Gibbs v. Frank

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Precedential or Non-Precedential: Precedential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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 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

12