Kibbe v. Dubois

United States Court of Appeals
For the First Circuit

No. 00-2440

MARK A. KIBBE,

Petitioner, Appellee,

v.

LARRY E. DUBOIS, ET AL.,

Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Annette C. Benedetto, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellants.
Brownlow M. Speer, on brief, for appellee.

October 23, 2001
-2-
 TORRUELLA, Circuit Judge. Appellee Mark A. Kibbe ("Kibbe")

was charged with arson of a dwelling house in Hampden County court in

Massachusetts. He was tried before a jury on June 9 and 10, 1992, and

found guilty of the lesser included offense of arson of a building.

After exhausting state court remedies, Kibbe petitioned for the writ of

habeas corpus. The district court granted Kibbe's petition, ruling

that the prosecutor's reference to Kibbe's post-Miranda silence during

cross examination and closing arguments was unconstitutional. Because

we conclude that Kibbe has not satisfied his burden under the exacting

standards of 28 U.S.C. § 2254(d) as amended by the Antiterrorism and

Effective Death Penalty Act of 1996, we reverse the district court's

decision to grant Mark Kibbe's petition for the writ of habeas corpus.

BACKGROUND

A. Facts Elicited from the Trial Testimony

On November 15, 1991, at approximately 11:15 in the evening,

Paul Martin walked outside of his parents' house and saw that the

unoccupied house at 171 Almira Road was heavily engulfed in smoke. He

also heard crackling noises consistent with a fire. Martin returned to

his parents' house, told his mother to call "911," and returned to the

street. From this vantage point, Martin observed a man who was wearing

what appeared to be a down, either red or orange, brightly-colored

jacket. The unidentified man walked from the backyard of 171 Almira

down the driveway to the edge of the road. When the sound of sirens

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was audible, the man walked back up the driveway in the direction from

which he had come.

Within a few minutes, Detective Albert Witkowski and Officer

Eugene Rooke, both members of the Springfield police department,

arrived at the scene. They spoke with Martin, who told them that he

had observed a man come from the backyard. Witkowski went to the

backyard to investigate, where he saw a person in the rear corner of

the yard wearing a red jacket and holding an object in his hand.

Witkowski testified at trial that he identified himself as a police

officer and asked the man if he could talk with him for a moment. In

response, the man, later identified as Kibbe, ran. Witkowski gave

chase and radioed for assistance. Officer Rooke, who had continued to

interview Martin, responded to Witkowski's request and joined the

chase. Rooke ran down Newfield Street, ordering Kibbe to stop, which

allegedly only hastened his flight. The chase continued, terminating

only after Kibbe fell in the wooded area in which he was running.

Kibbe was wearing a red, heavy winter jacket and black gloves. He also

had black soot marks on his nose and smelled of smoke. The officers

recovered a flashlight and a small propane tank that Kibbe had dropped

during his flight.

The officers advised Kibbe of his Miranda rights and asked

him to return to the police cruiser. There, they placed him under

arrest and told him that they would conduct a pat-down search on him

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for weapons. Hearing this, Kibbe voluntarily removed matches, paper

towels, a pipe, and pipe tobacco from his pockets. The officers then

had a brief conversation with Kibbe. Witkowski testified that Kibbe

answered his questions and told him why he was in the area.

At trial, Kibbe took the stand and offered the following

testimony. On the night in question, he attended an Alcoholics

Anonymous meeting until approximately 9:00 p.m., and then took a bus

home. Once he arrived at home, he immediately went out again to smoke

his pipe, because he was not allowed to do so in the house. He walked

all around the neighborhood and found a flashlight and propane tank in

the woods. He then went into the backyard of 171 Almira Road because

he needed to urinate. There, he noticed smoke coming from the back of

the house. After several minutes, he walked to the front of the house

and, upon hearing a siren, he turned around and walked into the

backyard. He then "got scared" and ran away, allegedly because he was

on parole. After he was apprehended by Rooke, Kibbe testified that the

officers "questioned me as to what I was doing," and that he "answered

them over and over again."

Kenneth Friberg, the arson investigator who was at the scene,

also testified. Once the fire was extinguished and the smoke had

cleared, Friberg entered the cellar at 171 Almira to determine the

cause of the fire. There, he found an empty matchbook on top of a pile

of lumber about twenty feet from the cellar door. There was also some

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paper and rubbish in the cellar. He could not identify what kind of

paper it was due to its charred and sodden state. From these and other

observations, Friberg concluded that the fire had been deliberately set

by an open fire without the use of accelerants. He found paper towels

just outside and to the left of the cellar door.1

B. Relevant Excerpts from the Trial Transcript

As noted above, Kibbe took the stand in his own defense,

offering an explanation for his presence at 171 Almira Road, his flight

from the police, and his possession of the matches, paper towels,

flashlight, and propane tank. On direct examination by his attorney,

the following exchanges occurred:

Q. And now, why did you run?
A. I'm on parole.
***
Q. And after [Rooke] brought you back to the car
what did you do?
A. They questioned me as to what I was doing.
I answered them over and over again. . . .
Q. All right. When they were questioning you
what did you tell them?2
A. I told them what had happened.

During cross-examination, the Commonwealth asked Kibbe:

Q. You didn't tell the police that you ran
because you were on parole, right?

1 The Commonwealth alleges that Friberg found the paper towels inside
the cellar. Kibbe disputes this claim, and our review of the record
supports his assertion that Friberg testified to having found the paper
towels just outside of the cellar door.
2 The Commonwealth objected to this question, but the court allowed it
to be answered.

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 A. No, I did not.
Q. You never told them why you ran?
A. I don't believe I did.

Both Kibbe and the Commonwealth commented at trial on Kibbe's

forthrightness, or lack thereof, in his conversation with the police on

the night of the fire. In his opening statement Kibbe's attorney said:

[Kibbe] was stopped a short distance away, spoke
to the police. They spoke to him and he
explained what he was doing and what the
situation was on that evening.

In closing, Kibbe's attorney reinforced this point:

What about Mr. Kibbe? Mr. Kibbe told the police
what he was up to that night. He didn't have to,
but he did. He told you on the stand where he
went that night. He didn't have to, but he did.

To counter, the Commonwealth said during closing argument:

And [Kibbe] tells you he runs because he is on
parole, but you know he didn't tell the police
that, didn't offer that as an explanation for
what he was doing. In a case where you're the
finders of the facts, you have to decide
credibility. You have to decide credibility.
You must decide whether you believe what Mark
Kibbe said. Whether it had a ring of truth or
whether it didn't. If you don't believe what
Mark Kibbe said, Mark Kibbe is guilty.
***
There's a reasonable inference, the inference of
guilt of consciousness, guilt from his flight.
The explanation that he offered to you is not
worthy of believing. This is a fanciful
explanation, not one that comports with your idea
of common sense.
***
It is not a reasonable story. It is the one
arrived at after the facts to mislead you.

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C. Procedural History

After Kibbe's jury trial and conviction, the case proceeded

to the Appeals Court for the Commonwealth of Massachusetts. In a

Memorandum and Order, the court affirmed Kibbe's conviction.

Commonwealth v. Kibbe, 646 N.E.2d 1097 (Mass. App. Ct. 1995) (affirming

judgment only), No. 93-P-1761 (Mar. 3, 1995) (mem. and order under Rule

1:28). Relying in large part on Anderson v. Charles, 447 U.S. 404

(1980), and Commonwealth v. McClary, 604 N.E.2d 706 (Mass. App. Ct.

1992), the court rejected Kibbe's argument that the Commonwealth's

cross-examination and closing argument violated the rule established in

Doyle v. Ohio, 426 U.S. 610, 617-19 (1976), prohibiting the use of

post-Miranda silence to impeach a defendant. Kibbe, No. 93-P-1761 at

2.3 The Court ruled that since Kibbe had spoken to police about "all

matters concerning the charge for which he was arrested," the

Commonwealth was permitted to question Kibbe about any omissions in his

story. Id. at 3. In support, the court quoted McClary: "if a

defendant does not elect to remain silent but speaks to the police

about matters concerning the crime for which he has been arrested, the

3 Kibbe also challenged the Commonwealth's comment during closing
argument that: "If you don't believe what Mark Kibbe said, Mark Kibbe
is guilty." The appeals court found that the remark, while improper,
was sufficiently neutralized by the judge's instructions to the jury
regarding the burden of proof and the closing arguments of counsel.
Kibbe, No. 93-P-1761 at 4. On habeas review, the district court found
that the error was harmless when considered on its own. Kibbe v.
Dubois, 120 F. Supp. 2d 114, 133 (D. Mass. 2000). Kibbe does not
appeal this conclusion.

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prosecutor may ask the defendant about any omission from his post-

Miranda statement which is at variance with his trial testimony." 604

N.E.2d at 710. The Massachusetts Supreme Judicial Court denied Kibbe's

request for further review. Commonwealth v. Kibbe, 648 N.E.2d 1286

(Mass. 1995).

Kibbe next petitioned for a writ of habeas corpus in the

federal district court of Massachusetts, which was granted in a

Memorandum and Order on September 26, 2000. Kibbe v. Dubois, 120 F.

Supp. 2d 114 (D. Mass. 2000). In analyzing Kibbe's alleged Doyle

violation, the district court first found that the claim was subject to

the provisions of the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), 28 U.S.C. § 2254(d), petitioner's case having been

filed in January of 1997. Kibbe, 120 F. Supp. 2d at 118. As such,

Kibbe's writ must be denied unless the state court adjudication

"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States," 28 U.S.C.

§ 2254(d)(1), or "resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding." 28 U.S.C. § 2254(d)(2).

After reviewing the Supreme Court's most comprehensive

interpretation of AEDPA in Williams v. Taylor, 529 U.S. 362 (2000), the

district court held that the Massachusetts appeals court decision was

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both contrary to and involved an unreasonable application of clearly

established federal law as determined by the Supreme Court.4 Kibbe, 120

F. Supp. 2d at 121. The district court held that the state court

decision was "contrary to" clearly established federal law in two ways.

First, it ruled that the holding of Doyle that "prohibits cross-

examination and arguments to the jury regarding a defendant's post-

Miranda silence," should have governed Kibbe's claim. Id. at 121-24

(citing Doyle, 426 U.S. at 619). It further held that the appeals

court erred in applying Charles because the Commonwealth did not use

Kibbe's failure to provide police with a reason for his flight to

expose inconsistencies between his trial testimony and his statements

after his arrest. According to the district court, "The Charles rule

. . . is only triggered when the defendant's trial testimony addresses

the same subject matter as the defendant's post-arrest statement."

Kibbe, 120 F. Supp. 2d at 123. Because Kibbe only discussed his

reasons for being in the area of 171 Almira Road and not the reason for

his flight from the police, the district court ruled that he had

elected to remain partially silent, at least with regard to his flight,

and thus, comment by the government constituted error.

4 The district court declined to "fully develop" whether the appeals
court decision involved an unreasonable determination of the facts in
light of the evidence, providing an independent basis for habeas
relief. Kibbe, 120 F. Supp. 2d at 127 n.24.

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 As a second basis for finding that the state court decision

was contrary to clearly established federal law, the district court

held that the appeals court misstated the rule of Anderson v. Charles.

Id. at 125. The state court relied, in large part, on the McClary case

in rejecting Kibbe's appeal. McClary, in turn, focused not on the

inconsistency between the defendant's arrest and trial statements, but

instead on the fact that the defendant chose to waive his Miranda right

to silence and to answer questions posed by the police. 604 N.E.2d at

710. The district court found that this approach impermissibly

expanded the bounds for questioning a defendant regarding post-Miranda

silence set out in Charles:

The breadth of the language in McClary, however,
opened the door to questioning and comments by
the prosecutor with respect to any subject
matter, regardless of actual or potential
inconsistency, whenever the defendant makes a
post-arrest statement regarding the crime. This
is not the rule of Anderson v. Charles. The
Charles case only authorizes a prosecutor to ask
questions about post-Miranda omissions when those
omissions are on the same topic as the trial
testimony and arguably contradict it.

Kibbe, 120 F. Supp. 2d at 125-26. To the extent that the Kibbe state

court decision adopted the reasoning of McClary, it violated clearly

established federal law as determined by the Supreme Court in Charles.

As an alternative ground for granting habeas relief, the

district court held that the state court's adjudication involved an

unreasonable application of clearly established Supreme Court law. Id.

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at 126. The district court pointedly disagreed with the appeals court

conclusion that Kibbe had waived his right to silence in its entirety.5

Instead, the district court parsed the subject of the arson and Kibbe's

potential involvement into two categories: his explanation for being at

171 Almira Road on the evening of November 19, 1991, and his

explanation for his flight from the police that night. Id. at 126-27.

Because Kibbe did not discuss with police the reason for his flight,

the district court found that Kibbe had "waived his right to remain

silent with respect to some matters, but not with respect to all

matters." Id. at 127.

Examining appeals court decisions from the First, Second,

Fifth, Eighth, and Tenth Circuits to evaluate the reasonableness of the

state court decision, the district court concluded that its own

interpretation of the " Doyle-Charles framework" was correct. Id. at

127-30. While acknowledging that applicable First Circuit precedent

includes only one case, Grieco v. Hall, 641 F.2d 1029 (1st Cir. 1981),

in which we specifically mentioned, but failed to resolve, the exact

5 It was in this disagreement that the district court explicitly held
that the appeals court had made a factual determination that was
clearly unreasonable in light of the evidence, but declined to
determine whether the decision was based on the error. Kibbe, 120 F.
Supp. 2d at 127 n.24. The district court's own interpretation of the
state court decision belies the notion that the appeals court based its
affirmance on the complete, rather than partial, waiver of silence,
rather than on the idea that speaking to police about the crime opens
the door to prosecutorial comments on omissions in one's story. We
conclude that this avenue to habeas relief is a dead end.

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issue that was before the Kibbe court, the district court cited Grieco

as "reject[ing] the loose waiver analysis exemplified by Kibbe," id. at

128. The court stated that, "This does not mean that any time a

defendant makes any post-arrest statement the door is open to full

cross-examination about the defendant's failure to recount the

exculpatory trial story earlier. Miranda protections apply equally to

refusals to answer specific questions." Id. (quoting Grieco, 641 F.2d

at 1034).

The district court found more explicit support for its

conclusion that the Commonwealth committed a Doyle violation in its

cross-examination and closing comments in the Fifth and Tenth Circuits.

In United States v. Laury, 985 F.2d 1293 (5th Cir. 1993), the Fifth

Circuit held that a prosecutor's questions and comments regarding the

defendant's failure to come forward with his alibi prior to trial,

despite having made exculpatory statements after his arrest, were

impermissible comments on the defendant's post-arrest silence. 985

F.2d at 1303-04. Similarly, the Tenth Circuit has addressed

circumstances of "partial silence," and concluded that a defendant is

still entitled to Doyle protection as to silences that are not

inconsistent with his trial testimony. United States v. Canterbury,

985 F.2d 483, 486 (10th Cir. 1993).

Rounding out its favorable precedent, the district court

discussed United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir.

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1989), for its holding that the prosecutor erred in cross-examining the

defendant about his silence when his pretrial and trial statements were

not inconsistent. The district court concluded: "These cases

demonstrate that the Kibbe decision runs directly contrary to existing

federal precedent applying Charles. Thus, I conclude not only that

Kibbe has the better of two reasonable legal arguments. Rather, I am

firmly convinced that error occurred and that the Kibbe decision is an

unreasonable outcome." Kibbe, 120 F. Supp. 2d at 130-31.

The district court went on to find that the alleged Doyle

errors were not harmless, and granted Kibbe's petition for a writ of

habeas corpus. Id. at 131-33.

DISCUSSION

We agree with the district court's statements that Kibbe's

habeas petition is governed by the provisions of AEDPA, and that the

Williams case is the most comprehensive commentary by the Supreme Court

on the proper interpretation of AEDPA. We also agree that the AEDPA

provisions compel two separate analyses: (1) whether the state court

decision was contrary to clearly established law as set forth by the

Supreme Court; and (2) whether the state court decision effected an

unreasonable application of Supreme Court precedent. O'Brien v.

Dubois, 145 F.3d 16, 24 (1st Cir. 1998).6 The district court having

6 Although the present case pre-dated the Supreme Court's Williams
case, we have since held that the two-step inquiry set out in O'Brien
parallels the Williams analysis and "thus remains good law." Williams

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found that Kibbe was entitled to habeas relief under both the "contrary

to" and "unreasonable application" clauses, we will proceed with our

analysis in that order. First, however, we address an argument made by

the Commonwealth that has thus far received little judicial attention.

A. Inference of Cooperation

In response to the various challenges to the cross-

examination and closing argument at issue, the Commonwealth has mounted

something of a hybrid defense of the prosecutor's trial references to

Kibbe's silence. At times, the Commonwealth, relying on McClary and

Charles, has argued that Kibbe's willingness to answer police questions

about his involvement with the fire demonstrated a waiver of his right

to silence. As such, the prosecutor was entitled to question Kibbe

about any omissions from his post-arrest statement. Woven throughout

the Commonwealth's filings and in-court statements, however, is the

separate argument that the prosecutor's tactics were merely a

permissible attempt to counter the impression conveyed by Kibbe's

defense that he had cooperated fully with the police.

Relying on McClary, the state appeals court order declined

to comment on this cooperation justification. The district court

rejected the argument in a footnote, stating that because Kibbe had

answered all of the questions put to him by the police, he had fully

cooperated: "He simply did not volunteer the information about why he

v. Matesanz, 230 F.3d 421, 424 (1st Cir. 2000).

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fled. He was not required to do so." Kibbe, 120 F. Supp. 2d at 122

n.16. Any impression that the defense had created that Kibbe had fully

and voluntarily cooperated was, according to the district court, simply

an accurate depiction of what had occurred.

Several circuits, including this one, have held that the

Doyle restriction on a defendant's post-arrest silence does not apply

when a defendant has created the impression through his testimony and

defense presentation that he fully cooperated with the authorities

when, in fact, he had not. United States v. Shue, 766 F.2d 1122, 1129

(7th Cir. 1985); Grieco, 641 F.2d at 1033. "[T]he defendant will not

be permitted to use Doyle as a tool to fashion an uncontradicted and

distorted version of post-arrest behavior." Id. A review of the trial

transcripts persuades us that a primary defense strategy was indeed to

convey a picture of full cooperation to the jury, without getting too

much into the specifics of just what that cooperation entailed. When

asked what he told the police, Kibbe responded, "I told them what

happened," which prompted, "Ok. So you explained to them what

happened, is that correct?" and "Yes." In his opening statement,

Kibbe's counsel said of Kibbe's behavior toward the police, "[H]e

explained what he was doing and what the situation was on that

evening." Finally, during closing argument, defense counsel stated:

"Mr. Kibbe told the police what he was up to that night. He didn't

have to, but he did."

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 It may very well be true that Kibbe responded to every

question that the police asked him on November 19, 1991. Unlike the

district court, however, we do not believe that Kibbe's cooperation, as

to the questions posed to him, entitled him to give the erroneous

impression to the jury that he had provided a complete version of the

events to the police, including the reason for his flight. We believe

that Kibbe's defense strategy intended to convey the impression that,

at trial, he was giving the exact same story he had given to the police

earlier - that is, "what the situation was on that evening" - when in

reality he had not. Once this trial strategy was put in place, the

prosecutor was entitled to ask Kibbe whether he had told the police why

he ran. We find no constitutional error in the cross-examination.

Yet, this does not end the inquiry, because the prosecutor's

comments during closing argument regarding Kibbe's failure to explain

his flight take a different slant than the cross-examination. In

closing, the prosecutor said:

And he tells you he runs because he is on parole,
but you know he didn't tell the police that,
didn't offer that as an explanation for what he
was doing. In a case where you're the finders of
the facts, you have to decide credibility. You
have to decide credibility.

Rather than exposing Kibbe's cooperation strategy for the partial sham

that it was, the prosecutor's reference to Kibbe's silence instead

seems aimed at attacking Kibbe's credibility regarding the proffered

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reason for his flight. This use of Kibbe's silence arguably exceeded

the permissible bounds prescribed for the cooperation exception:

"[W]hile the government may use a defendant's post-arrest silence to

impeach testimony about the circumstances of an arrest, the government

may not then argue that the defendant's silence was inconsistent with

this claim of innocence." Shue, 766 F.2d at 1130. "[W]e cannot uphold

an interpretation of the facts in this case which would allow the

exception to swallow the rule." Grieco, 641 F.2d at 1033-34. The

Commonwealth, having emphasized Kibbe's silence to suggest that his

story was "not worthy of believing," cannot now justify its actions

through the safe harbor of the cooperation exception to Doyle's

prohibition. We are compelled, then, to proceed to the argument

rejected by the district court that Kibbe had waived his right to

silence and thus was unprotected by Doyle.

B. Contrary to Clearly Established Federal Law

The district court held that the state court decision was

contrary to clearly established federal law in two ways: first, in

holding that Charles, rather than Doyle, controlled Kibbe's case, and,

second, in relying on McClary, an incorrect interpretation of Charles.

In order to determine whether a state court decision is contrary to

federal law as determined by the Supreme Court:

[T]he key inquiry, at bottom, is whether a
Supreme Court rule--by virtue of its factual
similarity (though not necessarily identicality)

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 or its distillation of general federal law
precepts into a channeled mode of analysis
specifically intended for application to variant
factual situations--can fairly be said to require
a particular result in a particular case.

O'Brien, 145 F.3d at 25 (emphasis added). The category of cases

falling under the "contrary to" prong should not be conceived so

broadly as to "sap the 'unreasonable application' clause of any

meaning." Phoenix v. Matesanz, 233 F.3d 77, 80 (1st Cir. 2000).

Turning to the case at hand, the appeals court decision would

be contrary to clearly established federal law if a reading of Doyle,

in conjunction with Charles, compelled a contrary outcome. The Charles

interpretation of Doyle states that: "The case involved two defendants

who made no postarrest statements about their involvement in the

crime." Charles, 447 U.S. at 407. The Supreme Court in Doyle faced a

question different from that presented in the state court to the extent

that Kibbe did not rely on his right to remain silent, but instead

answered all police questions relating to his potential responsibility

for the fire.

We find this distinction significant on the question of

whether Doyle requires a finding of a due process violation in this

case, especially in light of the fact that the Supreme Court has

allowed prosecutors to comment on a defendant's post-arrest silence in

multiple circumstances. Charles admits of some use of a defendant's

post-arrest silence to expose prior inconsistent statements. Further,

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a defendant's silence may be used for impeachment purposes when a

defendant has not received Miranda warnings. Fletcher v. Weir, 455

U.S. 603, 606-07 (1982); Jenkins v. Anderson, 447 U.S. 231, 239 (1980).

These cases caution against an absolute and expansive construction of

Doyle's mandate, especially considering the particular factual

circumstances found here.

In our view, Doyle cannot be extended so far as to compel a

contrary outcome in Kibbe's case. Indeed, were the outcome so obvious,

there would have been no reason for us to leave unresolved the question

of whether Doyle or Charles should apply "to a situation where the

defendant has not maintained silence after arrest, but has made

exculpatory post-arrest statements which are not themselves

inconsistent with the exculpatory trial story, but which relate to a

different subject matter." Grieco, 641 F.2d at 1036. The district

court's finding that Kibbe maintained his silence as to the reason for

his flight and that therefore Doyle necessarily applies is an

extrapolation more appropriate for an "unreasonable application"

analysis than for the "contrary to" analysis.

C. "Unreasonable Application" of Supreme Court Precedent

Absent a clearly controlling Supreme Court rule that is

dispositive of a petitioner's claim, the federal habeas court must

determine "whether the state court's use of (or failure to use)

existing law in deciding petitioner's claim involved an unreasonable

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application of Supreme Court precedent." O'Brien, 145 F.3d at 24. A

state court decision may be set aside as an "unreasonable application"

of Supreme Court precedent "if the state court identifies the correct

governing legal rule from this Court's cases but unreasonably applies

it to the facts of the particular state prisoner's case," or "if the

state court either unreasonably extends a legal principle from our

precedent to a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it should

apply." Williams, 529 U.S. at 408. This analysis distills to a

"question of whether the state court's derivation of a case-specific

rule from the Court's generally relevant jurisprudence appears

objectively reasonable." O'Brien, 145 F.3d at 25 (emphasis added);

accord Williams, 529 U.S. at 409-10 (holding that the assessment of

unreasonableness demands an objective analysis).

Because of this broad objective standard, a federal court

cannot grant habeas relief simply because it disagrees with or finds an

error in the state court's application of federal law. See id. at 410.

In the end, a state court decision is objectively unreasonable under

AEDPA only if it is "so offensive to existing precedent, so devoid of

record support, or so arbitrary, as to indicate that it is outside the

universe of plausible, credible outcomes." O'Brien, 145 F.3d at 25;

Williams v. Matesanz, 230 F.3d 421, 425 (1st Cir. 2000) (affirming "the

outside-the-universe-of-plausible-outcomes" test).

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 In the instant case, the district court held that the state

court unreasonably applied clearly established federal law by extending

Charles to the facts of Kibbe's case. More specifically, the district

court ruled that the Kibbe court's attempted application of Charles "is

devoid of record support" given the significant factual dissimilarities

between the two cases. Kibbe, 120 F. Supp. 2d at 126. The district

court noted that Charles authorized a prosecutor to ask questions about

post-Miranda omissions when those omissions were on the same topic as

the trial testimony. In Kibbe's case, however, the prosecutor

commented on the defendant's post-Miranda omissions, even though those

omissions did not relate to the subject matter of the trial testimony.

Because of this discrepancy, the district court concluded that the

state court had unreasonably applied Charles to Kibbe's case.

The district court discovered a second unreasonable

application of federal law when it found that the Kibbe decision

contradicted several federal circuit court cases. The district court

held that the state court's decision - and, more specifically, the

application of Charles to Kibbe's case - was an anomaly: a decision

that was in such contrast with existing federal precedent as to be

"offensive."

Though the district court's interpretation of federal

precedent and its analysis of post-arrest silence issues may be

correct, our analysis here is confined to determining the

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reasonableness, not the accuracy, of the state court's decision.

Again, neither disagreement with nor the existence of an error in a

state court's decision is enough to set aside a conviction under AEDPA.

With these guiding principles, we next consider whether the

state court's decision in Kibbe is objectively reasonable - whether it

falls "outside the universe of plausible, credible outcomes." O'Brien,

145 F.3d at 25. In assessing the reasonableness of the Kibbe decision,

it is important to reiterate that the facts of this case fall outside

of any clearly established Supreme Court precedent, most notably Doyle

v. Ohio and Anderson v. Charles.

In Doyle, the Court held that a prosecutor could not impeach

a defendant's exculpatory story told for the first time at trial by

cross-examining the defendant about his failure to recount the story

upon his arrest. 426 U.S. at 619. Unlike Doyle, where the defendants

remained completely silent after being arrested, Kibbe made a post-

Miranda statement to police about the crime.

The facts of Kibbe's case do not fall squarely within

Charles, either. The Charles Court ruled that when a defendant makes

a post-Miranda statement on a particular subject, and then makes a

second statement on the same subject at trial, a prosecutor can refer

to post-arrest silence to expose any inconsistencies between the two

statements. 447 U.S. at 409. Unlike Charles, however, Kibbe's

testimony at trial dealt with a subject matter not addressed in his

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post-arrest statements - that is, the reason for his flight. Thus,

neither Doyle nor Charles dealt with the situation presented here:

where Kibbe made a post-arrest statement, which was not inconsistent

with his trial testimony.

Because of this unresolved issue, the likelihood increases

that there are other reasonable, yet contradictory, interpretations of

Supreme Court precedent. One clear interpretation of the Doyle-Charles

framework argues, as the district court did, that when a defendant has

waived his right to remain silent, a prosecutor's inquiry into the

defendant's post-arrest silence is limited to exposing inconsistencies

between the defendant's post-arrest statement and trial testimony.

Kibbe, 120 F. Supp. 2d at 127. However, an alternative interpretation

argues, as the state court did, that when a defendant waives his right

to remain silent and answers questions about the crime, a prosecutor

can inquire into the defendant's post-arrest silence to expose any

differences between the defendant's post-arrest statement and trial

testimony, not just prior inconsistent statements.

Through a credible interpretation of federal precedent, it

is quite plausible for a court to arrive at the Kibbe court's decision.

First, a court could argue, as some have, that Doyle's prohibition on

inquiring into a defendant's post-arrest silence only applies when the

defendant invokes his right to remain silent. See Charles, 447 U.S. at

407 (characterizing Doyle as a "case that involved two defendants who

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made no postarrest statements about their involvement in the crime");

United States v. Ochoa-Sánchez, 676 F.2d 1283, 1286 (9th Cir. 1982)

(noting that in a situation in which the defendant does not remain

silent, the controlling authority is Charles, not Doyle). Second,

though the Charles Court only authorized a prosecutor to comment on

post-arrest silence when omissions reveal inconsistencies between the

post-arrest statements and the trial testimony, a court could plausibly

argue that this holding should be extended to cover the facts of

Kibbe's case. In both cases, defendants voluntarily waived their right

to remain silent and offered trial testimony that was at variance with

their post-arrest statement, either because information was omitted as

in Kibbe or because inconsistent versions were given as in Charles.

Because the thrust of the Charles holding was aimed at exposing

defendants' multiple and diverging version of events, a court could

credibly conclude that Charles should be read to allow a prosecutor to

probe any differences between post-arrest statements and trial

testimony, including a defendant's failure to provide important

information at the time of arrest.

Furthermore, there is support for the Kibbe decision in

existing case law. In Ochoa-Sánchez, the defendant's car was stopped

and inspected by customs officials at the San Ysidro Port of Entry.

676 F.2d at 1284. Upon finding heroin in the vehicle, officials

arrested the defendant and gave him the Miranda warnings. The

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defendant then waived his right to remain silent and made exculpatory

statements. Id. at 1286. At trial, the defendant testified to

information and details that he omitted from his post-arrest statement,

and the prosecutor inquired into these omissions, even though some of

the omissions differed from - but were not necessarily inconsistent

with - his post-arrest statement. Id. at 1287. The court found the

prosecutor's inquiry and comments regarding the omissions permissible

because the defendant's trial testimony raised an issue of credibility,

and the prosecutor "argued vigorously in closing argument about the

credibility of defendant's trial testimony." Id.

As in Ochoa-Sánchez, the prosecutor in Kibbe exposed the

differences between the defendant's trial testimony and post-arrest

statement by emphasizing an important omission - Kibbe's failure to

explain his flight upon his arrest. This divergence gives rise to an

issue of credibility. Following the ruling in Ochoa-Sánchez, the

prosecutor in Kibbe proceeded to question the credibility of the

defendant by focusing on the omission: "And [the defendant] tells you

he runs because he is on parole, but you know he didn't tell the police

that, didn't offer that as an explanation for what he was doing. In a

case where you're the finders of the facts, you have to decide

credibility."

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 More explicit support for the Kibbe decision can be found in

United States v. Goldman, 563 F.2d 501 (1st Cir. 1977).7 In Goldman,

the defendant made an exculpatory statement during an interrogation by

a federal agent, but refused to respond to two of the agent's

questions. Id. at 503. At trial, the prosecutor commented on the

defendant's failure to respond to these questions, and we upheld the

prosecutor's conduct. This Court reasoned that because the defendant

had waived his right to remain silent, he "dispell[ed] the particular

prejudice feared by the Supreme Court that the jury would draw a

'strong negative inference ... from the fact that the defendant

remained silent at the time of his arrest.'" Id. at 504 (quoting United

States v. Hale, 422 U.S. 171, 180 (1975)). Thus, if a defendant talks,

anything that "'he says or omits is to be judged on its merits or

demerits.'" Id. (quoting Vitali v. United States, 383 F.2d 121 (1st

Cir. 1967)). This waiver analysis permitted the prosecutor to comment

on any omissions in Kibbe's post-arrest statement by virtue of the fact

that the defendant did not invoke his right to remain silent.

As further support for the reasonableness of the state court

decision, this Court in Grieco left unresolved the specific issue

7 Though Goldman pre-dates the Charles opinion, the Charles Court cited
Goldman positively. Charles, 447 U.S. at 2182. Furthermore, the
waiver analysis in Goldman is still employed in the Second Circuit,
which allows prosecutors to comment on omissions in a defendant's post-
arrest statements when the defendant refuses to testify at trial. See,
e.g., Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990).

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presented here. Grieco explicitly left open the question of whether

Doyle or Charles should apply "to a situation where the defendant has

not maintained silence after arrest, but has made exculpatory post-

arrest statements which are not themselves inconsistent with the

exculpatory trial story, but which relate to a different subject

matter." 641 F.2d at 1036. Had the application of Charles to such a

scenario been so "offensive" or "arbitrary," it is unlikely that this

Court would have left the issue unresolved. Furthermore, given its

limited scope of review under AEDPA, a federal habeas court ought not

provide the definitive answer to this open question.

CONCLUSION

Given that the state court's analysis of the Doyle-Charles

framework rests upon a plausible interpretation of Supreme Court

precedent, considering the case law that supports the Kibbe decision,

and noting that the Grieco court left the specific issue addressed in

Kibbe unresolved, we hold that the state court's decision is

objectively reasonable, as it does not fall "outside of the universe of

plausible, credible outcomes." For these reasons, we reverse the

district court's decision to grant Mark Kibbe's petition for the writ

of habeas corpus.

Reversed.

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(Concurrence follows)

-29-
 LYNCH, Circuit Judge (concurring in the judgment). I concur

in the judgment reversing and vacating the district court's grant of

habeas corpus.

The standard of reasonableness we must use in evaluating the

state court's decision is that articulated by the Supreme Court in

Williams v. Taylor, 529 U.S. 362 (2000).8 In that case, Justice

O'Connor (commanding, for this part of her opinion, a majority of the

Court) read 28 U.S.C. § 2254(d)(1)'s limitation on the federal courts'

power to grant writs of habeas corpus to mean that "[a] federal habeas

court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable." 529 U.S. at 411. The

Court warned, however, that a court "should not transform the inquiry

into a subjective one by resting its determination instead on the

simple fact that at least one of the Nation's jurists has applied the

8 I do not agree that the standard this Circuit applied in O'Brien v.
Dubois, 145 F.3d 16 (1st Cir. 1998), at least as it is literally read,
is equivalent to or consistent with the Williams standard. See id. at
25 ("[F]or the writ to issue, the state court decision must be so
offensive to existing precedent, so devoid of record support, or so
arbitrary, as to indicate that it is outside the universe of plausible,
credible outcomes."). In my view, this particular holding of O'Brien
-- the "outside the universe of plausible, credible outcomes" test --
has been overruled. Other aspects of O'Brien remain sound.
Nevertheless, this is not the case to resolve the issue, as either
standard would yield the same result here. For this reason, I do not
engage in exposition of my reasoning. For the same reason, I consider
the majority opinion's use of O'Brien dictum.

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relevant federal law in the same manner the state court did." Id. at

410. In applying § 2254(d)(1), as in assessing the novelty of law

under Teague v. Lane, 489 U.S. 288 (1989), "the mere existence of

conflicting authority" does not resolve the question. Williams, 529

U.S. at 410 (quoting Wright v. West, 505 U.S. 277, 304 (1992)

(O'Connor, J., concurring in the judgment)) (internal quotation marks

omitted). Moreover, the Court rejected the test advanced by the Fourth

Circuit that permitted the grant of habeas only if "reasonable jurists

would all agree" that the state court erred in applying federal law.

Id. at 409 (quoting Green v. French, 143 F.3d 865 (4th Cir. 1998))

(internal quotation marks omitted).

I would reverse the grant of habeas for either of two

reasons, alone or in combination. First, when Kibbe argued at trial

that he had cooperated with the police on the night of his arrest, he

opened the door to a full development of his actions, at least on the

issue of cooperation. This reasoning predates Doyle v. Ohio, 426 U.S.

610 (1976), and was cited with approval by the Court in that case. See

United States v. Fairchild, 505 F.2d 1378, 1383-84 (5th Cir. 1975),

cited in Doyle, 426 U.S. at 619 n.11. Similar analyses continue to

appear in decisions by federal circuit and state supreme courts. E.g.,

United States v. Reveles, 190 F.3d 678, 683-85 (5th Cir. 1999); Earnest

v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996); Pennycuff v. State, 745

N.E.2d 804, 812-14 (Ind. 2001). Our own Grieco v. Hall, 641 F.2d 1029

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(1st Cir. 1981), acknowledges, although it does not apply, the holdings

of the cooperation cases. Id. at 1033-34. In my view, Kibbe opened

the door sufficiently wide to admit both the cross-examination and the

prosecutor's single comment in closing. The latter comment regarded

Kibbe's explanation for his flight, and the question why he fled is

sufficiently bound up with the question whether he cooperated that I do

not think the comment violated due process of law. That rationale

alone supports the outcome reached by the state court, and it is the

outcome reached by that court's reasoning, rather than the path it

followed, that we must ultimately assess. Hurtado v. Tucker, 245 F.3d

7, 20 (2001).

Second, even if an analysis based on Kibbe's decision to use

a cooperation theme is rejected (as it should not be), and the case is

placed somewhere on the Doyle-Charles spectrum, the state decision is

simply not an "unreasonable application of . . . clearly established

Federal law . . . as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d)(1) (Supp. II 1996). That is all we need

decide and I prefer not to engage in extensive discussion in dicta of

possible developments in the law in this area.

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