Lawrence Gaines v. Superintendent Benner Township ( 2022 )


Menu:
  •                                          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)
    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
    2
    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.
    3
    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.
    4
    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:
    5
    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.
    6
    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
    7
    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
    8
    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).
    9
    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.
    10
    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
    11
    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).
    12
    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
    13
    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
    14
    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).
    15
    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:
    16
    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
    17
    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
    18
    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.
    19