FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 13, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 04-15685

_____________________________

D. C. Docket No. 04-00066-CV-3-RV

EDWARD J. ZAKRZEWSKI, III,

Petitioner-Appellant,

versus

JAMES MCDONOUGH, Secretary,

Florida Department of Corrections,

CHARLIE CRIST, Attorney General

of Florida,

Respondents-Appellees.

_________________________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________________________

(July 13, 2006)

Before EDMONDSON, Chief Judge, DUBINA and PRYOR, Circuit Judges.
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PER CURIAM:

Florida prisoner Edward Zakrzewski appeals the district court's denial of his

28 U.S.C. § 2254 habeas corpus petition challenging his death sentence. The

district court granted a certificate of appealability on two issues: “(1) whether trial

counsel was ineffective for failure to object to statements made by the prosecutor

in closing argument, and (2) whether trial counsel was ineffective for failure to file

a motion to suppress evidence contained in the house which constituted the

murder scene.” Taking into account the pertinent state court decisions, we affirm

the denial of habeas corpus relief.

I. Background

Zakrzewski pleaded guilty to the first-degree murders of his wife, Sylvia,

his five-year-old daughter, Anna, and his seven-year-old son, Edward. The

circumstances for these murders, as recited by the Florida Supreme Court, involve

these facts:

Zakrzewski and his wife had been experiencing marital problems for some

time prior to the murders. Zakrzewski twice told a neighbor that he would

kill his family rather than let them go through a divorce. On June 9, 1994,
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the morning of the murders, Edward called Zakrzewski at work and stated

that Sylvia wanted a divorce. During his lunch break, Zakrzewski purchased

a machete. He returned to work and completed his daily routine. That

evening, Zakrzewski arrived home before his wife and children. He hid the

machete in the bathroom.

After his family arrived home, Zakrzewski approached Sylvia, who was

sitting alone in the living room. He hit her at least twice over the head with

a crowbar. The testimony established that Sylvia may have been rendered

unconscious as a result of these blows, although not dead. Zakrzewski then

dragged Sylvia into the bedroom, where he hit her again and strangled her

with rope.

Zakrzewski then called Edward into the bathroom to come brush his teeth.

As Edward entered the room, Zakrzewski struck the boy with the machete.

Edward realized what his father was doing and tried to block the blow with

his arm, causing a wound to his wrist. Further blows caused severe head,

neck, and back injuries, and resulted in death.

Zakrzewski then called Anna into the bathroom to brush her teeth.

Zakrzewski testified that he hit the girl with the machete as soon as she

entered the bathroom. The State's expert testified that the blood spatters

from Anna show that the girl was kneeling over the bathtub when she was

struck by the machete. Cuts were found on Anna's right hand and elbow,

consistent with defensive wounds. The blows from the machete resulted in

Anna's death. The evidence was in conflict as to whether Anna was aware of

her impending death.

Finally, Zakrzewski dragged his wife from the bedroom to the bathroom. He

still was not sure if she was dead, so he hit her with the machete. Sylvia died

from blunt force injuries as well as sharp force injuries.

Following the murders, Zakrzewski drove to Orlando and boarded a plane

bound for Hawaii. While in Hawaii, Zakrzewski changed his name and lived

with a family who ran a religious commune. After he had been there four

months, the family happened to watch the television show “Unsolved
 The Florida Supreme Court decided that the HAC aggravating factor was not applicable to 1

Zakrzewski’s wife but that the error was harmless. See Zakrzewski, 717 So.2d at 492-93. 

4

Mysteries,” which aired Zakrzewski's picture. Zakrzewski turned himself in

to the local police the next day.

Zakrzewski v. Florida, 717 So.2d 490, 490-91 (1998). During the penalty phase,

the trial court found three aggravating factors applied to each murder: (1)

Zakrzewski was previously convicted of other capital offenses (the

contemporaneous murders); (2) the murders were committed in a cold, calculated,

and premeditated manner without pretense of legal or moral justification; and (3)

the murders were committed in an especially heinous, atrocious, or cruel manner

(HAC). The court found two statutory mitigators: (1) no significant prior criminal

history and (2) the murders were committed while Zakrzewski was under the

influence of extreme mental or emotional disturbance. Zakrzewski presented

twenty-four nonstatutory mitigators, each of which was considered by the

sentencing court.

Following the penalty phase hearing, the jury recommended death for the

murders of Zakrzewski’s wife and son by a 7-5 vote, and life in prison without

possibility of parole for Anna’s murder. The court sentenced Zakrzewski to death

for all three murders. On direct appeal, the Florida Supreme Court affirmed

Zakrzewski’s convictions and sentences. Zakrzewski then filed a motion in state

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court for post-conviction relief under Florida Rules of Criminal Procedure 3.850

and 3.951 that raised five claims, including the claims currently before us. The

state trial court denied post-conviction relief on all claims; the Florida Supreme

Court affirmed. Zakrzewski then filed a 28 U.S.C. § 2254 petition in the district

court raising six claims. The district court denied relief on all claims, but issued a

certificate of appealability on two issues: “(1) whether trial counsel was

ineffective for failure to object to statements made by the prosecutor in closing

argument, and (2) whether trial counsel was ineffective for failure to file a motion

to suppress evidence contained in the house which constituted the murder scene.”

The district court concluded that the Florida Supreme Court did not unreasonably

apply controlling law in determining that trial counsel had provided effective

assistance, because (1) trial counsel’s failure to object to closing argument was

part of a reasonable trial strategy; (2) the motion to suppress that counsel did not

file would have involved a non-meritorious claim; and (3) Zakrzewski failed to

show he was prejudiced by trial counsel’s failure to file the motion to suppress. 
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II. Standard of Review

We review the final state judgment on Zakrzewski’s claims pursuant to 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA). Section 2254(d) allows federal habeas to be granted for a

claim adjudicated on the merits in state court only if the state court 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.” 28 U.S.C. § 2254(d). Factual findings by the state court

are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). 

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if

the state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law or if the state court decides a case differently than [the

Supreme Court] has on a set of materially indistinguishable facts. Under the

‘unreasonable application’ clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from [the Supreme
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Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner's case.” Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000).

III. Discussion

The Florida courts correctly identified Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052 (1984), as the controlling legal authority for ineffective

assistance of counsel claims. See Williams, 120 S.Ct. at 1499; Marquard v. Sec’y

for Dept. of Corrections, 429 F.3d 1278, 1304 (11th Cir. 2005), cert. denied, 126

S.Ct. 2356 (2006). To prevail on a claim of ineffective assistance, petitioner must

prove both incompetence and prejudice by showing that (1) “counsel's

representation fell below an objective standard of reasonableness,” and (2) “there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.” Chandler v. United States, 218

F.3d 1305, 1312-13 (11th Cir. 2000) (en banc) (quoting Darden v. Wainwright,

106 S.Ct. 2464, 2473 (1986) (quoting Strickland, 466 U.S. at 688, 694; 104 S.Ct.

at 2064, 2068)).

 The standard governing counsel’s performance is "reasonableness under

prevailing professional norms." Strickland, 104 S.Ct. at 2065. “‘The purpose of
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ineffectiveness review is not to grade counsel's performance,’ but to determine

whether that performance fell within the broad range ‘of what might be a

reasonable approach at trial.’” Marquard, 429 F.3d at 1304 (quoting Chandler,

218 F.3d at 1313). “Judicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, 104 S.Ct. at 2065. “Courts must ‘indulge [the] strong

presumption’ that counsel's performance was reasonable and that counsel ‘made

all significant decisions in the exercise of reasonable professional judgment.’”

Chandler, 218 F.3d at 1314 (quoting Strickland, 104 S.Ct. at 2065-66). 

“[C]ounsel cannot be adjudged incompetent for acting in a particular way in a

case, as long as the approach taken ‘might be considered sound trial strategy.’” Id.

(quoting Darden, 106 S.Ct. at 2474). Counsel’s conduct may be found

unreasonable only if petitioner shows “that no competent counsel would have

taken the action that his counsel did take.” Marquard, 429 F.3d at 1304 (quoting

Chandler, 218 F.3d at 1315). “When courts are examining the performance of an

experienced trial counsel, the presumption that his conduct was reasonable is even

stronger.” Chandler, 218 F.3d at 1316. The trial court found that both of

Zakrzewski’s trial counsel had “vast experience in criminal defense.”
 The prosecutor said the following about Zakrzewski’s religious beliefs and interest in Nietzsche: 2

[A] factor of his disturbance that his own psychologist, Dr. Larson, admitted was that

[Zakrzewski] was narcissistic. He had these narcissistic tendencies and his

fascination with Nietzsche's superman, the ideal superman who despises Christianity.

. . . 

After he came back from Molokai and before he went, he was fascinated with

Nietzsche. Nietzsche denounces Christianity. In his own words in this writing here,

[Zakrzewski] denounces Christianity. . . . He said, “Christianity is a primary culprit

in propagating the belief that suicide is a ticket to eternal damnation. Ludicrous. All

that's required are a couple of I believes and please forgive me. The Bible says it.

This doctrine of eternal damnation is but another route of egress for spineless fools."

That's surrounded by Nietzsche philosophy about the creative superman. So, you be

sure to weigh his philosophy about Christianity with whether or not he should be

forgiven for appearing to accept Christianity in Hawaii. 

(R. 15, Ex. 3-X at 1216, 1223-24.)

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A. Closing Arguments

Zakrzewski claims his trial counsel were ineffective for not objecting to

statements made by the prosecutor during closing argument, including statements

that Zakrzewski was fascinated with the anti-Christian writings of German

philosopher Nietzsche. At the evidentiary hearing on Zakrzewski’s ineffective 2

assistance claim, Defendant’s trial counsel, Issac Bruce Koran and Elton Killiam,

testified that, if they did not object to a closing argument, it was either because of

strategy or a belief that the comment was not objectionable. Killiam testified that

he believes cases must be won at trial, not on appeal, and prefers not to make
 Zakrzewski’s trial counsel had already presented testimony from six witnesses, including 3

Zakrzewski, about Zakrzewski’s prayer life and church attendance after the murders. In an attempt

to prevent admission of Zakrzewski’s notes about Nietzsche’s philosophy, defense counsel argued

that his earlier questions were intended to show Zakrzewski’s remorse, not his “religious convictions

or beliefs. It would be improper in my opinion for the state to go into that. . . . [W]e're not going to

argue that to the jury as a mitigator in this case.” The government responded that because the

defense had already presented evidence of Zakrzewski’s religious practices, it was entitled to present

rebuttal, whether or not the defense ultimately chose to argue that Zakrzewski’s faith was a

mitigating factor to the jury. The trial court overruled defense counsel's objection and admitted

Zakrzewski’s writings -- which referenced Nietzsche and Christianity -- into evidence. The trial

court sustained a defense objection when the prosecutor asked Zakrzewski whether Nietzsche’s

writings were anti-Christian, but later admitted expert testimony about this topic over defense

objection. Defense counsel then chose to argue to the jury in closing that Defendant’s post-offense

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objections during closing argument unless the objection is a strong one. An

objectively reasonable trial lawyer could so believe. 

About the prosecutor’s religious argument, Koran testified that he did not

object because the prosecution “had evidence of writings [Zakrzewski] had made

[in prison] subsequent to being brought back here to this area and they seemed

relevant to us that you’d be able to argue that.” During trial, defense counsel had

presented mitigating evidence that Zakrzewski “embraced the Christian Faith

since the offense.” The government responded with evidence that before and after

the offense Zakrzewski read and copied quotes from the writings of German

philosopher Nietzsche and that Nietzsche's philosophy is considered

anti-Christian. Defense counsel timely objected to the admission of this evidence,

but the objection was overruled because the defense had placed Zakrzewski’s

religious beliefs at issue. An objectively reasonable trial lawyer could have 3
embrace of the Christian faith was a mitigating factor. 

 Defendant argues that it was objectively unreasonable for trial counsel not to object to the 4

prosecutor’s closing argument about Defendant’s religious beliefs in the light of Dawson v.

Delaware, 112 S.Ct. 1093 (1992), which held that it was constitutional error to admit evidence that

the defendant was a member of the Aryan Brotherhood during a penalty hearing where that evidence

proved only abstract beliefs that had no relevance to the issues being decided. Dawson is easily

distinguished from this case because the Court in Dawson said the evidence would have been

admissible if it had been relevant to rebut mitigating evidence offered by the defendant. See 112

S.Ct. at 1098-99.

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concluded that an objection to the prosecutor’s closing argument about

Defendant’s religious beliefs was not the thing to do given these circumstances.

Zakrzewski has failed to show that counsel’s not objecting to the contested

statements during closing argument was a course no competent counsel would

have taken. In addition, review of the entire penalty phase shows that defense 4

counsel presented substantial mitigation through lay and expert witnesses,

presented a thorough penalty phase closing argument that was responsive to the

identified prosecutorial comments, and objected and moved for a mistrial in

response to other closing argument. We conclude that the state courts reasonably

determined that, considering the applicable federal law, Zakrzewski failed to show

that trial counsel’s not objecting to the pertinent closing comments was deficient

performance. We affirm the district court's denial of relief on this claim.
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B. Failure to Move to Suppress Evidence 

Zakrzewski argues his trial counsel were ineffective because they did not

move to suppress evidence from the murder scene that was discovered inside

Zakrzewski’s house during a warrantless search and later seized pursuant to a

warrant. Zakrzewski argues the initial search did not fit any exception to the

warrant requirement and that the fruits of that search were therefore suppressible. 

To obtain relief where an ineffective assistance claim is based on trial counsel's

failure to file a timely motion to suppress, a petitioner must prove (1) that

counsel's representation fell below an objective standard of reasonableness, (2)

that the Fourth Amendment claim is meritorious, and (3) that there is a reasonable

probability that the verdict would have been different absent the excludable

evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582-83

(1986). 

Zakrzewski’s trial counsel testified that they chose not to file a motion to

suppress because they believed the warrantless search was supported by exigent

circumstances and that filing the motion would be futile: the position taken by the
 See Mincey v. Arizona, 98 S.Ct. 2408, 2413 (1978) (“We do not question the right of the police 5

to respond to emergency situations. Numerous state and federal cases have recognized that the

Fourth Amendment does not bar police officers from making warrantless entries and searches when

they reasonably believe that a person within is in need of immediate aid.”).

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state court later. An objectively reasonable lawyer could have chosen to file no 5

motion to suppress. The warrantless search was conducted by Deputy Robert

Baczek four days after the murders. The Deputy responded to a call from

Zakrzewski's Air Force Sergeant -- Zakrzewski was serving in the Air Force at the

pertinent time -- who became concerned when Zakrzewski did not show up for

class and could not be located by calling his home, the hospital, or the police. 

During an inspection of Zakrzewski’s house exterior, the Deputy found

several days’ accumulation of mail and a broken window covered by a screen. 

The Deputy testified he found this suspicious and “feared for the welfare of

whomever may have been in the house at that time, thinking that there may have

been a burglary, the family may have been on vacation, or something like that.” 

The Deputy announced his presence before and immediately after entering the

residence through the broken window and moved quickly from room to room

looking for injured residents and perpetrators. After discovering the dead bodies,

the Deputy completed a preliminary sweep of the house to ensure the perpetrator

was not present. Once backup arrived, the officers briefly conducted a full sweep
 The district court also found that a reasonable lawyer could have concluded that filing a motion 6

to suppress was futile because (1) Zakrzewski had abandoned his house and its contents, making any

expectation of privacy unreasonable, see Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698

(1960), United States v. Winchester, 916 F.2d 601, 602 (11th Cir. 1990); and (2) discovery of the

dead bodies was inevitable. We agree. By the time the Deputy searched the house, Zakrzewski had

already fled to Hawaii -- where he remained for four months before turning himself in -- and had no

plans to return to the house or to provide for its upkeep.

 Because it is unnecessary to our conclusion, we do not decide today whether the Florida Supreme

7

Court reasonably concluded that Zakrzewski failed to satisfy the prejudice element of this ineffective

assistance claim. 

 

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of the house and then sealed the house until a warrant was obtained. Based on the

record facts, the state 3.850 court concluded -- we accept reasonably -- that the

warrantless search of Zakrzewski’s house was justified by exigent circumstances.

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Zakrzewski has failed to show that trial counsel’s decision not to file a

motion to suppress the evidence discovered during the warrantless search was a

course no competent counsel would have taken under the circumstances. We

conclude the Florida Supreme Court’s determination that Zakrzewski failed to

show deficient performance was a reasonable application of Strickland.7

IV. Conclusion

The district court’s denial of Zakrzewski’s 28 U.S.C. § 2254 petition is

AFFIRMED.