Lesko v. Sec'y Pa. Dep't of Corr.

• Decision Date: 17 May 2022
• Docket Number: 15-9005
• Parties: John C. LESKO, Appellant v. SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Superintendent Greene SCI; Superintendent Rockview SCI; District Attorney Westmoreland County
• Court: U.S. Court of Appeals — Third Circuit

34 F.4th 211

John C. LESKO, Appellant

v.SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Superintendent Greene SCI; Superintendent Rockview SCI; District Attorney Westmoreland County

No. 15-9005

United States Court of Appeals, Third Circuit.

Argued June 23, 2021

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

Before: KRAUSE, ROTH and FISHER, Circuit Judges.

OPINION OF THE COURT

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.

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, 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.

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 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.

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 , 502 Pa. 474, 467 A.2d 288 (1983) (" Lesko I "), and relief...