                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 03-3749
MARVIN BIEGHLER,
                                             Petitioner-Appellant,
                                 v.

DANIEL McBRIDE, Superintendent,
                                            Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
          No. 98 C 490—Larry J. McKinney, Chief Judge.
                          ____________
 ARGUED AUGUST 25, 2004—DECIDED NOVEMBER 18, 2004
                    ____________


  Before KANNE, ROVNER, and EVANS, Circuit Judges.
   EVANS, Circuit Judge. Twenty-three years ago, Kenny
Miller went to visit his 21-year-old brother, Tommy, who
lived with his pregnant 19-year-old wife, Kimberly, in a
trailer near Kokomo, Indiana. When he arrived, he discov-
ered a gruesome scene: Tommy and Kimberly had been
shot to death, Tommy with six bullets and Kimberly with
three. Marvin Bieghler was eventually tried, convicted, and
sentenced to death for the two murders in 1983. His
convictions and death sentence were upheld by the Indiana
Supreme Court, both on direct appeal 2 years later,
Bieghler v. Indiana, 481 N.E.2d 78 (Ind. 1985), and 12 years
after that on appeal from the denial of a petition for
postconviction relief, Bieghler v. Indiana, 690 N.E.2d 188
2                                                No. 03-3749

(Ind. 1997). Bieghler moved to federal court in 1998 and is
here today appealing the district court’s denial of his
petition for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254.
  First, the senseless facts as determined by the state
courts, which we accept as true on this collateral review.
Bieghler was a major drug supplier in Kokomo. He obtained
his drugs in Florida and had others, including Tommy
Miller, distribute them in the Kokomo area. Several
witnesses, including a Bieghler bodyguard named Harold
“Scotty” Brook, testified that prior to the murders, someone
within Bieghler’s drug-dealing operation gave information
to the police which led to the arrest of a distributor and the
confiscation of some dope. An incensed Bieghler declared
repeatedly that when he found out who blew the whistle, he
would “blow away” the informant. Eventually, Bieghler
began to suspect that Tommy Miller was the snitch: he told
associates that he was going to get him.
   A major portion of the State’s case rested on the testi-
mony of Brook, who was not prosecuted for his role in the
events. According to that testimony, Bieghler and Brook
spent the day of the murders drinking beer and getting high
on marijuana. During the evening, Bieghler spoke of getting
Tommy Miller. Around 10:30 or 11:00 p.m. they left a
tavern and drove to Tommy’s trailer. Bieghler got out of the
car and went inside carrying an automatic pistol. Brook
followed and saw Bieghler pointing the weapon into a room.
Bieghler and Brook then ran back to the car and drove
away. Later that night, a distraught Bieghler tearfully
announced that he was leaving for Florida. Tommy’s and
Kimberly’s bullet-ridden bodies were discovered the next
morning. Police learned that nine shell casings found at the
murder scene matched casings from a remote rural location
where Bieghler fired his pistol during target practice. At
trial, an expert testified that the two sets of casings were
fired from the same gun.
No. 03-3749                                                 3

   Bieghler contends that the prosecution violated his due
process rights by exploiting, at trial, his failure to talk
to the police after his arrest. He also claims that he was
denied effective assistance of counsel. Because Bieghler’s
petition was filed after April 24, 1996, the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) governs
our analysis. Under the AEDPA, a federal court may not
grant a writ unless a final state court decision in the
case was “contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or was “based on an unreasonable deter-
mination of the facts in light of the evidence presented in
the State court proceeding,” id. § 2254(d)(2). A state court
decision is “contrary to” established Supreme Court prece-
dent when the state court reaches a legal conclusion
opposite to that of the Court or decides a case differently
than the Court despite “materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). An “unreason-
able application” of Supreme Court precedent occurs when
the state court identified the correct rule of law but applied
it unreasonably to the facts. Id.
  According to Bieghler, the prosecution, during its cross-
examination of him and again during closing argument,
exploited the fact that, after being advised of his Miranda
rights, he elected to remain silent and not give arresting
officers the version of the night’s events he related on
the witness stand. If so, this was a constitutionally im-
permissible tactic under Doyle v. Ohio, 426 U.S. 610 (1976).
As applicable here, Doyle holds that the prosecution violates
a defendant’s due process rights when it uses post-arrest
silence to impeach an exculpatory story told at trial. See
United States v. Shue, 766 F.2d 1122 (7th Cir. 1985). This
is so because it is fundamentally unfair to assure a defen-
dant, with Miranda warnings, that his silence will not be
used against him, and then turn around and do exactly
that.
4                                                No. 03-3749

  Bieghler cites several references by the prosecutor to
his post-arrest, post-Miranda-warning silence. His trial
counsel, however, did not object to these references and
therefore forfeited subsequent challenges to them. E.g.,
United States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003).
Ordinarily, when a claimed error is forfeited, we only
analyze whether the trial court plainly erred by allowing
the prosecutor’s comments. Id. But here we evaluate
Bieghler’s claim “without the screen of the plain error
standard” because the State has not argued that it ap-
plies. United States v. Cotnam, 88 F.3d 487, 498 n.12 (7th
Cir. 1996) (internal quotations omitted); United States v.
Leichtnam, 948 F.2d 370, 375 (7th Cir. 1991).
  At trial, Bieghler took the stand and denied complicity in
the murders. He testified about being at other places with
other people when the Millers were killed. On this appeal,
he complains about several questions put to him by the
state’s attorney during cross-examination. The prosecutor
asked: “[P]rior to the beginning of this trial, did you ever
tell the story that you’ve told today to anyone besides your
attorneys?”, “Were you ever given any opportunity to tell
the story to anyone?”, and “Did you give it?” In response to
the last question, Bieghler answered, “No, I exercised my
Miranda rights.” The prosecutor then asked three questions
concerning Bieghler’s understanding of his Miranda rights
before moving on to another subject. It is the State’s
contention that no reference was made to Bieghler’s silence.
He was merely fairly cross-examined, says the State, about
his direct testimony for the purpose of testing his credibility
as a witness.
  In an argument that’s a little hard to follow, Bieghler
contends that this snippet from the prosecutor’s closing
remarks to the jury ran afoul of the rule announced in
Doyle:
    Kenny Cockrell’s the one that took the Fifth. Kenny
    Cockrell’s the one that wouldn’t answer when I asked if
No. 03-3749                                                 5

    he was doing something to Bobby Nutt because a deal
    went bad. He took the Fifth. Didn’t want to
    be discriminated against. I’m growing to hate that
    train. As a matter of fact, that train came by during my
    examination of the Defendant. I don’t know, maybe it
    was my imagination, maybe I wanted to see it, but did
    you see him, about right before the train came by
    started to get, his voice was a little different about the
    time when he left Dusty’s? You can talk about that.
    Maybe I only saw it because I wanted to.
A little later, Bieghler sees error in this statement from the
prosecutor’s closing argument:
    The Defendant denies that he was there. And even
    though it’s not testimony, looking through it in the
    opening statement, [Defense Counsel] Mr. Scruggs said
    that he, the Defendant went there that night to Bobby
    Nutt’s. Now the only person that’s important to me is,
    I was looking, I was listening, waiting to hear so that I
    would know what the Defendant was going to say. You
    know, I didn’t hear him until he sat up here, and you
    heard him just like I did. He had everything I had but
    I could never talk to him. I couldn’t use
    prior inconsistent statements to impeach him because
    I didn’t have any. He never said anything . . . .
The State contends that the prosecutor’s statements in
closing argument were meant to show that Bieghler had
an opportunity to hear the State’s evidence, and make an
assessment of it, before he elected to take the stand and
give his testimony. It was fair game, the State says, to
argue that it gathered and presented its evidence with-
out knowing what Bieghler’s version of the events would be
until he revealed it during the trial.
 We do not believe that the questions and closing argu-
ment comments ran afoul of Doyle. In none did the prosecu-
6                                                No. 03-3749

tor equate Bieghler’s silence with guilt, the evil condemned
in Doyle as undermining the privilege against
self-incrimination. The prosecutor, in closing argument, did
say that Bieghler “never said anything . . .”, which runs
close to the Doyle line, but we don’t think he crossed it, and
we emphasize there was no explicit invitation for the jury
to infer guilt from Bieghler’s decision to stay quiet after he
was arrested; at best, any reference was very indirect.
  Indeed, the prosecution’s conduct in this case was a far
cry from what transpired in Doyle, which featured repeated
and blatant exploitation of the defendants’ post-arrest
silence. In that case, Jefferson Doyle and Richard Wood
were arrested together and charged with selling marijuana
to an informant named William Bonnell. Bonnell had
arranged to buy 10 pounds from the defendants for $1,750,
but narcotics agents could only muster $1,320. Under the
watchful eye of four agents, Bonnell met Doyle and Wood in
a parking lot and completed the transaction. Minutes later,
the two discovered that they had been shorted and began
circling the neighborhood looking for Bonnell. Agent
Kenneth Beamer promptly arrived at the scene, arrested
Doyle and Wood, and gave them Miranda warnings. Police
then found $1,320 in the car.
  Both defendants said for the first time at trial that
Bonnell had framed them and that they were buyers, not
sellers. Each testified that they originally agreed to buy
10 pounds of marijuana from Bonnell but decided at the last
minute to buy a lesser amount. When they informed
Bonnell of the change of heart, Bonnell grew angry, threw
$1,320 into their car, and left the parking lot with the
10 pounds of marijuana in hand. Perplexed, Doyle and
Wood went looking for Bonnell to find out why he had
thrown the money into the car. During cross-examination,
the prosecution asked them why they had not told the
frame-up story right away to Agent Beamer. The prosecu-
tion asked questions like “I assume you told [Beamer] all
No. 03-3749                                                  7

about what happened to you?”; “[i]f that is all you had to do
with this and you are innocent, when Mr. Beamer arrived
at the scene why didn’t you tell him?”; “[b]ut in any event
you didn’t bother to tell Mr. Beamer anything about this?”;
“[t]hat’s why you told the police department and Kenneth
Beamer when they arrived . . . about your innocence?”;
“[y]ou said nothing at all about how you had been set up?”;
and “[b]ut you didn’t protest your innocence at that time?”
The Court concluded that these questions were attempts to
use the defendants’ silence against them, which deprived
them of due process in violation of the Fourteenth Amend-
ment. Unlike the questions asked in Doyle, the prosecution
here did not use Bieghler’s silence against him.
  The prosecution’s questions and statements in this case
were also far less egregious than those in other cases where
Doyle violations were found to have occurred. For instance,
in Lieberman v. Washington, 128 F.3d 1085 (7th Cir. 1997),
a defendant charged with rape testified for the first time at
trial that he was with his mother when the crime was
committed. He also testified that he was “severely ques-
tioned” by police the night he was arrested. During cross-
examination and closing argument, the prosecution at-
tacked the veracity of his testimony by pointing out that he
had not made his alibi known at the time of his arrest. Most
troubling was its argument that “[y]ou heard [the state’s
attorney] ask him questions, did you tell the police you were
with your mother on December the 17th, 1979? No. That’s
where he says he was today, ladies and gentlemen. Did he
tell the police when he was severely questioned, according
to him? Absolutely not, absolutely not.”
   Similarly, in Feela v. Israel, 727 F.2d 151 (7th Cir. 1984),
the prosecution emphasized in cross-examination and
closing argument that the defendant, Douglas Feela, had
presented an unusual alibi for the first time on the wit-
ness stand. Feela, on trial for the armed robbery of a
liquor store, testified that at the time of the crime he
8                                                 No. 03-3749

was walking into a town when an armed assailant stuck
a gun into his back, handed him “something,” and or-
dered him to run. Feela then heard a gunshot and saw snow
fly up near him, so he ducked into a basement, only to
discover that the “something” now in his possession were
the vest, gun, and gloves that had been used in the robbery.
Police later discovered Feela in the basement with these
materials. The prosecution asked Feela repeatedly whether
he had given this account at the time of arrest and then
emphasized his post-arrest silence during closing argument:
“We are not told . . . that I [Feela] have got no reason to fear
that because a mysterious man put this stuff in my arms,
and I was forced to carry it over there. We never heard that
until today.”
  Nor is this case anything like United States ex rel. Allen
v. Franzen, 659 F.2d 745 (7th Cir. 1981). In that case, the
prosecution repeatedly questioned whether the defen-
dant, Eddie Allen, told investigators that he killed his
wife in self-defense, a story he told from the witness stand.
And during closing argument, the prosecution hammered
home the fact that Allen had not mentioned to investigators
that he acted in self-defense:
      Now, when by the way, did the defendant first say
    self-defense? Did he say this to officer Terry Melloy,
    I just shot my wife, I had to do it, she came at me
    with a knife in the kitchen! Did he say that? Did he say,
    she was going into her purse, I thought she had a gun,
    I had to shoot her! Or did he even say, I shot my wife in
    self-defense. No, none of these.
      ****
      After he shot his wife five times and stood over her
    and sent the hammer home on an empty cylinder, did
    he then say, oh my God, I had to do it. I thought
    she was going for a gun. No, what he said was, she’s
    dead now. The defendant could not say self-defense
No. 03-3749                                                      9

    because there was no self-defense. The defendant is
    a cold blooded, brutal murderer.
The prosecutor’s comments and questions in our case
were nothing like this diatribe.1
  In contrast to Doyle and these other cases, the prosecution
here did not argue that Bieghler’s initial silence under-
mined the reliability of his trial testimony nor at any point
did it use his silence as evidence of guilt. As we explained
in Splunge v. Parke, 160 F.3d 369 (7th Cir. 1998), “what
Doyle stands for is that arrest-time silence not be used to
impeach trial-time testimony by asking something like: ‘If
the version of events to which you have just testified is true,
why didn’t you tell this to the police as soon as you were
arrested?” Like in Splunge, the prosecution’s questions and
argument regarding Bieghler’s post-arrest conduct were not
aimed at impeaching Bieghler’s trial testimony.2



1
  Our case is also less egregious than those in which alleged Doyle
violations occurred after the defendant opened the door
to government questioning by commenting on his own post-
arrest behavior. In these cases, the prosecution went beyond
impeaching the defendant’s testimony regarding his post-
arrest conduct, which is proper, and instead argued that the
defendant’s silence was inconsistent with his claim of inno-
cence. See United States v. Gant, 17 F.3d 935, 943 (7th Cir. 1994)
(government argued that defendant’s silence was consistent
with behavior of confederate to crime); United States v. Shue, 766
F.2d 1122, 1128-29 (7th Cir. 1985) (government argued that
defendant “refused to talk to the FBI, refused. And no one
ever heard of this preposterous, incredible story of a frame
until he hit the witness stand.”).
2
  Bieghler also cites a comment by the prosecutor that the motive
for remaining silent is to avoid being incriminated. But this
comment was made in the context of discussing the testimony of
another witness, not Bieghler. See Hough v. Anderson, 272 F.3d
                                                    (continued...)
10                                               No. 03-3749

  Moreover, even if we were moved to conclude that a Doyle
violation occurred, we would have to find that it
was harmless because it did not have a “substantial and
injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Bieghler cannot demonstrate that the prosecutor’s questions
and comments undermined the integrity of the jury’s guilty
findings in light of the substantial evidence of his guilt.
This evidence included Brook’s damning testimony, the
matching shell casings, testimony that Bieghler had
threatened to kill Tommy, and testimony regarding
Bieghler’s distraught and panicked behavior after the
slayings. As we see it, the questions and statements that
are challenged here were but a mere blip in a lengthy trial,
comprising roughly 2 pages of a 3353-page transcript. See
Lieberman, 128 F.3d at 1096 (concluding that limited
references during a lengthy trial were harmless); United
States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995) (remark
comprising one paragraph in 10-page closing argument
deemed harmless). Bieghler complains that any Doyle error
here was prejudicial because the government’s case rested
on the testimony of Brook, an unsavory and shady charac-
ter. But the jury obviously accepted Brook’s testimony,
warts and all, and it is not our place to second-guess that
assessment.
  Bieghler’s remaining arguments center on the perfor-
mances of his lawyers. He claims that he was denied the
effective assistance of counsel because his lawyers failed
to: (1) object to evidence of his past drug usage; (2) present
mitigating evidence during the penalty phase of his trial;
and (3) present alibi evidence. To establish a claim of


2
  (...continued)
878, 902 (7th Cir. 2001) (reference to defendant’s silence is
necessary to demonstrate Doyle violation); United States v.
Ramos, 932 F.2d 611, 616 (7th Cir. 1991) (same).
No. 03-3749                                                     11

ineffective assistance of counsel, Bieghler has to show
two things. First, he must demonstrate that his lawyers
performed deficiently, i.e., that their mistakes were so
serious that they deprived him of “counsel” within the
meaning of the Sixth Amendment. Second, he must
show prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish prejudice, Bieghler must show that
there is a reasonable probability that the result of the trial
would have been different absent counsels’ shortcomings.
Bieghler must also surmount the strong presumption that
his counsel performed adequately.
  The Indiana Supreme Court’s rejection of Bieghler’s
claims of ineffective assistance of counsel under Strickland
was eminently reasonable.3 Although Bieghler’s lawyers did
not object to evidence of his past drug use, they held back
for strategic reasons. One of Bieghler’s lawyers testified
that they decided to pursue a strategy of “candor and
sincerity” in order to bolster Bieghler’s credibility in the
eyes of the jury, a reasonable tactical decision that courts
will not second-guess. See id. at 689; Valenzuela v. United
States, 261 F.3d 694, 698 (7th Cir. 2001). The remaining
errors advanced by Bieghler were also reasonably rejected
as bases for a viable Sixth Amendment claim. Citing
Wiggins v. Smith, 539 U.S. 510 (2003), he complains that
counsel failed to conduct a reasonable investigation into:
(1) mitigating evidence of his good character and of post-
traumatic stress disorder from his service in Vietnam; and
(2) finding a potential alibi witness. But counsel did present
witness testimony regarding Bieghler’s good character, as
well as the violent nature of his service in Vietnam and how
that affected his personality upon his return. Bieghler fails


3
   Bieghler contends that the Indiana Supreme Court applied
the wrong legal standard in evaluating his claims, but that is
folly. Indeed, the language cited by Bieghler from the state court’s
adjudication comes directly from Strickland.
12                                              No. 03-3749

to demonstrate that additional mitigating evidence would
have made any difference, let alone that counsels’ investiga-
tion into these matters fell below objective standards of
professional conduct. See Conner v. McBride, 375 F.3d 643,
662-63 (7th Cir. 2004). The same is true regarding counsels’
failure to uncover a potential alibi witness. Bieghler
acknowledges that counsel thoroughly reviewed the police
and FBI reports, interviewed several witnesses, and
pursued an independent investigation into witnesses from
Tennessee who might have aided his defense. He also
admits that the potential alibi witness did not come forward
before or during trial and that she was discovered by chance
later on. Under these circumstances, counsels’ failure to
find the alibi witness was understandable and not a product
of a constitutionally deficient investigation.
  For all these reasons, the judgment of the district court
denying Bieghler’s petition for a writ of habeas corpus
is AFFIRMED.
No. 03-3749                                         13

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—11-18-04
