PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 21-1918

_______________________

LAWRENCE GAINES

v.

SUPERINTENDENT BENNER TOWNSHIP SCI; 

DISTRICT ATTORNEY NORTHAMPTON COUNTY; 

ATTORNEY GENERAL PENNSYLVANIA,

Appellants

_______________________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

District Court No. 5-20-cv-00361

District Judge: Honorable Mark A. Kearney

__________________________

Argued, January 20, 2022

Before: JORDAN, RESTREPO, and SMITH, Circuit Judges

(Filed: May 12, 2022)
2

Katharine R. Kurnas [ARGUED]

Northampton County Office of District Attorney

669 Washington Street

Easton, PA 18042

Ronald Eisenberg

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

 Counsel for Appellants

Cheryl J. Sturm [ARGUED]

387 Ring Road

Chadds Ford, PA 19317

 Counsel for Appellee

__________________________

OPINION OF THE COURT

__________________________

SMITH, Circuit Judge.

Lawrence Gaines was convicted in Pennsylvania state 

court of first-degree murder under 18 PA. CONS. STAT. § 2502.

After pursuing direct and collateral proceedings in 

Pennsylvania, Gaines petitioned for habeas relief pursuant to 

28 U.S.C. § 2254. The District Court granted Gaines’s 
3

petition. That court held that Gaines’s trial counsel was 

ineffective for not objecting to the trial court’s omission of a

jury instruction that no adverse inference could be drawn from 

Gaines’s election not to testify in his own defense.

We conclude that the District Court erred. Gaines’s trial 

counsel made a reasonable tactical choice when he did not 

object to the trial court’s failure to give the requested noadverse-inference instruction as part of its charge to the jury.

We will, therefore, reverse the District Court’s order granting 

habeas relief and remand for further proceedings. 

I. BACKGROUND

a. Factual Background

Gaines served as the “muscle” in a house known locally 

for drug dealing. Early on July 3, 2012, William Thompson, 

also known as “Poncho,” knocked on the door of the house 

looking to buy drugs. Tony Williams, a visitor in the house, 

told Thompson that the house was “closed,” denied him entry,

and told him to leave. But Thompson kept knocking and 

asking to come in, even after Williams told him to quiet down 

so that neighbors would not complain to the police.

Eventually, Gaines walked outside to confront

Thompson and an argument ensued. Williams joined the two 

other men and tried to calm them down. Suddenly, “[o]ut of 

nowhere, [Gaines] hit[] Poncho.” App. at 378. Gaines 

punched Thompson, knocking him to the ground, and he

continued to beat Thompson until Williams pulled him away. 
4

After Thompson got up from the ground, he began to

walk down the street, but then paused to pick up a wooden post. 

He ran towards Gaines, hitting him across the back with the 

post. Both men fell, and when Gaines stood up, he grabbed a 

knife from his pocket. Looking at Thompson, Gaines said 

something to the effect of “oh, it’s like that? Yeah, it’s like 

that.” App. at 384. Gaines then stabbed Thompson multiple 

times. Once again, Williams pulled Gaines off of Thompson. 

A forensic expert later testified that Gaines stabbed

Thompson five times: twice to the right buttock, once to the 

right posterior thigh, once to the right bicep, and once to the 

right groin. The wound to the right groin perforated 

Thompson’s femoral artery, resulting in hemorrhaging that 

caused his death. 

When confronted by the police the next day, Gaines lied

by denying he had anything to do with Thompson’s death. The 

detective who interviewed Gaines noted that he did not appear 

to be injured; Gaines did not seek medical attention after the 

fight. Roughly a week after this interview, a family who lived 

near the scene of the fatal confrontation found a knife covered 

in blood in their backyard. The police took custody of it, and 

their forensic experts found Thompson’s DNA on the knife.

b. State Court Proceedings

Gaines was charged with first-degree murder pursuant 

to 18 PA. CONS. STAT. § 2502(a).1In Pennsylvania, firstdegree murder is “an intentional killing,” which is further 

1 The Commonwealth did not pursue the death penalty. 
5

defined as “[k]illing by means of poison, or by lying in wait, 

or by any other kind of willful, deliberate, and premeditated 

killing.” Id. § 2502(a), (d). In compliance with Pennsylvania 

Supreme Court precedent, the jury was also instructed on three 

lesser included offenses: (1) murder in the third degree; (2) 

voluntary manslaughter; and (3) involuntary manslaughter. 

See Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013).

At trial, Gaines’s counsel, Robert Sletvold, argued selfdefense. Gaines presented no witnesses and chose not to take 

the witness stand. Upon learning that Gaines would not testify, 

the trial court conducted a colloquy to ensure that Gaines was 

knowingly waiving his right to be a witness on his own behalf.

During the colloquy, the court inquired of Gaines as follows:

“Mr. Sletvold also indicated that he wishes me to instruct the 

jury that the jury can draw no adverse inference from your 

decision to remain silent. Do you understand that?” App. at 

628. And during the charge conference, Sletvold repeated his 

request for a no-adverse-inference instruction:

THE COURT: Mr. Sletvold, you are requesting 

3.10(a) [sic], defendant does not have to testify, 

no adverse inference?

MR. SLETVOLD: Yes.

App. at 680.2 This exchange also demonstrates that the trial 

court agreed to give the instruction. 

2 Pennsylvania’s Model Instruction 3.10A provides:
6

Despite the defense request and the court’s agreement 

to it, the trial judge neglected to include the no-adverseinference instruction in its jury charge. And when the judge 

asked counsel if they had any objections, Sletvold did not 

object to the lack of a no-adverse-inference instruction. The 

jury convicted Gaines of murder in the first degree. Gaines did 

not raise any argument that he should have received the noadverse-inference instruction during either his direct appeal or 

on collateral review in the Pennsylvania courts. 

c. District Court Proceedings

Gaines, proceeding pro se, raised an ineffective 

assistance of counsel claim arguing that Sletvold should have 

requested or objected to the lack of the no-adverse-inference 

instruction.3 The District Court conducted an evidentiary 

hearing on this claim. At that hearing, Sletvold testified he was 

aware that the trial court failed to give the requested noadverse-inference instruction, but he explained that he decided

It is entirely up to the defendant in every criminal 

trial whether or not to testify. He has an absolute 

right founded on the Constitution to remain 

silent. You must not draw any inference of guilt, 

or any other inference adverse to the defendant, 

from the fact that he did not testify. 

Pennsylvania Suggested Standard Criminal Jury Instructions 

§ 3.10A (3d ed. 2016) (cleaned up).

3 Gaines raised several other grounds in this petition, but they 

are not before us in this appeal.
7

not to object because he “was concerned that throwing [the noadverse-inference instruction] in at the end, so to speak, may 

have dr[awn] undue attention to the fact that Mr. Gaines did 

not testify.” App. at 137. Further, Sletvold testified that he

was otherwise satisfied with the charge as it stood because it 

placed the burden of proof squarely on the Commonwealth and

exhaustively detailed the law of self-defense. 

Gaines’s counsel on state collateral review, Matthew 

Deschler, did not raise any claim concerning the lack of a noadverse-inference instruction. In fact, he testified that he did 

not even notice the absence of the instruction.

II. JURISDICTION

The District Court had jurisdiction pursuant to 28 

U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291. 

III. ANALYSIS

We review the District Court’s legal conclusions and 

any factual inferences drawn from the state court record de 

novo. Randolph v. Sec’y Pa. Dep’t of Corr., 5 F.4th 362, 372 

(3d Cir. 2021). When a district court conducts an evidentiary 

hearing, we review any “new” findings for clear error. Id.

Before moving to the merits of Gaines’s petition, 

however, we must determine whether he properly exhausted 

his claim. Although the Commonwealth did not argue that 

Gaines failed to exhaust his claim, we have an independent 

duty to analyze exhaustion unless the Commonwealth 
8

explicitly waives that requirement. 28 U.S.C. § 2254(b)(3). 

Because the Commonwealth has not explicitly waived it here, 

we consider sua sponte if Gaines exhausted his claim. See 

Pavatt v. Carpenter, 928 F.3d 906, 924–25 (10th Cir. 2019). 

Because Gaines’s claim for ineffective assistance of 

counsel was raised for the first time in the District Court, we 

can analyze Gaines’s claim only if there is sufficient cause to 

do so under Martinez v. Ryan, 566 U.S. 1, 14 (2012). Sufficient 

cause exists to review a defaulted claim for ineffective 

assistance of counsel if the petitioner shows that: (1) “the 

default was caused by ineffective assistance of post-conviction 

counsel”; (2) “in the initial-review collateral proceeding”; and 

(3) “the underlying claim of trial counsel ineffectiveness is 

substantial.” Preston v. Superintendent Graterford SCI, 902 

F.3d 365, 376 (3d Cir. 2018) (internal quotation marks 

omitted) (quoting Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 

2014)). A showing of cause under Martinez means only that 

we reach the merits of the underlying claim of ineffective 

assistance of trial counsel. It does not necessitate a grant of 

habeas relief. See id. at 383. We analyze each Martinez factor 

in turn. 

First, post-conviction counsel failed to provide effective 

assistance by not detecting or raising that Sletvold did not

object to the trial court’s omission of the no-adverse-inference 

instruction. At the evidentiary hearing in the District Court, 

Deschler testified that he did not notice the trial court’s failure

to give the instruction. While the standards espoused in

Strickland v. Washington, 466 U.S. 668 (1984), give strategic 

decisions of counsel a wide berth, inattentiveness is strong 
9

evidence of ineffective assistance. See Preston, 902 F.3d at 

377 (noting that there was no explanation provided as to a 

failure to raise an argument on appeal); Wayne LaFave et al., 

3 CRIM. P. § 11.10(c) (4th ed. 2021) (“Courts will far more 

readily find incompetency where there has been an 

abdication—not an exercise—of professional judgment.” 

(internal quotation marks omitted) (quoting McQueen v. 

Swenson, 498 F.2d 207, 216 (8th Cir. 1974))). 

Additionally, Deschler’s failure to raise this ground is 

concerning because the trial court’s omission of the instruction

probably violated Gaines’s rights under the Pennsylvania

Constitution. A defendant who timely requests a no-adverseinference instruction is entitled to have it given to the jury. 

Commonwealth v. Thompson, 674 A.2d 217, 220 (Pa. 1996); 

cf. Carter v. Kentucky, 450 U.S. 288, 300 (1981) (holding that 

a no-adverse-inference instruction is required under the Fifth 

Amendment if timely requested). Likewise, a Pennsylvania

court must also honor a defendant’s request not to provide a 

no-adverse-inference instruction. Commonwealth v. Edwards, 

637 A.2d 259, 261 (Pa. 1993).4 But even if the defendant 

chooses not to request the instruction, the trial court is required 

to colloquy the defendant to determine if he is knowingly 

waiving his right to have the instruction given. Thompson, 674 

A.2d at 222 (“[T]he no adverse inference instruction shall be 

4 A federal court does not violate the Constitution by giving the 

instruction over a defendant’s objection. Lakeside v. Oregon, 

435 U.S. 333, 340–41 (1978).
10

given absent an express on the record colloquy by the 

defendant waiving the charge.”).

The trial court did not perform a colloquy as to whether 

Gaines wished to waive the charge, and further failed to give 

the instruction even though it had been timely requested. 

What’s more, the judge had actually agreed to give the noadverse-inference instruction. Yet post-conviction counsel 

failed to notice the absence of both the instruction and the 

colloquy. His inattentiveness meant that there was no tactical 

decision to make. We, therefore, hold that post-conviction

counsel’s performance was objectively unreasonable and that 

he was ineffective under the first Martinez prong.

5

 

The second Martinez prong is also satisfied. Postconviction counsel’s deficient performance occurred in an 

initial-review collateral proceeding. See Preston, 902 F.3d at 

377. 

Finally, Gaines’s claim that Sletvold was ineffective is 

substantial. A claim is substantial as long as it “has some 

merit.” Cox, 757 F.3d at 119 (internal quotation marks 

omitted) (quoting Martinez, 566 U.S. at 14). This standard is 

“analogous to the substantiality requirement for a certificate of 

appealability.” Id. So we ask if “reasonable jurists could 

debate” whether Sletvold’s performance was ineffective.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack 

v. McDaniel, 529 U.S. 473, 484 (2000)). This is a “light” 

burden; Gaines “must show only that his claim represents 

5 To succeed under Martinez, a petitioner does not need to 

show prejudice. Preston, 902 F.3d at 376–77. 
11

something more than the absence of frivolity or the existence 

of mere good faith.” Bracey v. Superintendent Rockview SCI, 

986 F.3d 274, 283 (3d Cir. 2021) (internal quotation marks 

omitted) (quoting Miller-El, 537 U.S. at 338).

Here, we easily conclude that Gaines’s claim is not 

frivolous, and that it deserves further examination. As such, 

sufficient cause exists under Martinez to excuse the failure to 

exhaust his claim. 

With the requirements of Martinez having been met, we

proceed to assess the merits of Gaines’s claim. 

To determine if Gaines’s right to effective assistance of

counsel under the Sixth Amendment was violated, we look to 

the “two components” described in Strickland. 466 U.S. at 687. 

First, we must determine if trial counsel “made errors so 

serious that counsel was not functioning as the ‘counsel’” 

guaranteed by the Sixth Amendment. Id. at 689. To meet this 

standard, the defendant must “show that counsel’s 

representation fell below an objective standard of 

reasonableness.” Id. at 688. Second, we must ascertain 

whether such deficient performance prejudiced Gaines. Id. at 

687. We may proceed through this analysis in any order, and 

if Gaines makes an inadequate showing as to one of these 

components, then we do not need to examine the other. Id. at 

697.

In pursuing our inquiry, we are cognizant that

“[j]udicial scrutiny of counsel’s performance must be highly 

deferential.” See id.; Burt v. Titlow, 571 U.S. 12, 22–23 

(2013); see also United States v. McCoy, 410 F.3d 124, 135 (3d 
12

Cir. 2005) (“[C]ourts have been highly deferential to counsel’s 

strategic decisions.”). And while judges may be tempted to 

second guess defense counsel’s decisions, we must keep in 

mind that “advocacy is an art and not a science, and . . . 

strategic choices must be respected in these circumstances if 

they are based on professional judgment.” Strickland, 466 U.S. 

at 681. In other words, “counsel’s strategic choices will not be 

second-guessed by post-hoc determinations that a different 

trial strategy would have fared better.” Rolan v. Vaughn, 445 

F.3d 671, 681–82 (3d Cir. 2006).

Before assessing the quality of Sletvold’s representation 

under Strickland, we must correct a substantial factual error

made by the District Court in its opinion supporting the grant 

of habeas relief. The Court concluded that Attorney Sletvold

failed to request the no-adverse-inference instruction at the 

charge conference. The District Judge wrote:

Attorney Sletvold’s strategic decision to not 

object after the trial court read the full 

instructions to the jury does not explain why 

Attorney Sletvold did not object earlier during 

the charging conference to the omission of the 

“no adverse inference” instruction.

App. at 65. Surprisingly, the Court repeated that finding when 

denying the Commonwealth’s motion to reconsider the 

judgment: “Attorney Sletvold’s failure to request the ‘no 

adverse inference’ instruction at both the charging conference

and after the trial court instructed the jury . . . constituted 

ineffectiveness under the performance prong of Strickland v. 

Washington.” App. at 23 (emphasis added).
13

The conclusion that Sletvold did not request the 

instruction at the charge conference was drawn directly from 

the record and is therefore subject to plenary review.

Randolph, 5 F.4th at 372. And the record is clear that Sletvold

did in fact request the no-adverse-inference instruction at the 

charge conference. The following “Q and A” between the 

court and counsel makes that clear:

THE COURT: Mr. Sletvold, you are requesting 3.10(a) 

[sic], defendant does not have to testify, no adverse 

inference?

MR. SLETVOLD: Yes.

App. at 680. The trial court also clearly agreed to give the 

instruction. Therefore, the District Court erred in finding that 

Sletvold did not request a no-adverse-inference instruction at 

the charge conference, or that he somehow failed to object at 

that time to the trial court’s failure to grant such a request.

We are left, then, with one question only: Did Sletvold’s 

strategic decision not to object to the missing no-adverseinference instruction at the conclusion of the charge to the jury 

constitute ineffective assistance of counsel?

We begin fully cognizant of the probability that a 

violation of Pennsylvania law occurred at the trial when no 

colloquy was conducted regarding the instruction. But even if 

state law was violated in that regard, it does not entitle Gaines 

to § 2254 relief. Under § 2254, our review extends only to 

assertions that federal law has been violated. 28 U.S.C. 

§ 2254(d). Moreover, the fact that some other law has been
14

violated does not inexorably lead to the conclusion that counsel 

was ineffective. See Gov’t of V.I. v. Weatherwax, 77 F.3d 

1425, 1430–31 (3d Cir. 1996). For example, in Weatherwax

we observed that an attorney may have violated an ethical rule 

by not objecting when a juror was seen carrying into the jury 

room a newspaper which contained a story concerning the trial. 

The attorney did not object, however, because he thought that

the composition of the seated jury gave his client the best 

chance to receive an acquittal. Id. at 1428. Additionally, he 

believed that he could not later obtain a similarly favorable jury 

if he was required to redo voir dire. Id. We held that counsel’s 

failure to bring the potential outside influence on the jury’s 

deliberation to the attention of the court was not ineffective 

assistance. As we explained, “[i]f counsel breaches a duty to 

the court, this does not necessarily mean that the representation 

of his client was ineffective.” Id. at 1438. 

Here, the trial court may have ignored or overlooked a 

procedural obligation under Pennsylvania law when it failed to

conduct a colloquy. But the issue before us is only whether

Sletvold provided constitutionally ineffective assistance of 

counsel, not whether a rule of state criminal procedure has been 

violated. 

We conclude that Sletvold was not ineffective. To have 

been ineffective, he would have had to make a decision that 

fell below an objective standard of reasonableness—but 

commentators have observed that there is no consensus on the 

efficacy of the no-adverse-inference instruction. Kenneth S. 

Brown et al., 1 MCCORMICK ON EVID. § 128 (8th ed. 2021) (“It 

is widely recognized . . . that reasonable persons differ with 
15

regard to when, if ever, such an instruction is likely to do more 

good than harm.”); see also Lakeside, 435 U.S. at 335 (noting 

that counsel viewed the instruction as waving a “red flag” in 

front of the jury); id. at 347 (Stevens, J., dissenting) (“It is 

unrealistic to assume that instructions on the right to silence 

always have a benign effect.”).

6 Because there is reasonable 

disagreement as to the instruction’s effectiveness, “[d]efense

counsel should have considerable latitude in weighing the 

effect of such an instruction.” United States v. Perry, 479 F.3d 

885, 891–92 (D.C. Cir. 2007). 

And, as we would expect in the face of this reasonable 

disagreement, our sister circuits have deferred to defense 

counsel’s strategic decisions. The Eleventh Circuit observed 

that “[n]either the Supreme Court nor this Court has ever held 

that a trial court must give a no-adverse-inference instruction 

if one is not requested. Nor has either court held that it is 

ineffective assistance of counsel not to request such an 

instruction.” Bester v. Warden, 836 F.3d 1331, 1337 (11th Cir. 

2016) (emphasis added). Similarly, the Tenth Circuit 

committed the decision concerning whether or not to request a 

no-adverse-inference instruction to an “attorney’s tactical 

discretion.” Coleman v. Brown, 802 F.2d 1227, 1235 (10th 

Cir. 1986). In fact, neither the District Court nor Gaines cites

a case—and we are aware of none—in which a tactical decision 

6 Even the available empirical literature tends to show that the 

instruction may have little effect on a jury’s deliberation. 

Jeffrey Bellin, The Silence Penalty, 103 IOWA L.REV. 395, 434 

(2018) (collecting surveys and experiments).
16

to forgo a request for a no-adverse-inference instruction was 

held to be an objectively unreasonable decision.

Sletvold testified at the evidentiary hearing that he 

consciously decided to avoid calling attention to the fact that 

Gaines chose not to testify. Indeed, he was faced with two 

options. Make a request that would assure the last thing the 

jury heard was a reminder that Gaines did not testify (the so 

called “red flag”) or allow the jury to undertake its

deliberations without the no-adverse inference instruction, but 

after hearing a charge which clearly placed the burden of proof 

on the Commonwealth and exhaustively explained selfdefense. This placed counsel in the unenviable position of 

having to make an on-the-spot decision. But such rapid 

decision making is frequently required of trial lawyers, and 

Sletvold chose not to raise the “red flag.” Under the 

circumstances, we can hardly call his decision objectively 

unreasonable. See Strickland, 466 U.S. at 689 (remarking that 

“[t]here are countless ways to provide effective assistance in 

any given case,” and, as a result, courts should give defense 

counsel latitude in choosing a trial strategy); Rolan, 445 F.3d 

at 681–82 (reminding reviewing courts to ignore the 

temptation to second-guess an attorney’s trial strategy). 

Because Sletvold was not ineffective, we need not

determine if the alleged error was prejudicial. So we will 

reverse the District Court’s grant of habeas relief. 

Yet there remains one issue for our consideration. 

During voir dire, the trial court delivered a forceful explanation

to the venire of the right against self-incrimination:
17

MR. SLETVOLD: [W]hat we’re doing here is 

not trying to judge you but trying to make sure 

that the jury that sits here can play by the rules. 

Like I said, some of those rules the judge will 

instruct you. Mr. Gaines is presumed innocent.

Mr. Gaines does not have to testify. . . . Does 

anyone have a problem with that? Number 3.

. . .

JUROR NUMBER 3: Well, on the questionnaire 

it asked about, and you just brought it up, about 

him not having to testify. In my way of thinking, 

if I were –

THE COURT: Stop right there. Let me interrupt, 

Mr. Sletvold. One of the most fundamental 

principles of the Pennsylvania [C]onstitution is 

that when someone is accused of a crime, he does 

not have to testify; does not have to be called 

upon to defend themselves. Rather, the burden 

is on the Commonwealth to prove that they’re 

guilty and that proof must be beyond a 

reasonable doubt. 

That is such a fundamental constitutional 

principle that it is absolutely imperative as the 

jury in this matter you can accept that principle 

and if you have no adverse inference from the 

decision of the defendant to remain silent. There 

can be a variety of reasons why a defendant may 
18

not choose to take the stand. But regardless of 

the reason, you must be able to accept that 

principle of our law dating back to our founders 

that the defendant has an absolute right to remain 

silent. If you cannot accept that law and if you’re 

likely to infer anything adverse to the defendant, 

you cannot be a juror in this matter.

App. at 237–39. To us, this intervention was plainly relevant 

to Gaines’s petition. Such a robust assertion from the trial 

judge of the right against self-incrimination may well have 

affected Sletvold’s calculus in deciding whether to object to 

the trial court’s failure to provide the requested no-adverseinference instruction. In any event, Sletvold knew the jury had 

already been advised, early on about this bedrock principle of 

American law, and before they heard any evidence. It would 

have been reasonable for him to think, at the time, that the jury 

did not require a reminder when it would be tacked on at the 

end of trial.

Unfortunately, the District Judge did not have the 

benefit of the voir dire transcript when it was asked to rule on 

Gaines’s habeas petition. Additionally, no Pennsylvania court 

had the opportunity to examine the voir dire transcript. That is 

because it was not produced until after the District Court 

granted habeas relief. 

We decline to consider the transcript at this late stage. 

Nor do we need to decide if the District Court abused its 

discretion in denying the motion to reconsider. Even without 

considering the excerpt of the transcript set forth above, we 

confidently hold that Sletvold’s representation of Gaines was 
19

not ineffective. Yet we lack a reasonable explanation for why 

neither the Commonwealth nor the petitioner thought to

inquire into the existence of a voir dire transcript despite its 

obvious absence from the record. That counsel and courts

would need a complete transcript for use in post-trial 

proceedings following a first-degree murder conviction seems 

beyond question.

We use this opportunity, then, to remind all parties to 

habeas proceedings that they have an obligation, both in 

federal court and in the Pennsylvania courts, to develop,

pursue, and present to us on a timely basis a full, complete, and 

accurate record of all that transpired before the trial court. See

Rules Governing § 2254 Cases, Rule 5(c), 28 U.S.C. foll. 

§ 2254; PA. R.A.P. 1921. Adherence to that obligation assures 

that a habeas court has before it all that is needed to conduct 

meaningful collateral review. 

IV. CONCLUSION

Sletvold made a tactical decision to not object to the trial 

court’s omission of a no-adverse-inference instruction. His 

decision, viewed through the deferential lens of Strickland, 

was reasonable. Therefore, Gaines was not deprived of his 

right to effective assistance of counsel. We will reverse the

order granting habeas relief and remand for the District Court 

to deny Gaines’s habeas petition.