Tricia Muff v. Martin Dragovich

Honorable Marvin J. Garbis, Senior United States District Judge for the District*
of Maryland, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-1972
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TRICIA MUFF,
Appellant
v.
MARTIN DRAGOVICH; THE DISTRICT ATTORNEY OF THE
COUNTY OF DELAWARE COUNTY; THE ATTORNEY GENERAL
OF THE STATE OF PENNSYLVANIA
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(No. 05-cv-05251)
District Judge: Honorable Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
January 5, 2009
Before: CHAGARES and HARDIMAN, Circuit Judges, and GARBIS, District Judge*
(Filed: February 11, 2009 )
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Tricia Muff appeals the District Court’s denial of habeas corpus relief. For the
reasons explained below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will recite only the
essential facts.
On December 1, 1998, Muff was babysitting her neighbor’s 12-month-old child.
That afternoon, while under Muff’s care, the child suffered multiple gruesome injuries
and died. Muff was charged with first-degree murder. She proceeded to trial in the
Delaware County Court of Common Pleas.
Rather than take the more risk-averse route of conceding guilt on the lesser
included charge of third-degree murder, Muff’s counsel argued that the child’s death was
accidental and that no criminal conduct occurred. That is, counsel argued that Muff was
not guilty of first-degree murder or any other crime.
In support of this theory, counsel presented a bio-engineering expert with
extensive experience conducting autopsies at the Philadelphia Medical Examiner’s
Office. The expert testified that the child’s head trauma was consistent with an accidental
fall. He also testified that he could offer no opinion on the precise cause of the extensive
bruising on her body because the surgery she underwent in an attempt to save her life may
have contributed to it. Counsel also presented reputation witnesses who testified to

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Muff’s peaceful, non-violent character. Finally, Muff testified that the child’s injuries
were not intentionally inflicted.
The trial judge instructed the jury on first-degree murder, third-degree murder,
involuntary manslaughter, aggravated assault, and endangering the welfare of a child. On
July 23, 1999, the jury convicted Muff of first-degree murder, aggravated assault, and
endangering the welfare of a child.
The Superior Court affirmed the verdict on direct appeal, and the Pennsylvania
Supreme Court denied allocatur. Muff then filed a petition pursuant to the Pennsylvania
Post-Conviction Relief Act (PCRA), which the Court of Common Pleas denied. The
Superior Court affirmed the denial, and the Pennsylvania Supreme Court denied allocatur.
Muff then filed a timely habeas petition pursuant to 28 U.S.C. § 2254 in the
District Court. The District Court denied the petition and did not grant a certificate of
appealability. Muff then filed this appeal. This Court granted a certificate of
appealability.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and this Court
has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
If the Pennsylvania state courts adjudicated Muff’s claim on the merits, we will
affirm the District Court’s denial of habeas relief if that adjudication is not contrary to
clearly established federal law, does not involve an unreasonable application of clearly

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established federal law, and does not rest upon an unreasonable determination of the
facts. Bond v. Beard, 539 F.3d 256, 263 (3d Cir. 2008) (citing 28 U.S.C. § 2254(d)). If
the Pennsylvania state courts did not adjudicate Muff’s claim on the merits, we will
review it de novo. Id.
III.
The parties dispute whether the state courts adjudicated Muff’s ineffectiveness
claim on the merits (and therefore what standard of review we must apply). This dispute
is immaterial, however, because Muff’s claims fail even on de novo review.
A claim of ineffective assistance of counsel is governed by Strickland v.
Washington, 466 U.S. 668 (1984). Strickland holds that, to establish that counsel was
constitutionally ineffective, the petitioner must prove that counsel’s performance was
objectively unreasonable and that the petitioner was prejudiced by such substandard
advocacy. 466 U.S. at 687. To prove prejudice, the petitioner must demonstrate a
reasonable probability that, had her lawyer’s performance been up to par, the result of the
proceeding — in this case, the verdict of guilty on the charge of first-degree murder —
would have been different. Id. at 694.
Muff argues that counsel’s decision not to concede guilt on third-degree murder
and instead to present an accident defense in hopes of winning outright acquittal was
unreasonable. The accident defense stood no reasonable chance of success, Muff
contends, because the bulk of the medical testimony in the case suggested that the child

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died from intentionally inflicted trauma. The decision to present the accident defense
prejudiced Muff, she argues, because there is a reasonable chance that, had counsel
conceded guilt on the third-degree murder charge, Muff would not have been convicted
of first-degree murder.
We reject Muff’s argument because we find that the accident defense was not so
implausible as to make counsel’s decision to present it objectively unreasonable. True,
Muff’s case may have been weak on the medical testimony. But counsel did marshal
expert testimony — that of the biomedical engineer — to support Muff’s version of the
events. And Muff’s case was strong on the issue of Muff’s non-violent character.
Counsel presented numerous witnesses who testified as to Muff’s peaceful demeanor (and
therefore to the unlikelihood that she murdered the child intentionally, a finding necessary
for first-degree murder). Counsel also established through these witnesses that Muff had
no motive to kill the child and that she had a long-term relationship with the child that
was warm and loving. Further, at closing argument, counsel did indeed present the jury
with a basis for a finding of guilty on the lesser charge of third-degree murder. See
Appendix (App.) 136-38.
In light of the foregoing, we cannot say that this strategy was unreasonable. “The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions. Counsel’s actions are usually based, quite
properly, on informed strategic choices made by the defendant and on information

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Florida v. Nixon, 543 U.S. 175 (2004), cited by Muff, is not to the contrary.1
Nixon held only that it was not objectively unreasonable for counsel in a capital case to
concede his client’s guilt in hopes of receiving a lighter sentence when the client reacted
with “characteristic silence” whenever counsel sought his input in strategic decisions. 543
U.S. at 189. Muff’s case is different. The uncontradicted PCRA hearing testimony
indicates that, rather than remain silent, Muff affirmatively rejected other defenses
counsel proposed to her. See App. 135-36.
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supplied by the defendant.” Stevens v. Del. Correctional Ctr., 295 F.3d 361, 371 (3d Cir.
2002). In fact, it might have been objectively unreasonable for counsel to have done what
Muff now claims she wishes he would have done — to concede guilt on a lesser charge
despite Muff’s protestations to the contrary. See Felker v. Thomas, 52 F.3d 907, 911
(11th Cir. 1995) (“[T]rial counsel may not concede the guilt of a defendant who has
pleaded not guilty, at least not without the defendant’s consent. That is true enough as to
the guilt stage . . . .”); United States v. Simone, 931 F.2d 1186, 1197 (7th Cir. 1991) (“We
do not approve of a defense counsel’s deliberate, explicit admission that a jury should
find his client guilty of a charge in the absence of any suggestion that the defendant
concurred in the decision to proceed in such a manner.”).1
Muff also argues that counsel’s performance was constitutionally deficient under
Strickland because counsel did not present what he personally believed to be the best
defense. This argument fails. Strickland instructs that reasonableness is to be judged
objectively according to what might be considered sound strategy, not subjectively
according to what the attorney in question thought was best. 466 U.S. at 687-88 (“When
a convicted defendant complains of the ineffectiveness of counsel’s assistance, the

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defendant must show that counsel’s representation fell below an objective standard of
reasonableness.”); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008)
(“Because [the Strickland] standard is objective, it matters not whether the challenged
actions of counsel were the product of a deliberate strategy or mere oversight. The
relevant question is not what actually motivated counsel, but what reasonably could have
motivated counsel.”) (internal citations omitted). Therefore, counsel’s personal beliefs
about the efficacy of his trial tactics are not relevant to determining whether those tactics
were constitutionally adequate.
IV.
For the above reasons, we will affirm the District Court’s denial of Muff’s petition
for habeas corpus.

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