NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 19-1822 _______________

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 _______________

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) _______________

OPINION* _______________ 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* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.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

2 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,

, 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.”

(d). This is a “highly deferential standard” of

review. Lindh v. Murphy,

, 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

3 federal court.

(b)(1)(A). But the District Court excused his default because

his PCRA lawyer was ineffective, relying on Martinez v. Ryan,

(2012).

Because Pennsylvania does not appeal that conclusion, we will review those claims de

novo. Bey v. Superintendent Greene SCI,

(3d Cir. 2017). The District

Court had jurisdiction under

, 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,

(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.

. 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.”

. 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.

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,

(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

4 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,

, 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,

(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 5 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,

. 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.”

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,

at *20. We must defer to that factual finding unless it was unreasonable in

light of the evidence presented to the state court.

(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 . . .

6 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,

, 18–19 (1985). It also risks lead-

ing the jury to trust the Government’s view of the evidence presented rather than its own.

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.”

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 7 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.”

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 8 approach.” Yarborough v. Gentry,

(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,

(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.

9 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.

10 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,

, 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.

11