Lead Opinion
OPINION OF THE COURT
James McBride appeals an order of the United States District Court for the East
I. Background and Procedural History
A. Background
McBride and his wife, Kelly McBride (“Kelly”),
B. Procedural History
1. Trial
At McBride’s trial in the Court of Common Pleas of Northampton County in Pennsylvania in May 2001, the district attorney made comments before the jury that arguably implicated McBride’s constitutional right to remain silent. The district attorney made those comments, with no objection from McBride’s counsel, when referring to interviews that McBride had had with Richard Fritz, an FBI agent, and Stephen Abbey, a corporal in the Rock-ledge, Florida Police Department.
a) Agent Fritz Interviews
Agent Fritz testified that he interviewed McBride twice during May 1984, and he read to the jury from notes that he made during those interviews. Before Agent Fritz read his notes from the second interview,
This information is being submitted to you for a limited purpose.... [I]t’s being offered to you, and may be considered by you, only so that you can evaluate the effect on Mr. McBride when he*95 hears these things. It’s offered to show the effect on the listener, on the hearer. So when there is a reference in the upcoming interview about things other people said, you’re not to focus on whether or not they actually said those things or whether or not those things are true. Rather, you’re to focus on how, if at all, Mr. McBride reacts to that information.
(App. at 176-77.)
Agent Fritz then read his notes from a May 30, 1984 interview with McBride at the Lehigh County Prison, where McBride was incarcerated on an unrelated matter. Those notes indicated that, after Miranda warnings were given,
When specifically asked whether he had been in the company of [name redacted] the day following his wife’s disappearance, McBride would not answer.
McBride was asked if he was aware of the fact that [what appeared to be] a large amount of blood ... had been found on a mattress in his apartment. McBride would not respond.
McBride was asked whether he had any knowledge of a foot locker or a trunk previously located in his attic, and McBride stated he had no such knowledge. He was asked whether he knew where a sleeping bag of his was located, and he would not answer.
McBride was asked whether he had ever been involved in the assault or murder of his wife. McBride denied any such knowledge, indicated that he loved his wife. McBride was asked whether the blood located in his apartment could have been caused by the death of his wife or an assault on her person. McBride did not respond.
McBride then sat in complete silence for several moments and then indicated that he did not wish to continue the interview. McBride abruptly left the interview space, and the interview was terminated.
(Id. at 183-84.) Defense counsel did not object to that testimony.
When McBride testified at trial, the district attorney cross-examined him regarding an interview with Officer Abbey that occurred after McBride’s arrest in 2000. Having heard his Miranda rights, McBride had been willing to answer some of Officer Abbey’s questions but not others. The district attorney and McBride sparred during cross-examination over just how much McBride had been willing to say in that interview:
Q. Well, Mr. McBride, you agreed to talk to Officer Abbey, didn’t you?
A. No, I agreed to listen to him.
Q. You answered his questions?
A. A couple.
Q. What do you mean, a couple, do you want me to go through every question and answer in this tape?
A. If you like to, I don’t really mind.
Q. You answered every one of his questions, didn’t you?
A. Not every one, no.
(Id. at 240.) Defense counsel did not object to that testimony.
McBride was ultimately convicted of first degree murder and sentenced to life imprisonment, and that judgment was affirmed by the Superior Court of Pennsylvania. McBride’s Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied.
2. PCRA Appeal
McBride filed a pro se petition for post-conviction relief, and, following the appointment of counsel, filed an amended petition pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Const. Stat. §§ 9541-46, in the Court of Common Pleas (in the context of the PCRA claim, the “PCRA Trial Court”). He asserted that his trial counsel was ineffective for failing to object to the district attorney’s references to his post-arrest silence. McBride’s trial counsel testified at a hearing before the PCRA Trial Court and was asked whether the direct examination of Agent Fritz regarding the May 30,1984 interview with McBride implicated McBride’s constitutional right to remain silent. He answered:
No, I disagree. First of all, Mr. McBride did not elect to remain silent. Mr. McBride had given a very extensive interview on May 1st, in which he had explained in detail to the same FBI agent[, Agent Fritz,] what he knew about it.
In the second interview [with Agent Fritz], Mr. McBride did not assert his Fifth Amendment right to remain silent, Mr. McBride answered questions. What I gathered from that and what I felt that the jury would gather from that is that when it shifted from asking questions to becoming essentially accusatory towards Mr. McBride, that Mr. McBride wisely — first of all, had no response and*97 eventually said this interview is over and stopped speaking.
I did not believe that to be an improper comment on his assertion of a Fifth Amendment, assertion. Rather, I felt it to be an example of how this investigation had proceeded or more to the point, not proceeded.
They were always looking at McBride, as best I could see, no matter what he said or did and I thought it was a perfect example of how this had been badly investigated.
So I — in answer to your question, I’m sure that one could say that by not responding, as I recall the testimony to have been, or by not answering, he may have been asserting a Fifth Amendment right, although he doesn’t specifically say that.
But it also, in my view, was a rather dramatic way to point out to the jury exactly what was happening here; namely, that within a matter of months, they were focusing on him, even though they had no reason to.
(App. at 273-74.)
McBride’s PCRA counsel immediately asked McBride’s trial counsel whether he would “agree, that the testimony* at the least, refers to post[-Mmrod!a ] silence.” (Id. at 274.) McBride’s trial counsel answered, “I believe it is a reference to post [-Miranda] silence, clearly.” (Id. at 275.) He then noted:
Obviously, in retrospect, I wish that many things had gone differently in this case. [The reference to post-Miranda silence] may not have been as beneficial [as] I thought it was at the time. I would have to say, though, that at the time, this was a conscious decision to let Agent Fritz say what he was saying....
(Id. at 277.)
McBride’s PCRA counsel then asked McBride’s trial counsel whether he believed the district attorney’s line of questioning regarding Officer Abbey’s interview during the cross-examination of McBride implicated post-Miranda silence, “although perhaps less directly.” (Id. at 280.) He answered: “To the contrary. I think it’s a question seeking to elicit a response from Mr. McBride that he had answered the questions put to him by Officer Abbey, that’s the way that I understood that testimony.” (Id.)
After the hearing, the PCRA Trial Court denied McBride’s petition. Regarding the challenged references made during Agent Fritz’s testimony, the PCRA Trial Court concluded that McBride had failed to prove that trial counsel was ineffective. Although the PCRA Trial Court found that McBride’s “claim ha[d] arguable merit” (id. at 310), the Court said that, “[a]fter a review of the testimony and trial strategy,” it could not conclude that trial counsel’s “actions were without a reasonable basis to effectuate his client’s interests” (id. at 311).
Concerning the line of questioning that arose during cross-examination of McBride about his interview with Officer Abbey, the PCRA Trial Court concluded that the exchange “d[id] not implicate any post-arrest silence.” (Id. at 314.) Rather, “[t]he record show[ed] that [McBride] knowingly and voluntarily waived his [Miranda ] rights and agreed to answer the questions of ... Abbey. The prosecution was merely conducting a cross-examination of [McBride] as to his voluntary responses to [those] questions.” (Id.)
McBride appealed to the Superior Court (in the context of the PCRA claim, the “PCRA Appellate Court”), which affirmed the PCRA Trial Court’s order. Although the PCRA Appellate Court found that McBride “raised an issue of arguable merit” regarding trial counsel’s failure to object during Agent Fritz’s testimony (id. at 392), and noted that “the reasonableness of counsel’s choice not to object presented] a difficult question” (id. at 393), it concluded that McBride “suffered no prejudice from the testimonial references to his post-Miranda silence” (App. at 396). Because it rested its conclusion on lack of prejudice, the PCRA Appellate Court did not analyze whether trial counsel’s decision not to object during the direct examination of Agent Fritz was reasonable.
In May, 1984, Judith Seagraves, a neighbor of the McBrides, called the Northampton Police to report that [McBride], [McBride]’s father Robert McBride, and [McBrideJs landlord were removing a bloody mattress from [McBrideJs apartment....
At [McBride]’s trial, Dawn DeLong testified that she was at the McBride’s home one night in early 1984 and observed the couple “play fighting.” At one point, [McBride] struck Kelly McBride, who fell and hit her head against a coffee table. DeLong stated that she saw no blood at the time, and that [McBride] carried Kelly upstairs. When DeLong went upstairs approximately one hour later to use the bathroom, she passed a bedroom where she saw [McBride] holding Kelly. She observed that Kelly appeared unconscious, and that there was blood all over the mattress and Kelly’s hair. DeLong testified that [McBride] seemed nervous and upset, and appeared to be trying to stuff Kelly’s body into a dresser from which the drawers had been removed. [McBride] then asked DeLong to retrieve a knife from the kitchen, and she complied. DeLong testified that she also saw [McBride] retrieve a handsaw from the basement and return with it to the bedroom. DeLong testified that the last time she saw Kelly was when she saw [McBride] holding Kelly in the bedroom.
Another witness, Annette Beck, testified at trial that she had conversations with [McBride] regarding his marital status in 1987 and 1988. She stated that*99 while [McBride] originally told her that his wife had left him and filed for divorce, he subsequently told her, on numerous occasions, that he had killed his wife. When Beck asked [McBride] where his wife’s body was, he replied “where a back hoe wouldn’t fit, use a shovel.”
(Id. at 394-95 (internal citation omitted).)
Each of those recitations, however, contained significant mischaracterizations or omissions. First, Seagraves testified that only McBride’s father and landlord were disposing of a bloody mattress on May 25, 1984, not McBride himself. In fact, it had been stipulated that McBride was incarcerated on unrelated charges on that date. Second, DeLong never even testified at trial, but rather only at a preliminary hearing. Indeed, the Commonwealth did not call her as a witness at trial because it believed she had fabricated her preliminary hearing testimony. Finally, the PCRA Appellate Court failed to note that Beck said she understood McBride’s alleged confession to be a joke.
Following the PCRA Appellate Court’s decision, McBride filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied.
3. Post-Conviction Relief in Federal Court
McBride subsequently filed in the United States District Court for the Eastern District of Pennsylvania a timely pro se petition for habeas relief pursuant to 28 U.S.C. § 2254. A magistrate judge recommended denial of the petition. After being appointed counsel, McBride was given the opportunity to file an amended petition, which he did.
The District Court denied McBride’s petition for habeas relief. The Court first addressed the references to post-Miranda silence that arose during direct examination of Agent Fritz, concluding that “the state courts’ ruling was not contrary to or an unreasonable application of federal law.” (App. at 19.) Although the Court “[found] it troubling that trial counsel appeared] ambivalent about whether the testimonial references were improper or may have been the subject of a successful constitutional challenge,” the Court “d[id] not believe that such a conclusion constitute^] ineffectiveness per se in light of counsel’s stated strategy of not challenging references to [McBride’s] silence because that testimony was consistent with his defense theory.”
The District Court then turned to the line of questioning that arose during the cross-examination of McBride regarding his interview with Officer Abbey. The Court found that “the context of [McBride’s] statement [was not] one in which jurors would equate invocation of Fifth Amendment rights with an implicit admission of guilt.” (Id. at 28.) Therefore, the Court concluded that counsel’s failure to object did not “fall outside of the wide range of professionally competent assistance.” (Id. at 29 (citation and internal quotation marks omitted).) Accordingly, the Court issued an order denying the petition and refusing to grant a certificate of appealability (“COA”). We granted a COA “limited to the following issue: whether trial counsel rendered constitutionally ineffective assistance when he
II. Discussion
As already noted, McBride claims that his trial counsel was ineffective by failing to object to various references at trial that he alleges implicated his constitutional right to remain silent. He argues that those failures were not “a result of any conscious decision or strategy, but because [his trial counsel] erroneously believed the testimony to be permissible.” (Appellant’s Br. at 22.) McBride asserts that “because the state court incorrectly found ... that [his] [t]rial [c]ounsel’s unconscious, uninformed and unreasonable decision was not deficient and prejudicial,” we should grant him habeas relief. (Id. at 23.) Before we can opine on that argument, we must first consider the analytical context provided by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), by Strickland v. Washington,
A. AEDPA
The parties agree that we are bound by the standards of AEDPA, under which a federal court may not grant a writ of habeas corpus with respect to a claim that was adjudicated on the merits in state court proceedings unless the state courts’ adjudication “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.”
Since McBride does not assert that the state courts’ adjudication was contrary to Supreme Court precedent, but rather contends only that the state courts unreasonably applied that precedent, we will focus only on the “unreasonable application” prong of § 2254(d)(1). In other words, to obtain habeas relief, McBride “must show that the state court[s’] ruling on the claims being presented in federal court was so lacking in justification [under Supreme Court precedent] that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S. —,
B. Strickland and AEDPA
McBride specifically asserts that the state courts unreasonably applied Strickland v. Washington to the facts of his ease. In Strickland, the Supreme Court held that every criminal defendant has a Sixth Amendment right to “reasonably effective [legal] assistance.”
The Supreme Court in Richter discussed how to assess a Strickland claim in the AEDPA context:
The pivotal question is whether the state court’s application of the Strick*103 land standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland ’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.
Richter,
Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.
Id. (internal citations and quotation marks omitted).
C. Constitutional Right to Silence
Because McBride asserts that his trial counsel was ineffective by failing to object to certain references to his silence — references that he alleges were in violation of his constitutional right to remain silent— we must consider as a threshold matter when the constitutional right to silence is implicated. “The Fifth Amendment, which applies to the States by virtue of the Fourteenth Amendment provides that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’” Maryland v. Shatzer, — U.S. —,
Once a criminal defendant receives the prophylactic warnings required by Miranda ..., it is improper under Doyle for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence. This is so because Miranda warnings carry the Government’s implicit assurance that an arrestee’s invocation of the Fifth Amendment right to remain*104 silent will not later be used against him. Because a defendant’s post-Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings.
Virgin Islands v. Martinez,
“Not every reference to a defendant’s silence, however, results in a Doyle violation.” Id. Here, McBride answered some of the questions posed to him subsequent to receiving Miranda warnings, but selectively chose not to answer others. Many courts characterize this issue as partial or selective silence and have differing views on whether such silence should be admissible at trial against a defendant. While we have never considered the issue, some of our sister circuits have held that Miranda and Doyle protect a defendant’s partial or selective silence from being used against him at trial. See Hurd v. Terhune,
D. Analysis of Strickland Claim Under AEDPA
McBride argues that trial counsel’s failure to object to numerous references that may have implicated his constitutional right to remain silent fell outside of the wide range of professional competent assistance contemplated in Strickland, because, according to McBride, his trial counsel “clearly did not make a strategic decision to allow the jury to hear refer
1. Agent Fritz
Regarding the direct examination of Agent Fritz, the PCRA Trial Court determined that trial counsel’s decision not to object to references to McBride’s post-Miranda silence by Agent Fritz was not “without a reasonable basis to effectuate his client’s interests.” (App. at 311.) McBride argues that that conclusion is unsound because trial counsel “did not even know that [McBride] had effectively asserted his Fifth Amendment right, that testimony about it was impermissible, and that he could and should have objected.” (Appellant’s Br. at 28.) In short, he says there was not a “ ‘strategic’ decision not to object.” (Id.)
As an initial matter, it is debatable whether the admission of the disputed references to McBride’s selective silence was a violation of Miranda or Doyle.
2. Officer Abbey
The PCRA Trial Court also determined that trial counsel’s failure to object to a line of cross-examination questions regarding McBride’s interview with Officer Abbey did “not implicate any post-arrest silence” as “[t]he prosecution was merely conducting a cross-examination of [McBride] as to his voluntary responses to [those] questions.” (App. at 314.) McBride disagrees, asserting that “this questioning clearly refers to post -Miranda silence” because “the [district attorney] obviously knew that McBride did not answer every question [posed by Officer Abbey],” and McBride’s admission that he had not done so “served the [district attorney’s] purpose of emphasizing his post-Miranda silence.” (Appellant’s Br. at 32.) Therefore, McBride claims, trial counsel’s decision not to object “f[ell] below the standard expected of competent counsel.” (Id.)
Under the “highly deferential” Strickland-plus-§ 2254(d) “tandem” review, Richter,
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
Notes
. The petition under review is the amended petition filed on McBride's behalf on January 15, 2008.
. For simplicity, and meaning no disrespect by over-familiarity, we will refer to Kelly McBride by her first name.
.Agent Fritz’s first interview with McBride occurred on May 1, 1984, when McBride voluntarily appeared at the FBI office in Allentown, Pennsylvania to provide information regarding Kelly's disappearance. McBride does not argue that any notes read from that first interview implicated his constitutional right to silence.
. Specifically, Agent Fritz testified that McBride was "furnished an interrogation advised of rights form” and that "McBride stated he understood the form and its contents.” (App. at 177.)
. The topic of Agent Fritz's May 30, 1984 interview also arose when the district attorney cross-examined McBride:
Q. Now, Mr. Fritz says, when he was talking with you, on May 30th of 1984, McBride was asked whether he had been involved in the assault and murder of his wife, McBride denied any such knowledge, indicated he loved his wife, is that what you told him?
A. I don't recall, sir.
Q. McBride was asked whether the blood located in his apartment could have been caused by the death of his wife or an assault on his person, McBride did not respond, do you remember that?
A. No, sir, I don’t.
Q. Is Agent Fritz wrong that you didn’t respond when he asked you that?
A. I don’t recall what I told Mr. Fritz.
(App. at 245-46.) Defense counsel did not object to that testimony either. In McBride’s 56-page petition for post-conviction relief to the state court, see infra Part I.B.2, he made only a few passing references to that line of questioning. Indeed, it was so obscure that the state court appears to have missed it, as its 28-page opinion on McBride's post-conviction relief motion did not address that particular portion of the trial. See id. Assuming arguendo that McBride “fairly presented” in state court a claim related to that cross-examination, see Bronshtein v. Horn,
. In rejecting the ineffective-assistance-of-counsel claim, the PCRA Trial Court applied a three prong test, citing to Commonwealth v. Harris,
. The PCRA Appellate Court also did not discuss the district attorney's cross-examination of McBride regarding the Officer Abbey interview.
. Because the District Court found that “trial counsel's] stated explanation of his trial strategy was constitutionally sufficient” (App. at 21), it did not address whether McBride was prejudiced by the challenged references. It did note, however, the mischaracterizations and omissions made by the PCRA Appellate Court, and did not rely on any of them in reaching its decision to deny habeas relief.
. The District Court had jurisdiction over McBride’s amended petition pursuant to 28 U.S.C. § 2254. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and, because the District Court did not conduct an evidentiary hearing, our standard of review is plenary. McMullen v. Tennis,
. ‘'[A]n adjudication on the merits can occur at any level of state court.” Thomas v. Horn,
We do not have to resolve the meaning of Bond in this case, however, because McBride has affirmatively taken the position that AED-PA deference applies. (See Appellant’s Br. at 20 ("Mr. McBride’s habeas petition is governed by [AEDPA].”); id. at 24 ("Because the state court unreasonably applied Strickland to the facts of this case, a writ of habeas corpus should issue.”).) Because McBride "has not argued that § 2254(d) is entirely inapplicable to his claim or that the state court failed to reach an adjudication on the merits,” we proceed to “evaluate his claim through the deferential lens of § 2254(d).” Knowles v. Mirzayance,
We are thus spared the need to delve into the complicated question of what effect, if any, the Supreme Court's recent decision in Harrington v. Richter,
. Even after establishing deficient performance, a defendant must also show that the "deficient performance prejudiced the defense.” Strickland,
As discussed supra note 10, the PCRA Appellate Court did not address the performance component of Strickland, because it determined that McBride could not show that counsel's performance prejudiced him. Although the PCRA Appellate Court's prejudice is, unfortunately, marred by serious mischaracterizations of the record, we agree with our concurring colleague that "we still owe the [PCRA Appellate Court’s] holding deference if it applied Strickland reasonably.” (Concurrence Op. at 109.) See Richter,
. In Martinez, the defendant, charged with kidnapping for rape, testified that the sexual encounter at issue was consensual and that his victim threatened to tell others that he raped her unless he gave her money.
. In light of those differing views, we cannot agree with our concurring colleague that McBride’s trial counsel necessarily "could [have made] a successful constitutional objection at trial” regarding the admission of McBride’s statements. (Concurrence Op. at 109.)
That is particularly true, given the Supreme Court’s statement in a habeas case that "an accused who wants to invoke his or her right to remain silent [must] do so unambiguously.” Berghuis v. Thompkins, — U.S. -,
. It may also be debatable whether McBride ever asserted his right to remain silent to prevent the challenged references from being used against him at trial in contravention of Miranda. See supra note 13.
. At oral argument, counsel for Appellees, for the first time, alerted us to a pre-trial motion to suppress filed by McBride's trial counsel that, Appellees allege, supports the assertion that trial counsel was aware that statements to be used at trial from certain interviews McBride had with law enforcement may have implicated post-Miranda silence. Considering each party’s letters submitted pursuant to Federal Rule of Appellate Procedure 28(j), as well as a supplemental appendix provided by McBride’s appellate counsel, it appears that trial counsel only moved to suppress affirmative statements made by McBride during the Officer Abbey interview. There is no indication from that motion to suppress, the related briefs, or the state court’s order denying the motion to suppress, that McBride’s trial counsel was aware that the references now at issue — either in the Agent Fritz interview or in the Officer Abbey interview — implicated post -Miranda silence. Accordingly, we do not rely on that motion to support our holding here.
.Because there is a reasonable argument that not all references to post-Miranda silence result in a Doyle violation, it may not be
. We acknowledge, generally, that if a defendant’s trial counsel is completely unaware that an obvious constitutional violation has occurred, it would be difficult to give the proper weight to a state court factual finding that justifies such deficiency by finding that trial counsel’s decision not to object was part of a trial strategy. Here, however, it is not clear whether counsel was attuned to the constitutional issue, and, in that context, we must accord proper deference to the factual finding of the PCRA Trial Court that counsel made a strategic decision not to object.
. McBride downplays the highly deferential standard under which we review this claim, and cites to two pre-AEDPA cases from our circuit that deal with an ineffective assistance of counsel allegation regarding failure to object to post-Miranda silence in the habeas context to support why we should grant relief here. First, he distinguishes his case from Moore v. Deputy Commissioner(s) of SCI-Huntingdon, where we found counsel were not ineffective because they "were well aware that the references to post-arrest silence were improper,” but made “a conscious determination as to how to proceed,”
To analyze whether trial counsel’s failure to object here is more akin to Moore or Boyer
Concurrence Opinion
concurring:
I concur with my colleagues that McBride’s habeas petition must be denied. I, however, would not reach the troubling
These references would have been seen by the jury as an implicit admission of guilt, Virgin Islands v. Martinez,