JORDAN, Circuit Judge.
James McBride appeals an order of the United States District Court for the Eastern
McBride and his wife, Kelly McBride ("Kelly"),
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 Rockledge, Florida Police Department.
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,
(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,
(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:
(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.
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:
(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[-Miranda] 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:
(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 present[ed] 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.
(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.
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 appear[ed] 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[d] 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
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 ("AEDPA"), by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and by the Fifth Amendment.
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. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway [state] courts have
McBride specifically asserts that the state courts unreasonably applied Strickland v. Washington to the facts of his case. In Strickland, the Supreme Court held that every criminal defendant has a Sixth Amendment right to "reasonably effective [legal] assistance." 466 U.S. at 687, 104 S.Ct. 2052. To succeed on an ineffective assistance of counsel claim, McBride must show that his "counsel's performance was deficient," id., that is, he must prove that "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052. In scrutinizing counsel's performance, we "must be highly deferential," and refrain from "second-guess[ing] counsel's assistance after conviction or adverse sentence, [as] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689, 104 S.Ct. 2052. We must "eliminate the distorting effects of hindsight," and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Deficient performance can only be found when "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed ... by the Sixth Amendment."
The Supreme Court in Richter discussed how to assess a Strickland claim in the AEDPA context:
Richter, 131 S.Ct. at 785 (internal citation and quotation marks omitted). The Richter court noted that even under a de novo review of Strickland, counsel's representation should be judged under a "most deferential" standard because, "[u]nlike a later reviewing court, [trial counsel] observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge." Id. at 788. In that light, the Richter court held that, under AEDPA, Strickland's "high bar" becomes even more difficult to surmount:
Id. (internal citations and quotation marks omitted).
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. ___, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010) (alteration in original) (quoting U.S. Const. amend. V). Warnings provided by law enforcement officials pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), provide "a prophylactic means of safeguarding Fifth Amendment rights." Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); see id. at 619, 96 S.Ct. 2240 (concluding that the use of a defendant's post-Miranda silence to impeach that defendant's exculpatory testimony violated the Due Process Clause of the Fourteenth Amendment). We have explained that:
Virgin Islands v. Martinez, 620 F.3d 321, 335 (3d Cir.2010) (internal citations and quotation marks omitted).
"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, 619 F.3d 1080, 1087 (9th Cir.2010) ("A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial."); United States v. May, 52 F.3d 885, 890 (10th Cir.1995) ("[R]ecogniz[ing] that when a defendant is `partially silent' by answering some questions and refusing to answer others, this partial silence does not preclude him from claiming a violation of his due process rights under Doyle."); United States v. Scott, 47 F.3d 904, 907 (7th Cir.1995) ("[A] suspect may speak to the agents, reassert his right to remain silent or refuse to answer certain questions, and still be confident that Doyle will prevent the prosecution from using his silence against him."). Other circuit courts, however, have held that a defendant has no constitutional right to prevent his selective silence from being used against him at trial. See United States v. Pando Franco, 503 F.3d 389, 397 (5th Cir. 2007) ("[C]onclud[ing] that[,] by answering... questions after having knowingly received proper Miranda warnings, [the defendant] waived his right to [prevent] the entire conversation, including the implicit references to his silence contained therein, [from being] used against him as substantive evidence of guilt."); United States v. Burns, 276 F.3d 439, 442 (8th Cir.2002) ("[T]he admission of [the defendant's] silence in response to one question posed to him in the midst of his interrogation was [not] a violation of the Supreme Court's
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 references
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.
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, 131 S.Ct. at 788, there was at least a reasonable argument that trial counsel's actions were within the "wide range of professionally competent assistance," Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Trial counsel testified at the PCRA hearing that he did not object to the line of questioning in dispute because he believed that it sought "to elicit a response from Mr. McBride that he had answered questions put to him by Officer Abbey." (App. at 280.) Indeed, when cross-examining Officer Abbey, trial counsel emphasized that McBride had repeatedly denied to Officer Abbey that he participated in any wrongdoing involving his wife. (See Notes of Testimony 5/10/01 at 96 ("Q. In fact, when specifically asked repeatedly as many different ways as you could, what he said was, I didn't do it, right? A. That's correct.").) Thus, it could be reasonably argued that the cross-examination of McBride regarding his interview with Officer Abbey was, as the District Court stated, "focused on [McBride's] responses, and not [McBride's] silence," and therefore did not implicate any constitutionally impermissible inference of guilt. (App. at 28.) Accordingly, the PCRA Trial Court's finding that such references "[did] not implicate any post-arrest silence" (App. at 314), and its implicit conclusion that trial counsel did not act unreasonably by not objecting, was not an unreasonable application of Strickland.
For the foregoing reasons, we will affirm the judgment of the District Court.
FUENTES, Circuit Judge 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, 620 F.3d 321, 335 (3d Cir.2010), but there was ample other evidence of his guilt. Three other witnesses testified that McBride admitted to killing Kelly, and there was circumstantial physical evidence that linked McBride to the crime. Thus, it is difficult to conclude that there is a "substantial" likelihood that the jury would have found differently if his confession-by-silence was excluded. See Delgadillo v. Woodford, 527 F.3d 919, 930 n. 4 (9th Cir.2008) (holding that petitioner was not prejudiced when "largely cumulative" improper testimony was admitted). For this reason, I would hold that McBride was not prejudiced and that thus his ineffective assistance of counsel claim fails. Therefore, I respectfully concur.
(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, 404 F.3d 700, 725 (3d Cir.2005) (describing "fairly presented" as meaning "that a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted" (citation and internal quotation marks omitted)), we would ordinarily review it de novo, since it was not "adjudicated on the merits," Thomas v. Horn, 570 F.3d 105, 117 (3d Cir.2009). Here, however, McBride only references this colloquy in a footnote in his opening brief, and therefore has failed even to adequately raise the issue before us. See United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir.2008) (noting a "one-sentence footnote falls far short of meeting the requirement that an appellant raise an issue in his opening brief or else waive the issue on appeal"); Laborers' Int'l Union of N.A. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue... will not suffice to bring that issue before this court." (citation and internal quotation marks omitted)). Accordingly, McBride has waived any claim related to this line of questioning, and we will not further address it.
We do not have to resolve the meaning of Bond in this case, however, because McBride has affirmatively taken the position that AEDPA 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, 556 U.S. 111, 121 n. 2, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (applying AEDPA deference to petitioner's claim because, before the Supreme Court, he "contend[ed] that the Court of Appeals correctly applied § 2254(d) to his claim," despite his having previously, before the court of appeals, "contended that the standard of review set forth in § 2254(d)(1) should not apply to his case"); Childers v. Floyd, 642 F.3d 953, 967 n. 15 (11th Cir.2011) (en banc) (noting that "the Supreme Court has suggested that habeas petitioners can waive [his or her right to argue that a state court decision was not an adjudication on the merits]" (citing Knowles, 556 U.S. at 121 n. 2, 129 S.Ct. 1411)). Thus, regardless of whether we are required to give AEDPA deference to the PCRA Trial Court's analysis of the performance prong, we do give it deference as a reasoned analysis to which McBride has acknowledged AEDPA applies. Cf. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (stating that we "must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then ... must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court]").
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, 131 S.Ct. 770, has had on the teachings from Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), and Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009). In holding that an unexplained state court decision must be accorded AEDPA deference, Richter observed that "§ 2254(d) applies when a `claim,' not a component of one, has been adjudicated," regardless of "whether or not the state court reveals which of the elements in a multipart claim it found insufficient." 131 S.Ct. at 784. That observation arguably undermines the principle from Wiggins and its progeny that instructs that de novo review should apply to a particular prong of Strickland "when neither of the state courts below reached [that particular prong]." Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; Rompilla, 545 U.S. at 390, 125 S.Ct. 2456 ("Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo." (internal citation omitted)); Porter v. McCollum, 130 S.Ct. at 452. That issue — whether Wiggins and related cases can co-exist with Richter — appears to be generating some conflict among our sister circuits. Compare Childers, 642 F.3d at 969 n. 18 ("Language in [Richter]... suggests that [the principle of reviewing a component of a claim that was not adjudicated on the merits de novo] may no longer be good law"), with Sussman v. Jenkins, 642 F.3d 532, 534 (7th Cir.2011) (one-judge order denying motion to stay) ("[T]he Supreme Court in [Richter] did not disturb its approach in Wiggins ... [and] [w]e certainly cannot assume that the Court overruled sub silentio its holding in Wiggins — a precedent so important to the daily work of the lower federal courts.") and Rayner v. Mills, 685 F.3d 631, 639 (6th Cir.2012) ("The Wiggins and Rompilla line of cases work together with [Richter] to ensure application of AEDPA deference to an entire ineffective assistance claim."). Our own views on the possible tension between these Supreme Court precedents can be expressed on another day.
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, 131 S.Ct. at 784 (stating that § 2254 "applies when a `claim,' not a component of one, has been adjudicated"); see also supra note 10. Unlike our concurring colleague, however, we do not think the question of whether "McBride was... sufficiently prejudiced by the introduction of testimony that referenced [his] silence during interrogation" (Concurrence Op. at 109) can readily be answered one way or another, and do not believe that we can assume that the PCRA Appellate Court would have come to the same conclusion that it did had it understood the facts correctly. We need not delve into that speculation, though, because we accord AEDPA deference to the PCRA Trial Court's analysis of the performance prong, see supra note 10, and that analysis cannot readily be doubted under that statute's stringent standards, see infra note 13 and accompanying text.
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. ___, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010). In Thompkins, the defendant, after receiving Miranda warnings, remained largely silent during an interrogation that lasted approximately three hours. Id. at 2256. About two hours and 45 minutes into that interrogation, however, Thompkins made inculpatory statements. Id. at 2257. Prior to trial, he moved to suppress those statements, arguing "that he had invoked his Fifth Amendment right to remain silent, requiring the police to end the interrogation at once." Id. The trial court denied that motion and Thompkins was subsequently convicted, and that conviction was affirmed on direct appeal. Id. at 2257-58. After he filed a habeas petition, the district court denied relief, but the United States Court of Appeals for the Sixth Circuit reversed, holding "that the state court was unreasonable in finding an implied waiver." Id. at 2258. The Supreme Court reversed the Sixth Circuit. Because Thompkins "did not say that he wanted to remain silent or that he did not want to talk," but rather just remained silent, the Supreme Court concluded that "he [had] not invoke[d] his right to remain silent." Id. at 2260. Therefore, the Court held that police could further interrogate him, and, since the Court also held that Thompkins waived his right to remain silent by his subsequent inculpatory statements, such statements were properly admitted at trial. Id. at 2260-64. In light of Thompkins' holding that a defendant's silence during an interrogation does not invoke his or her right to silence, the circumstances in which simply remaining silent suffices to prevent that silence from being used at trial under the Doyle rule are not free from doubt. But cf. Doyle, 426 U.S. at 617-18, 96 S.Ct. 2240 ("Silence in the wake of [Miranda] warnings may be nothing more than the arrestee's exercise of ... [Miranda] rights.... Moreover, while it is true that the [Miranda] warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings."); Hurd, 619 F.3d at 1088 (finding that "Thompkins stands for the proposition that a voluntary confession should not be suppressed just because a defendant has refrained from answering other questions," but noting that Thompkins "does not alter the fundamental principle that a suspect's silence in the face of questioning cannot be used as evidence against him at trial, whether that silence would constitute a valid invocation of the `right to cut off questioning' or not" (quoting Thompkins, 130 S.Ct. at 2260)).
To analyze whether trial counsel's failure to object here is more akin to Moore or Boyer misses the point. Rather, it is imperative to note that our standard of review in Moore was less deferential than is now required, see Moore, 946 F.2d at 246 (de novo review under Strickland), and, in Boyer, even less so, see Boyer, 579 F.2d at 286 (whether attorney "exercise[d]... the customary skill and knowledge which normally prevails at the time and place" (citation and internal quotation marks omitted)). None of the state court decisions in those cases were accorded nearly the level of deference that more current precedent demands. See Richter, 131 S.Ct. at 788 ("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.").
