Omar Goldwire, a/k/a MIKE COOK v. Loius Folino

Hon. Arthur L. Alarcón, Senior Judge, United States Court*
of Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-3384
OMAR GOLDWIRE,
a/k/a MIKE COOK
v.
LOIUS FOLINO;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
JOHN A. PALAKOVICH
OMAR GOLDWIRE,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-01687)
District Judge: Honorable Mary A. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
April 14, 2008
Before: SLOVITER, JORDAN, and ALARCÓN, Circuit Judges*
(Filed : April 16, 2008)
______
OPINION

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SLOVITER, Circuit Judge.
Omar Goldwire appeals the District Court’s denial of his petition for writ of
habeas corpus, arguing on appeal that his trial counsel was ineffective for telling the jury
that Goldwire would not testify to avoid implicating his brother and for failing to object
to the prosecutor’s statement regarding Goldwire’s failure to testify as exceeding a fair
response. We will affirm.
I.
On February 17, 1997, Goldwire led Juakeim Bates and his two companions, who
were looking to buy drugs, to a supposed drug dealer living on Mt. Vernon Street in
Philadelphia, PA. Before finding the drug dealer, Goldwire entered his own home at
3820 Wallace Street to retrieve a gun, and returned with co-defendant Montrell Oliver
and someone identified as Jimmy following from a distance. After Bates and Goldwire
exited the car and knocked on some doors in apparent search of the drug dealer, Bates re-
entered the car. Oliver and Jimmy then approached and fired at Bates, who was fatally
shot as the car sped away. Bates’ two companions later testified at trial that they also saw
Goldwire firing a gun at the car. Goldwire was arrested an hour later when he returned
with his brother Khalif and Marcus Best to the gas station where he first saw Bates.
Goldwire denied any participation in the shooting and attempted robbery.
After trial in a Pennsylvania trial court, the jury convicted Goldwire of various
crimes, including first-degree murder, aggravated assault, and robbery. The jury

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deadlocked on the penalty phase; thus the trial court sentenced Goldwire to life
imprisonment, and the Superior Court affirmed. Goldwire filed a PCRA petition, which
was denied. The Superior Court affirmed, and the Pennsylvania Supreme Court denied
allocatur. Goldwire then filed a pro se petition for a writ of habeas corpus in the United
States District Court for the Eastern District of Pennsylvania. The Magistrate Judge
issued a report and recommendation that the District Court should dismiss Goldwire’s
petition, which the District Court approved and adopted. This court granted a certificate
of appealability on two issues of ineffective assistance of counsel.
II.
The District Court exercised jurisdiction over Goldwire’s petition under 28 U.S.C.
§ 2254(a). We have jurisdiction over the District Court’s final order pursuant to 28
U.S.C. §§ 1291 and 2253. “Where, as here, a district court dismisses a habeas petition
based solely on a review of the state court record without holding its own evidentiary
hearing, our standard of review of the district court’s determination is plenary.” Marshall
v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002).
Goldwire’s petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241-2255. Where a claim was adjudicated on
the merits in state court proceedings, federal habeas corpus relief will only be granted if
the state decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” Id. at

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§ 2254(d)(1). To demonstrate ineffective assistance of counsel, Goldwire must show
both that his counsel’s performance was lacking and that this deficient performance
resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Goldwire first argues that counsel was ineffective for suggesting that Goldwire
would not testify at trial. In his opening statement, Goldwire’s counsel stated:
It’s a house divided. . . . Maybe [Goldwire] gets off, but [Khalif Goldwire] gets
arrested. If the mother says something, maybe they let Omar off and they arrest
[Khalif] now. And my client, he’s the older brother, his father is dead. He doesn’t
want to take the stand and snitch on his brother. He just doesn’t want to. I’m still
trying to convince him, but he just doesn’t want to.
App. at 21. The prosecutor responded to this statement in his closing argument:
Well, number one, you don’t know why Omar Goldwire didn’t take the stand.
What you do know is anyone who takes the stand is subject to cross examination
and everything about him comes out, who they are and what they are all about. So
there could be a lot [of] reasons why Omar Goldwire wouldn’t want to take the
stand and testify, but I submit to you it’s not because he points the finger at his
brother and possibly becoming a witness against Khalif at some other trial. That’s
what they want you to believe.
App. at 21.
On PCRA review, the Pennsylvania Superior Court rejected Goldwire’s claim
because it found trial counsel had a “reasonable trial strategy,” App. at 37, which was “to
suggest a case of mistaken identity and to place the blame on [Goldwire]’s brother,
Khalif,” App. at 36. The court cited Commonwealth v. Howard, 719 A.2d 233, 237 (Pa.
1998), for the proposition that where matters of strategy are at issue, counsel’s assistance
is generally deemed constitutional unless a viable alternative defense was suggested that

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offered substantially greater potential for success than the chosen course. Here, the
Superior Court found that Goldwire “failed to indicate what alternative strategy offered a
potential for success greater than the course chosen by his trial counsel.” App. at 37.
Pennsylvania’s standard for evaluating ineffective assistance claims is identical to
the federal standard. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987).
Thus, the Pennsylvania court did not apply a rule of law that contradicts the Supreme
Court’s holding in Strickland. We also do not find that “the state court decision,
evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be
justified under Strickland.” Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).
The Supreme Court’s decision in Griffin v. California, 380 U.S. 609, 615 (1965),
established the general rule that comments by the prosecution or the court on a
defendant’s decision not to testify violate the Fifth Amendment. Here, “[t]he defendant
appears to be confusing the prohibition against direct or indirect references by a
prosecutor to a defendant’s decision not to testify with some imagined rule that applies
with equal force to his defense counsel.” United States v. Guerrero, 938 F.2d 725, 731
(7th Cir. 1991). Even if there were such a rule, “Strickland and its progeny make clear
that counsel’s strategic choices will not be second-guessed by post-hoc determinations
that a different trial strategy would have fared better.” Rolan v. Vaughn, 445 F.3d 671,
681-82 (3d Cir. 2006). Goldwire may rebut the presumption of reasonable professional
conduct by “showing that no sound strategy posited by the [government] could have

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Even if this strategy was considered defective, however,1
Goldwire has not shown prejudice, which requires a finding that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. We must consider the
totality of the evidence at trial: “‘a verdict or conclusion only
weakly supported by the record is more likely to have been affected
by errors than one with overwhelming record support.’” United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) (quoting
Strickland, 466 U.S. at 696). Here, Goldwire admitted to police
that he had taken Bates to Mt. Vernon Street, and the
Commonwealth presented two eyewitnesses who testified that
Goldwire had participated in the shooting.
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supported the conduct.” Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).
Here, both the state Superior Court and the District Court concluded that defense
counsel pursued a reasoned trial strategy in light of the evidence available, which
included two positive identifications by eyewitnesses to the shooting. In fact, in this court
Goldwire concedes that trial counsel’s overall strategy of presenting a mistaken identity
defense was “perfectly sound” and that it might even have made “tactical sense” to assert
in closing argument Goldwire’s reason for not testifying. Appellant’s Br. at 10-11. He
objects, however, to counsel’s inclusion of that assertion in his opening statement. It was
not unreasonable strategy to begin with the theory of mistaken identity that defense
counsel proffered at the outset of trial, and to attempt to portray Goldwire as an innocent
man torn by the choice between his brother’s liberty or his own. We agree with the1
District Court that under the facts of this case, the Pennsylvania Superior Court’s
determination that trial counsel rendered effective assistance was not an unreasonable

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The PCRA court rejected Goldwire’s claim on the merits.2
The government contends Goldwire subsequently failed to properly
present this claim to the Superior Court, and failed to raise it in his
federal habeas petition.
Furthermore, potential waiver is not a jurisdictional3
impediment to review, and Goldwire was proceeding pro se in the
District Court. Thus, we have given him the benefit of the doubt
and have reviewed his claim on the merits.
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application of Strickland.
With respect to the second claim of ineffective assistance – that counsel failed to
object to the prosecutor’s closing remarks regarding Goldwire’s failure to testify – the
government argues at length that this claim is waived and/or procedurally defaulted.2
However, we find it unnecessary to decide this issue because it is apparent that the claim
lacks merit. “Under 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even
though they were not properly exhausted, and we take that approach here.” Bronshtein v.3
Horn, 404 F.3d 700, 728 (3d Cir. 2005).
The Supreme Court has explained that “[w]here 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.” United States v. Robinson, 485 U.S. 25, 32 (1988).
Although the prosecutor’s statement may come close to violating Griffin, when it

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In fact, Goldwire’s PCRA appellate counsel admitted as4
much in his brief to the Superior Court, in which he challenged
trial counsel’s effectiveness in opening the door to the prosecutor
adversely commenting on Goldwire’s failure to testify: “[Goldwire]
cannot complain about [the prosecutor’s closing statements] as
being error – it was invited comment, pure and simple. . . . [T]he
prosecutor was entitled to run through the wide open door provided
for him by trial counsel.” Supp. App. at 106-07.
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is considered in context, we conclude that it was a fair response to defense counsel’s
opening statement. The prosecutor’s statement was in direct response to defense4
counsel’s assertion that Goldwire did not testify only because he refused to implicate his
brother; the prosecutor was entitled to respond to this assertion after defense counsel had
opened the door. See id. at 33 (in order for the jury to determine defendant’s guilt or
innocence, “it is important that both the defendant and the prosecutor have the
opportunity to meet fairly the evidence and arguments of one another”); United States v.
Isaac, 134 F.3d 199, 206 (3d Cir. 1998) (“[W]hen the defendant uses his Griffin
protection as a sword, rather than a shield, the prosecution may respond appropriately.”).
As the Supreme Court explained:
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 prohibit 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.

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Furthermore, even if the prosecutor’s remarks exceeded5
the bounds of a fair response, Goldwire has not shown prejudice.
See supra note 1. The trial court also instructed the jurors that
arguments made by both defense counsel and the prosecutor were
not evidence.
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Robinson, 485 U.S. at 34.5
III.
For the above-stated reasons, we will affirm the judgment of the District Court
denying Goldwire’s § 2254 petition.

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