                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 17-1491
                                 _____________

                                STEVEN LAZAR,
                                        Appellant

                                        v.

  SUPERINTENDENT FAYETTE SCI; DISTRICT ATTORNEY PHILADELPHIA;
              ATTORNEY GENERAL PENNSYLVANIA

                                 ______________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                              (D.C. No. 2-14-cv-06907)
                   District Judge: Honorable Gerald A. McHugh
                                  ______________

                            Argued: February 21, 2018
                                ______________

             Before: AMBRO, RESTREPO, FUENTES, Circuit Judges.

                          (Opinion Filed: April 24, 2018)

Jules Epstein              [ARGUED]
Kairys, Rudovsky, Messing & Feinberg, LLP
718 Arch Street, Suite 501 South
Philadelphia, PA 19106
       Counsel for Appellant

John W. Goldsborough    [ARGUED]
Max C. Kaufman
Susan E. Affronti
Ronald Eisenberg
John Delaney
Kelley B. Hodge
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
      Counsel for Appellee
                                    ______________

                                          OPINION*
                                       ______________

RESTREPO, Circuit Judge.

          Appellant Steven Lazar was convicted by a Pennsylvania jury of second degree

murder. The District Court denied his petition for a writ of habeas corpus. We will

affirm.

                                               I

                                               A

          In January 2007, an elderly man, Dario Gutierrez, was killed in his home.

Gutierrez’s daughter discovered her father’s body and observed that his keys and wallet

were missing. Police officers observed that drawers appeared ransacked and that there

was a gold chain on the floor. The police, however, neglected to process the victim’s

yard as part of the crime scene.

          In April 2007, the victim’s daughter returned to her father’s home, found a

suitcase in the yard, and contacted the police. The suitcase contained Lazar’s

identification and other personal items. In July 2007, the police questioned Lazar, who

admitted that the suitcase was his. He told the police that he had been using drugs with

          *
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                               2
someone named “John” who took the suitcase and, in turn, gave it to an older man to

hold. The police released Lazar with the suitcase.

       Lazar then told his roommate, Russell Angely, that he had been questioned by the

police and confessed to Angely that he committed the murder. In November 2007, Lazar

and Angely got into a fight. Angely called the police and informed them that Lazar had

confessed to murder. Lazar also confessed to four other civilian witnesses. All five

civilian witnesses testified at trial, although Lazar challenged their credibility. Two of

these witnesses also testified to seeing Lazar with weapons, such as hatchets, consistent

with the murder weapon.

       On the morning of November 19, 2007, the police arrested Lazar on a bench

warrant and questioned him about the murder. At around 7:30 p.m., Lazar gave his

second statement to the police. He said that he had been using drugs with John when

John left, armed with a hatchet, to recover a debt allegedly owed by the victim. Lazar

told the police that he later entered the victim’s house where he saw the victim dead and

John, covered with blood, ransacking the drawers.

       The police held Lazar overnight. He gave a third and final statement to the police

the next day, November 20, 2007, from 2:45 to 4:20 p.m. This time, Lazar confessed that

he was present when John struck the victim with the hatchet; that Lazar himself struck




                                              3
and punched the victim; that John took the victim’s wallet and searched his drawers; and

that Lazar accepted money from John.1

       Around 10:00 p.m. that night, the police took Lazar to a hospital emergency room

after he reported pain while urinating. At the hospital, Lazar complained of shaking leg

pain, stomach pain, dizziness, nausea, diarrhea, and stated that he was suicidal. Lazar

was examined by a doctor in the psychiatric department, who found that Lazar was

“irritable and cooperative,” that his “thought process was goal directed,” that he was

“oriented and expressed suicidal ideation but had no plans,” and that his “insight and

judgment were fair.” State Court Record 399 (quotation marks omitted). Lazar also

tested positive for cocaine, marijuana and benzodiazepine. He was given a low dose of

medication prescribed for withdrawal and was discharged after only a few hours.

                                             B

       Unbeknownst to the jury and central to this appeal, Lazar was being treated with

methadone for drug addiction at the time of his arrest. Lazar received his last dose of

methadone the day before he was arrested, November 18, 2007, at 10:34 a.m. When he

gave his second statement to the police, Lazar had been without methadone for thirty-

three hours. When he gave his third statement, he had been without methadone for

approximately fifty-two hours.

       The jury did not hear that Lazar was entering or in withdrawal from methadone

when he confessed to the police. To the contrary, trial counsel incorrectly stipulated that

       1
         Lazar also told the police that there was a sexual encounter with the victim,
which was consistent with forensic evidence showing that the victim had recently
ejaculated.
                                             4
Lazar had his last dose of methadone a month earlier, on October 24, 2007. Although

trial counsel had records showing that this was incorrect, trial counsel did not read the

records, believing they were duplicates of other documents. Had trial counsel read the

records, he could have called an expert witness at trial to testify that Lazar’s symptoms,

which the jury heard, were associated with withdrawal.

                                             C

       Lazar was convicted of second degree murder and sentenced to life imprisonment.

His direct appeal was denied. He filed a petition for post-conviction relief alleging, inter

alia, that trial counsel was ineffective for failing to review the methadone records. The

state court granted an evidentiary hearing, at which both Lazar and the Commonwealth

called expert witnesses to opine on whether Lazar was suffering from methadone

withdrawal when he made his second and third statements to the police. Lazar’s expert

witness testified that it was very likely that Lazar was experiencing methadone

withdrawal when he made his third statement. The Government’s expert testified that

Lazar’s withdrawal systems would have been suppressed by other substances in his body,

noted that the hospital treated Lazar with only a low dose of withdrawal medication, and

also noted that the hospital discharged him quickly.

       Ruling on Lazar’s ineffective assistance of counsel claim, the trial court found that

defense counsel performed deficiently when he stipulated that Lazar had his last dose of

methadone a month before his arrest. It found, however, that Lazar was not prejudiced

under Strickland v. Washington, 466 U.S. 668, 694 (1984). The trial court found that

“[a]t best, [the jury] would have heard from competing experts that the defendant was

                                             5
experiencing an unknown quantum of withdrawal symptoms during the taking of his

statements.” Supp. App. 156. The jury would have also considered this testimony in

conjunction with the hospital records, which provided that Lazar “was oriented . . . and

[that] his insight and judgment were fair.” Id. (quotation marks omitted). The Superior

Court affirmed the trial court’s conclusions, and the Pennsylvania Supreme Court

declined review.

       Lazar then filed this timely habeas corpus petition alleging that trial counsel was

ineffective for failing to review the methadone records. The District Court noted that the

state court had found deficient performance. Therefore, the question before the Court

was whether Lazar was prejudiced. In a thoughtful and well-reasoned opinion, it

recognized that a “confession is like no other evidence.” App. 6 (quoting Arizona v.

Fulminante, 499 U.S. 279, 296 (1991)). It has “a ‘profound impact on the jury’ and ‘is

probably the most probative and damaging evidence that can be admitted against him.’”

Id. at 11 (quoting Fulminante, 499 U.S. at 296). Still the Court found that Lazar could

not overcome the standard of review of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). It granted a certificate of appealability

because reasonable jurists could disagree. See Buck v. Davis, 137 S. Ct. 759, 773

(2017).2




       2
        In its brief, the Commonwealth asked us to vacate the certificate of
appealability. At oral argument, the Commonwealth reasonably withdrew this request.
                                             6
                                             II3

       AEDPA limits the ability of a federal court to grant habeas corpus relief to a

petitioner based upon a federal constitutional claim that was “adjudicated on the merits”

in state court. 28 U.S.C. § 2254(d). Under Section 2254(d), habeas relief shall not be

granted unless the adjudication “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Id. (emphasis added). Under Section 2254(d)(1), a state court

decision involves an unreasonable application “if the court identifies the correct

governing legal rule from the Supreme Court’s cases but unreasonably applies it to the

facts of the particular case.” McKernan v. Superintendent, 849 F.3d 557, 563 (3d Cir.

2017) (quotation marks and citation omitted).

       Lazar’s claim was adjudicated on the merits in state court, which “heard and

evaluated the evidence and [his] argument[]” that he was prejudiced by trial counsel’s

failure to review the methadone records. Johnson v. Williams, 568 U.S. 289, 302 (2013)

(emphasis, quotation marks, and citation omitted). Therefore, the question before us is

whether the state court’s application of the prejudice prong of Strickland “involved an

unreasonable application of” that precedent. 28 U.S.C. § 2254(d)(1).


       3
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review of the District Court’s
decision is plenary. Dennis v. Secretary, 834 F.3d 263, 280 (3d Cir. 2016) (en banc).

                                             7
       Under Strickland, prejudice is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 466 U.S.

at 694. “A ‘reasonable probability’ is one ‘sufficient to undermine confidence in the

outcome.’” Bey v. Superintendent, 856 F.3d 230, 242 (3d Cir. 2017) (quoting Strickland,

466 U.S. at 694).4 We cannot hold that the state court unreasonably applied this standard.

While Lazar ably critiques the Superior Court’s decision in several ways, each falls short.

He points out (1) that the civilian witnesses to whom he confessed were impeached; (2)

that the element of robbery for felony murder was proven primary through his third

statement; and (3) that the Government referred to his third statement in its closing

argument. As to the first two points, the Superior Court considered them. See Supp.

App. 177 (impeachment noted); id. at 166 (additional evidence of robbery noted). As to

the third, on this record we are constrained by Section 2254(d)(1) to affirm, as there was

no unreasonable application of clearly established federal law.5


       4
         The Supreme Court has stated that when the Strickland analysis is combined
with Section 2254(d), the analysis is “doubly” deferential. Premo v. Moore, 562 U.S.
115, 122 (2011) (citation omitted). However, it is an open question in this Circuit
whether this language applies to the prejudice prong. Indeed, we recently granted panel
rehearing to remove references to “doubly deferential” review from a Strickland
prejudice analysis. Compare Mathias v. Superintendent, 869 F.3d 175, 189, 191 (3d Cir.
2017) (applying doubly deferential review), vacated by Mathias v. Superintendent 876
F.3d 462 (3d Cir. 2017), with Mathias, 876 F.3d at 477 n.4 (declining to resolve the
issue). In Lazar’s case, the District Court found that doubly deferential review does not
apply to the prejudice prong of Strickland. See App. 16 n.3 (citing Evans v. Secretary,
703 F.3d 1316, 1334 (11th Cir. 2013) (en banc) (Jordan, J., concurring) (distinguishing
prejudice from deficient performance)). We assume arguendo that this is correct, as we
will nevertheless affirm the denial of the writ.
       5
         Lazar also argues that the police recovered a machete from another person. This
matters little, as this weapon was rusty and the police eliminated the owner as a suspect.
                                             8
                                    III

The judgment of the District Court is affirmed.




                                     9
