John Lesko v. Secretary Pennsylvania Departm
34 F.4th 211
3rd Cir.2022Background
- In 1979–1980 John Lesko and Michael Travaglia committed a multi-day series of killings; Lesko was convicted of first-degree murder for the killing of Officer Leonard Miller and ultimately sentenced to death after separate sentencing proceedings (1981 and a 1995 resentencing).
- Key trial evidence included eyewitness testimony from Ricky Rutherford and Daniel Montgomery, Lesko’s confession, and evidence of Lesko’s participation in prior murders (used to prove intent and as aggravating factors).
- Lesko filed multiple state and federal postconviction petitions; the Pennsylvania courts granted and later reversed some relief; Lesko’s second federal habeas petition raised 22 claims challenging the guilt-phase and 1995 resentencing.
- Central federal issues: (1) whether Lesko’s habeas petition was a barred “second or successive” filing under AEDPA given the intervening resentencing; (2) Brady suppression claims regarding impeachment material related to Montgomery and Rutherford; (3) whether trial counsel deprived Lesko of the right to testify; and (4) whether counsel was ineffective at resentencing for failing to develop mitigation (notably, timely CYS records and neuropsychological testing for brain damage).
- The Third Circuit held the petition was not second or successive as to the guilt-phase claims (Magwood framework and conflict-of-interest exception), rejected Brady and right-to-testify claims on the merits, and denied relief on the ineffective-assistance-at-resentencing claim under AEDPA deference.
Issues
| Issue | Plaintiff's Argument (Lesko) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1. Is Lesko’s second-in-time habeas petition “second or successive” under §2244(b) when it attacks an undisturbed 1981 conviction after an intervening 1995 resentencing? | Magwood permits challenges to the new judgment; resentencing creates a new judgment so guilt-phase claims are not successive. | AEDPA’s second-or-successive bar should block relitigation of the undisturbed conviction; finality/comity concerns. | Majority: Not successive — Magwood’s new-judgment rule applies; resentencing created a new judgment so the petition could challenge both sentence and conviction. Also conflict-of-interest (same counsel) made an ineffectiveness claim not ripe earlier. |
| 2. Did the Commonwealth violate Brady by withholding Montgomery’s non-prosecution agreement, a pre-cooperation police report (Steffee), and parts of Rutherford’s juvenile file? | The suppressed materials had impeachment value that, collectively, created a reasonable probability of a different guilt or sentencing outcome. | The items were cumulative, of limited impeachment value, or already disclosed in other forms; not material. | Held: No Brady violation — items were not material individually or cumulatively; Steffee report reviewed under AEDPA deference and found immaterial. |
| 3. Did trial counsel violate Lesko’s right to testify by preventing him from taking the stand? | Marsh overrode Lesko, preventing him from testifying to rebut key witnesses; this was deficient and prejudicial. | Even if deficient, Lesko cannot show prejudice because his testimony would have been unpersuasive and dangerous (would prompt cross-examination about other murders and his confessions). | Held: Court assumed deficiency arguendo but found no Strickland prejudice — conviction would remain reliable given the totality of evidence. |
| 4. Was counsel ineffective at the 1995 resentencing for failing to investigate/present mitigation (CYS records, neuropsych testing for brain damage), and did cumulative errors prejudice the sentencing outcome? | Counsel failed to timely obtain and use CYS records and to pursue neuropsych testing; objective brain-damage evidence would likely have produced at least one juror voting for life. | Counsel presented a substantial mitigation case (Nardone, Dr. Levit, family testimony, Lesko’s testimony); reliance on a qualified expert who missed brain-damage diagnosis was reasonable; additional evidence would be cumulative and insufficient to overcome powerful aggravators. | Held: Under AEDPA’s doubly deferential standard, the Pennsylvania Supreme Court’s conclusion that counsel was not ineffective or that any deficiency was not prejudicial was not an unreasonable application of Strickland; habeas relief denied. |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (2010) (resentencing that creates a new judgment resets second-or-successive analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance test: performance and prejudice)
- Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose material exculpatory or impeachment evidence)
- Kyles v. Whitley, 514 U.S. 419 (1995) (materiality standard for Brady: reasonable probability of a different result)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference; state-court decisions must not be objectively unreasonable)
- Martinez v. Ryan, 566 U.S. 1 (2012) (limits on procedural default where initial-review counsel is ineffective for failing to raise ineffective-assistance claims)
- Wiggins v. Smith, 539 U.S. 510 (2003) (duty to investigate mitigating evidence in capital cases)
- Giglio v. United States, 405 U.S. 150 (1972) (impeachment evidence regarding witness deals must be disclosed)