Matthew Zeledjieski v. Superintendent Greene SCI ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-1822
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MATTHEW ZELEDJIESKI,
Appellant
v.
SUPERINTENDENT GREENE SCI;
ATTORNEY GENERAL PENNSYLVANIA
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-16-cv-02257)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 18, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: November 12, 2020)
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OPINION*
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BIBAS, Circuit Judge.
Trial lawyers make countless hard choices. They must decide what points to argue,
what evidence to introduce, and what objections to make. When a criminal defendant gets
convicted, it is tempting to critique those choices with the benefit of hindsight. But lawyers
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
are not prophets. Gambles can be reasonable even when they do not pay off. Lawyers often
pursue sound strategies and tactics yet still lose, just because they were dealt bad hands.
So it was here. A Pennsylvania jury heard an eyewitness testify that Matthew
Zeledjieski stabbed a man to death. It heard two other witnesses testify that Zeledjieski
confessed to the crime. Then it convicted him of murder. On habeas, Zeledjieski now ar-
gues that his trial lawyer was ineffective, but we disagree. Because his lawyer’s judgment
calls were reasonable, we will affirm.
I. BACKGROUND
A. Zeledjieski’s murder trial, appeal, and habeas
In 1992, a Pennsylvania man was stabbed to death. The Commonwealth tried
Zeledjieski for the murder. It had no physical evidence but one eyewitness: Zeledjieski’s
friend, John Lynch. Lynch testified that one night, he and Zeledjieski were driving around
when the victim came up to their car. He saw Zeledjieski punch the victim through an open
car window, chase him, and repeatedly punch him in the back. Later that night, Lynch
heard Zeledjieski admit to stabbing someone and saw that he had a punch-dagger on him.
Two other witnesses, Tina Worth and Todd Mastrobuoni, testified that they also heard him
admit to the stabbing.
Zeledjieski denied all that. Though he chose not to testify at trial, his lawyer Andrew
Hood argued that he had nothing to do with the murder. Instead, Hood tried to show that
Lynch had probably killed the victim to rob him. Hood repeatedly attacked Lynch’s cred-
ibility, stressing that he had a strong incentive to blame Zeledjieski. He cross-examined
Lynch on his association with a violent, racist group called skinheads. He argued that the
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evidence linked Lynch, but not Zeledjieski, to skinheads. Hood stressed that Lynch was
involved two weeks later in a robbery that led to the stabbing of a taxi driver, supposedly
by Lynch’s accomplice. And he put on witnesses who suggested that Lynch would say
whatever it took to beat this case or the taxi-driver one.
But the defense fell short. The jury convicted Zeledjieski, the judge sentenced him to
life in prison, and the state appellate court affirmed. He filed a state postconviction-relief
(PCRA) petition claiming ineffective assistance of counsel, but the trial court denied the
petition. His new lawyer then tried to add new claims, but the trial court rejected them as
untimely. The state appellate court affirmed.
Zeledjieski filed a federal habeas petition, again arguing ineffective assistance of trial
counsel. Adopting the magistrate judge’s report and recommendation, the District Court
rejected all the claims on the merits but issued a certificate of appealability. Zeledjieski v.
Gilmore, No. 4:16-CV-02257, 2019 WL 1227458, at *4 (M.D. Pa. Mar. 15, 2019).
B. Standard of review
Some of Zeledjieski’s claims were rejected by the state courts on the merits. To succeed
on them, he must show that the state court’s rejection of those claims was either “contrary
to, or involved an unreasonable application of, clearly established Federal law” or rested
on “an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). This is a “highly deferential standard” of
review. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997).
Zeledjieski’s other claims were not considered by the state courts because he raised
them too late. Normally, those procedural defaults would bar him from raising them in
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federal court. 28 U.S.C. § 2254(b)(1)(A). But the District Court excused his default because
his PCRA lawyer was ineffective, relying on Martinez v. Ryan, 566 U.S. 1, 17 (2012).
Because Pennsylvania does not appeal that conclusion, we will review those claims de
novo. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017). The District
Court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction under § 2253(c).
II. THE DISTRICT COURT PROPERLY DENIED ZELEDJIESKI’S CLAIMS THAT
HIS TRIAL COUNSEL WAS INEFFECTIVE
Criminal defendants have the right to effective assistance of counsel. U.S. Const.
amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). To show that his Sixth
Amendment right was violated, a habeas petitioner must show both that his lawyer per-
formed deficiently and that this deficiency prejudiced the outcome. Id. at 687, 694. When
we judge a lawyer’s performance, we must “indulge a strong presumption that [his] con-
duct f[ell] within the wide range of reasonable professional assistance.” Id. at 689. It is not
enough to show that some other lawyer would have done things differently; each lawyer
has “wide latitude” to make tactical choices and judgment calls. Id. To rebut the presump-
tion of effectiveness, a petitioner must show that no reasonable lawyer would have done
what this lawyer did. See Rompilla v. Beard, 545 U.S. 374, 389 (2005).
Zeledjieski claims that five of Hood’s decisions at trial were ineffective. We disagree
about each.
A. Hood was not ineffective for letting the jury hear about skinheads
Zeledjieski, Lynch, Mastrobuoni, and Lynch’s codefendant in the taxi-driver case were
all at some point either skinheads, skinhead-wannabes, or friends with skinheads. Both
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sides mentioned those affiliations throughout the trial. Zeledjieski claims that these refer-
ences poisoned the jury against him. He argues that Hood was ineffective in mentioning
the skinhead affiliations and not objecting to the prosecution’s references.
The PCRA court considered this argument and rejected it. It found that telling the jury
about the skinhead affiliations was a reasonable strategic choice: While Zeledjieski had
skinhead connections, so did the prosecution’s star witness, Lynch. So “[i]t was within the
range of reasonable judgment for counsel to think [the skinhead references] would be of a
greater detriment to the Commonwealth’s witnesses, than it would be for” Zeledjieski.
Commonwealth v. Zaledzieski, No. CP-45-CR-678-1992, 2014 WL 5818608, at *20 (Jan.
9, 2014).
Under Strickland, we must review Hood’s performance deferentially. And under
§ 2254(d), we must also review the PCRA court’s application of Strickland deferentially.
So we must be “doubly” deferential: we cannot find Hood’s strategy ineffective if “there
is any reasonable argument that [he] satisfied Strickland’s deferential standard.” Harring-
ton v. Richter, 562 U.S. 86, 105 (2011).
There is a reasonable argument that Hood satisfied Strickland. This case was hard to
defend. Though it pitted Zeledjieski’s word against Lynch’s, two witnesses corroborated
Lynch’s story. Hood could have reasonably thought that his best bet was to tear down
Lynch’s credibility however he could, even if Zeledjieski would look worse too. Hood
could have reasonably judged that tarnishing both sides would be a net positive, because
the prosecution bore the burden of proof. And Hood had some reason to think that the
skinhead references would not tarnish both sides equally: while Lynch admitted that he
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once belonged to a skinhead gang, the testimony showed only that Zeledjieski was friends
with skinheads.
True, Hood’s strategy did not succeed. But we must look at the reasonableness of that
strategy at the time, without “the distorting effects of hindsight.” Strickland, 466 U.S. at
689. Defendants have no right to a lawyer who gets them acquitted, but only to one who
makes decisions that were reasonable “from counsel’s perspective at the time.” Id. Taking
risks is often reasonable even though many of those risks will not pan out.
Zeledjieski responds that even if tarnishing Lynch would have been reasonable, Hood
did not really follow that strategy. But the PCRA court disagreed. It found that “revealing
the involvement with the skinhead organization was part of defense counsel’s strategy to
discredit the Commonwealth’s witnesses and shift the blame to Lynch.” Zaledzieski, 2014
WL 5818608 at *20. We must defer to that factual finding unless it was unreasonable in
light of the evidence presented to the state court. 28 U.S.C. § 2254(d)(2). It was not. Hood
brought up Lynch’s skinhead connections throughout the trial. E.g., App. 537–39, 577,
774–75. And at the state evidentiary hearing, Hood testified that those references were
deliberate. Thus, the record supported the PCRA court’s finding that Hood’s strategy was
to attack Lynch as a skinhead. Because that strategy was reasonable, Hood was not inef-
fective.
B. Hood reasonably did not object to vouching
Next, Zeledjieski complains that Hood let the prosecution vouch for its witnesses. Pros-
ecutors vouch when they (or their witnesses) assure the jury that a witness is credible.
Vouching can imply that the prosecution knows of “evidence not presented to the jury . . .
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and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence
presented to the jury.” United States v. Young, 470 U.S. 1, 18–19 (1985). It also risks lead-
ing the jury to trust the Government’s view of the evidence presented rather than its own.
Id.
Zeledjieski alleges that the prosecution thrice vouched and that Hood thrice failed to
object. Because the PCRA court did not address most of these claims, we will review them
de novo and reject them on the merits. Hood’s decisions not to object were reasonable.
1. The interrogation videos. At trial, the prosecution played videos of Lynch’s and
Zeledjieski’s interrogations. At the start of Lynch’s video, an officer told him that they
already knew the details of the stabbing. Lynch then answered questions for about twenty-
five transcript pages. At the end, though, he could not recall what color or kind of shirt
Zeledjieski was wearing that night. After Lynch twice said he did not know, he explained:
“I would tell ya. I told you everything else.” App. 689. Another officer responded: “I be-
lieve you, John.” Id. Meanwhile, after Zeledjieski said that he did not remember what he
did the night of the stabbing, his interrogator ended the interview as a “waste [of] time,”
allegedly implying that he did not believe Zeledjieski. App. 695. Zeledjieski challenges
those parts of the videos as vouching.
We disagree. The officers’ statements were just part of their interrogation tactics. For
example, they first claimed that they already knew about the stabbing, apparently to scare
Lynch into telling the truth. When he could not recall Zeledjieski’s shirt, the officer’s ex-
pression of belief seemed calculated to earn Lynch’s confidence, not to vouch for his lack
of recall. The jury probably realized all this and had little reason to think that the
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Government had undisclosed evidence. And we do not think that Zeledjieski’s interrogator
was implying that he was lying. Rather, after Zeledjieski said he could not recall that night,
the interrogator just doubted that Zeledjieski would say anything helpful. So a vouching
objection probably would have failed. Hood reasonably decided not to make the weak ob-
jection.
2. The detective’s testimony. Later, Hood cross-examined the investigating detective.
Hood wanted to show that the detective had prejudged Zeledjieski’s guilt and thus investi-
gated the case hastily. He got the detective to admit that when another detective interro-
gated Lynch, he “wasn’t listening closely.” App. 721. The detective also admitted that he
“believed most of what John Lynch told me” and “found him to be an honest individual.”
Id. Zeledjieski claims that statement was vouching. Even if it was, it did not prejudice him.
The statement supported Hood’s theory that the investigation was slipshod. Baiting that
answer was a reasonable tactic.
3. The prosecution’s closing statement. Finally, in its closing, the prosecution argued
that the jury should trust Lynch over Zeledjieski. It focused on the trial evidence, but sev-
eral times implied that the jury should trust it just because it was the Government. For
instance, the prosecutor argued that the witnesses are “the kind of people the police and the
prosecutor deal with every day . . . . So, we’re accustomed to dealing with these types of
people.” App. 815. Zeledjieski says Hood should have objected to this alleged vouching.
Even if the statements were vouching, not objecting was reasonable. Just because an
objection has merit, “it does not follow that counsel was incompetent for failing to [make
it]. Focusing on a small number of key points may be more persuasive than a shotgun
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approach.” Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam). Sometimes, a valid
objection might even backfire; “object[ing] to [a] prosecutor’s remark” might “draw atten-
tion to it.” Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Here, the arguable vouching
was scattered across a much larger, legitimate argument by the prosecution. Hood could
have reasonably thought that the jury would forget about the vouching or that objecting
would backfire, searing the words into the jurors’ minds. He reasonably let it go.
C. Hood reasonably introduced testimony about another stabbing involving
Lynch
Zeledjieski also argues that Hood should not have brought in evidence of Lynch’s role
in another stabbing. Less than two weeks after the stabbing charged here, Lynch was in-
volved in robbing and stabbing a taxi driver, who survived. Lynch admitted on the stand
that he had been charged with that stabbing. But he gave no other details and claimed that
the victim had identified someone else as the stabber.
To add detail, Hood introduced the testimony of the detective who had investigated the
other stabbing. The detective said that Lynch and a friend were in a taxi when the driver
was stabbed. But he confirmed that the driver identified the stabber as Lynch’s friend. He
added, though, that Lynch had also attacked the victim—which Lynch had denied to the
police.
Zeledjieski challenges Hood’s introduction of the detective’s testimony as ineffective.
Because Lynch was likely not the stabber in the second case, Zeledjieski claims, the testi-
mony undercut the theory that Lynch was the stabber in this case. The PCRA court never
considered this argument. So we review it de novo.
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Harping on the second stabbing was reasonable. Even though the taxi driver did not
think that Lynch held the knife, his involvement was suspicious. And Lynch’s lie to the
police suggested that he tended to blame others for his crimes. Because Lynch said little
about the taxi driver, Hood needed the detective’s testimony to make these points. Even
though it would have been better if Lynch had been the second stabber, Lynch’s involve-
ment and lie were better than nothing. Hood reasonably highlighted it.
D. Hood reasonably omitted an alibi defense
Next, Zeledjieski complains that Hood did not put on an alibi defense. His family, he
argues, was ready to testify that he was home when the stabbing happened. Hood did not
use that evidence.
But when Zeledjieski raised this argument at the state evidentiary hearing, Hood re-
membered the story differently. According to Hood, after Zeledjieski’s family told him
about the alibi, Zeledjieski “emphatically” “pointed out [that the alibi] was [for] the wrong
night, and he gave reasons why it was the wrong night.” App. 946, 953. The PCRA court
credited this testimony, so it found that Hood’s omission of the alibi was reasonable. We
agree.
E. Hood reasonably did not ask for a polluted-source instruction
Finally, Zeledjieski argues that Hood should have asked the judge to give a polluted-
source instruction: “[Y]ou should view the testimony of an accomplice [Lynch] with dis-
favor because it comes from a corrupt and polluted source.” App. 78 n.13. Because the
PCRA court never considered this argument, we review it de novo.
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Omitting the instruction was reasonable. Zeledjieski’s theory was that he and Lynch
were not accomplices. If the judge had described the two as accomplices, the jury might
have thought that the judge did not believe Zeledjieski’s story. It was reasonable to fear
that the instruction would backfire.
F. We need not address cumulative prejudice
We have not yet decided whether any prejudice from multiple claims of deficient per-
formance should be analyzed together under Strickland or as cumulative error under the
Due Process Clause. See Williams v. Superintendent SCI Greene, No. 11-4319, 2012
WL 6057929, at *1 & n.2 (E.D. Pa. Dec. 4, 2012). So we invited counsel to brief that issue.
But because Zeledjieski does not show deficient performance on any of his claims, we
leave that question for another day.
* * * * *
Hood had to make dozens of strategic decisions. As Zeledjieski has forcefully shown,
a different lawyer could have reasonably made some of them differently. But Hood’s
choices were reasonable too, and reasonable choices are not constitutionally ineffective.
So we will affirm.
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