2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-2012

James McBride v. SCI Houtzdale

Precedential or Non-Precedential: Precedential

Docket No. 11-2480

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2480

_____________

JAMES WILLIAM MCBRIDE,

 Appellant

v.

SUPERINTENDENT, SCI HOUTZDALE; 

THE DISTRICT ATTORNEY OF THE COUNTY OF 

NORTHAMPTON;

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 06-cv-02085)

District Judge: Hon. Lowell A. Reed 

_______________

Argued

March 26, 2012

Before: FUENTES, SMITH, and JORDAN, Circuit Judges.
2

(Filed: August 1, 2012)

_______________

Jay H. Calvert, Jr.

Sarah E. Pontoski [ARGUED]

Morgan, Lewis & Bockius

1701 Market Street

Philadelphia, PA 19103

 Counsel for Appellant

John M. Morganelli [ARGUED]

Northampton County Office of

 District Attorney

669 Washington Street

Easton, PA 18042

 Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

James McBride appeals an order of the United States 

District Court for the Eastern District of Pennsylvania 

denying his petition1

 1 The petition under review is the amended petition 

filed on McBride’s behalf on January 15, 2008.

under 28 U.S.C. § 2254 for habeas 

corpus relief from a state murder conviction. McBride argues 
3

that his petition should have been granted because his 

constitutional right to effective assistance of counsel was 

violated when his counsel failed to object to various 

references the prosecutor made at trial to what McBride

alleges were matters implicating his constitutional right to 

remain silent. For the following reasons, we will affirm. 

I. Background and Procedural History

A. Background

McBride and his wife, Kelly McBride (“Kelly”),

2

 2 For simplicity, and meaning no disrespect by overfamiliarity, we will refer to Kelly McBride by her first name.

hosted a party at their apartment on February 17, 1984. 

According to McBride, Kelly left their home the next 

morning and he did not see her again. She was reported 

missing in March 1984 by her parents and was never found. 

On May 25, 1984, Judith Seagraves, a neighbor of the 

McBrides, observed McBride’s father and McBride’s 

landlord removing a bloody mattress from the McBrides’

apartment, so she called the police. When the police arrived, 

they searched the apartment and found a bureau which had 

been nailed shut. When they opened the bureau, they found 

that the inside had been removed, and they identified traces of 

blood and hair. In 1993, through the use of DNA technology, 

police were able to connect Kelly to the blood found on the 

mattress and the bureau seized from the McBrides’ residence. 

On November 4, 1999, a grand jury convened to investigate

Kelly’s disappearance, and subsequently recommended 

charging McBride for Kelly’s murder. Sixteen years after 
4

Kelly’s disappearance, McBride was arrested in Florida and 

charged with criminal homicide.

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 Rockledge, 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,3

 3 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. 

defense counsel 

objected on hearsay grounds. The judge overruled that 

objection and gave a limiting instruction directing the jury to 

focus on McBride’s reactions to Agent Fritz’s questions:
5

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 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,4

McBride answered certain questions that Agent Fritz posed to 

him, but he did not respond to others:

When specifically asked whether he had

been in the company of [name redacted] the day 

following his wife’s disappearance, McBride 

would not answer.

 4 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.)
6

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.

5

 5 The topic of Agent Fritz’s May 30, 1984 interview 

also arose when the district attorney cross-examined 

McBride:
7

 

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 postconviction 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” 
8

b) Officer Abbey Interview

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 crossexamination 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?

 

(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.
9

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 
10

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 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 
11

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[-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: 

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 ... . 
12

(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).

6

 6 In rejecting the ineffective-assistance-of-counsel 

claim, the PCRA Trial Court applied a three prong test, citing 

to Commonwealth v. Harris, 852 A.2d 1168 (Pa. 2004); see 

id. at 1173 (citing Commonwealth v. Pierce, 786 A.2d 203, 

213 (Pa. 1987)) (“To succeed on a claim that counsel was 

ineffective, an appellant must demonstrate that: (1) the 

underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for the act or omission in question; and (3) 

he suffered prejudice as a result of counsel’s deficient 

performance, i.e., there is a reasonable probability that, but 

 The Court went on to note that trial 
13

counsel “[was] a well known and very experienced criminal 

defense attorney” in the county and had “made some strategic 

choices in furtherance of the defense theme. The mere fact 

that [trial counsel’s] trial strategy was ultimately unsuccessful 

does not render it unreasonable.” (Id.) 

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 

 

for counsel’s error, the outcome of the proceeding would be 

different.”). We have held that the three prong test laid out in 

Pierce does not “contradict[] the Supreme Court’s holding in 

Strickland [v. Washington, 466 U.S. 668 (1984)].” Werts v. 

Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).
14

PCRA Appellate Court did not analyze whether trial 

counsel’s decision not to object during the direct examination 

of Agent Fritz was reasonable.7

 In concluding that there was 

“no reasonable possibility that the outcome of the trial would 

have been different absent Agent Fritz’s testimonial 

references to [McBride]’s silence” (id.), the PCRA Appellate 

Court cited to what it thought were factual recitations from 

three witnesses at McBride’s trial:

In May, 1984, Judith Seagraves, a 

neighbor of the McBrides, called the 

Northampton Police to report that [McBride], 

[McBride]’s father Robert McBride, and 

[McBride]’s landlord were removing a bloody 

mattress from [McBride]’s 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 

 7 The PCRA Appellate Court also did not discuss the 

district attorney’s cross-examination of McBride regarding 

the Officer Abbey interview. 
15

[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 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, 
16

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 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 
17

that testimony was consistent with his defense theory.”8

 (Id.

at 19-20.)

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 failed to object 

to references at trial to [McBride]’s constitutionally protected 

silence.” (App. at 44.)

 8 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. 
18

II. Discussion9

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 (1984), and by the Fifth Amendment.

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 

 9 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, 562 F.3d 231, 236 (3d Cir. 2009).
19

Federal law, as determined by the Supreme Court of the 

United States.”10

 10 “[A]n adjudication on the merits can occur at any 

level of state court.” Thomas v. Horn, 570 F.3d 105, 115 (3d 

Cir. 2009) (internal quotation marks omitted). Here, the 

PCRA Trial Court affirmed on the basis that trial counsel’s 

performance was not constitutionally deficient, and the PCRA 

Appellate Court affirmed due to a lack of prejudice, without 

ruling explicitly on the performance prong of Strickland. On 

the basis of our opinion in Bond v. Beard, 539 F.3d 256 (3d 

Cir. 2008), it can be argued that each of those rulings was the 

last reasoned opinion of a state court reaching the merits of a 

particular prong of Strickland and that we must therefore 

consider both of them under the deferential AEDPA standard. 

See id. at 289 (reviewing the Pennsylvania Supreme Court’s 

decision on PCRA review for the first prong of the Strickland

analysis, but reviewing the PCRA trial court’s decision for 

Strickland’s second prong). It can also be argued, however, 

that this case differs from Bond in that we noted there that the 

state appellate court “agreed” with the PCRA trial court’s 

denial of relief, id. at 284; Commonwealth v. Bond, 819 A.2d 

33, 45 (Pa. 2002) (“We find no error in the PCRA [trial] 

court’s denial of relief”), while in this case the state appellate 

court did not adopt, incorporate, or embrace the PCRA Trial 

Court’s reasoning. It only noted that the performance prong 

“presents a difficult question.” (App. at 393.)

 28 U.S.C. § 2254(d)(1). Also, under the 

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 
20

 

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 

(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)). 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, 

131 S. Ct. 770, 786 (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 (2003), Rompilla v. Beard, 545 U.S. 374, 390 

(2005), and Porter v. McCollum, 130 S. Ct. 447, 452 (2009). 
21

 

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; Rompilla, 545 U.S. at 390 (“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, __ 

F.3d __, 2012 WL 2855803, *3-4 (6th Cir. July 12, 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 
22

AEDPA standard, the “[s]tate court[s’] relevant factual 

determinations are presumed to be correct unless the 

petitioner rebuts [that] presumption by clear and convincing 

evidence.” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 

2012) (citing 28 U.S.C. § 2254(e)(1)). 

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, 131 S. Ct. 

770, 786-87 (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 in reaching outcomes in case-by-case determinations.” 

Id. at 786 (alteration in original) (citation and internal 

quotation marks omitted). “[I]t is not an unreasonable 

application of clearly established Federal law for a state court 

to decline to apply a specific legal rule that has not been 

squarely established by [the Supreme Court].” Id. (citation 

and internal quotation marks omitted). In the end, “[i]f this 

 

possible tension between these Supreme Court precedents can 

be expressed on another day.
23

standard is difficult to meet, that is because it was meant to 

be.” Id. 

B. Strickland and AEDPA

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. 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. 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. 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.”11

 11 Even after establishing deficient performance, a 

defendant must also show that the “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687. To 

prove prejudice, a defendant must show “a reasonable 

probability that, but for counsel’s unprofessional errors, the 

 Id. at 687.
24

The Supreme Court in Richter discussed how to assess 

a Strickland claim in the AEDPA context:

 

result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694. Counsel’s deficient 

performance must be “so serious as to deprive the defendant 

of a fair trial, a trial whose result is reliable.” Id. at 687. 

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 Slip Op. at 1.) 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 Slip Op. at 1) 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.
25

The pivotal question is whether the state 

court’s application of the Strickland 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, 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:

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) 
26

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, 130 S. Ct. 

1213, 1219 (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 

(1966), provide “a prophylactic means of safeguarding Fifth 

Amendment rights.” Doyle v. Ohio, 426 U.S. 610, 617 

(1976); see id. at 619 (concluding that the use of a 

defendant’s post-Miranda silence to impeach that defendant’s 
27

exculpatory testimony violated the Due Process Clause of the 

Fourteenth Amendment). We have explained that:

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 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, 620 F.3d 321, 335 (3d Cir. 2010) 

(internal citations and quotation marks omitted).12

 12 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. 620 F.3d at 333. “The 

government sought to dispel Martinez’s exculpatory account 

on cross-examination,” asking him whether he had previously 

made a similar statement to an officer involved in arresting 

him, id., or “anyone” else, id. at 333-34. Martinez alleged 

that line of questioning violated Doyle. Id. at 335. We could 
28

“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 

 

not “discern whether [the] question [regarding the defendant’s 

statements to the officer]... violated Doyle” because that 

officer “did not testify at trial, and the record [did] not 

disclose what role he played in Martinez’s arrest, or whether 

Martinez’s failure to give the exculpatory story to him 

occurred before or after the arrest, or before or after Miranda

warnings had been given.” Id. at 336. Concerning the 

question “whether Martinez had ever told ‘anyone’ his 

exculpatory account,” id., we “[thought] that ... questioning 

... approached the constitutional line, and likely crossed it,” 

id. at. 337. However, we did “not decide definitively whether 

the [g]overnment’s questions violated Doyle, because” we 

concluded that “any Doyle violation ... was harmless beyond 

a reasonable doubt.” Id. Thus, any observations that we 

made in Martinez regarding Doyle were not necessary to our 

decision. 
29

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 holding in Doyle.”). Cf. United States 

v. Andujar-Basco, 488 F.3d 549, 556 (1st Cir. 2007) 

(distinguishing Burns on the basis that “the challenged 

testimony [at issue in Burns] mentioned only the defendant’s 

refusal to answer further questions,” whereas “the challenged 

testimony [at issue in Andujar-Basco] refer[red] directly to 

[the defendant’s] express assertion of his constitutional 

rights,” because “although silence may be interpreted in many 

ways ..., the affirmative assertion of the privilege against 

self-incrimination raises a clear inference of culpability”

(internal citation omitted)). In short, it cannot be said that

“clearly established Federal law, as determined by the 

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), 
30

prevents a defendant’s selective silence from being used 

against that defendant at trial.13

 13 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 Slip. Op. at 1.)

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, 130 S. Ct. 2250, 

2260 (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 
31

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 references to [those] silences.” (Appellant’s Br. at 26.) 

 

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 (“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)).
32

Under AEDPA, our review asks whether the PCRA Trial 

Court’s determination – that trial counsel’s actions were not 

without a reasonable basis – “was so lacking in justification 

that there was an error well understood and comprehended in 

existing [Supreme Court precedent] beyond any possibility 

for fairminded disagreement.” Richter, 131 S. Ct. at 786-87. 

The PCRA Trial Court’s decision was not so lacking here.

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.

14

 14 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 

 See, e.g.,

Burns, 276 F.3d at 442 (“[W]here the accused initially waives 

his or her right to remain silent and agrees to questioning, but 

subsequently refuses to answer further questions, the 

13.
33

prosecution may note the refusal because it now constitutes 

part of an otherwise admissible conversation between the 

police and the accused.” (citation and internal quotation 

marks omitted)). Thus, although the District Court found it

“troubling that trial counsel [at the PCRA hearing] appear[ed] 

ambivalent about whether the testimonial references were 

improper or may have been the subject of a successful 

constitutional challenge”15

 15 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.

(App. at 19-20; compare id. at 273 

(“Mr. McBride did not assert his Fifth Amendment right to 

remain silent,” and “I did not believe that to be an improper 

comment on his assertion of a Fifth Amendment right.”) with

id. at 274 (“I’m sure that one could say that by not responding 

, ... or by not answering, he may have been asserting a Fifth 

Amendment right, although he doesn’t specifically say that.”) 
34

and id. at 275 (“I believe it is a reference to post[-Miranda] 

silence, clearly.”)), there is at least a reasonable argument that 

such references may not have even been constitutionally 

impermissible.16

In that light, we also note that trial counsel 

emphatically asserted at the PCRA hearing that his decision

not to object to those references was a part of his trial 

strategy. (See id. at 273 (noting that “what ... the jury would 

gather from that [testimony] [was] that when it shifted from 

asking questions to becoming essentially accusatory toward 

Mr. McBride, that Mr. McBride wisely ... had no response 

and eventually said this interview is over and stopped 

speaking”); id. at 274 (“[The testimony] was a rather dramatic 

way to point out to the jury what was happening here; 

namely, that within a matter of months, they were focusing on 

him, even though they had no reason to.”); id. at 276 (noting 

that he did not object because he “believed ... it was part of 

the theory of the defense that the prosecution hadn’t really 

looked much further than James McBride ever”); id. at 278 

(“[W]hile in retrospect I’m not entirely comfortable with the 

decision, it was a decision that fit the defense theme.”).) 

Indeed, the PCRA Trial Court found that trial counsel “made 

some strategic choices in furtherance of the defense theme” 

 16 Because there is a reasonable argument that not all 

references to post-Miranda silence result in a Doyle violation, 

it may not be inconsistent to say that the references implicate 

post-Miranda silence and, at the same time, say that they are 

not constitutionally impermissible. We neither endorse nor 

refute such a contention but note it as pertinent to the question 

of whether the PCRA Trial Court unreasonably applied 

Strickland.
35

(id. at 311), a factual finding that we are bound to presume is 

correct because McBride has not rebutted it by clear and 

convincing evidence.17 See 28 U.S.C. § 2254(e)(1). Even 

though trial counsel’s strategy was ultimately unsuccessful, 

we must “eliminate the distorting effects of hindsight,” and 

“indulge in a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. Recognizing that “the standards 

created by Strickland and § 2254(d) are both highly 

deferential, and when the two apply in tandem, [our] review 

[should be] doubly so,” there is a “reasonable argument that 

counsel satisfied Strickland’s deferential standard.”18

 17 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.

18 McBride downplays the highly deferential standard 

under which we review this claim, and cites to two preAEDPA 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 
36

Richter, 131 S. Ct. 788 (internal citations and quotation marks 

 

proceed,” 946 F.2d 236, 246 (3d Cir. 1991), whereas here, 

McBride alleges, no such conscious determination was made. 

Instead, he argues that the facts in Boyer v. Patton are 

analogous to his case. 579 F.2d 284 (3d Cir. 1978). In 

Boyer, a pre-Strickland case, trial counsel admitted “that he 

could not recall any specific reason for his failure to 

challenge” testimony that violated his client’s Fifth 

Amendment right to silence. Id. at 285. We found that 

counsel’s failure to object to a reference to post-arrest silence, 

which trial counsel noted “might well be objectionable,” id. at 

285 (internal quotation marks omitted), fell below “the 

standard of adequacy of legal services, ... [which was] the 

exercise of the customary skill and knowledge which 

normally prevails at the time and place,” id. at 286 (citation 

and internal quotation marks omitted). 

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.”). 
37

omitted). Accordingly, the PCRA Trial Court’s 

determination here was not an unreasonable application of 

Strickland.

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, 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. 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 
38

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.

III. Conclusion

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 question of whether a counsel who appeared 

unaware that he could make a successful constitutional 

objection at trial made a reasonable strategic choice. See 

Strickland v. Washington, 466 U.S. 668, 697 (1984) (“[T]here 

is no reason for a court deciding an ineffective assistance 

claim to approach the inquiry in the same order or even to 

address both components of the inquiry if the defendant 

makes an insufficient showing on one.”) Rather, I think that 

McBride failed to demonstrate that he was prejudiced under 

Strickland since he cannot demonstrate that there is a 

“substantial” likelihood the jury would have returned a

verdict of not guilty. See Harrington v. Richter, --- U.S. ---, 

131 S. Ct. 770, 792 (2011). The Pennsylvania Superior Court 

relied on an inaccurate description of the facts in determining 

that there was no prejudice. While we owe those factual 

determinations no deference, we still owe the court’s holding

deference if it applied Strickland reasonably. Id. at 785. 

Despite the state court’s errors, it reasonably held that 

McBride was not sufficiently prejudiced by the introduction 

of testimony that referenced his silence during interrogation. 

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 
2

differently if his confession-by-silence was excluded. See

Delgadillo v. Wodford, 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.