Lawrence Gaines v. Superintendent Benner Township Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-1918
_______________________
LAWRENCE GAINES
v.
SUPERINTENDENT BENNER TOWNSHIP SCI;
DISTRICT ATTORNEY NORTHAMPTON COUNTY;
ATTORNEY GENERAL PENNSYLVANIA,
Appellants
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-20-cv-00361
District Judge: Honorable Mark A. Kearney
__________________________
Argued, January 20, 2022
Before: JORDAN, RESTREPO, and SMITH, Circuit Judges
(Filed: May 12, 2022)

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Katharine R. Kurnas [ARGUED]
Northampton County Office of District Attorney
669 Washington Street
Easton, PA 18042
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellants
Cheryl J. Sturm [ARGUED]
387 Ring Road
Chadds Ford, PA 19317
Counsel for Appellee
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
Lawrence Gaines was convicted in Pennsylvania state
court of first-degree murder under 18 PA. CONS. STAT. § 2502.
After pursuing direct and collateral proceedings in
Pennsylvania, Gaines petitioned for habeas relief pursuant to
28 U.S.C. § 2254. The District Court granted Gaines’s

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petition. That court held that Gaines’s trial counsel was
ineffective for not objecting to the trial court’s omission of a
jury instruction that no adverse inference could be drawn from
Gaines’s election not to testify in his own defense.
We conclude that the District Court erred. Gaines’s trial
counsel made a reasonable tactical choice when he did not
object to the trial court’s failure to give the requested no-
adverse-inference instruction as part of its charge to the jury.
We will, therefore, reverse the District Court’s order granting
habeas relief and remand for further proceedings.
I. BACKGROUND
a. Factual Background
Gaines served as the “muscle” in a house known locally
for drug dealing. Early on July 3, 2012, William Thompson,
also known as “Poncho,” knocked on the door of the house
looking to buy drugs. Tony Williams, a visitor in the house,
told Thompson that the house was “closed,” denied him entry,
and told him to leave. But Thompson kept knocking and
asking to come in, even after Williams told him to quiet down
so that neighbors would not complain to the police.
Eventually, Gaines walked outside to confront
Thompson and an argument ensued. Williams joined the two
other men and tried to calm them down. Suddenly, “[o]ut of
nowhere, [Gaines] hit[] Poncho.” App. at 378. Gaines
punched Thompson, knocking him to the ground, and he
continued to beat Thompson until Williams pulled him away.

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After Thompson got up from the ground, he began to
walk down the street, but then paused to pick up a wooden post.
He ran towards Gaines, hitting him across the back with the
post. Both men fell, and when Gaines stood up, he grabbed a
knife from his pocket. Looking at Thompson, Gaines said
something to the effect of “oh, it’s like that? Yeah, it’s like
that.” App. at 384. Gaines then stabbed Thompson multiple
times. Once again, Williams pulled Gaines off of Thompson.
A forensic expert later testified that Gaines stabbed
Thompson five times: twice to the right buttock, once to the
right posterior thigh, once to the right bicep, and once to the
right groin. The wound to the right groin perforated
Thompson’s femoral artery, resulting in hemorrhaging that
caused his death.
When confronted by the police the next day, Gaines lied
by denying he had anything to do with Thompson’s death. The
detective who interviewed Gaines noted that he did not appear
to be injured; Gaines did not seek medical attention after the
fight. Roughly a week after this interview, a family who lived
near the scene of the fatal confrontation found a knife covered
in blood in their backyard. The police took custody of it, and
their forensic experts found Thompson’s DNA on the knife.
b. State Court Proceedings
Gaines was charged with first-degree murder pursuant
to 18 PA. CONS. STAT. § 2502(a).1 In Pennsylvania, first-
degree murder is “an intentional killing,” which is further
1 The Commonwealth did not pursue the death penalty.

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defined as “[k]illing by means of poison, or by lying in wait,
or by any other kind of willful, deliberate, and premeditated
killing.” Id. § 2502(a), (d). In compliance with Pennsylvania
Supreme Court precedent, the jury was also instructed on three
lesser included offenses: (1) murder in the third degree; (2)
voluntary manslaughter; and (3) involuntary manslaughter.
See Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013).
At trial, Gaines’s counsel, Robert Sletvold, argued self-
defense. Gaines presented no witnesses and chose not to take
the witness stand. Upon learning that Gaines would not testify,
the trial court conducted a colloquy to ensure that Gaines was
knowingly waiving his right to be a witness on his own behalf.
During the colloquy, the court inquired of Gaines as follows:
“Mr. Sletvold also indicated that he wishes me to instruct the
jury that the jury can draw no adverse inference from your
decision to remain silent. Do you understand that?” App. at
628. And during the charge conference, Sletvold repeated his
request for a no-adverse-inference instruction:
THE COURT: Mr. Sletvold, you are requesting
3.10(a) [sic], defendant does not have to testify,
no adverse inference?
MR. SLETVOLD: Yes.
App. at 680.2 This exchange also demonstrates that the trial
court agreed to give the instruction.
2 Pennsylvania’s Model Instruction 3.10A provides:

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Despite the defense request and the court’s agreement
to it, the trial judge neglected to include the no-adverse-
inference instruction in its jury charge. And when the judge
asked counsel if they had any objections, Sletvold did not
object to the lack of a no-adverse-inference instruction. The
jury convicted Gaines of murder in the first degree. Gaines did
not raise any argument that he should have received the no-
adverse-inference instruction during either his direct appeal or
on collateral review in the Pennsylvania courts.
c. District Court Proceedings
Gaines, proceeding pro se, raised an ineffective
assistance of counsel claim arguing that Sletvold should have
requested or objected to the lack of the no-adverse-inference
instruction.3 The District Court conducted an evidentiary
hearing on this claim. At that hearing, Sletvold testified he was
aware that the trial court failed to give the requested no-
adverse-inference instruction, but he explained that he decided
It is entirely up to the defendant in every criminal
trial whether or not to testify. He has an absolute
right founded on the Constitution to remain
silent. You must not draw any inference of guilt,
or any other inference adverse to the defendant,
from the fact that he did not testify.
Pennsylvania Suggested Standard Criminal Jury Instructions
§ 3.10A (3d ed. 2016) (cleaned up).
3 Gaines raised several other grounds in this petition, but they
are not before us in this appeal.

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not to object because he “was concerned that throwing [the no-
adverse-inference instruction] in at the end, so to speak, may
have dr[awn] undue attention to the fact that Mr. Gaines did
not testify.” App. at 137. Further, Sletvold testified that he
was otherwise satisfied with the charge as it stood because it
placed the burden of proof squarely on the Commonwealth and
exhaustively detailed the law of self-defense.
Gaines’s counsel on state collateral review, Matthew
Deschler, did not raise any claim concerning the lack of a no-
adverse-inference instruction. In fact, he testified that he did
not even notice the absence of the instruction.
II. JURISDICTION
The District Court had jurisdiction pursuant to 28
U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
III. ANALYSIS
We review the District Court’s legal conclusions and
any factual inferences drawn from the state court record de
novo. Randolph v. Sec’y Pa. Dep’t of Corr., 5 F.4th 362, 372
(3d Cir. 2021). When a district court conducts an evidentiary
hearing, we review any “new” findings for clear error. Id.
Before moving to the merits of Gaines’s petition,
however, we must determine whether he properly exhausted
his claim. Although the Commonwealth did not argue that
Gaines failed to exhaust his claim, we have an independent
duty to analyze exhaustion unless the Commonwealth

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explicitly waives that requirement. 28 U.S.C. § 2254(b)(3).
Because the Commonwealth has not explicitly waived it here,
we consider sua sponte if Gaines exhausted his claim. See
Pavatt v. Carpenter, 928 F.3d 906, 924–25 (10th Cir. 2019).
Because Gaines’s claim for ineffective assistance of
counsel was raised for the first time in the District Court, we
can analyze Gaines’s claim only if there is sufficient cause to
do so under Martinez v. Ryan, 566 U.S. 1, 14 (2012). Sufficient
cause exists to review a defaulted claim for ineffective
assistance of counsel if the petitioner shows that: (1) “the
default was caused by ineffective assistance of post-conviction
counsel”; (2) “in the initial-review collateral proceeding”; and
(3) “the underlying claim of trial counsel ineffectiveness is
substantial.” Preston v. Superintendent Graterford SCI, 902
F.3d 365, 376 (3d Cir. 2018) (internal quotation marks
omitted) (quoting Cox v. Horn, 757 F.3d 113, 119 (3d Cir.
2014)). A showing of cause under Martinez means only that
we reach the merits of the underlying claim of ineffective
assistance of trial counsel. It does not necessitate a grant of
habeas relief. See id. at 383. We analyze each Martinez factor
in turn.
First, post-conviction counsel failed to provide effective
assistance by not detecting or raising that Sletvold did not
object to the trial court’s omission of the no-adverse-inference
instruction. At the evidentiary hearing in the District Court,
Deschler testified that he did not notice the trial court’s failure
to give the instruction. While the standards espoused in
Strickland v. Washington, 466 U.S. 668 (1984), give strategic
decisions of counsel a wide berth, inattentiveness is strong

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evidence of ineffective assistance. See Preston, 902 F.3d at
377 (noting that there was no explanation provided as to a
failure to raise an argument on appeal); Wayne LaFave et al.,
3 CRIM. P. § 11.10(c) (4th ed. 2021) (“Courts will far more
readily find incompetency where there has been an
abdication—not an exercise—of professional judgment.”
(internal quotation marks omitted) (quoting McQueen v.
Swenson, 498 F.2d 207, 216 (8th Cir. 1974))).
Additionally, Deschler’s failure to raise this ground is
concerning because the trial court’s omission of the instruction
probably violated Gaines’s rights under the Pennsylvania
Constitution. A defendant who timely requests a no-adverse-
inference instruction is entitled to have it given to the jury.
Commonwealth v. Thompson, 674 A.2d 217, 220 (Pa. 1996);
cf. Carter v. Kentucky, 450 U.S. 288, 300 (1981) (holding that
a no-adverse-inference instruction is required under the Fifth
Amendment if timely requested). Likewise, a Pennsylvania
court must also honor a defendant’s request not to provide a
no-adverse-inference instruction. Commonwealth v. Edwards,
637 A.2d 259, 261 (Pa. 1993).4 But even if the defendant
chooses not to request the instruction, the trial court is required
to colloquy the defendant to determine if he is knowingly
waiving his right to have the instruction given. Thompson, 674
A.2d at 222 (“[T]he no adverse inference instruction shall be
4 A federal court does not violate the Constitution by giving the
instruction over a defendant’s objection. Lakeside v. Oregon,
435 U.S. 333, 340–41 (1978).

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given absent an express on the record colloquy by the
defendant waiving the charge.”).
The trial court did not perform a colloquy as to whether
Gaines wished to waive the charge, and further failed to give
the instruction even though it had been timely requested.
What’s more, the judge had actually agreed to give the no-
adverse-inference instruction. Yet post-conviction counsel
failed to notice the absence of both the instruction and the
colloquy. His inattentiveness meant that there was no tactical
decision to make. We, therefore, hold that post-conviction
counsel’s performance was objectively unreasonable and that
he was ineffective under the first Martinez prong.5
The second Martinez prong is also satisfied. Post-
conviction counsel’s deficient performance occurred in an
initial-review collateral proceeding. See Preston, 902 F.3d at
377.
Finally, Gaines’s claim that Sletvold was ineffective is
substantial. A claim is substantial as long as it “has some
merit.” Cox, 757 F.3d at 119 (internal quotation marks
omitted) (quoting Martinez, 566 U.S. at 14). This standard is
“analogous to the substantiality requirement for a certificate of
appealability.” Id. So we ask if “reasonable jurists could
debate” whether Sletvold’s performance was ineffective.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). This is a “light”
burden; Gaines “must show only that his claim represents
5 To succeed under Martinez, a petitioner does not need to
show prejudice. Preston, 902 F.3d at 376–77.

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something more than the absence of frivolity or the existence
of mere good faith.” Bracey v. Superintendent Rockview SCI,
986 F.3d 274, 283 (3d Cir. 2021) (internal quotation marks
omitted) (quoting Miller-El, 537 U.S. at 338).
Here, we easily conclude that Gaines’s claim is not
frivolous, and that it deserves further examination. As such,
sufficient cause exists under Martinez to excuse the failure to
exhaust his claim.
With the requirements of Martinez having been met, we
proceed to assess the merits of Gaines’s claim.
To determine if Gaines’s right to effective assistance of
counsel under the Sixth Amendment was violated, we look to
the “two components” described in Strickland. 466 U.S. at 687.
First, we must determine if trial counsel “made errors so
serious that counsel was not functioning as the ‘counsel’”
guaranteed by the Sixth Amendment. Id. at 689. To meet this
standard, the defendant must “show that counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 688. Second, we must ascertain
whether such deficient performance prejudiced Gaines. Id. at
687. We may proceed through this analysis in any order, and
if Gaines makes an inadequate showing as to one of these
components, then we do not need to examine the other. Id. at
697.
In pursuing our inquiry, we are cognizant that
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.” See id.; Burt v. Titlow, 571 U.S. 12, 22–23
(2013); see also United States v. McCoy, 410 F.3d 124, 135 (3d

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Cir. 2005) (“[C]ourts have been highly deferential to counsel’s
strategic decisions.”). And while judges may be tempted to
second guess defense counsel’s decisions, we must keep in
mind that “advocacy is an art and not a science, and . . .
strategic choices must be respected in these circumstances if
they are based on professional judgment.” Strickland, 466 U.S.
at 681. In other words, “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).
Before assessing the quality of Sletvold’s representation
under Strickland, we must correct a substantial factual error
made by the District Court in its opinion supporting the grant
of habeas relief. The Court concluded that Attorney Sletvold
failed to request the no-adverse-inference instruction at the
charge conference. The District Judge wrote:
Attorney Sletvold’s strategic decision to not
object after the trial court read the full
instructions to the jury does not explain why
Attorney Sletvold did not object earlier during
the charging conference to the omission of the
“no adverse inference” instruction.
App. at 65. Surprisingly, the Court repeated that finding when
denying the Commonwealth’s motion to reconsider the
judgment: “Attorney Sletvold’s failure to request the ‘no
adverse inference’ instruction at both the charging conference
and after the trial court instructed the jury . . . constituted
ineffectiveness under the performance prong of Strickland v.
Washington.” App. at 23 (emphasis added).

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The conclusion that Sletvold did not request the
instruction at the charge conference was drawn directly from
the record and is therefore subject to plenary review.
Randolph, 5 F.4th at 372. And the record is clear that Sletvold
did in fact request the no-adverse-inference instruction at the
charge conference. The following “Q and A” between the
court and counsel makes that clear:
THE COURT: Mr. Sletvold, you are requesting 3.10(a)
[sic], defendant does not have to testify, no adverse
inference?
MR. SLETVOLD: Yes.
App. at 680. The trial court also clearly agreed to give the
instruction. Therefore, the District Court erred in finding that
Sletvold did not request a no-adverse-inference instruction at
the charge conference, or that he somehow failed to object at
that time to the trial court’s failure to grant such a request.
We are left, then, with one question only: Did Sletvold’s
strategic decision not to object to the missing no-adverse-
inference instruction at the conclusion of the charge to the jury
constitute ineffective assistance of counsel?
We begin fully cognizant of the probability that a
violation of Pennsylvania law occurred at the trial when no
colloquy was conducted regarding the instruction. But even if
state law was violated in that regard, it does not entitle Gaines
to § 2254 relief. Under § 2254, our review extends only to
assertions that federal law has been violated. 28 U.S.C.
§ 2254(d). Moreover, the fact that some other law has been

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violated does not inexorably lead to the conclusion that counsel
was ineffective. See Gov’t of V.I. v. Weatherwax, 77 F.3d
1425, 1430–31 (3d Cir. 1996). For example, in Weatherwax
we observed that an attorney may have violated an ethical rule
by not objecting when a juror was seen carrying into the jury
room a newspaper which contained a story concerning the trial.
The attorney did not object, however, because he thought that
the composition of the seated jury gave his client the best
chance to receive an acquittal. Id. at 1428. Additionally, he
believed that he could not later obtain a similarly favorable jury
if he was required to redo voir dire. Id. We held that counsel’s
failure to bring the potential outside influence on the jury’s
deliberation to the attention of the court was not ineffective
assistance. As we explained, “[i]f counsel breaches a duty to
the court, this does not necessarily mean that the representation
of his client was ineffective.” Id. at 1438.
Here, the trial court may have ignored or overlooked a
procedural obligation under Pennsylvania law when it failed to
conduct a colloquy. But the issue before us is only whether
Sletvold provided constitutionally ineffective assistance of
counsel, not whether a rule of state criminal procedure has been
violated.
We conclude that Sletvold was not ineffective. To have
been ineffective, he would have had to make a decision that
fell below an objective standard of reasonableness—but
commentators have observed that there is no consensus on the
efficacy of the no-adverse-inference instruction. Kenneth S.
Brown et al., 1 MCCORMICK ON EVID. § 128 (8th ed. 2021) (“It
is widely recognized . . . that reasonable persons differ with

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regard to when, if ever, such an instruction is likely to do more
good than harm.”); see also Lakeside, 435 U.S. at 335 (noting
that counsel viewed the instruction as waving a “red flag” in
front of the jury); id. at 347 (Stevens, J., dissenting) (“It is
unrealistic to assume that instructions on the right to silence
always have a benign effect.”).6 Because there is reasonable
disagreement as to the instruction’s effectiveness, “[d]efense
counsel should have considerable latitude in weighing the
effect of such an instruction.” United States v. Perry, 479 F.3d
885, 891–92 (D.C. Cir. 2007).
And, as we would expect in the face of this reasonable
disagreement, our sister circuits have deferred to defense
counsel’s strategic decisions. The Eleventh Circuit observed
that “[n]either the Supreme Court nor this Court has ever held
that a trial court must give a no-adverse-inference instruction
if one is not requested. Nor has either court held that it is
ineffective assistance of counsel not to request such an
instruction.” Bester v. Warden, 836 F.3d 1331, 1337 (11th Cir.
2016) (emphasis added). Similarly, the Tenth Circuit
committed the decision concerning whether or not to request a
no-adverse-inference instruction to an “attorney’s tactical
discretion.” Coleman v. Brown, 802 F.2d 1227, 1235 (10th
Cir. 1986). In fact, neither the District Court nor Gaines cites
a case—and we are aware of none—in which a tactical decision
6 Even the available empirical literature tends to show that the
instruction may have little effect on a jury’s deliberation.
Jeffrey Bellin, The Silence Penalty, 103 IOWA L. REV. 395, 434
(2018) (collecting surveys and experiments).

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to forgo a request for a no-adverse-inference instruction was
held to be an objectively unreasonable decision.
Sletvold testified at the evidentiary hearing that he
consciously decided to avoid calling attention to the fact that
Gaines chose not to testify. Indeed, he was faced with two
options. Make a request that would assure the last thing the
jury heard was a reminder that Gaines did not testify (the so
called “red flag”) or allow the jury to undertake its
deliberations without the no-adverse inference instruction, but
after hearing a charge which clearly placed the burden of proof
on the Commonwealth and exhaustively explained self-
defense. This placed counsel in the unenviable position of
having to make an on-the-spot decision. But such rapid
decision making is frequently required of trial lawyers, and
Sletvold chose not to raise the “red flag.” Under the
circumstances, we can hardly call his decision objectively
unreasonable. See Strickland, 466 U.S. at 689 (remarking that
“[t]here are countless ways to provide effective assistance in
any given case,” and, as a result, courts should give defense
counsel latitude in choosing a trial strategy); Rolan, 445 F.3d
at 681–82 (reminding reviewing courts to ignore the
temptation to second-guess an attorney’s trial strategy).
Because Sletvold was not ineffective, we need not
determine if the alleged error was prejudicial. So we will
reverse the District Court’s grant of habeas relief.
Yet there remains one issue for our consideration.
During voir dire, the trial court delivered a forceful explanation
to the venire of the right against self-incrimination:

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MR. SLETVOLD: [W]hat we’re doing here is
not trying to judge you but trying to make sure
that the jury that sits here can play by the rules.
Like I said, some of those rules the judge will
instruct you. Mr. Gaines is presumed innocent.
Mr. Gaines does not have to testify. . . . Does
anyone have a problem with that? Number 3.
. . .
JUROR NUMBER 3: Well, on the questionnaire
it asked about, and you just brought it up, about
him not having to testify. In my way of thinking,
if I were –
THE COURT: Stop right there. Let me interrupt,
Mr. Sletvold. One of the most fundamental
principles of the Pennsylvania [C]onstitution is
that when someone is accused of a crime, he does
not have to testify; does not have to be called
upon to defend themselves. Rather, the burden
is on the Commonwealth to prove that they’re
guilty and that proof must be beyond a
reasonable doubt.
That is such a fundamental constitutional
principle that it is absolutely imperative as the
jury in this matter you can accept that principle
and if you have no adverse inference from the
decision of the defendant to remain silent. There
can be a variety of reasons why a defendant may

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not choose to take the stand. But regardless of
the reason, you must be able to accept that
principle of our law dating back to our founders
that the defendant has an absolute right to remain
silent. If you cannot accept that law and if you’re
likely to infer anything adverse to the defendant,
you cannot be a juror in this matter.
App. at 237–39. To us, this intervention was plainly relevant
to Gaines’s petition. Such a robust assertion from the trial
judge of the right against self-incrimination may well have
affected Sletvold’s calculus in deciding whether to object to
the trial court’s failure to provide the requested no-adverse-
inference instruction. In any event, Sletvold knew the jury had
already been advised, early on about this bedrock principle of
American law, and before they heard any evidence. It would
have been reasonable for him to think, at the time, that the jury
did not require a reminder when it would be tacked on at the
end of trial.
Unfortunately, the District Judge did not have the
benefit of the voir dire transcript when it was asked to rule on
Gaines’s habeas petition. Additionally, no Pennsylvania court
had the opportunity to examine the voir dire transcript. That is
because it was not produced until after the District Court
granted habeas relief.
We decline to consider the transcript at this late stage.
Nor do we need to decide if the District Court abused its
discretion in denying the motion to reconsider. Even without
considering the excerpt of the transcript set forth above, we
confidently hold that Sletvold’s representation of Gaines was

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not ineffective. Yet we lack a reasonable explanation for why
neither the Commonwealth nor the petitioner thought to
inquire into the existence of a voir dire transcript despite its
obvious absence from the record. That counsel and courts
would need a complete transcript for use in post-trial
proceedings following a first-degree murder conviction seems
beyond question.
We use this opportunity, then, to remind all parties to
habeas proceedings that they have an obligation, both in
federal court and in the Pennsylvania courts, to develop,
pursue, and present to us on a timely basis a full, complete, and
accurate record of all that transpired before the trial court. See
Rules Governing § 2254 Cases, Rule 5(c), 28 U.S.C. foll.
§ 2254; PA. R.A.P. 1921. Adherence to that obligation assures
that a habeas court has before it all that is needed to conduct
meaningful collateral review.
IV. CONCLUSION
Sletvold made a tactical decision to not object to the trial
court’s omission of a no-adverse-inference instruction. His
decision, viewed through the deferential lens of Strickland,
was reasonable. Therefore, Gaines was not deprived of his
right to effective assistance of counsel. We will reverse the
order granting habeas relief and remand for the District Court
to deny Gaines’s habeas petition.

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