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

No. 04-3764
ROBERT J. SMOTHERS,
                                           Petitioner-Appellee,
                              v.

GARY R. MCCAUGHTRY, Warden,
                                       Respondent-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
           No. 02 C 883—J.P. Stadtmueller, Judge.
                        ____________
      ARGUED MAY 5, 2005—DECIDED AUGUST 9, 2005
                     ____________




 Before BAUER, EASTERBROOK, and MANION, Circuit
Judges.
  BAUER, Circuit Judge. Robert Smothers stabbed and
killed his friend, Jay Meyer, after an argument. At trial,
Smothers claimed that Meyer was choking him, and the
stabbing was in self-defense. During closing argument, the
prosecutor contrasted Smothers’ trial testimony with his
demeanor and statements on a 911 call recorded shortly
after the stabbing. The jury convicted Smothers of second-
degree intentional homicide. Smothers petitioned for a writ
of habeas corpus, which the district court granted, on the
2                                                No. 04-3764

ground that Smothers’ counsel was ineffective by failing to
object to the prosecutor’s closing argument. We reverse the
grant of the writ.


                        Background
  On the evening of March 23, 1996, Smothers and Meyer
were drinking at a local tavern. They stayed at the tavern
for about two hours. Driving home in Meyer’s truck, the two
began arguing because Meyer had not wanted to leave the
tavern so soon. Upon arriving at Smothers’ home, the
argument became more heated. Smothers eventually told
Meyer to “go home and beat [his] wife and kid.” According
to Smothers, Meyer responded by starting to choke him. He
testified that he first tried to fight Meyer off with a set of
house keys, but then resorted to using a pocketknife. At
some point, he opened the door of the truck and fell out.
Meyer also exited the truck, caught Smothers, pinned him
to the ground, and resumed choking him. Smothers testified
that he used the knife several times to jab and poke
at Meyer, hoping to stop the attack. Fearing for his life,
Smothers finally stabbed Meyer in the chest with the knife.
Smothers testified that Meyer appeared badly hurt, but got
up and walked back over to the truck.
  Smothers then ran into his apartment building and told
his neighbor, Deborah Cook, to dial 911. Meanwhile, he
went into his apartment to get a drink of water and take a
blood pressure pill. When he left his apartment a few
minutes later, Cook was on the line with the 911 operator
and asked him if he wanted to speak to the operator.
Smother took the phone; the following is a transcript of the
call from that point:
    SMOTHERS:       Hello.
    911: Bob, what happened?
No. 04-3764                                            3

   SMOTHERS:   Well the dude got stabbed and he’s here
               bleeding.
   911:        Okay. Is he—is he still concious [sic]?
   SMOTHERS:   Multiple stabs.
   911:        Mul—he got stabbed multiple times?
   SMOTHERS:   Right.
   911:        Okay. Where is he? We got to get the
               rescue squad for him.
   SMOTHERS:   6345- 26th Avenue.
   911:        Okay. Okay. Bob, who stabbed him? Do
               you know who stabbed him?
   SMOTHERS:   Well, I’m not ready to make no state-
               ment.
   911:        Okay. Okay. Who, what’s the name of
               the person that got stabbed?
   SMOTHERS:   Um, well, is that relevant right now?
   911:        Well, I just wanna know his name.
               What’s his first name?
   SMOTHERS:   James Meyer.
   911:        Okay. That’s fine. That’s fine. And
               you’re Bob.
   SMOTHERS:   Yeah, I’m Bob.
   911:        Okay. Now Bob, do you live in, do you
               live in the uh lower there?
   SMOTHERS:   Okay. The ambulance is here then.
   911:        Okay.
   SMOTHERS:   I’ll be off.
   911:        Bob, stay on the line. Don’t hang up.
   [END OF CALL]
4                                                No. 04-3764

   Smothers was arrested that evening and charged with
first-degree intentional homicide. He chose not to make any
statements about the stabbing until his trial. At trial, he
took the stand and testified that he acted in self-defense, as
detailed above. During closing argument, the prosecutor
argued that Smothers fabricated his version of events and
was not really acting in self-defense that night. As part of
this line of argument, the prosecutor commented on and
compared Smothers’ demeanor and words during the 911
call to his trial testimony. Specifically, the prosecutor made
the following comments:
    The 911 call. That shows a lot. That 911 call, that
    perhaps 30 second, 45 seconds where you hear
    Mr. Smothers on that call, tells you volumes. Tells you
    volumes about the state of mind of Mr. Smothers and
    what happened that night.
    Was he out of breath? Was his voice raspy? Could he
    hardly speak from being choked? Was he upset, re-
    morseful, frightened? He says the dude got stabbed.
    His—he got stabbed. It’s not like I stabbed him. He got
    stabbed, like the knife somehow or somebody else
    stabbed him. I’m not responsible. He got stabbed. I
    didn’t do it.
    Multiple stabs. He says right on the phone multiple
    stabs. He knew at that point that he had stabbed him
    multiple times. The dispatcher talks to him a little bit
    later, and he says, I’m not ready to make no statement.
    That point he says I’m not ready to make no statement.
    Already Mr. Smothers in his own way is starting to
    think how he’s going to extricate himself from this
    situation, a very difficult situation.
    He’s got a dead body out in his driveway. There’s blood
    all over the place. He can’t move that body. He can’t
    move himself. He can’t get rid of all the blood over
No. 04-3764                                                 5

    himself. He’s already—his mind is working a little bit
    saying I’m not ready to make no statement. That’s
    March 23rd.
    Yesterday, September 11th, a long time has passed
    since March 23rd, since then Mr. Smothers has been
    charged. He’s become represented by Mr. Rose. He’s
    had an opportunity to get and review the police reports,
    the witness statements, and now he’s ready to make a
    statement. I was in danger of being killed. I believed
    my life was in danger. That is his statement September
    11th of 1996.
    Mr. Smothers knows when he’s testifying that the only
    other person who was involved in this incident is not
    going to contradict him. He knows after five months,
    five-plus months that he can give a statement now, he
    can talk about that incident, and he knows that James
    Meyer is not going to stand up and say, wait a minute,
    ladies and gentlemen, it didn’t happen that way.
  The district court, relying on Doyle v. Ohio, 426 U.S. 610
(1976), determined that the prosecutor improperly used
Smothers’ post-arrest silence to impeach his testimony,
violating the Due Process Clause of the Fourteenth Amend-
ment. The court further determined that Smothers’ counsel
performed deficiently by failing to object to the prosecutor’s
line of argument.


                         Discussion
  Smothers filed his habeas petition after April 24, 1996;
accordingly, the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254, governs our review. A
federal court may not issue a writ of habeas corpus unless
the state court proceedings either: (1) resulted in a decision
that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by
6                                                 No. 04-3764

the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding. 28 U.S.C. § 2254(d). We find that
the Wisconsin Court of Appeals’ adjudication of Smothers’
claim was not contrary to, or an unreasonable application
of, clearly established federal law as articulated by the
Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984).
  To obtain relief, Smothers must show that the Wisconsin
Court of Appeals’ holding that his trial counsel did not
render ineffective assistance was either contrary to, or an
unreasonable application of Strickland. Under Strickland,
a claim of ineffective assistance requires Smothers to show
that his counsel’s performance was deficient and that it
prejudiced his defense. 466 U.S. at 687.
  In order to determine whether the Wisconsin court’s hold-
ing regarding Strickland is correct, we must first determine
whether the prosecutor’s comments were impermissible.
The district court concluded that the prosecutor’s comments
were in violation of Doyle and that Smothers’ counsel’s
failure to object was deficient. In arriving at this conclusion,
the district court held that the prosecutor’s comments
referred not only to Smothers’ silence before he received
Miranda warnings, but also to his post-Miranda silence. We
disagree.
  The prosecutor specifically compared Smothers’ state-
ments during his pre-Miranda 911 call to his trial testimony.
The prosecutor drew a contrast between Smothers’ reaction
and comments at the time of the incident—“I’m not ready
to make no statement”—to his testimony several months
later, after he had the time to concoct a story to exonerate
himself. Rather than Doyle, which invalidated impeachment
based on post-Miranda silence, this case is more appropri-
ately analyzed under Jenkins v. Anderson, 447 U.S. 231
No. 04-3764                                                7

(1980), and Fletcher v. Weir, 455 U.S. 603 (1982). The Court
in Jenkins and Fletcher distinguished Doyle and established
that use of pre-arrest and pre-Miranda silence to impeach
a defendant’s credibility does not run afoul of the Constitu-
tion. That is what the prosecutor did in this case. In
essence, he asked the jury to contemplate why Smothers did
not tell his neighbor or the 911 operator on the night of the
incident the facts that he later testified to at trial. The
prosecutor did not invite the jury to infer that Smothers
was guilty based on his invocation of his right to silence;
rather, he used the 911 tape to show that Smothers did not
tell the 911 operator that he had been attacked, which
permitted an inference that he made up his self-defense
story later to fit other evidence in the case. This was an
appropriate argument, and Smothers’ attorney was not
deficient in failing to object to it.


                        Conclusion
  The Wisconsin Court of Appeals correctly applied Strick-
land because Smothers’ counsel was not deficient; an
objection to the prosecutor’s closing argument would have
lacked merit. We REVERSE the decision of the district court
and REMAND with instructions to deny the writ of habeas
corpus.

A true Copy:
      Teste:

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



                    USCA-02-C-0072—8-9-05
