                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2097
                                    ___________

Mark E. Graham,                          *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Western District of Missouri.
Dave Dormire, Superintendent/Warden, *
Jefferson City Correctional Center,      *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: January 13, 2000

                                   Filed: May 9, 2000
                                    ___________

Before WOLLMAN, Chief Judge, FLOYD R. GIBSON, and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.

       Mark E. Graham appeals from the district court’s1 denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. We affirm.




      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
                                            I.

        In July of 1992, Graham was convicted of three counts of sodomy in violation
of Missouri Revised Statutes section 566.060 and was sentenced to three consecutive
twenty-year terms of imprisonment.2 The charges stemmed from Graham’s touching
of the penis of a ten-year-old boy on several different occasions when several boys
from a youth group were staying at Graham’s apartment overnight. The Missouri Court
of Appeals affirmed Graham’s convictions and denied his petition for post-conviction
relief. See State v. Graham, 906 S.W.2d 771 (Mo. Ct. App. 1995).

      Graham did not testify during trial. During her closing argument, defense
counsel stated:

      My client Mark Graham did not testify, and the Judge has instructed you
      that it is Mark’s right not to testify, and that you are not to presume guilty
      [sic] or draw any influence [sic] of any kind regarding the fact that Mark
      did not testify. Quite frankly, was it[3] necessary for Mark to testify when
      the prosecutor clearly failed to meet his burden of proof. There is much
      reasonable doubt . . . .

      At the conclusion of defense counsel’s argument, the prosecutor approached the
bench and told the court that he believed that he was entitled to comment upon
Graham’s failure to testify because the defense had referred to it by making the above-
quoted remark. The court agreed, but cautioned the prosecutor to limit his comments
because defense counsel’s remark was about whether there was “any need for


      2
       Graham has since been re-sentenced to three consecutive four-year terms of
imprisonment. See State v. Graham, No. SC-81976, 2000 Mo. LEXIS 27 (Mo. Mar.
21, 2000) (en banc).
      3
       At the state post-conviction hearing, defense counsel testified that this sentence
should instead read: “it was not necessary.”

                                           -2-
[Graham] to testify since you [the prosecutor] did not present evidence.” The court
stated, “I think you can respond to that question but not any further than that.”

      During his rebuttal argument, the prosecutor made the following statements:

      Whether Mark Graham needed to testify or not is your decision but the
      prosecution in fact made the essential elements of the case of sodomy . .
      . . Whether he chose to testify because the State didn’t prove those
      elements, that’s not the case at all. That is not the case at all.
      ...
      There is not an explanation for why [N.S.] would come before you and
      tell you what happened. The only explanation is he’s telling you the truth.
      ...
      [N.S.] is telling the truth, and we know that because [T.F.] tells us the
      same thing. It’s a pattern. [T.F. and N.S.] tell us the same thing because
      they’re telling the truth.
      ...
      [N.S.] came forward and has the courage to testify. [T.F.] came forward
      and had the courage to testify. Remember the evidence, and as you recall
      it, the State is convinced you will return a verdict of guilty on all three
      counts. Tell Mark Graham that you abused the trust, you abused the
      confidence, and now you are going to pay dearly.

       Defense counsel neither objected to the prosecutor’s remarks nor sought a
curative instruction. Graham contends that these comments all referred to his failure
to testify. This is particularly so, he argues, because only he and N.S. could offer
explanation or evidence of the events underlying the charges.

       Graham argues that defense counsel did not invite the prosecutor’s comments
about his failure to testify, and that if she did, the prosecutor went beyond the bounds
of permissible comment with his response. Graham also contends that his counsel was
ineffective for referring to his failure to testify and for failing to object to the
prosecutor’s remarks. The district court denied Graham’s petition, noting that

                                          -3-
“[a]lthough it would have been preferable if neither attorney had commented on
Graham’s failure to testify, the comments made did not violate Graham’s Fifth
Amendment right.”

                                            II.

      Graham’s petition for habeas corpus was filed before the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (April 24, 1996), so we apply the pre-AEDPA standard of review. See Johns v.
Bowersox, 203 F.3d 538, 542 (8th Cir. 2000). Under this standard, Graham must
demonstrate a “reasonable probability that the error complained of affected the
outcome of the trial,” meaning that the verdict probably would have been different
absent the now-challenged closing argument. Hamilton v. Nix, 809 F.2d 463, 470 (8th
Cir. 1987) (en banc); see Louisell v. Director of Iowa Dept. of Corrections, 178 F.3d
1019, 1024 (8th Cir. 1999).

      We review the district court’s findings of fact for clear error and its conclusions
of law de novo. See Richardson v. Bowersox, 188 F.3d 973, 977 (8th Cir. 1999).
Because the state courts reviewed Graham’s contentions concerning the prosecutor’s
closing argument solely for plain error, so also do we. See Kilmartin v. Dormire, 161
F.3d 1125, 1127 (8th Cir. 1998), cert. denied, 526 U.S. 1152 (1999).

                                            A.

        A defendant's fifth amendment right against compulsory self-incrimination
forbids a prosecutor from commenting on an accused's failure to take the stand and
testify on his own behalf. See Griffin v. California, 380 U.S. 609, 615 (1965). Indirect
comments constitute a constitutional violation if they manifest the prosecutor’s intent
to call attention to a defendant’s failure to testify or would be naturally and necessarily
taken by a jury as a comment on the defendant’s failure to testify. See United States

                                           -4-
v. Emmert, 9 F.3d 699, 702 (8th Cir. 1993). Prosecutorial comments, however, must
be examined in context, see id., and a prosecutor need not remain mute when the
defendant himself raises the testimonial issue. See United States v. Robinson, 485 U.S.
25, 33 (1988). “[W]here . . . 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 [against compulsory self-incrimination].” Id. at 32; cf.
United States v. Plumley, Nos. 99-2651 & 99-2997, 2000 U.S. App. LEXIS 5992, at
*18-19 (8th Cir. Apr. 3, 2000) (prosecution’s remarks about plea agreements
constituted “fair response and rebuttal” and thus did not warrant reversal).

      We conclude, as did the state trial court, that defense counsel’s statement about
Graham’s lack of need to testify allowed responsive prosecutorial commentary about
Graham’s failure to testify. See Robinson, 485 U.S. at 31 (accepting trial court’s
reasonable interpretation of defense counsel’s remarks).

       The question, then, is whether the prosecutor’s comments constituted a “fair
response” to defense counsel’s comment. See id. We conclude that they did. Having
received from the trial court permission to respond in a limited fashion, the prosecutor’s
first comment about Graham’s failure to testify parroted defense counsel’s “was it
necessary” assertion, thus directly linking that comment to that of the defense. Further
borrowing defense counsel’s language, the prosecutor stated that the determination of
Graham’s need to testify was for the jury because the State had made its case.

       The prosecutor’s next comment, that N.S.’s testimony was the “only
explanation” of the events of the nights in question, was interwoven with statements
about practical problems of evidence in sexual abuse cases and thus was not a
reference to Graham’s failure to testify.

    Likewise, we conclude, as did the state courts, that in context the last two
comments Graham contends are objectionable are more accurately characterized as

                                           -5-
references in support of the prosecution’s witnesses and its most compelling
evidence–the testimony of those witnesses.

       In summary, in light of the responsiveness of the prosecutor’s comments to those
made by defense counsel, we conclude that the challenged comments did not enter even
“into the gray zone between clearly acceptable and clearly unacceptable advocacy.”
Plumley, 2000 U.S. App. LEXIS at *20.

                                           B.

       Having found no constitutional error in the prosecutor’s response, we turn to
Graham’s final contention: that defense counsel’s actions and inaction constituted the
ineffective assistance of counsel.

       To prevail on his ineffective assistance claims, which are mixed questions of law
and fact, Graham must show that counsel’s performance was deficient and that he was
prejudiced by that deficient performance. See Strickland v. Washington, 466 U.S. 668,
687 (1984); Burkhalter v. United States, 203 F.3d 1096, 1097 (8th Cir. 2000).
“Counsel’s performance was deficient if it fell ‘outside the wide range of professionally
competent assistance.’” Sherron v. Norris, 69 F.3d 285, 290 (8th Cir. 1995) (quoting
Strickland, 466 U.S. at 690). Reasonable trial strategy does not constitute ineffective
assistance of counsel simply because it is not successful. James v. Iowa, 100 F.3d 586,
590 (8th Cir. 1996).

       Graham argues that defense counsel should have objected to the prosecutor’s
rebuttal comments or requested a curative jury instruction. Because the prosecutor’s
remarks were constitutionally acceptable, however, defense counsel’s inaction resulted
in no prejudice to Graham, thus this claim fails. See id. (“Absent a showing of
prejudice, it is not necessary to decide whether counsel’s failure . . . constituted
deficient performance.”).

                                          -6-
       Graham next argues that defense counsel did not realize the import of her
comment, thus invoking the prosecutor’s response inadvertently and prejudicially.
Graham points to testimony at his state post-conviction hearing indicating that defense
counsel did not understand that her comments would enable the prosecutor to comment
on his failure to testify. Defense counsel, however, twice stated that she knew that she
had referred to Graham’s failure to testify and that she had done so intentionally, as a
part of trial strategy. She testified that “I had elected to have the Judge include as an
instruction to the jury the Defendant’s right not to testify. So instead of avoiding it or
not bringing it up with the jury, I decided to be forthwith [sic] and consistent, and
mention it again as a reminder in my closing argument.”

       Both the district court and the state courts found defense counsel’s actions to be
within the wide range of professionally reasonable trial strategy, albeit constituting an
unusual approach. We agree. Defense counsel chose to confront directly the
possibility that Graham’s failure to testify was already in the jurors’ thoughts. She
concluded that a straightforward remark would better serve Graham than a jury
instruction alone. The strategy was not unreasonable solely because it failed. Although
we agree with the district court that commentary by either party on a defendant’s
silence is likely a road better left not taken, we cannot conclude, particularly in a plain
error context, that defense counsel’s strategic decision to walk such a path constituted
the ineffective assistance of counsel.

      The order denying the petition for habeas corpus is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


                                           -7-
