesko—without a home, with his

brother Michael in prison, and with his mental health

deteriorating—met Michael Travaglia. Like Lesko’s brother

Michael, Travaglia exercised influence over Lesko. In Lesko’s

22

Appx. 2303:1–6.

23

Appx. 2305:7–2306:8.

7

words, he and Travaglia became “like brothers.”24 Travaglia

filled a void. For two months, Lesko and Travaglia spent

almost every day together, often sharing hotel rooms, using

drugs (usually supplied by Travaglia), and committing

robberies. During one of these drug binges in December 1979,

the robberies escalated into murders. From the start, Lesko

consistently said that Travaglia had orchestrated their crime

sprees, just as Lesko’s brother Michael had instigated their

childhood stealing and shoplifting.

The above account of Lesko’s childhood and

adolescence appears, for the most part, in his CYS records.

Those records are of utmost importance. In particular, the

records contain information that is significant to a

neuropsychological investigation into whether Lesko had

suffered organic brain damage and, if so, the impact of that

damage on his behavior. There are notations of insomnia;

hyperactivity; headaches; blackouts; episodic dyscontrol (a

form of organically impaired impulse control); inadequate

nutrition; his mother’s history of heavy drinking, indicating the

possibility of Fetal Alcohol Syndrome; early ingestion of

alcohol and other toxins; scars all over his body; and his

unusual gait. A review of these references would have

indicated to an effective attorney that psychological review

was necessary and, as a result of that review, that a

neuropsychological assessment for organic brain damage was

needed.25

At this point then, we need to consider what defense an

effective lawyer should have provided to Lesko when he faced

24

Appx. 1848:25.

25

Appx. 139.

8

the charge of accomplice to first-degree murder in the death of

Officer Miller. Courts have repeatedly stressed the need for

skilled and experienced lawyers in capital cases.26 “[D]eath

penalty cases [are] so specialized that defense counsel have

duties and functions definably different from those of counsel

in ordinary criminal cases.”27 Rabe F. Marsh, III, represented

Lesko for nearly twenty years. Throughout this period, he

failed to perform the necessary duties and functions that he

owed to Lesko.

The most glaring inadequacy was the failure to obtain

and review the CYS records in a timely manner and to cull

from those records the information that demonstrated the need

for psychiatric and neuropsychological examination and

testing.28

In 1989, prior to Lesko’s second sentencing in 1995, the

American Bar Association had established Guidelines for

Death Penalty Cases which required counsel to make “efforts

to discover all reasonably available mitigating evidence and

evidence to rebut any aggravating evidence that may be

26

See, e.g., Phillips v. White, 851 F.3d 567, 578 (6th Cir. 2017)

(finding counsel’s performance deficient where counsel

“admitted in court that he had no experience with death-penalty

litigation . . . .”); King v. Strickland, 748 F.2d 1462, 1464 (11th

Cir. 1984) (similar); see also In re Sterling-Suarez, 323 F.3d 1,

4–7 (1st Cir. 2003) (Torruella, J., dissenting).

27

ABA, GUIDELINES FOR THE APPOINTMENT & PERFORMANCE

OF DEFENSE COUNSEL IN DEATH PENALTY CASES 1.1

commentary (2003).

28

Marsh had never defended a first-degree murder charge

before but that does not give him an excuse to be ineffective.

9

introduced by the prosecutor,”29 and specifically required

counsel to collect a “medical history,” “educational history,”

“family and social history,” and “prior adult and juvenile

record.”30 Marsh failed to do this although he knew of this

duty. In October 1992, three years before the 1995

resentencing, Marsh consulted with Professor Welsh White at

the University of Pittsburgh Law School. Professor White

gave Marsh literature on the topic of the relationship between

child abuse and brain damage. He also gave him a sample

motion to obtain psychological and neuropsychological

testing.31 The Court of Common Pleas found in the 1999

Pennsylvania PCRA hearing that “Marsh recognized that child

abuse and neglect were significant factors in [Lesko’s]

argument that a life sentence should be imposed, rather than

death, and he agreed that evidence of brain damage would be a

‘very important matter to bring to the attention of the jury.’”32

Marsh, however, did nothing with the material. He

never consulted a neuropsychologist – the type of specialist

who could test for brain damage. On the eve of the 1995

resentencing, after jury selection had begun, Marsh retained a

clinical psychologist, Dr. Herbert Levit. Dr. Levit was not

qualified to do a neuropsychological assessment of Lesko’s

cognitive functioning. Nor did Marsh advise Dr. Levit that

29

Wiggins v. Smith, 539 U.S. 5190, 524 (2003) (quotation

marks and citation omitted) (emphasis added),

30

ABA GUIDELINES FOR THE APPOINTMENT AND

PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES

11.4.1(C) (1989).

31

Appx. 136.

32

Appx. 136.

10

brain damage was an area of relevant inquiry.33 In the limited

review that he had time to make before his 1995 testimony, Dr.

Levit diagnosed Borderline Personality Disorder and

Polysubstance Abuse.34 He testified to this effect at the 1995

resentencing.

In 1999, Lesko’s conviction and death sentence were

reviewed by the Pennsylvania Court of Common Pleas in a

Post-Conviction Relief proceeding. New counsel was

appointed for Lesko. After a review of the CYS records, new

counsel had neuropsychological testing done by Dr. Barry

Crown. Dr. Crown testified at the PCRA hearing that both

Lesko’s institutional records and Dr. Levit’s evaluation

contained indicia of brain damage.35 Dr. Crown also noted that

Dr. Levit’s diagnosis of Borderline Personality Disorder raised

the possibility of organic brain damage because of the overlap

of the symptoms of the two conditions.36

As a result of the complete battery of

neuropsychological tests that Dr. Crown performed on Lesko

in October 1999, Dr. Crown “concluded to a reasonable degree

of neuropsychological certainty that [Lesko] is brain damaged

and was brain damaged at the time of [Officer Miller’s

murder].”37 Dr. Crown determined that the type of brain

damage from which Lesko suffers “constitutes an extreme

mental and emotional disturbance (42 Pa.C.S. § 9711(e)(2)

33

Appx. 137.

34

Appx. 137.

35

Appx. 138.

36

Appx. 140.

37

Appx. 140–41.

11

mitigating circumstance) and a significant impairment in his

ability to appreciate the criminality of his conduct or conform

his conduct to the requirements of law (42 Pa.C.S. § 9711(e)(3)

mitigating circumstance).”38

The prosecution presented no expert testimony at the

PCRA hearing in opposition to that of Dr. Crown.

Dr. Levit did a complete review of the institutional

records in 1999 for the PCRA proceeding. He now recognizes

the deficiencies in his original diagnosis and in his 1995

testimony. With the additional information, information that

attorney Marsh had never supplied to him, Dr. Levit states that

he would have recommended neuropsychological testing to

confirm the likelihood of brain damage. Dr. Levit’s revised

1999 diagnoses and findings include Post-Traumatic Stress

Disorder, failure to thrive syndrome, substantial impairment in

Lesko’s capacity to appreciate the criminality of his conduct

and conform his conduct to the requirements of the law,

probable brain damage, and the failure of social services to

rescue Lesko and his siblings from the abject environment in

which they were raised.39 This is the testimony that Dr. Levit

would have given in 1995 if Marsh had performed as effective

counsel and had given the necessary records to Dr. Levit for

examination prior to his 1995 testimony.

Marsh’s failure to obtain the CYS records sooner and

his failure to have neuropsychological testing done can be

attributed to his complete lack of understanding of how such

material can be used as mitigating evidence. At the 1999

38

Appx. 141.

39

Appx. 141.

12

PCRA hearing, in response to the question, “What is your

understanding of the relationship between Mr. Lesko’s

background and potential mental health issues?” Marsh

replied:

The background information, in

my mind, wasn’t for mental health

purposes. It was to generate

sympathy of the jury and to explain

why he may have acted the way he

did. I didn’t consider that having a

rough childhood had a whole lot of

bearing on what a psychologist

could determine by scientific

testing.40

This personal opinion does not excuse Marsh from preparing

Lesko’s defense or from performing the necessary duties and

functions that he owed to Lesko. It does perhaps explain

Marsh’s failure to adequately present mitigating evidence. It

is that failure, however, that renders Marsh’s representation of

Lesko ineffective.

Based on the 1999 testimony of Drs. Crown and Levit,

the Court of Common Pleas held that “the testimony of a

neuropsychologist at the sentencing hearing with regard to

[Lesko’s] organic brain damage would have added significant

additional and relevant information for the jury to consider as

it weighed mitigating factors against the aggravating

factors.”41

40

Appx. 144.

41

Appx. 142.

13

I agree with the Court of Common Pleas. I believe that

Marsh was clearly ineffective in his case preparation,

specifically in his failure to obtain the records in a timely

fashion, to thoroughly review them and to arrange for relevant

expert testing and for testimony by a qualified and informed

expert witness on Lesko’s brain damage, his extreme mental

and emotional disturbance, and his impaired ability to

appreciate the criminality of his conduct or to conform his

conduct to the requirements of law.

To be sure, Marsh retained Dr. Levit, who performed at

least a cursory review of relevant records, and presented some

evidence of Lesko’s mental disturbance. That is insufficient

under these circumstances. When Marsh was informed by

Professor White that an entirely distinct avenue of mitigation

evidence—evidence of Lesko’s organic brain damage—would

be viable, Marsh needed to do more than just present evidence

of Lesko’s “rough childhood.” A defense lawyer representing

a defendant in a death penalty case has a duty to develop this

type of mitigating evidence from the records that are available

to him.42 Marsh failed to do so.

II. PREJUDICE

The Court of Common Pleas went on to determine that

there is a reasonable probability that the outcome of the

proceedings would have been different if counsel had

adequately prepared the mitigation case.43 I agree with that

holding. The demonstration of actual physical brain damage,

as opposed to just psychological problems caused by a “rough

42

Williams v. Taylor, 529 U.S. 362, 393, 397 (2000).

43

Appx. 163.

14

childhood,” would be a strong argument against the imposition

of the death penalty. Marsh had to persuade just one juror to

vote for life in prison as opposed to execution.44 I believe that

the fact that in January 1980 Lesko’s brain damage had caused

him “extreme mental and emotional disturbance” and was “a

significant impairment in his ability to appreciate the

criminality of his conduct or conform his conduct to the

requirements of law” would have had a strong mitigating effect

on the jury’s deliberations.

In 1999, Dr, Levit, after a sufficient review of the

relevant records, changed his 1995 diagnosis and testified at

the PCRA hearing that Lesko’s capacity to appreciate the

criminality of his conduct and conform his conduct to the

requirements of the law, was substantially impaired. Effective

counsel for Lesko would have presented this testimony from

Drs. Levit and Crown at the resentencing hearing in 1995. It

should not have been delayed until 1999. Moreover, the

prosecution at the PCRA hearing did not contest either Dr.

Crown’s opinion or the revised diagnosis of Dr. Levit.

Under the ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases,45 an effective

attorney has a duty to discover all reasonably available

mitigating evidence regarding the defendant. Under this

standard, Marsh was obliged to demonstrate to the jury Lesko’s

organic brain damage and the resulting inability to conform his

conduct to the requirements of the law. There are many who

44

Jermyn v. Horn, 266 F.3d 267, 309 (3d Cir. 2001);

Commonwealth v. Brown, 872 A.2d 1139, 1150-51 (Pa. 2005).

45

11.4.1(C) (1989).

15

believe that the death penalty is not an appropriate punishment

for a defendant who cannot appreciate the criminality of his

conduct. Only one juror needed to agree that the death penalty

was inappropriate for Lesko. Only one juror needed to vote for

life imprisonment for that to be the sentence that Lesko

received. The probability of this occurring I find to be

compelling.

For the above reasons, I believe that Lesko was

prejudiced by Attorney Marsh’s inadequate preparation of

mitigating evidence to present at the sentencing hearing.

III. UNREASONABLE APPLICATION OF

FEDERAL LAW

The Pennsylvania Supreme Court did, of course,

overturn the award of a new sentencing hearing by the Court

of Common Pleas. However, I believe that the Pennsylvania

Supreme Court’s review of the decision of the Court of

Common Pleas was an unreasonable application of federal law

both as to ineffectiveness and as to prejudice.46 As to

ineffectiveness, the court determined that “counsel undertook

a reasonable investigation.”47 While it is true that Marsh

consulted with Professor White, Marsh failed to utilize the

relevant mitigating evidence that Professor White explained to

him or to obtain the expert evidence that was necessary to

present to the jury. Yet, Marsh has admitted that, three years

before the resentencing, as a result of his consultation with

46

See Williams, 529 U.S. at 399.

47

Commonwealth v. Lesko, 15 A.3d 345, 381 (Pa. 2011).

16

Professor White, he knew of the significance of child abuse and

neglect and “agreed that evidence of brain damage would be a

‘very important matter to bring to the attention of the jury.’”

Moreover, Marsh subpoenaed the CYS records on

February 7, 1995, one day before the last day of jury selection

and two days before the first day of the Commonwealth’s case-

in-chief. Marsh spent “[p]robably an hour or so . . . go[ing]

through” the hundreds of pages of CYS records “in the Judge’s

ante-room.”48 He requested the records at the last minute,

reviewed them for just one hour, and did not recall if he had a

strategic reason for failing to request the records sooner or

if/how he determined whether records had “value.” However,

contrary to this position, Marsh said at the PCRA hearing that

he believed he “was obligated to put as much information

before the jury as [he] could” and admitted that many records

did have value.49

The Pennsylvania Supreme Court held that this record

review was cumulative and cited Strickland. That is not the

appropriate legal standard for this case. Evidence of Lesko’s

organic brain damage is not cumulative to his psychological

problems; it is a disability that is distinct from any evidence of

his psychological or emotional issues. Moreover, it is a cause

of mitigation, in and of itself. Under the Pennsylvania Code, a

result of organic brain damage, the inability to appreciate the

criminality of one’s conduct or conform one’s conduct to the

requirements of law, is a separate consideration for

mitigation.50 Accordingly, the Pennsylvania Supreme Court

48

Appx. 2832:13–16.

49

Appx. 2831:8–10.

50

42 Pa.C.S. § 9711(e)(3)

17

erred in deciding that the CYS evidence related to Lesko’s

brain damage and the 1999 opinions drawn from those records

by Drs. Crown and Levit was cumulative of evidence of his

psychological issues.

In my view, the appropriate test here of the adequacy of

pretrial preparation is Wiggins51 and Williams,52 not the

generalized language of Strickland.53 Under Wiggins and

Williams, Marsh’s delays in investigating and his failure to

timely review the records of Lesko’s “nightmarish childhood”

and to order neuropsychological testing to detect any physical

brain damage caused during that childhood rendered his

representation of Lesko clearly ineffective. In short, Marsh’s

failure to investigate and explore the distinct avenue of

mitigation evidence related to brain damage suffered by Lesko

amounted to inadequate performance.

In addition, as to prejudice, the Pennsylvania Supreme

Court opined that the circumstances of the shooting of Officer

Miller were so “aggravating” that additional mitigation

evidence could not have supported Strickland relief: not

“when the aggravating circumstances were so patently

grave.”54 However, as an attorney in a first-degree murder

case, Marsh had a duty “to discover all reasonably available

mitigating evidence.”55 There is no quantity of aggravation

that cuts off the right—or the duty—of defense counsel to

51

539 U.S. at 527.

52

529 U.S. at 395.

53

466 U.S. at 691.

54

15 A.3d at 385.

55

ABA Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.4(C) (1989).

18

present mitigating evidence. A defense attorney, representing

a defendant in a horrible crime, is not justified in ignoring

mitigating evidence just because of the horror of the crime.

Lesko’s miserable childhood, the problems, physical and

psychological, caused by that childhood, especially the organic

brain damage and the related inability to appreciate the

criminality of his actions, were all items of reasonably

available mitigating evidence. The horror of the crimes

committed in no way cut off either Lesko’s right to effective

counsel or the defense attorney’s duty to present mitigating

evidence. Because of Marsh’s delay in obtaining and

reviewing records and in consulting Dr. Levit and because of

Marsh’s failure to follow up on the mitigating issue of brain

damage, clearly his trial preparation was not reasonable. It was

ineffective. Lesko’s right to the effective assistance of counsel,

as defined in Strickland v. Washington,56 was violated. As a

result, Lesko was prejudiced by the failure to present this

evidence to the jury. It took only one juror to vote for life

imprisonment.

For the above reasons, I believe that Marsh’s

representation of Lesko was ineffective, that this ineffective

assistance of counsel prejudiced Lesko and that Lesko’s

sentence should be vacated, and a new sentencing hearing be

awarded.

56

466 U.S. 668 (1984).

19