NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2688

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GUSTAVO XAVIER,

Appellant

v.

SUPERINTENDENT ALBION SCI; ATTORNEY GENERAL PENNSYLVANIA; 

DISTRICT ATTORNEY SUSQUEHANNA COUNTY

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3:12-cv-01603)

District Judge: Jennifer P. Wilson

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Submitted Under Third Circuit L.A.R. 34.1(a):

November 18, 2022

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Before: HARDIMAN, PORTER, and FISHER,

Circuit Judges.

(Filed: December 2, 2022)

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OPINION

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 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 

precedent.
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PORTER, Circuit Judge

Gustavo Xavier seeks habeas corpus review of his state conviction for third-degree 

murder under a negotiated plea agreement, for which he received a sentence of 20 to 40 

years. He seeks relief under 28 U.S.C. § 2254 based on a claim of ineffective assistance 

of trial counsel. The District Court concluded that he failed to adduce sufficient evidence 

showing that his trial counsel’s performance fell below an objective standard of 

reasonableness. For the reasons that follow, we will affirm the District Court.

I

Xavier argues that his trial counsel failed to properly investigate evidence that 

would undermine the malice element of his homicide charge. Absent malice, he argues, 

he could have been tried and convicted of voluntary manslaughter, resulting in a lesser 

sentence. Therefore, he concludes, his counsel’s assistance was ineffective, and his 

resulting guilty plea could not have been knowing, voluntary, and intelligent. 

The homicide at issue was that of Lisa Parlanti, Xavier’s then-girlfriend. Xavier 

struck her multiple times with a blunt object, wrapped her head in a plastic bag, and 

placed her body in a closet. For that, he was charged with criminal homicide and 

aggravated assault. In a negotiated plea agreement, Xavier entered a guilty plea to one 

count of Murder of the Third Degree. In exchange, the Commonwealth agreed not to seek 

a charge of Murder of the First Degree. The court accepted the plea.
3

Over a decade of post-conviction procedure has ensued. Xavier soon challenged 

his conviction through a petition for post-conviction relief under the Pennsylvania PostConviction Relief Act (“PCRA”). The Court of Common Pleas denied PCRA relief on 

September 27, 2011. He then appealed to the Superior Court of Pennsylvania, which 

affirmed the denial of PCRA relief on May 23, 2012. On August 10, 2012, he filed a 

petition for writ of habeas corpus in the United States District Court for the Western 

District of Pennsylvania, which was subsequently transferred to the Middle District of 

Pennsylvania. 

The District Court dismissed the petition with prejudice, declining to issue a 

certificate of appealability (“COA”). Xavier appealed, and this Court issued a COA as to 

two issues: “(1) whether the District Court erred in concluding that Xavier is procedurally 

barred from pursuing his claim that counsel was ineffective for failing to advise him that 

he might only be convicted of manslaughter if he opted for trial; and (2) whether counsel 

was ineffective for failing to challenge inculpatory statements given to investigators 

while Xavier was heavily medicated in the ICU.” App. 5. We affirmed the District 

Court’s denial of Xavier’s claim with regard to inculpatory statements but vacated as to 

the Sixth Amendment claim. Xaiver v. Superintendent Albion SCI, 689 F.App’x 686 (3d 

Cir. 2017) (non-precedential). The case was remanded on the effective-assistance-ofcounsel question. Id. 

On remand, the District Court held an evidentiary hearing, taking testimony from 

witnesses including Xavier and his trial counsel, Linda LaBarbera. LaBarbera testified to 
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having discussed manslaughter with Xavier several times before he pleaded guilty and 

advising him that a strategy of seeking a voluntary manslaughter conviction was unlikely 

to succeed at trial. Xavier testified that he did not believe that they had ever discussed 

manslaughter prior to the entry of his plea. Judge Saporito found LaBarbera’s testimony 

to be fully credible but Xavier’s to be “only partially credible” based on his demeanor 

and the inconsistencies between his testimony and other evidence in the record. Xavier v. 

Harlow, 2021 WL 3520649, at *4 (M.D. Pa. May 14, 2021). Judge Saporito found 

Xavier’s testimony to be “equivocal, at best,” whereas he found LaBarbera’s to be 

explicit that they had discussed manslaughter “on multiple occasions”—an assertion 

supported by her contemporaneous notes of their meetings. Id. at *12. The District Court

found LaBarbera’s advice to be reasonable under the circumstances and found no 

evidence of coercion, misleading statements, or undue compulsion on her part. Xavier 

timely appealed.

II

Petitions for writs of habeas corpus raise federal questions, giving the District 

Court jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. §§ 1291 

and 2253(c)(1) over Xavier’s appeal from the District Court’s order denying his habeas 

petition. In reviewing the denial of a petition for a writ of habeas corpus brought under 28 

U.S.C. § 2254, we “exercise plenary review over the district court’s legal conclusions and

apply a clearly erroneous standard to its factual findings.” Cradle v. United States ex rel. 

Miner, 290 F.3d 536, 538 (3d Cir. 2002).
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III

Federal law concerning effective assistance of counsel establishes a two-prong 

test. See Strickland v. Washington, 466 U.S. 668 (1984). First, did counsel’s 

representation fall below an objective standard of reasonableness? Id. at 687-88. Second, 

did counsel’s deficient performance prejudice the defendant in making his defense? Id. at 

687. Because we hold that LaBarbera’s representation of Xavier did not fall below an 

objective standard of reasonableness, we do not reach the question of prejudice.

Defense counsel in a criminal case “has a duty to make reasonable investigations 

or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 

691. She is obligated to make a “reasoned judgment as to the amount of investigation the 

particular circumstances of a given case require.” Blystone v. Horn, 664 F.3d 397, 423

(3d Cir. 2011) (citation omitted). But she is not required to pursue “an investigation that 

would be fruitless, much less one that would be harmful to the defense.” Harrington v. 

Richter, 562 U.S. 86, 108 (2011). The decision not to investigate “must be directly 

assessed for reasonableness in all the circumstances” but with “a heavy measure of 

deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

Xavier has failed to demonstrate that LaBarbera’s counsel fell below an objective 

standard of reasonableness. When she advised Xavier concerning his plea, she had seen 

the crime scene photos and could appreciate the extreme violence of the crime. She 

reviewed documents detailing the eighteen-to-twenty-two injuries to Parlanti’s head. She 
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knew that Xavier had taped a plastic bag over Parlanti’s head before stuffing her in a 

closet. She could reasonably judge the likely effect that information would cause if heard 

by a jury. She knew that it is difficult to persuade a jury that a homicide perpetrator 

involuntarily “snapped” in a way that would undermine a finding of malice. And she 

knew that Xavier had testified that he was “not drunk and did not use drugs” on the night 

of the homicide, which would make it more likely for him to be convicted of Murder of 

the First Degree rather than of the Third.1

Xavier’s arguments to the contrary are unavailing. Much of the testimony that he 

notes could have been taken in 2009 is ambivalent as to the question of malice. See

Appellant Br. at 19-20. Witness statements indicate a mutually abusive relationship 

between Xavier and the victim as well as drug use by Xavier. See id. Mutual abuse does 

not clearly negate malice, and, again, drug use might reduce a charge of Murder of the 

First to Murder of the Third, but not to Voluntary Manslaughter. See Commonwealth v. 

Milburn, 413 A.2d 388, 388 (Pa. 1980). Other statements, such as that about an officer’s 

Spanish-language proficiency or that Xavier was thought by several people to have been

inebriated on the day of the murder, are irrelevant and waived. See Appellant Br. at 19.

Xavier puts too much weight on these testimonies, claiming that they show “a reasonable 

1 Xavier makes much of witness statements as to his intoxication at various times. His 

intent in doing so is not always clear. See Appellant Br. at 19. Under Pennsylvania law, 

intoxication cannot reduce a charge of murder to voluntary manslaughter. Commonwealth 

v. Milburn, 413 A.2d 388, 388 (Pa. 1980) (“[M]urder of the third degree does not require 

specific intent, and voluntary intoxication neither precludes conviction of that offense nor 

reduces it to voluntary manslaughter.”). And if he means to cast doubt over portions of 

his statements to police, such evidentiary questions are waived by his guilty plea.
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probability that, but for trial counsel’s deficient performance . . . Xavier would have gone 

to trial and would be serving a shorter sentence for manslaughter.” Appellant Br. at 21.

They do no such thing.

Xavier also faults counsel for not further pursuing ambiguities as to the murder 

weapon. The Commonwealth’s theory was that Parlanti was killed with a sink post; 

Xavier contends that he used a tire jack. He argues that counsel’s failure to resolve 

ambiguities as to the murder weapon is evidence of her deficiencies and proves that she 

did not take the investigation seriously. Appellant Br. at 20 n.23; Reply Br. at 2. 

There are two flaws in that argument. First, Xavier’s choice of weapon is not 

dispositive of malice. One could use a tire jack in a crime of malice or in the heat of 

passion just as one could a sink post. If Xavier has an argument for why the choice of 

weapon clearly weighs in favor of a heat-of-passion crime, he has not articulated it here. 

Second, if there was ambiguity as to the murder weapon, Xavier is partly to blame: in his 

oral guilty plea colloquy, he affirmatively indicated that he hit the victim “on a number of 

occasions with a metal post which had been used to prop up a sink.” App. 107. Because a 

defendant pleading guilty is bound by the statements that he makes under oath in open 

court, he cannot subsequently change his story. Commonwealth v. Yeomans, 24 A.3d 

1044, 1047 (Pa. Super. Ct. 2011). Nor was his counsel ineffective for declining to 

investigate theories that would contradict those statements made under oath.

We cannot deny that there may be other facts that could have been discovered and 

other testimony that could have been taken. But “reasonable” investigation is not 
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maximal investigation. Strickland, 466 U.S. at 691. An attorney is not required to pursue 

every morsel of information that might bear upon her client’s case. See Harrington, 562 

U.S. at 108. Here, the facts that were already available to LaBarbera offered significant 

evidence from which a jury would likely conclude that Xavier acted with malice. Under 

the “heavy measure of deference” that we afford to criminal defense counsel in these 

situations, we cannot say that a defense attorney presented with the evidence that 

LaBarbera had is unreasonable in declining to investigate further. Strickland, 466 U.S. at 

691.2 Therefore, we cannot say that she was ineffective in advising him to plead rather 

than to roll the dice.

IV

Under Strickland, Xavier has failed to show that his counsel’s declination to 

further investigate evidence going to malice was unreasonable. 466 U.S. at 691. The 

District Court therefore did not err when it denied Xavier’s habeas petition. We will 

affirm the denial.

2 Pursuant to 2254(d), our review of an ineffective-assistance-of-counsel claim 

adjudicated on the merits in state court is reviewed under a doubly deferential standard.