                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2005

Beneshunas v. Klem
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2469




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                   NO. 04-2469
                                   ___________

                             JOSEPH BENESHUNAS,
                                            Appellant

                                         v.

                EDWARD KLEM; ATTORNEY GENERAL OF THE
                   COMMONWEALTH OF PENNSYLVANIA

                                   ___________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (D.C. Civil No. 02-1086)
                   District Judge: Honorable James F. McClure, Jr.
                                    ___________

                                Argued June 7, 2005

       BEFORE: FUENTES, VAN ANTWERPEN and BECKER, Circuit Judges

                               (Filed: June 30, 2005 )

Jules Epstein (Argued)
Kairys, Rudovsky, Epstein & Messing, LLP
924 Cherry Street
Suite 500
Philadelphia, PA 19107

Counsel for the Appellant
James F. Menconi (Argued)
Assistant District Attorney
Schuylkill County Courthouse
401 North 2nd Street
Pottsville, PA 17901

Counsel for the Appellee
                                       ___________

                                        OPINION
                                       ___________

VAN ANTWERPEN, Circuit Judge

       Appellant Joseph Beneshunas appeals the decision of the District Court to deny his

petition for habeas corpus relief. Beneshunas argues that his trial attorney was ineffective

because he failed to object to the closing argument of the prosecutor who referenced

Beneshunas’s decision to end his interview with the police and invoke his right to an

attorney once he learned that the woman he shot had died. For the reasons set forth

below, we affirm.

                                        I. FACTS

       Because we write only for the parties, we will recount only the relevant facts.

Joseph Beneshunas shot and killed his former girlfriend, Vanessa Marie Bogo, in the

early morning hours of May 29, 1995. Beneshunas confronted Bogo while she was

returning to her temporary residence with some of her girlfriends. After a brief argument,

Beneshunas fired five shots from a semi-automatic pistol. One shot struck Bogo in the

hand; the other struck her in the head and proved fatal.



                                             2
       Following the shooting, Beneshunas was taken to the Shenandoah Police

Department. After he was given his Miranda warnings, he executed a written waiver of

his rights and gave the Police Chief an oral statement as to the events of the evening.

When Beneshunas learned that Bogo had died, the interview terminated.

       Beneshunas was charged with first-degree murder in the Court of Common Pleas,

Schuylkill County, Pennsylvania. At trial, Beneshunas attempted to show that he did not

have the requisite intent required for a first-degree murder conviction. During the trial,

the prosecutor elicited testimony from Police Chief Reese that Beneshunas briefly

discussed the events of the night of the shooting, but terminated the interview and asked

for a lawyer when he learned that Bogo had died. Beneshunas’s counsel objected to this

line of questioning and the trial court sustained his objection.

       Beneshunas then testified about his interview with Police Chief Reese and stated

that it was Reese who suggested they end the interview. He stated that he never asked for

a lawyer that night and just wanted to tell the police what happened.

       During his closing argument, the prosecutor stated the following:

       He never said to him [the Chief], oh, I accidentally shot her. He didn’t say
       anything like that to him. He asked a couple of times how Vanessa was. The
       chief didn’t know. Subsequently it came to pass that she died, and he
       overheard that. What did he do then? What did he do? He asked for a lawyer.
       He terminated that interview. The chief didn’t even get to the investigative
       time where you write down or have the defendant write down a statement. He
       didn’t even get that far. The end, finished business. All the chief had was
       some notes as he was making as the defendant was talking. Didn’t even come
       close to completing the interview, not even close. How about that as a factor
       to get inside the defendant’s mind what he was thinking about that night.

                                              3
             Let’s look at some other things that I think go to show you the
       defendant’s specific intent and whether or not he acted with malice that night
       ....

(Appellant App. at 29.) Beneshunas claims that these comments by the prosecutor were

barred by Griffin v. California, 380 U.S. 609, 615 (1965), which held that “the Fifth

Amendment, in its direct application to the Federal Government, and in its bearing on the

States by reason of the Fourteenth Amendment, forbids either comment by the

prosecution on the accused’s silence or instructions by the court that such silence is

evidence of guilt.”

       However, at the time of his trial, Beneshunas’s counsel did not object to the

prosecutor’s statements. Benshunas was convicted of first-degree murder and sentenced

to life imprisonment. His trial counsel continued to represent him on direct appeal, but

the courts denied relief.

       Beneshunas then sought relief pursuant to Pennsylvania’s Post Conviction Relief

Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9546, and raised numerous issues, including

the claim of ineffective assistance of counsel before this Court. During the evidentiary

hearing, Beneshunas’s trial counsel was questioned extensively about his failure to object

to the prosecutor’s closing statements regarding Beneshunas’s invocation of the right to

counsel. Beneshunas’s trial counsel claimed that he believed he had opened the door for

such a statement. He explained that part of his trial strategy was to suggest to the jury

that the very damning statement allegedly given by Beneshunas to Reese was fabricated,



                                              4
as evidence by the fact that Beneshuans did not sign it.

       After an evidentiary hearing, the court denied relief. Beneshunas appealed to the

Pennsylvania Superior Court and filed a Petition for Allowance of Appeal to the Supreme

Court of Pennsylvania. After these routes proved unsuccessful, he filed a Petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the

Middle District of Pennsylvania. The matter was referred to a Magistrate Judge who

issued a Report and Recommendation urging denial of the Petition.

       On May 18, 2004, the District Court entered an order denying relief and adopting

the Report and Recommendation of the Magistrate Judge. On August 25, 2004, this

Court issued a limited Certificate of Appealability.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Beneshunas’s habeas corpus petition

pursuant to 28 U.S.C. § 2241. This Court has jurisdiction over the appeal by virtue of our

grant of a Certificate of Appealability and 28 U.S.C. §§ 1291 and 2253. This Court

granted a Certificate of Appealability “limited to the issue of whether trial counsel

rendered constitutionally ineffective assistance by failing to object to the prosecutor’s

comments on his post-arrest silence and invocation of his right to counsel during closing

argument.” 1

   1
       This Court requested briefing on the question of whether a stand-alone Fifth
Amendment claim was procedurally defaulted in state court. Counsel for the Appellant,
in a swift and substantively correct letter brief, confirmed that the Fifth Amendment claim
was not preserved by objection at trial and was not litigated on direct appeal.

                                              5
       We exercise plenary review over the District Court’s legal conclusions in a habeas

proceeding and apply a clearly erroneous standard to factual findings in dispute. Werts v.

Vaughn, 228 F.3d 178, 191 (3d Cir. 2000).

                                     III. ANALYSIS

       “[T]he writ of habeas corpus has historically been regarded as an extraordinary

remedy, a bulwark against convictions that violate fundamental fairness. Engle v. Isaac,

456 U.S. 107, 126, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982) (quoting Wainwright v.

Sykes, supra, at 97 (STEVENS, J., concurring)). Those few who are ultimately

successful [in obtaining habeas relief] are persons whom society has grievously wronged

and for whom belated liberation is little enough compensation. Fay v. Noia, 372 U.S.

391, 440-441, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963).” Brecht v. Abrahamson, 507 U.S.

619, 633-634 (1993) (alterations in the original) (internal quotation marks omitted).

       A petition for habeas corpus is governed by 28 U.S.C. § 2254, which states in

relevant part:

       (d) An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to
       any claim that was adjudicated on the merits in State court proceedings unless
       the adjudication of the claim–
              (1) resulted in a decision that was contrary to, or involved an
              unreasonable application of, clearly established Federal law, as
              determined by the Supreme Court of the United States; or


Furthermore, he noted that Pennsylvania’s Post-Conviction Relief Act does not allow a
petitioner to raise a free-standing Fifth Amendment claim, but instead, those claims must
come through an ineffectiveness claim. Counsel for the Appellee agreed that this was an
accurate and objective statement of the law.

                                          6
                (2) resulted in a decision that was based on an unreasonable
                determination of the facts in light of the evidence presented in the State
                court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

       We may grant a writ under the “contrary to” clause if we conclude that the state-

court decision contradicts the governing law as set forth by the Supreme Court, or differs

from a decision of the Supreme Court made on materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the “unreasonable application”

clause we may grant a writ if the state court identified the correct Supreme Court

precedent, but applied it to the facts in an unreasonable manner. Id. at 413. “A federal

habeas court may not grant relief under the ‘unreasonable application’ clause unless a

state court’s application of clearly established federal law was objectively unreasonable;

an incorrect application of federal law alone does not warrant relief.” Keller v. Larkins,

251 F.3d 408, 418 (3d Cir. 2001). We may also grant a writ under § 2254(d)(2) if the

state court decision was based on an objectively unreasonable factual determination.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). With that understanding, we begin our

examination.2

   2
      The question in this appeal is whether defense counsel was ineffective because he
failed to object to the prosecutor’s closing argument. It is undisputed that the habeas
standards discussed above apply in this examination. However, the state court’s decision
turned on an interpretation of the Fifth Amendment. We believe that the habeas standards
apply to the state court’s interpretation of the Fifth Amendment because it is necessary to
its ineffective assistance claim. This reasoning is supported by the text of 28 U.S.C. §
2254(d)(1) which says that the unreasonable application clause applies where the state
court decision “involved an unreasonable application of, clearly established Federal law.”

                                                7
                           A. The Ineffective Assistance Inquiry

       Relying on Commonwealth v. Kimball, 724 A.2d 326, 330 (Pa. 1999), the Superior

Court determined that Beneshunas’s counsel was not ineffective. In Kimball, the

Supreme Court of Pennsylvania explained that:

       [t]he petitioner must still show, by a preponderance of the evidence,
       ineffective assistance of counsel which, in the circumstances of the particular
       case, so undermined the truth-determining process that no reliable adjudication
       of guilt or innocence could have taken place. This requires the petitioner to
       show: (1) that the claim is of arguable merit; (2) that counsel had no
       reasonable strategic basis for his or her action or inaction; and, (3) that, but for
       the errors and omissions of counsel, there is a reasonable probability that the
       outcome of the proceedings would have been different.

Id.

       We agree with the District Court that this standard comports with the leading

Supreme Court case addressing ineffectiveness of counsel. In Strickland v. Washington,

466 U.S. 668, 687 (1984), the Supreme Court held that a petitioner seeking to have his

conviction overturned because his counsel was ineffective must show both that his

counsel was defective and that his defense was prejudiced by this defective performance.

Pennsylvania’s standard comports with the standard set forth by the Supreme Court in

Strickland. Werts, 228 F.3d at 204.

       Although the Superior Court identified the proper standard of review, Beneshunas

claims that the Superior Court conducted no Strickland analysis, but based its decision on

a presumption that “because trial counsel professed to have a strategy that it was, as a


(emphasis added).

                                                8
matter of fact and law, a reasonable one.” (Brief of Appellant at 23.) We disagree.

       The first part of the Strickland analysis requires the reviewing court to determine

“whether counsel’s assistance was reasonable considering all of the circumstances.”

Strickland, 466 U.S. at 688. We are cautioned that our evaluation should be highly

deferential to counsel and that we must make every effort “to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.

       The Superior Court explained that counsel’s failure to object during the

prosecutor’s closing argument was based, in part, on his belief that he had “legitimately

‘opened the door’ to that line of inquiry.” (Appellant App. at 94.) The Superior Court

agreed that no Fifth Amendment violation occurred. We therefore begin by examining

the underlying Fifth Amendment issue.

                            B. The Fifth Amendment Inquiry

       The Superior Court rested its decision on Copenhefer v. Robinson, 719 A.2d 242

(Pa. 1998) which in turn relied to the Supreme Court’s decision in United States v.

Robinson, 485 U.S. 25, 31 (1988). In Robinson, the Court held:

       Where the prosecutor on his own initiative asks the jury to draw an adverse
       inference from a defendant’s silence, Griffin holds that the privilege against
       compulsory self-incrimination is violated. But where as in this case the
       prosecutor’s reference to the defendant’s opportunity to testify is a fair
       response to a claim made by defendant or his counsel, we think there is no
       violation of the privilege.

Id. at 32. The Superior Court explained that the prosecutor’s statement in his closing was

                                             9
a response to Beneshunas’s testimony that he never asked for a lawyer and just wanted to

tell the police what had happened. (Appellant App. at 94.)

       Beneshunas argues that the Superior Court erred in two respects. First,

Beneshunas claims that the Superior Court decision fails to mention that it was the

prosecutor who first elicited testimony regarding Beneshunas’s invocation of his rights.

Second, he claims that the prosecutor’s comments went beyond simply impeaching his

testimony, but were used as substantive evidence to rebut the claim that the shooting was

accidental. (Brief of Appellant at 24.)

           a. The Prosecutor’s Comments Were Properly Labeled a Response

       Beneshunas argues that the Superior Court’s decision was based on an

unreasonable factual determination because it describes the Prosecutor’s closing

argument as a “response” to Beneshunas’s testimony. He points out that it was really the

prosecutor who initially elicited testimony from the police chief regarding his request for

a lawyer during questioning.

       As a factual matter, the Superior Court did not err. The prosecutor made his

closing statement after all of the evidence had been presented, including Beneshunas’s

testimony that he simply wanted to tell the police what happened. In that sense, the

prosecutor’s closing remarks were a “response” to Beneshunas’s entire defense, including

his testimony. The fact that certain matters first arose during the prosecutor’s case-in-

chief does not mean that his later reference to the defendant’s theory is not a “response.”



                                             10
       Furthermore, if the prosecutor “opened the door,” Beneshunas kicked it down with

testimony that went beyond any effort to rebut the statements made by the police chief.

His trial strategy was to discredit Reese and demonstrate that he did not form the intent to

kill and to that end he testified that he fully cooperated with the police. As the Superior

Court explained:

       Regarding his cooperation with the police, appellant testified at trial on direct
       examination that “I never asked for a lawyer that night, never at any point.”
       He contended that when the news of the victim’s death arrived, “I broke down
       and started to cry and then Chief Reese said ‘Benny, you better not say
       anything else until you get a lawyer.’ I said okay.” Appellant further asserted,
       “No, I never asked for a lawyer. He - I didn’t even want a lawyer. I just knew
       - I knew what happened. I just wanted to tell them what happened.”

(Appellant App. at 92) (emphasis added). After the Court sustained an objection by

defense counsel to the prosecutor’s line of question, Beneshunas revisited his cooperation

with the police in his own testimony. He didn’t just deny that he requested a lawyer, but

urged that he wanted to fully cooperate with the police. The Superior Court did not err in

labeling the prosecutor’s closing statement a “response.”

       For these same reasons, the fact that the prosecutor elicited testimony first does not

change the legal consequences. The Superior Court found that the prosecutor’s closing

argument was a response to the Beneshunas’s testimony that he cooperated with the

police and therefore had no intent to kill. It concluded that under relevant Supreme Court

precedent this was permissible. That the Superior Court found it irrelevant that the

prosecutor first elicited testimony regarding Beneshunas’s invocation of his rights is not



                                              11
contrary to or, an unreasonable application of, Supreme Court precedent.

                     b. The Superior Court’s Decision Regarding the
                      Scope of the Comments Was Not Unreasonable

       In a more compelling argument, Beneshunas claims the prosecutor’s closing did

more than rebut his testimony; it encouraged the jury to infer guilt from his exercise of his

right to counsel. (Brief of Appellant at 28.) Specifically, Beneshunas directs our

attention to the prosecutor’s statement, “How about that as a factor to get inside the

defendant’s mind what he was thinking that night. Let’s look at some other things that I

think go to show you the defendant’s specific intent and whether or not he acted with

malice that night . . . .” (Appellant App. at 29.) Beneshunas maintains that, taken in

context, this can be read as nothing else but proof of state of mind.

       Although Beneshunas raises a compelling issue, our review of the state court’s

decision is severely circumscribed. As stated above, we can only grant a habeas petition

if the Superior Court’s decision is contrary to the governing law as set forth by the

Supreme Court, different than a decision of the Supreme Court made on materially

indistinguishable facts, or an objectively unreasonable application of the correct Supreme

Court precedent. Williams v. Taylor, 529 U.S. at 405-09. Accordingly, we turn to the

relevant case law.

       In Robinson, 485 U.S. at 31, the Court declined to “take the view that any ‘direct’

reference by the prosecutor to the failure of the defendant to testify violates the Fifth

Amendment as construed in Griffin.” The Court went on to explain:

                                              12
       “[The] central purpose of a criminal trial is to decide the factual question of
       the defendant's guilt or innocence, United States v. Nobles, 422 U.S. 225
       (1975) . . . .” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). To this
       end it is important that both the defendant and the prosecutor have the
       opportunity to meet fairly the evidence and arguments of one another. The
       broad dicta in Griffin to the effect that the Fifth Amendment ‘forbids . . .
       comment by the prosecution on the accused’s silence,’ 380 U.S., at 615, must
       be taken in the light of the facts of that case. It is one thing to hold, as we did
       in Griffin, that the prosecutor may not treat a defendant's exercise of his right
       to remain silent at trial as substantive evidence of guilt; it is quite another to
       urge, as defendant does here, that the same reasoning would forbid the
       prosecutor from fairly responding to an argument of the defendant by
       adverting to that silence. There may be some ‘cost’ to the defendant in having
       remained silent in each situation, but we decline to expand Griffin to preclude
       a fair response by the prosecutor in situations such as the present one.

Id. at 33-34.

       It appears that the Court has not yet settled the question of whether a prosecutor

may properly use the defendant’s invocation of his rights as both a rebuttal to a statement

by a defendant and substantive evidence of his guilt. Indeed, Justice Marshall raised

concerns about this issue in his dissent in Robinson, when he stated:

       the Court’s suggestion that whether a comment violates Griffin depends on
       whether it is a response to the defense is muddled. A comment may well be a
       response to the defense and nevertheless be precisely the kind of statement that
       our holdings in Griffin and Wilson were designed to eliminate. If, for example,
       a defendant's counsel argues at trial that the defendant failed to take the stand
       in order to protect another person, and the prosecution responds that the true
       explanation is that the defendant is guilty as sin, the prosecution’s comment
       responds to the defense, but it nevertheless invites the jury to infer guilt from
       the defendant's decision not to testify. Such a comment violates Griffin under
       any reasonable interpretation of that case.

Id. at 40-41 (footnote omitted).

       In this case, the defense presented evidence that the defendant cooperated with the

                                               13
police in order to encourage an inference as to his state of mind. The prosecution

responded that the evidence did not support the claim that the defendant was completely

cooperative with the police, and used this evidence to challenge the inference that the

defense attempted to draw. In light of Robinson, we cannot say that the Superior Court

was unreasonable in its holding that there was no Fifth Amendment violation.

       Even if the Superior Court’s decision was unreasonable, this is such a close

question that we cannot say that trial counsel was defective. We must make every effort

“to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at

the time.” Strickland, 466 U.S. at 669. Defense counsel was trying to use his client’s

cooperation with the police as evidence of his mental state. At the closing argument stage

of the trial, he would have had a difficult time making the case that the prosecutor had to

curb his references to the same evidence he sought to use.

       For the reasons set out above, we affirm the decision of the District Court.




                                             14
BECKER, Circuit Judge, concurring in part and concurring the judgment.

       I join in Judge Van Antwerpen’s well-reasoned opinion except for part III.A.1.b,

in which he concludes that there was no Fifth Amendment violation. I join in the

judgment because the only issue certified for appeal is whether trial counsel rendered

ineffective assistance in failing to object to the prosecutor’s violation of Beneshunas’s

Fifth Amendment rights, and I agree with Judge Van Antwerpen that there was no

ineffective assistance. The substantive Fifth Amendment claim was not raised at trial or

on direct appeal and was waived for the purposes of state collateral review. Beneshunas is

thus obliged to concede that any freestanding Fifth Amendment claim would be

procedurally defaulted and unavailable in habeas, and to present it only as a part of his

ineffective assistance claim. My discussion of the Fifth Amendment claim, like Judge

Van Antwerpen’s, is therefore subsidiary to my ultimate conclusions about ineffective

assistance.

                                              I.

       My disagreement with the Opinion of the Court stems from its statement that “the

[Supreme] Court has not yet settled the question of whether a prosecutor may properly

use the defendant’s invocation of his rights as both a rebuttal to a statement by a

defendant and substantive evidence of his guilt.” Ante at 12-13. But the Supreme Court’s

language is plain: “It is one thing to hold, as we did in Griffin [v. California, 380 U.S. 609

(1965)], that the prosecutor may not treat a defendant’s exercise of his right to remain



                                             15
silent at trial as substantive evidence of guilt . . . .” United States v. Robinson, 485 U.S.

25, 34 (1988). This makes it perfectly clear that a prosecutor may not use an invocation of

rights as substantive evidence of guilt. This is just as true of post-arrest invocation of

Miranda rights as it is of the invocation of the right not to testify at trial. The Miranda

rights to silence and an attorney would be meaningless without a concomitant guarantee

that using them will not harm the defendant. See Doyle v. Ohio, 426 U.S. 610, 617

(“[E]very post-arrest silence is insolubly ambiguous because of what the State is required

to advise the person arrested.”).

       I agree with Judge Van Antwerpen that the defense strategy invited comment and

rebuttal by the prosecution. Beneshunas’s defense was one of accident, and he presented

substantial evidence of his nonculpable state of mind: he stayed at the scene after the

shooting, attempted to aid Bogo, went quietly with police, and asked repeatedly about

Bogo’s health. He also testified that he had spoken freely with the police and that Chief

Reese, not Beneshunas, had suggested that he get a lawyer after learning of Bogo’s death.

Beneshunas’s testimony on these points was contradicted, to some extent, by Chief

Reese’s.

       The prosecutor was thus well within his rights to comment in his closing

arguments on this evidence. He had every right to suggest that Beneshunas’s version of

events was false, and even that Beneshunas’s cooperation was woefully incomplete and

hence was not as substantial evidence of innocence as the defense claimed. But his



                                              16
latitude was limited to a fair reply: Robinson’s “invited response” doctrine “mean[s] that a

prosecutor may neutralize improper defense arguments but may not rely on them as a

‘springboard’ for the launching of affirmative attacks upon the defendant[]. In other

words, the doctrine’s reach is limited to defensive, as opposed to offensive, conduct of the

prosecutor.” United States v. Pungitore, 910 F.2d 1084, 1126-27 (3d Cir. 1990) (citation

omitted).

       I have little doubt that the prosecution’s comments here went well beyond the

scope of a fair response. The disputed section of the closing argument barely mentions

Beneshunas’s testimony, or his contentions that he cooperated. Instead, the closing used

Beneshunas’s invocation of his rights as substantive evidence of his guilt: “He asked for a

lawyer. He terminated that interview. . . . Didn’t even come close to completing the

interview, not close. How about that as a factor to get inside the defendant’s mind what

he was thinking that night.” The very next sentence refers to “some of the things that I

think go to show you the defendant’s specific intent and whether or not he acted with

malice that night.” The prosecutor’s meaning was clear: Beneshunas asked for a lawyer

because he was guilty.

       This impermissible and inflammatory use of Beneshunas’s silence was a plain

violation of the Constitution as interpreted by Doyle and Robinson. I would therefore hold

that the state courts’ contrary decision was an objectively unreasonable application of the

precedents under the AEDPA standards. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529



                                            17
U.S. 362, 405-09 (2000).

                                            II.

       Nonetheless, Beneshunas’s habeas claim fails for the reasons set forth in the

penultimate paragraph of the Opinion of the Court. While I conclude that the prosecutor’s

closing argument violated Beneshunas’s Fifth Amendment rights, I agree that defense

counsel’s failure to claim such a violation was not an “error[] so serious that counsel was

not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel objected to Chief Reese’s direct

testimony that Beneshunas had asked for a lawyer, but he apparently concluded that the

closing argument was a fair response to Beneshunas’s own testimony and was not

therefore a Fifth Amendment violation. I note that this is the conclusion reached by

several unanimous state courts and by four able and experienced federal judges: a

Magistrate Judge, a District Judge, and two members of this panel.

       More particularly, I agree with the Opinion of the Court that trial counsel made a

“reasonable strategic decision” to which this Court should be “highly deferential.”

Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). Defense counsel chose to focus on

Beneshunas’s cooperation with the police, and reasonably—although, I believe,

wrongly—decided that the prosecutor’s closing argument constituted an unobjectionable

response to his strategy. Our ineffective assistance jurisprudence does not allow us to

second-guess that decision.



                                            18
       Because I believe that Beneshunas’s conviction was obtained in violation of his

constitutional rights, I am deeply troubled by our decision not to grant a writ of habeas

corpus. Nonetheless, although I regret that the posture of this case (and the applicable

State procedures) compelled Beneshunas to wrap his persuasive Fifth Amendment claim

in a less viable ineffective assistance argument, I am constrained to join in the judgment.




                                             19
