                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 01-2199
                                ___________

Dameion Robinson,                    *
                                     *
           Appellant,                * Appeal from the United States
                                     * District Court for the District
     v.                              * of Minnesota.
                                     *
David Crist, Warden,                 *
MCF – Stillwater,                    *
                                     *
           Appellee.                 *
                                ___________

                          Submitted: November 15, 2001

                               Filed: January 30, 2002
                                ___________

Before BYE, and BEAM, Circuit Judges, and GOLDBERG,1 Judge.
                               ___________

BEAM, Circuit Judge.




     1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
      Dameion Robinson appeals the district court's2 denial of his petition for habeas
corpus pursuant to 28 U.S.C. § 2254. We affirm.

I.    BACKGROUND

       In the early morning hours of August 24, 1997, Robinson shot and killed a
crack cocaine dealer named Derangle "Dino" Riley. The evening before the murder,
there was a gathering at the house of Saint Slaughter. Riley, Robinson, and several
other people were present. Robinson was seen with a pearl-handled .25 caliber
weapon at the residence. Several witnesses saw Robinson attempt to buy drugs from
Riley, and shortly before the murder, he was seen getting into the front seat of Riley's
car and the two drove off together. Robinson returned to Slaughter's house alone and
Robinson and his brother again left the party a short time later. The next morning,
on August 24, Riley's body was found by Slaughter in a car behind a church in
Minneapolis.

       Later that same day, Robinson was going to sell the pearl-handled .25 caliber
gun to three men, but apparently changed his mind and instead robbed them with the
weapon. Two of the three robbery victims were shot by Robinson during the course
of the crime, and it was later determined that these bullets were from the same gun
used to kill Riley.

     At trial, Robinson's defense was that another person, likely Slaughter, had
committed the murder and the robbery. Robinson's girlfriend testified at trial that
Robinson had been with her during the time the robbery was committed. However,
Robinson was identified by the victims as the perpetrator of the robbery. Robinson


      2
       The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of United States
Chief Magistrate Judge Franklin L. Noel.

                                          -2-
did not testify at trial, and during closing arguments, the prosecutor made the
following remark concerning whether Robinson had hid the gun following the
murder, and before the robbery:

      So [Robinson] goes someplace else, someplace we'll never know,
      someplace that he knows, someplace that [his brother] knows, but he
      goes someplace else and . . . then he has an opportunity to remove that
      weapon . . . .

Defense counsel did not object to this portion of closing argument, and Robinson now
claims this argument violated his Fifth Amendment right to remain silent.

     Robinson was convicted and sentenced to life imprisonment. The Minnesota
Supreme Court affirmed on direct appeal, and although several instances of alleged
improper prosecutorial arguments are discussed and disposed of by the Minnesota
Supreme Court, the court did not specifically discuss Robinson’s current Fifth
Amendment claim regarding the above-quoted argument. State v. Robinson, 604
N.W.2d 355, 361-63 (Minn. 2000).

       Robinson brought a timely petition for habeas corpus, alleging he was denied
his constitutional right to a fair trial because of several allegedly improper remarks
made by the prosecutor during closing arguments.                  In the Report and
Recommendation, the magistrate judge recommended that relief be denied. Robinson
filed objections to the Report and Recommendation, and the district court ultimately
denied relief. The district court granted Robinson a certificate of appealability only
on the issue of whether the prosecutor improperly commented on his silence in the
above-quoted passage during closing argument.3


      3
       The broader issue, argued and briefed by the parties, of whether the
prosecution impermissibly shifted the burden of proof to Robinson by commenting
on his failure to call certain witnesses, is beyond the scope of the certificate of
                                         -3-
II.   DISCUSSION

       The Antiterrorism and Effective Death Penalty Act (AEDPA) mandates that
habeas relief "shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless" the state court's decision was "contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," or "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).

       As the magistrate judge noted, the Minnesota Supreme Court apparently did
not adjudicate the precise issue before us today–whether the prosecutor improperly
commented on Robinson's silence at trial in contravention of the Fifth Amendment.
The magistrate judge also pointed out that the state conceded exhaustion, thereby
waiving the defense that Robinson's claim was procedurally defaulted. While an
exhaustion concession does not necessarily constitute a procedural default waiver, see
Duvall v. Purkett, 15 F.3d 745, 746 (8th Cir. 1994) (after state's waiver of exhaustion
defense is accepted by the district court, procedural default issue can be addressed),
we agree with the district court that because the state failed to advance a procedural
default argument, such argument is waived. Ford v. Norris, 67 F.3d 162, 165 (8th
Cir. 1995) (state waived argument that Batson issue was procedurally defaulted by
not raising it in the district court); Lawrence v. Armontrout, 31 F.3d 662, 666 (8th
Cir. 1994) (same); Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991) (same).

       The Minnesota court's failure to adjudicate this claim on the merits, raises an
interesting question on the nature of this court's review. See 28 U.S.C. § 2254(d)
(applies to petitions for habeas corpus which were adjudicated on the merits in state
court proceedings). Because this claim apparently was not adjudicated by the


appealability.
                                         -4-
Minnesota court, we likely should apply the pre-AEDPA standard of review. Cf.
Gary v. Dormire, 256 F.3d 753, 756 n.1 (8th Cir. 2001) (noting that a claim not
presented in state court is not adjudicated on the merits for purposes of § 2254(d)).
In Gary the district court applied the post-AEDPA standard to the petitioner's claims,
even though they were not adjudicated on the merits in the state court proceeding.
We speculated on the appropriateness of that standard by ultimately holding that
"[w]e need not determine whether the district court applied the appropriate standard
of review . . . . [because] petitioner has not demonstrated that he is entitled to habeas
relief under either § 2254(d) or under the more liberal pre-AEDPA standard of
review." Id. (citing Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001)
(assuming the claim was not adjudicated on the merits in state court, pre-AEDPA
standard of reviewing mixed questions of law and fact de novo applied)).

        A similar rationale guides us here because Robinson cannot demonstrate he is
entitled to relief even under the more liberal pre-AEDPA standard of review for
prosecutorial misconduct claims. Under this standard, Robinson must demonstrate
a "reasonable probability that the error complained of affected the outcome of the
trial," or that the verdict likely would have been different absent the now-challenged
closing argument. Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.1987) (en banc).

       A prosecutor may not directly comment on the defendant's failure to testify.
Griffin v. California, 380 U.S. 609, 615 (1965). Further, "[i]ndirect 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." Graham v. Dormire, 212
F.3d 437, 439 (8th Cir. 2000). Finally, on a habeas petition, we review any improper
reference to determine if it had a "'substantial and injurious effect or influence in
determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).



                                          -5-
       Here, the challenged comments were not a direct comment on the failure to
testify, and therefore must be examined under the test set forth in Graham. 212 F.3d
at 439. The prosecutor's comments cannot realistically be characterized as an
intention to call attention to the defendant's failure to testify. Although the prosecutor
probably should have stopped after saying "someplace we'll never know" and not said
"someplace that he knows," it appears the prosecution meant to draw attention to its
theory that the defendant hid the murder weapon rather than the fact that Robinson
did not testify. Nor would this comment necessarily be taken by the jury as a
comment on Robinson's failure to testify. As the magistrate judge observed, the jury
was instructed that Robinson had the privilege not to testify. While a direct comment
on the failure to testify, and even a more blatant indirect comment could not be cured
by the standard privilege instruction, here, where the argument in favor of finding a
constitutional violation is tenuous at best, the instruction is an additional safeguard.
Thus, the comments in question were likely viewed by the jury as being directed at
gleaning inferences as to Robinson's whereabouts and control of the gun on the night
of the murder, rather than a comment on his failure to testify.

       Nor, in our view, did the prosecutor's argument have a substantial and injurious
effect on the jury's verdict. See Brecht, 507 U.S. at 637. We agree with the
Minnesota Supreme Court and the district court that the totality of the circumstantial
evidence against Robinson was appreciable. It is therefore unlikely that the
prosecutor's isolated comment at issue here had any substantial and injurious effect
on the jury's ultimate decision to convict Robinson.

III.   CONCLUSION

     Even under the pre-AEDPA standard, Robinson cannot demonstrate that the
outcome of the trial likely would have been different absent the challenged argument.
Accordingly, we affirm the judgment of the district court.



                                           -6-
A true copy.

      Attest:

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




                           -7-
