                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-2004

Gibbs v. Frank
Precedential or Non-Precedential: Precedential

Docket No. 02-3924




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"Gibbs v. Frank" (2004). 2004 Decisions. Paper 171.
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                      PRECEDENTIAL         Mark A. Berman, Esq. (Argued)
                                           Gibbons, Del Deo, Dolan, Griffinger &
                                           Vecchione
   UNITED STATES COURT OF                  One Riverfront Plaza
APPEALS FOR THE THIRD CIRCUIT              Newark, NJ 07102-5497

                                                 Counsel for Appellant
            No. 02-3924
                                           Gerald J. Pappert
                                           Attorney General
          BARRY GIBBS,                     Richard A. Sheetz, Jr.
                                           Executive Deputy Attorney General
                          Appellant        Director, Criminal Law Division
                                           Amy Zapp
                 v.                        Chief Deputy Attorney General
                                           Appeals and Legal Services Section
 FREDERICK K. FRANK; DISTRICT              Frank G. Fina (Argued)
  ATTORNEY OF PIKE COUNTY;                 Senior Deputy Attorney General
    ATTORNEY GENERAL OF                    Appeals and Legal Services Section
       PENNSYLVANIA                        Office of Attorney General of
                                           Pennsylvania
                                           16th Floor-Strawberry Square
                                           Harrisburg, PA 17120
  On Appeal from the United States
          District Court for the                 Counsel for Appellee
   Middle District of Pennsylvania
    (Dist. Court No. 99-cv-01627)
 District Judge: Hon. Edwin M. Kosik
                                                 OPINION OF THE COURT

       Argued: June 22, 2004
                                           CHERTOFF, Circuit Judge.
  Before: NYGAARD, MCKEE and                      Appellant Barry Gibbs appeals from
    CHERTOFF, Circuit Judges.              the District Court’s judgment denying his
                                           petition for a writ of habeas corpus.
                                           Gibbs, who is currently serving a sentence
      (Filed: October 14, 2004)            of twenty to forty years imprisonment,
                                           argues that the state court’s decision was
                                           contrary to or an unreasonable application

                                       1
of clearly established federal law.     We         death. The Pennsylvania Supreme Court
agree and reverse.                                 eventually reversed Gibbs’s conviction on
                                                   grounds unrelated to this appeal, see
                    I.
                                                   Pennsylvania v. Gibbs, 553 A.2d 409 (Pa.
        In    March     of    1984    th e         1989), and the Commonwealth thereafter
Commonwealth of Pennsylvania charged               retried Gibbs.
Gibbs with, inter alia, criminal homicide
                                                          Gibbs decided not to pursue a
for shooting and killing a security guard
                                                   mental infirmity defense at his second
named George Mehl. The Commonwealth
                                                   trial. The defense decided instead to
charged that Gibbs shot Mehl after a
                                                   contest identity—that is, to raise doubt that
woman named Sharon Burke hired him to
                                                   it was Gibbs who shot George Mehl.
kill her husband, Wayne Burke, who was
                                                   Nonetheless, the Commonwealth moved in
also a security guard. Mehl was shot as he
                                                   limine for permission to call Sadoff as a
sat beside Burke while they were both at
                                                   witness to testify about the inculpatory
work.
                                                   statements Gibbs made to him. The court
       Prior to his trial in the Court of          granted the Commonwealth’s motion
Common Pleas of Pike County, Gibbs                 under the theory that a defendant’s
petitioned the state judge to appoint an           “testimony from an earlier trial may be
expert to explore the possibility of raising       introduced in the prosecution’s case
a mental infirmity defense. The court              against a defendant regardless of whether
appointed Dr. A ntho ny Turc hetti.                that defendant takes the stand or not in the
Following Turchetti’s evaluation, Gibbs            second proceeding,” because a defendant
notified the Commonwealth that he in fact          waives his right against self-incrimination
intended to raise a mental infirmity               by taking the stand in a previous
defense at trial.                                  proceeding. App. A10 (internal citations
                                                   and quotations omitted). Sadoff testified
       The Commonwealth consequently
                                                   at the second trial as a part of the
secured an order from the court requiring
                                                   Commonwealth’s case-in-chief; he related
Gibbs to submit to an examination from a
                                                   the inculpatory statements Gibbs made to
state psychiatrist, Dr. Robert Sadoff.
                                                   him.
Sadoff gave Gibbs Miranda warnings prior
to the examination, and Gibbs thereafter                  The jury again found Gibbs guilty,
made several inculpatory statements.               and the Pennsylvania Superior Court
                                                   affirmed his conviction and sentence. The
       At the trial, Gibbs offered expert
                                                   Pennsylvania Supreme Court denied
testimony from Turchetti to support a
                                                   allocatur, and Gibbs brought this petition
diminished capacity defense, and the
                                                   for a writ of habeas corpus pursuant to 28
Commonwealth called Sadoff as a witness
                                                   U.S.C. § 2254 in the United States District
to rebut Turchetti’s testimony. The jury
                                                   Court for the M iddle D istrict of
found Gibbs guilty and sentenced him to
                                                   Pennsylvania. The District Court denied

                                               2
the petition as to all the claims. We                       (1) resulted in a decision
granted a certificate of appealability on the               that was contrary to, or
issue “whether Gibbs’ Fifth Amendment                       involved an unreasonable
privilege against self-incrimination was                    application of, clearly
violated during his retrial when the                        established Federal law, as
Commonwealth was permitted to introduce                     determined by the Supreme
Sadoff’s psychiatric testimony, which had                   Court of the United States;
o r i g in a lly been offe red b y the                      or
Commonwealth to rebut the diminished
                                                            (2) resulted in a decision
capacity defense asserted by Gibbs at his
                                                            that was based on an
first trial, relating incriminating statements
                                                            unreasonable determination
made by Gibbs despite the fact that Gibbs
                                                            of the facts in light of the
did not raise that defense at his second
                                                            evidence presented in the
trial.”
                                                            State court proceeding.
                     II.
                                                     28 U.S.C. § 2254(d). In addition, “a
       We exercise jurisdiction under 28             determination of a factual issue made by a
U.S.C. §§ 1291 and 2253. Where (as here)             State court shall be presumed to be
a District Court relied exclusively on the           correct” unless the petitioner rebuts “the
state court record and did not hold an               presumption of correctness by clear and
evidentiary hearing on habeas review, this           convincing evidence.” 28 U.S.C. §
Court’s review is plenary. See Moore v.              2254(e)(1).
Morton, 255 F.3d 95, 103 (3d Cir. 2001).
                                                            “[C]learly established Federal law,
Like the District Court, we review the state
                                                     as determined by the Supreme Court of the
court’s determinations with the deference
                                                     United States” means “the holdings, as
the 1996 Antiterrorism and Effective
                                                     opposed to the dicta, of [the Supreme]
Death Penalty Act (“AEDPA”) requires.
                                                     Court’s decisions as of the time of the
The statute provides:
                                                     relevant state-court decision.” Williams v.
       (d) An application for a writ                 Taylor, 529 U.S. 362, 412 (2000); see also
       of habeas corpus on behalf                    Lockyer v. Andrade, 538 U.S. 63, 71-72
       of a person in custody                        (2003) (“‘[C]learly established Federal
       pursuant to the judgment of                   law’ under § 2254(d)(1) is the governing
       a State court shall not be                    legal principle or principles set forth by
       granted with respect to any                   the Supreme Court at the time the state
       claim that was adjudicated                    court renders its decision.”). A state-court
       on the merits in State court                  decision is “contrary to” clearly
       proceedings unless the                        established federal law if the state court
       adjudication of the claim—                    (1) “contradicts the governing law set forth
                                                     in [the Supreme Court’s] cases”’ or (2)


                                                 3
“confronts a set of facts that are materially        that the defendant’s interview had been
indistinguishable from a decision of [the            compelled and without notice to the
Supreme] Court and nevertheless arrives at           defense attorney; and that no Miranda
a [different] result.” Williams, 529 U.S. at         warnings had been given. See Miranda v.
405-06. A state-court decision “involve[s]           Arizona, 384 U.S. 436 (1966).1 The Court
an unreasonable application” of clearly              expressly observed—in language of
established federal law if the state court           s i g n if i c a n c e h e r e — t h a t b e f o r e
(1) “identifies the correct governing legal          interrogation the state must provide the
rule from [the Supreme] Court’s cases but            defendant “with an awareness of the Fifth
unreasonably applies it to the facts of the          A m e n d me n t privilege and th e
particular . . . case”; or (2) “unreasonably         consequences of forgoing it.” 451 U.S. at
extends a legal principle from [Supreme              467.
Court] precedent to a new context where it
                                                             The Court in Smith emphasized that
should not apply or unreasonably refuses
                                                     there were two “distinct circumstances”
to extend that principle to a new context
                                                     that were elements of its conclusion: The
where it should apply.” Id. at 407; see also
                                                     state court compelled the defendant to
Mitchell v. Esparza, 540 U.S. 12, 124 S.
                                                     submit to the examination and the
Ct. 7, 11 (2003) (per curiam); Werts v.
                                                     defendant himself never placed his mental
Vaughn, 228 F.3d 178, 197 (3d Cir.
                                                     state in issue at either the guilt or penalty
2000).
                                                     phase of the trial. 451 U.S. at 468.
                     III.
                                                             The Supreme Court soon addressed
       We begin by identifying the                   a case where these two circumstances did
relevant Supreme Court precedents. The               not exist in Buchanan v. Kentucky, 483
case law begins with Estelle v. Smith, 451           U.S. 402 (1987). There, the murder
U.S. 454 (1981). There, the state judge              defendant’s counsel and the prosecutor
ordered a capital defendant to undergo a             jointly petitioned the state court to order a
psychiatric examination by a state-retained          psychiatric examination of the defendant
doctor. The defendant did not offer a                to see if he should be treated during
defense of mental infirmity at the guilt             incarceration. At trial, the defendant
phase of the trial, but at the capital penalty       raised a defense of extreme emotional
phase the state sought to offer the doctor’s         disturbance, and the court allowed the
testimony about the defendant’s                      prosecutor to use the earlier psychiatric
admissions as proof of “future                       report to rebut the defense.
dangerousness.”
        The Supreme Court granted habeas
                                                             1
relief. The Court determined that the Fifth                 We note that Gibbs challenges the
and Sixth Amendments (through the                    admissibility of the testimony under the
Fourteenth) applied at the penalty phase;            Fifth Amendment, but not under the Sixth
                                                     Amendment.

                                                 4
       The Buchanan Court distinguished            refined what was implicit in Smith by
Smith, drawing on language in its earlier          holding that a defendant’s initiation of the
decision suggesting that “if a defendant           psychiatric issue at trial could waive a
requests [a psychiatric evaluation] or             Fifth Amendment objection—but not a
presents psychiatric evidence, then, at the        Sixth Amendment objection—to the
very least, the prosecution may rebut this         state’s subsequent use of a mandatory
presentation with evidence from the                psychiatric report. As part of its analysis,
reports of the examination that the                the Court observed that there could be no
defendant requested.” 483 U.S. at 422-23.          Sixth Amendment waiver because no
Since, in Buchanan, defense counsel                Supreme Court case had suggested that by
sought the examination and then placed             “opening the door” to the admission of
his mental state in issue, there was no            state psychiatric evidence in the guilt
constitutional violation when the state            phase, the door would also “open”
offered the examination for a “limited             automatically to the admission of that
rebuttal purpose.” Id. at 424 (emphasis            evidence for a different purpose in the
added).                                            penalty phase. 492 U.S. at 685 n.3.
        Since Buchanan, the ruling in                      Most recently, the Supreme Court
Smith was reaffirmed and applied to                revisited this issue in the context of a
invalidate convictions in two further              habeas challenge mounted after the 1996
Supreme Court cases. Satterwhite v.                AEDPA habeas amendments, and under
Texas, 486 U.S. 249 (1988) presented               the narrower standard of review which
facts almost identical to Smith, in that the       now applies.2 In Penry v. Johnson, Penry
state offered penalty phase evidence from          was charged with a 1979 capital murder.
a compelled psychiatric examination of the         532 U.S. 782 (2001). Earlier, in 1977, he
defendant, even though the defendant did           had been subjected to a psychiatric
not put his psychological state in issue.          examination requested by defense counsel
The Court held that because the                    for an unrelated non-capital crime. Penry
examinations occurred after indictment,            placed mental state in issue both in his
and without proper notice to defense               capital trial and in the previous trial for the
counsel, there was a Sixth Amendment               earlier crime. In the capital trial, the state
violation. 486 U.S. at 255-56. Powell v.           was permitted to use the voluntary
Texas, 492 U.S. 680 (1989) presented a             psychiatric report from the prior trial to
somewhat different factual pattern. There,
the state examined the defendant and
                                                          2
offered the psychiatric report at the                        Because the earlier Court cases
penalty phase. The state argued that this          discussed predate the 1996 habeas
did not run afoul of Smith because at the          amendments, they do not address whether
guilt phase the defendant himself had              the state court ruling was “contrary to” or
raised a psychiatric defense. The Court            an “unreasonable application” of Supreme
                                                   Court precedent.

                                               5
impeach Penry’s own psychological                Penry). Similarly, the Fifth—but not
witness. The Supreme Court held the state        Sixth—Amendment right can be waived
court rulings not contrary to, or                when the defendant initiates a trial defense
unreasonable in applying, prior Supreme          of mental incapacity or disturbance, even
Court precedent because it distinguished         though the defendant had not been given
Smith.       In particular, the Court            Miranda warnings (Buchanan, Powell).
underscored the following differences: In        But that waiver is not limitless; it only
Smith, the defendant did not place his           allows the prosecution to use the interview
mental state in issue; in Penry he did. In       to provide rebuttal to the psychiatric
Smith, the psychiatric examination was           defense (Buchanan, Powell). Finally, the
compelled by the court and conducted by          state has no obligation to warn about
a state doctor; in Penry, the defense            possible uses of the interview that cannot
attorney requested the examination. In           be foreseen because of future events, such
Smith, the state put on the psychological        as uncommitted crimes (Penry).3
evidence in its case in chief; in Penry it
                                                       How does the state court decision
was limited to cross-examination. Finally,
                                                 in this case stack up against these
in Smith, the defendant could have been
warned about the possible use of his
admissions in a subsequent penalty phase;
in Penry, the psychiatric examination                   3
                                                          It is not clear whether this last
preceded the capital crime itself, so the        point follows from the Fifth Amendment,
state could not have anticipated—or              as interpreted by the Supreme Court in
warned about—the possibility of its future       Penry, or whether it is simply not
use in the capital case. 532 U.S. at 794.        unreasonable for a state court to apply the
       If we lay these decisions out, the        Supreme Court’s precedent this way. The
following landscape emerges.            A        Court’s decision in Penry tends to indicate
compelled psychiatric interview implicates       the latter. 532 U.S. at 794-95. After
Fifth and Sixth Amendment rights                 explaining several differences between
(Smith).     Before submitting to that           Penry’s case and prior Supreme Court
examination, the defendant must receive          precedent, the Court expressly stated that
Miranda warnings and (once the Sixth             it did not have to “decide whether these
Amendment attaches) counsel must be              differences affect the merits of Penry’s
notified (Smith). The warnings must              Fifth Amendment claim,” because “the
advise the defendant of the “consequences        question is whether the [state] court’s
of foregoing” his right to remain silent         decision was contrary to or an
(Smith). The Fifth and Sixth Amendments          unreasonable application of our
do not necessarily attach, however, when         precedent.” Id. (emphasis added). We
the defendant himself initiates the              assume for purposes of this decision,
psychiatric examination (Buchanan,               however, that this last point is a matter of
                                                 substantive Fifth Amendment law.

                                             6
precedents? 4 Here, the defense initially           not even to prove a psychological point,
indicated it would raise a psychiatric              since the second trial presented no
defense and accordingly the court ordered           psychological issue before Sadoff
as a condition that the defendant submit to         testified. The statement was offered
an interview by a state doctor, Robert              simply for the truth of the admissions of
Sadoff. Sadoff gave Gibbs Miranda                   fact.    In this sense, the psychiatric
warnings. During the first trial, Gibbs in          interview was used for a purpose even less
fact offered insanity and diminished                justifiable than that in Smith, where at
capacity defenses, and Sadoff testified in          least the state’s purpose in offering a
rebuttal. Undoubtedly, Sadoff’s testimony           psychiatric analysis at the penalty phase
was permissible in that trial under Smith           was to establish a psychological
and Buchanan. But that trial was reversed           disposition to be dangerous in the future.
and vacated, by the Pennsylvania Supreme
                                                           If these facts were all that were
Court, on other grounds.
                                                    before us, we could say that the state
      At the second trial, Gibbs presented          ruling admitting the Gibbs interview in the
no mental capacity defense. Sadoff was              second trial was contrary to Smith itself.
permitted to testify in the prosecution case        But there is a crucial additional fact that
in chief, however, simply to repeat                 makes a difference. According to the
incriminating statements that Gibbs had             finding of the state court, Sadoff
made in the interview.                              “mirandized” Gibbs. App. A17. The state
                                                    argues that this takes the case out of the
       As in Smith, Gibbs’s interview
                                                    template of Smith altogether.5
with Sadoff was mandated by the state
court, and Sadoff was the state-selected
doctor. As in Smith, the statement was not                 5
                                                             The Commonwealth asserts that
offered at the second trial after the defense       Gibbs did not raise his “limited waiver”
put psychiatry in issue, and it was not             argument before the state courts or the
limited to rebuttal. In fact, the purpose for       District Court, and thus cannot do so
which it was offered at Gibbs’s trial was           before us. We disagree. The waiver issue
                                                    was implicit in Gibbs’s Fifth Amendment
                                                    argument, which he has asserted
       4
           The state decision actually              throughout the state and federal
discussed none of these cases. But the              proceedings. In fact, the state courts and
Supreme Court has instructed that “a state          the District Court, while not characterizing
court need not even be aware of our                 their analysis as one of waiver, based their
precedents ‘so long as neither the                  decision on a waiver theory. See App.
reasoning nor the result of the state-court         A48 (“In choosing to pursue a mental
decision contradicts them.’” Mitchell v.            defense in his first trial and reap any
Esparza, 124 S. Ct. at 10 (quoting Early v.         possible benefits therefrom, the fact that
Packer, 537 U.S. 3, 8 (2002)).                      he is not acquitted and is required to go

                                                7
       We agree that the warning takes the        testifies at suppression hearing asserting
fact pattern outside the strict bounds of         Fourth Amendment claim does not waive
Smith, so that this case is not contrary to       his Fifth Amendment privilege and his
Smith, or any other decision. That leaves         statements cannot be used against him at
the question whether the admission of             trial on the issue of guilt).
Gibbs’s interview is either an
                                                          The record is silent as to what
unreasonable application of Smith to the
                                                  Sadoff said precisely, and the state court
facts or an unreasonable failure to extend
                                                  made no factual findings in this regard,
Smith to the facts.
                                                  either explicit or implicit. The inference
        We initially recall that Smith            from the term of art “mirandized” is that
explicitly held that the warnings given to        he offered the standard language
a potential psychiatric interviewee must          articulated in the Miranda decision. See
advise him of the “consequences of”               Dickerson v. United States, 530 U.S. 428,
waiving his Fifth Amendment rights.               435 (2000). Since that warning states
Under any reasonable view, this requires          without limitation that “anything you say
an accurate statement of those                    may be used against you in a court of
consequences. Thus, if Sadoff told Gibbs          law,” one might conclude that Gibbs gave
that his statements could be used against         a general waiver. But Sadoff’s warning
him only if he raised a mental state              did not occur in a vacuum. Everyone
defense at trial, any waiver by Gibbs             understood that the psychiatric interview
would be specific to that condition, and          was a court-ordered precondition to
the only reasonable application of Smith          Gibbs’s presentation of a psychiatric
would mandate that the statements be              defense. More important, Pennsylvania
excluded if no such defense was raised.           law expressly limited the scope of any
On the other hand, if Sadoff told Gibbs           psychiatric examination waiver so that the
that his statement could be used against          evidence could not be used for any
him in court for any purpose whatsoever,          purpose other than a proceeding about the
whether or not he offered any kind of             defendant’s “mental condition.” 50 Pa.
psychological defense, then it would              Stat. § 7402(e)(3).
arguably be a general waiver, and it would
                                                         Accordingly, Gibbs (and his
be reasonable to regard Smith as satisfied.
                                                  attorney) were legally entitled to
But cf. Simmons v. United States, 390
                                                  understand any Miranda waiver in the
U.S. 377, 393-94 (1968) (defendant who
                                                  context of existing state law and the
                                                  procedural setting of the case. That is, that
through a second trial wherein he decides
                                                  the waiver covered only use of any
not to utilize a mental defense, does not
                                                  psychiatric interview in a proceeding in
enable Gibbs to take back the voluntary
                                                  which defendant’s mental state was raised
statements previously given to Dr.
                                                  by the defense. Here, the state does not
Sadoff”).
                                                  contend that it was unreasonable for the

                                              8
defense to assume that any Fifth                    warnings that misstate the consequences
Amendment waiver was predicated on the              of the waiver.
use of the statement only in a trial where
                                                            Two other Supreme Court
psychiatric evidence was in issue. Such an
                                                    decisions reinforce this conclusion. First,
assumption was dictated by the context of
                                                    in Penry, the Supreme Court distinguished
the examination, and the mandate of state
                                                    Smith by pointing out that at the time of
law.
                                                    Smith’s psychological examination it was
        That being so, we face the ultimate         evident that the issue of his state of mind
question. Would it be unreasonable for a            and dangerousness could arise at
state court to read Smith as permitting the         sentencing; it was therefore necessary that
use of a “mirandized” psychiatric                   he be advised of this consequence before
interview for a purpose that is utterly             he waived his Fifth Amendment rights.
different than that which formed the                Penry, on the other hand, was examined
underlying basis for the waiver? Put                for a crime other than the capital crime he
another way, if the interview is obtained           later committed; it would, therefore, have
based on an understanding of the limited            been impossible to advise him at the time
consequences of Gibbs’s waiver, and if              of his waiver that his statements might be
the limitation is then disregarded, is use of       relevant in a future prosecution for a crime
the interview reasonable under Smith?               that had not yet occurred. This distinction
That answer must be that it would be                emphasizes the importance of advising a
unreasonable.                                       defendant like Gibbs accurately about the
                                                    foreseeable consequences of his waiver.
        The language of Smith itself says
                                                    Here, it was foreseeable that Gibbs might
that the interviewee must be made aware
                                                    ultimately go to trial and opt not to raise a
of “the Fifth Amendment privilege and the
                                                    psychiatric defense; indeed, the
consequences of forgoing it.” 451 U.S. at
                                                    foreseeability of that possibility is implicit
467 (emphasis added). Obviously a false
                                                    in the state statute that limits the use of
statement of the consequences or a
                                                    psychiatric examinations to proceedings
statement that is misleading by omission
                                                    involving a defendant’s mental condition.
does not satisfy that standard. Cf. Moran
v. Burbine, 475 U.S. 412, 423-24 (1986)                    Second, in Powell, the Court
(withholding information is “relevant to            emphasized that waivers of Fifth
the constitutional validity of a waiver if it       Amendment rights are limited to the
deprives a defendant of knowledge                   specific consequences as to which the
essential to his ability to understand the          defendant is given notice. Powell rejected
nature of his rights and the consequences           the idea that raising an insanity defense at
of abandoning them”). It could hardly be            trial would automatically waive the right
reasonable, therefore, to hold that Smith is        to object to admission of psychiatric
satisfied by securing a waiver based on             evidence at a penalty hearing. 492 U.S. at
                                                    685 n.3. This underscores that the scope

                                                9
of the waiver must be measured in terms            judgment of the District Court and remand
of the consequences about which the                the cause for it to grant Gibbs’ petition for
defendant is warned.6 A reading of                 a writ of habeas corpus and require the
Powell and Smith that overlooked this              state to either release Gibbs or retry him
crucial limitation would be an                     within a specified time period.
unreasonable application of those
precedents.
                   IV.
       We conclude that the writ should
issue here.7 We will therefore reverse the

       6
        Arguably, the above-cited passage
in Powell is dictum. We are aware that
dictum in a Supreme Court opinion cannot
serve to determine “clearly established
law” under the habeas statute. See
Johnson v. Carroll, 369 F.3d 253, 257 (3d
Cir. 2004). But even if it is dictum, it
offers guidance about how the Supreme
Court reasonably interprets its previous
decision in Smith, and therefore it is also
relevant to determining whether a state
court decision reasonably applies Supreme
Court precedent. Cf. Price v. Vincent, 538
U.S. 634, 641-42 & n.2 (2003)
(referencing lower federal court decisions
to analyze reasonableness of state court
decision); Chadwick v. Janecka, 312 F.3d
597, 613 (3d Cir. 2002) (lower federal
court precedent relevant to determining
reasonableness of state court decision).
       7
         The state does not contend that
admitting Sadoff’s testimony did not have
“‘a substantial and injurious effect or
influence in determining the jury’s
verdict.’” Szuchon v. Lehman, 273 F.3d
299, 319 (3d Cir. 2001) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)).

                                              10
Gibbs v. Frank, No. 02-3924                           courts, that determines federal law for the
                                                      purposes of habeas review. 529 U.S. at
                                                      381 (“If this Court has not broken
NYGAARD, Circuit Judge, concurring                    sufficient legal ground to establish an
                                                      asked-for constitutional principle, the
        I agree with the majority’s
                                                      lower federal courts cannot themselves
conclusion. I, too, would reverse. I write
                                                      establish such a principle with clarity
briefly, however, to state my view of what
                                                      sufficient to satisfy the AEDPA bar.”)
the phrase “clearly established federal law
                                                      (Stevens, J., concurring).     The Court,
as defined by the Supreme Court of the
                                                      however, did not hold that AEDPA
United States,” means, and should mean.
                                                      somehow disestablished the Constitution
To me, the Fifth Amendment and its
                                                      itself as clear federal law.
axiomatic injunction is clearly established
federal law, and has been since Malloy v.                      Precluding the text of the
Hogan, when the Supreme Court through                 Constitution from being considered as
the doctrine of incorporation ruled that the          clearly established federal law could create
Fifth Amendment’s protections applied to              the anomaly of having an explicit and self-
the states as well as the federal                     evident constitutional right that is
government. 378 U.S. 1, 6 (1964).                     unenforceable in habeas proceedings
                                                      simply because the Supreme Court has not
       First, I believe that neither the Anti-
                                                      elaborated upon the contours of that right.
Terrorism and Effective Death Penalty Act
                                                      It is after all the Constitution, and not the
of 1996 nor Williams v. Taylor, 529 .S.Ct.
                                                      Supreme Court, that created the cherished
362 (2000), preclude us from looking to
                                                      American rights relied upon, inter alia, by
the actual text of the Constitution to
                                                      habeas petitioners. I conclude that the
determine the relevant clearly established
                                                      clearest statement of federal law is found
federal law when the Supreme Court has
                                                      in the express text, and derived from the
not addressed the issue. It is my opinion
                                                      obvious intent, of the Fifth Amendment
that Congress’ statement that a state
                                                      itself.
court’s decision must stand unless it is
“contrary to, or an unreasonable                              The well-known text of the Fifth
application of, clearly established federal           Amendment itself ensures that no person
law, as determined by the Supreme Court               “shall be compelled in any criminal case to
of the United States” was not meant to                be a witness against himself.” U.S. Const.
pretermit consideration of a protection               Amend. V. I cannot believe that Congress
expressly provided by the Bill of Rights.             would consider anything to be more
                                                      clearly established. I certainly do not. The
       To me, a fair reading of
                                                      essence of this Amendment’s language is
Williams indicates that what the Court was
                                                      “the requirement that the state which
establishing therein, is that it is to be its
                                                      proposes to convict and punish an
word, as opposed to that from the inferior
                                                      individual produce the evidence against

                                                 11
him by the independent labor of its                 trial court admitted the statement, it
officers, not by the simple, cruel expedient        deprived Gibbs of his right against self-
of forcing it from his own lips.” Smith,            incrimination by violating the express
451 U.S. at 462 (quoting Colombe v.                 language of the Fifth Amendment. Its
Connecticut, 367 U.S. 568, 581-82                   decision was contrary to clearly
(1961)). In Gibbs’ second trial, when the           established federal law; and I too, would
Commonwealth introduced Gibbs’ own                  reverse.
incriminating words, thereby forcing him
to “be a witness against himself,” nothing
could be more clear than that it violated
his Fifth Amendment rights.
        Finally, although I find no
jurisprudential support for my position,
See e.g., Felker v. Turpin, 518 U.S. 651
663, 116 S. Ct. 2333, 2339 (1996), Green
v. French, 143 F.3d 865, 875 ( 4 th Cir.
1998), to the extent AEDPA was actually
intended by Congress to deny access by
habeas petitioners to the protections of the
Bill of Rights subject to a condition
precedent, in my view this preclusion
should be considered a suspension of the
writ. Thus to the extent Congress intended
to deny, or has denied, our power to
provide habeas relief, it is my opinion that
it has violated the Suspension Clause, Art.
I, §9 of the Constitution, which, at a more
enlightened time should act as a textual
limit on Congress’ power to withdraw
jurisdiction from the federal courts to
enforce Constitutional rights under the
Great Writ.
        In my view, a trial judge with a
modest understanding of the Constitution
would quickly conclude that the injunction
contained in the Fifth Amendment is so
clearly established that Gibbs’ inculpatory
statement could not be introduced into
evidence against him. But because the

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