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.

7
 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).

16
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