Adam Rosen v. Superintendent Mahanoy SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 18-3111
__________

ADAM ROSEN,
Appellant

v.

SUPERINTENDENT MAHANOY SCI;
ATTORNEY GENERAL OF THE COMMONWEALTH OF
PENNSYLVANIA
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-04539)
District Judge: Honorable Nitza I. Quiñones Alejandro
______________

Argued March 11, 2020

Before: McKEE, AMBRO, and PHIPPS Circuit Judges

(Opinion filed: August 26, 2020)

Karl D. Schwartz [Argued]
Jonathan D. Cioschi
Wiseman & Schwartz, LLP
718 Arch Street, Suite 702
Philadelphia, PA 19106
Counsel for Appellant
Adrienne D. Jappe [Argued]
Robert M. Falin
Montgomery County Office of District Attorney
P.O. Box 311
Norristown, PA 19404
Counsel for Appellees
_________

OPINION OF THE COURT
__________
McKEE, Circuit Judge.

Adam Rosen asks us to reverse the District Court’s
denial of his petition for habeas corpus.1 The Commonwealth
of Pennsylvania requested a psychiatric exam of Rosen in
preparation for his first murder trial, where he raised a
diminished capacity defense. After his first conviction was
overturned, he abandoned his diminished capacity defense.
Rosen argues that the second trial court violated his Fifth
Amendment right to remain silent when it ruled that his
statements from the court-ordered psychiatric exam were
admissible to impeach Rosen if he chose to testify at his second
trial. After electing not to testify, Rosen was again convicted
of murder. Because Rosen cannot demonstrate that using his
statements to the Commonwealth’s psychiatric expert at the
second trial for the limited purpose of impeachment would
violate clearly established Fifth Amendment law, we will
affirm the District Court’s dismissal.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background

On June 30, 2001, Adam Rosen stabbed his wife, Hollie
Rosen, to death in their home.2 Thereafter, Rosen called the
police and claimed that masked intruders had invaded his home
and stabbed his wife.3 However, within several hours, he
confessed to the stabbing but claimed it was an unintentional

1
28 U.S.C. § 2254.
2
Rosen v. Kerestes, Civil Action No. 15-4539, 2017 U.S.
Dist. LEXIS 179378, at *2 (E.D. Pa. Oct. 25, 2017).
3
Id.
2
response to his wife swinging a knife at him.4 According to
Rosen, he and his wife had been arguing in the kitchen that
morning when she nicked him on the neck and stomach with a
knife.5 He claimed he followed her upstairs and then blacked
out. The next thing he said he remembered was seeing his
severely wounded wife on the bedroom floor. Hollie Rosen
died of stab wounds to her back, neck, and chest.6 Adam Rosen
was arrested and charged with first degree murder.7
B. Rosen’s First and Second Murder Trials
At his first trial, Rosen presented a diminished capacity
defense.8 In support of his defense, Rosen retained and was
evaluated by psychiatrist Dr. Paul Fink.9 The trial court granted
the Commonwealth’s motion to have Rosen evaluated by its
own expert, Dr. Timothy Michals, in order to rebut the
diminished capacity defense.10 The record does not show that
he was Mirandized prior to this evaluation.11 Dr. Fink testified

4
Id. at *2-3, *6; Rosen Br. 2.
5
This version of events is based on Rosen’s statements to
his psychiatric expert. A121-22.
6
A122; see also Rosen, 2017 U.S. Dist. LEXIS 179378, at
*2.
7
A69.
8
Rosen, 2017 U.S. Dist. LEXIS 179378, at *3.
9
Id.
10
Id.
11
Rosen claims that Dr. Michals did not administer
Miranda warnings before Rosen’s interview, and that he
did not waive his right to remain silent. The
Commonwealth, on the contrary, argues that Dr. Michals
administered Miranda warnings and sought a waiver from
Rosen before examining him. The Commonwealth bears
the burden of establishing waiver and offers little to show
that Rosen was indeed given a comprehensive set of
warnings and thereafter knowingly and voluntarily waived
his right to remain silent. See Commonwealth v. Rosen, 42
A.3d 988, 1001 (Pa. 2012) (Saylor, J., dissenting)
(explaining that the Commonwealth did not argue or brief
warning-as-waiver issues below and therefore cannot rely
on waiver as a basis for admitting Rosen’s statements to
Dr. Michals); see also Gibbs v. Frank, 387 F.3d 268, 274
(3d Cir. 2004) (explaining that a compelled psychiatric
3
at trial that Rosen was incapable of forming the intent to kill
due to his manic-depressive mental illness, accompanied by
psychotic features and paranoia, and the stress caused by the
volatile deterioration of his marriage.12 Dr. Michals, on the
other hand, testified that Rosen did not have a mental disorder
that impaired his ability to form the specific intent to kill.13 Dr.
Michals also testified that discrepancies between the
statements Rosen made to the two psychiatric experts and
Rosen’s changing version of events—including his initial false
statement about the home invaders—demonstrated that Rosen
was self-serving.14 Rosen did not testify in his own defense and
the jury convicted him of first-degree murder.15

After Rosen was granted a new trial for reasons
unrelated to this appeal, he abandoned his diminished capacity
defense and notified the Commonwealth that he did not intend
to call a mental health expert.16 This time, Rosen planned to
testify in his defense and argue that he did not premeditate or
have the deliberate, willful intent to kill his wife.17
Nevertheless, the Commonwealth filed a motion in limine
seeking to admit Rosen’s statements to Dr. Michals about
killing his wife and those in which Rosen admitted he
previously attempted to rape her.18 The trial court ruled that
Rosen’s statements could not be used as substantive evidence
in the Commonwealth’s case-in-chief, but that the
Commonwealth could use the statements to impeach Rosen if

interview implicates the Fifth Amendment and therefore
the defendant-subject is entitled to Miranda warnings).
Assuming arguendo that Rosen was not given Miranda
warnings and did not waive his right to remain silent,
Rosen still fails to establish that he is entitled to relief.
12
Rosen, 42 A.3d at 990; A199-120.
13
Rosen, 42 A.3d at 990.
14
A150-51; see also Rosen Br. 4.
15
A70; Rosen, 2017 U.S. Dist. LEXIS 179378, at *3.
16
Rosen, 2017 U.S. Dist. LEXIS 179378, at *4.
17
A191; Rosen Br. 7.
18
A75. Rosen also submitted a motion in limine seeking to
exclude the testimony, and the trial court held oral
argument on the cross-motions. Rosen, 42 A.3d at 991.
4
he testified.19 After the trial court’s ruling, Rosen changed his
mind and chose not to testify at the ensuing bench trial.20 At
that trial, Rosen was convicted of first-degree murder and
sentenced to life in prison without the possibility of parole.

C. Pennsylvania Supreme Court Ruling

After the Pennsylvania Superior Court affirmed the
conviction, the Pennsylvania Supreme Court granted allocatur
review on the question of “[w]hether the limited Fifth
Amendment waiver occasioned by a mental health defense in
a defendant’s first trial allows the Commonwealth to use the
evidence obtained pursuant to such waiver as rebuttal in a
subsequent trial where no mental health defense is
presented.”21 Based upon several Pennsylvania state cases and
Supreme Court law on the Fifth Amendment, the court
affirmed the trial court’s ruling on the motion in limine.

In Commonwealth v. Morley, 681 A.2d 1254 (Pa. 1996),
the court held that a defendant who raises a mental health
defense in Pennsylvania waives the privilege against self-
incrimination under the Fifth Amendment and can be
compelled to submit to an examination by the
Commonwealth’s psychiatric expert. Likewise, in
Commonwealth v. Sartin, 751 A.2d 1140 (Pa. 2000), the court
held that a defendant who intends to use the results of his or
her own psychiatric exam can be compelled to submit to
examination by an expert of the Commonwealth’s choosing for
the purpose of rebutting the defense.22 Reading Morley and
Sartin together with Commonwealth v. Santiago23 and

19
This oral ruling was not transcribed. Fortunately, the
parties agree on the trial court’s ruling. Rosen, 2017 U.S.
Dist. LEXIS 179378, at *14.
20
Rosen, 42 A.3d at 991.
21
Id. at 993.
22
Sartin also made clear that the Fifth Amendment waiver
only allowed the Commonwealth to use the results of its
exam to rebut those issues implicated by the defense’s own
expert. Sartin, 751 A.2d at 1143.
23
Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995)
(holding that a defendant who presents his own expert
5
Commonwealth v. Boyle,24 the Pennsylvania Supreme Court
distilled the following rule: “[w]hen the defendant voluntarily
presents a mental health defense that he subsequently
abandons, the Commonwealth may, upon retrial, utilize the
results of its psychological examination as to those issues that
have been implicated by the defendant’s own expert.”25 The
court explained that because the Commonwealth could
introduce Dr. Fink’s testimony as substantive evidence, Dr.
Michals’ testimony “clearly could have been utilized in
response to those issues implicated by Dr. Fink’s testimony.”26

Finally, the court found that any error would have been
harmless because, if Rosen had testified, “all of the
impeachment evidence could have been elicited solely from
Dr. Fink, who was in possession of the same mental health
records and reports that Dr. Michals possessed.”27 Rosen
“made admissions of guilt to both” experts and could have
been impeached by the admissible statements he made to Dr.
Fink.28 Therefore, “there is no reasonable possibility that the
error may have contributed to the verdict.”29

D. District Court’s Ruling on Habeas Review

Rosen filed a habeas petition pursuant to 28 U.S.C. §
2254, arguing that the trial court’s ruling that his statements to
the Commonwealth’s psychiatric expert could be used to
impeach him violated his Fifth Amendment right to remain

psychiatric testimony at a first trial waives psychiatrist-
patient privilege with regard to his expert’s testimony at a
second trial where he no longer raises an insanity defense).
24
Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982)
(admitting defendant’s testimony from his first trial at a
subsequent trial where the defendant did not testify does
not violate the Fifth Amendment right to remain silent
because the constitutional privilege is waived).
25
Rosen, 42 A.3d at 997.
26
Id.
27
Id.
28
Id.
29
Id. at 998.
6
silent.30 The District Court denied the petition, explaining that
Rosen failed to show that the Pennsylvania Supreme Court’s
conclusion that there was no Fifth Amendment violation ran
afoul of clearly established federal law.31 The court explained
that Rosen “relies on snippets from several Supreme Court
cases and a Third Circuit case, in an attempt to extrapolate
‘clearly established Federal law’ from general principles and
materially distinguishable holdings of the Supreme Court.”32
Thus, the District Court concluded that Rosen had failed to
overcome the deference owed to state court decisions under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).33

II. JURISDICTION AND STANDARD OF REVIEW
A. Jurisdiction

Rosen brought this habeas corpus action under 28
U.S.C. § 2254. The District Court had jurisdiction under 28
U.S.C. §§ 2241(a) and 2254(a). The order of the District Court
dismissing the petition is an appealable final order. The District
Court denied a certificate of appealability, but we later granted
one on Rosen’s claimed Fifth Amendment violation.34
Jurisdiction for this appeal arises under 28 U.S.C. § 1291 and
28 U.S.C. § 2253(c)(1).

B. Standard of Review under AEDPA

We exercise plenary review over the District Court’s
denial of Rosen’s habeas petition.35 The Pennsylvania
Supreme Court decided the Fifth Amendment issue on the
merits. Therefore, pursuant to 28 U.S.C. § 2254(d), AEDPA
requires Rosen to show that the state court ruling:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly

30
Rosen v. Kerestes, Civil Action No. 15-4539, 2018 WL
4030740 (E.D. Pa. Aug. 22, 2018).
31
Id. at *1 n.1.
32
Id.
33
Id.
34
A3.
35
Ross v. Dist. Atty. Allegheny Cnty., 672 F.3d 198, 205
(3d Cir. 2012).
7
 established Federal law, as determined by the
Supreme Court of the United States; or
(2) 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.36

In Williams v. Taylor, 529 U.S. 362 (2000), the
Supreme Court elaborated on § 2254(d)(1), explaining:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives
at a conclusion opposite to that reached by this
Court on a question of law or if the state court
decides a case differently than this Court has on
a set of materially indistinguishable facts. Under
the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court
identifies the correct governing legal principle
from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
case.37

We have further explained that a state court decision is
“contrary to” clearly established law where “the Supreme
Court has established a rule that determines the outcome of the
petition.”38 “[I]t is not sufficient for the petitioner to show
merely that his interpretation of Supreme Court precedent is
more plausible than the state court’s; rather, the petitioner must
demonstrate that Supreme Court precedent requires the
contrary outcome.”39

A state court’s decision is an “unreasonable
application” of clearly established law where “evaluated
objectively and on the merits, [it] resulted in an outcome that
cannot reasonably be justified under existing Supreme Court
precedent. In making this determination, mere disagreement
with the state court's conclusions is not enough to warrant

36
28 U.S.C. § 2254(d).
37
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
38
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888
(3d Cir. 1999) (en banc), cert. denied 528 U.S. 824 (1999).
39
Id. (emphasis in the original).
8
habeas relief.”40 Importantly, this entails a “substantially
higher threshold” than a federal court’s independent judgment
that the state court’s application of Supreme Court precedent
was incorrect.41 Instead, the state court’s application of federal
law must be objectively unreasonable, not merely incorrect.42

Section 2254(d)(2), in turn, sharply restricts the
circumstances in which a federal habeas court may grant relief
based on a state court’s factual determinations. The petitioner
must show that the state court verdict was based on an
unreasonable determination of the evidence and that a
reasonable factfinder could not have reached the same
conclusion.43
III. DISCUSSION
A. Rosen failed to demonstrate that using his
statements to the Commonwealth’s psychiatric
expert to impeach him at his second trial would be
contrary to or an unreasonable application of clearly
established Fifth Amendment law.
We have previously described our approach to §
2254(d)(1) as a two-step analysis whereby “federal habeas
courts first . . . identify whether the Supreme Court has
articulated a rule specific enough to trigger ‘contrary to’
review; and second, only if it has not, . . . evaluate whether the
state court unreasonably applied the relevant body of
precedent.”44 The plain language of § 2254(d)(1) applies to “a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law”—applying the
latter to both the “contrary to” and “unreasonable application”
prongs of § 2254(d)(1).45 As we acknowledged in Matteo, there

40
Id. at 890.
41
Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Schriro
v. Landrigan, 550 U.S. 465, 473 (2007)).
42
Williams, 529 U.S. at 410
(“[A]n unreasonable application of federal law is different
from an incorrect application of federal law.”) (emphasis
in the original).
43
Campbell v. Vaughn, 209 F.3d 280, 291 (3d Cir. 2000).
44
Matteo, 171 F.3d at 888.
45
See Williams, 529 U.S. at 412 (“Under § 2254(d)(1), the
writ may issue only if one of the following two conditions
9
is likely some overlap amongst the parts of § 2254(d)(1), “but
we must attempt to read the statute so that each has some
operative effect . . . .”46

Accordingly, identifying an applicable principle of
clearly established Supreme Court law can be treated as a
prerequisite—or Step 0.5—to applying the two-step test from
Matteo. This approach is consistent with our decision in
Fischetti v. Johnson, where we explained that § 2254(d)(1)
“requires us to determine what the clearly established Supreme
Court decisional law was at the time petitioner’s conviction
became final[,]” and then “analyze the challenged state
decision in light of that decisional law under each of the two
prongs of the AEDPA test.”47

“Clearly established” Supreme Court law “refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decision.”48
Furthermore, in determining what is “clearly established,”
Supreme Court decisions cannot be viewed “at a broad level of
generality,” but instead must be viewed on a “case-specific
level.”49 The “clearly established Federal law” provision
requires Supreme Court decisions to be viewed through a
“sharply focused lens.”50

is satisfied—the state-court adjudication resulted in a
decision that (1) ‘was contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the
United States,’ or (2) ‘involved an unreasonable
application of . . . clearly established Federal law, as
determined by the Supreme Court of the United States.’”).
While Matteo was decided before Williams, we have since
affirmed that the analytical framework from Matteo
remains applicable. See Werts v. Vaughn, 228 F.3d 178,
197 (3d Cir. 2000).
46
Matteo, 171 F.3d at 888; see also Lindh v. Murphy, 521
U.S. 320, 336 (1997) (“[I]n a world of silk purses and pigs’
ears, [AEDPA] is not a silk purse of the art of statutory
drafting.”).
47
Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004).
48
Williams, 529 U.S. at 412.
49
Fischetti, 384 F.3d at 148.
50
Id. at 149.
10
 1. Clearly Established Supreme Court Law on the Fifth
Amendment
Rosen claims that it is clearly established federal law
that impeaching a defendant using evidence from the
government’s mental health expert after a mental health
defense is abandoned violates the Fifth Amendment. Rosen
draws this proposed principle primarily from three Supreme
Court cases: Estelle v. Smith, 451 U.S. 454 (1981); Buchanan
v. Kentucky, 483 U.S. 402 (1987); and Kansas v. Cheever, 571
U.S. 87 (2013). Rosen further relies on our decision in Gibbs
v. Frank, 387 F.3d 268 (3d Cir. 2004), although he concedes
that Gibbs is not clearly established Supreme Court law.51
Rosen primarily relies upon Estelle v. Smith. There, the
Supreme Court held that a “criminal defendant, who neither
initiates a psychiatric evaluation nor attempts to introduce any
psychiatric evidence, may not be compelled to respond to a
psychiatrist if his statements can be used against him at a
capital sentencing proceeding.”52 The trial judge had sua
sponte ordered an evaluation to determine the defendant’s
competency to stand trial.53 The prosecution later used
statements from that exam in a capital sentencing proceeding
as evidence of the defendant’s future dangerousness.54 The
defendant was sentenced to death.55 On appeal, the Supreme
Court reversed the sentence. It held that the Fifth Amendment
precluded the use of the defendant’s compelled statements

51
The state court judgment must not merely be contrary to
law as articulated by any federal court; rather “[i]t must
contradict ‘clearly established’ decisions of the United
States Supreme Court alone.” Fischetti, 384 F.3d at 147.
However, “[i]n determining whether a state decision is an
unreasonable application of Supreme Court precedent, this
court has taken the view that decisions of federal courts
below the level of the . . . Supreme Court may be helpful . .
. in ascertaining the reasonableness of state courts’
application of clearly established . . . Supreme Court
precedent.” Id. at 149 (internal quotation marks and
citation omitted).
52
Estelle, 451 U.S. at 468.
53
Id. at 456-57.
54
Id. at 459-60.
55
Id. at 460.
11
against him at the penalty phase where he introduced no
psychiatric evidence in his defense.56 The Court emphasized
the compelled nature of the defendant’s statements, which
were given in custody, pursuant to a court order, without
counsel present, and in the absence of Miranda warnings.57
Because the defendant was compelled to submit to the
evaluation and had not attempted to introduce any psychiatric
evidence of his own, the statements were inadmissible unless
the psychiatrist apprised the defendant of his rights and
obtained a valid waiver before questioning him.58

Rosen also relies on Buchanan v. Kentucky, 483 U.S.
402 (1987). In Buchanan, the defendant raised an extreme
emotional disturbance defense at his murder trial and called his
former social worker to testify in his defense.59 The prosecutor
cross-examined the social worker using the report from a court-
ordered exam that defense counsel and the prosecutor had
jointly requested for the purpose of seeking mental health
treatment for the defendant.60 The Supreme Court found no
Fifth Amendment violation, explaining that “if a defendant
requests such an evaluation or presents psychiatric evidence,
then, at the very least, the prosecution may rebut this
presentation with evidence from the reports of the examination
that the defendant requested.”61 The Court distinguished
Estelle because defense counsel here had jointly requested the
exam and the defendant had placed his own mental health at
issue.62 The Court concluded that “[t]he introduction of such a
report for this limited rebuttal purpose does not constitute a
Fifth Amendment violation.”63

56
Id. at 468.
57
Id. at 468-69.
58
Id. As we have noted, we will assume arguendo that
Rosen likewise was not apprised of his rights and did not
waive his right to remain silent before his psychiatric
exam.
59
Buchanan, 483 U.S. at 408-09.
60
Id. at 409-11.
61
Id. at 422-23.
62
Id. at 423.
63
Id. at 423-24.
12
 The Supreme Court in Kansas v. Cheever, 571 U.S. 87
(2013), applying Buchanan, found that the Fifth Amendment
allowed the prosecution to introduce statements from a
compelled mental health evaluation to rebut a mental health
defense.64 At his murder trial, the defendant in Cheever offered
a psychiatric expert to support his defense that voluntary
intoxication had rendered him incapable of premeditation.65
The state offered rebuttal testimony from the defendant’s
court-ordered psychiatric examination.66 The Supreme Court
held: “where a defense expert who has examined the defendant
testifies that the defendant lacked the requisite mental state to
commit a crime, the prosecution may offer evidence from a
court-ordered psychological examination for the limited
purpose of rebutting the defendant’s evidence.”67 The Court
explained that once a defendant presents expert psychological
evidence, the government cannot be denied “the only effective
means of challenging that evidence: testimony from an expert
who has also examined him.”68 The Court emphasized that the
compelled testimony was used “only after” the defendant
placed his mental health at issue and for the purpose of
rebutting the mental health defense.69

Although our decision in Gibbs is not Supreme Court
law, it is the most factually analogous case to Rosen’s and
assists our inquiry into what is “clearly established” Fifth
Amendment law in this court.70 There, Gibbs raised a mental

64
Cheever, 571 U.S. at 93-95.
65
Id. at 91.
66
Id. at 91-92.
67
Id. at 98.
68
Id. at 94.
69
Id. at 95.
70
Fischetti, 384 F.3d at 149 (“In determining whether a
state decision is an unreasonable application of Supreme
Court precedent . . . decisions of federal courts below the
level of the . . . Supreme Court may be helpful . . . in
ascertaining the reasonableness of state courts’ application
of clearly established . . . Supreme Court precedent.”)
(internal quotation marks and citation omitted). And while
the Pennsylvania Supreme Court is not bound by Gibbs, it
is a binding precedent in the District Court with respect to
13
infirmity defense at his first murder trial.71 The
Commonwealth’s expert, Dr. Sadoff, testified at the first trial
to rebut Gibbs’ expert testimony on diminished capacity.72
That testimony introduced several inculpatory statements
Gibbs made during the court-ordered exam.73 After his
conviction was overturned on other grounds, Gibbs decided not
to raise a mental health defense at his second trial. Instead, he
contested the identity of the shooter.74 Nevertheless, the trial
court allowed Sadoff to testify during the Commonwealth’s
case-in-chief.75 That testimony included Gibbs’ inculpatory
statements to Sadoff during his psychiatric interview.76 On
habeas review, we found that the trial court’s decision, as
affirmed by the Pennsylvania Superior Court, was an
unreasonable application of clearly established Supreme Court
law and granted Gibbs’ habeas petition.77 Importantly, we
granted the petition based on the limited scope of the Miranda
warnings given to Gibbs, which misstated the consequences of
his Fifth Amendment waiver—an issue not relevant to Rosen’s
appeal.78 However, we also stated that if Gibbs had not been
Mirandized at all—as Rosen claims he was not—“the state
ruling admitting the Gibbs interview in the second trial [would
be] contrary to [Estelle v.] Smith itself.”79 In justifying this
conclusion, we explained that “Sadoff was permitted to testify
in the prosecution case in chief… simply to repeat
incriminating statements that Gibbs had made.”80 This was
problematic because those statements were offered “simply for
the truth of the admissions of fact” and “not even to prove a
psychological point, since the second trial presented no
psychological issue before Sadoff testified.”81

what constitutes an unreasonable application of Fifth
Amendment law on habeas review.
71
Gibbs, 387 F.3d at 271.
72
Id.
73
Id.
74
Id.
75
Id.
76
Id.
77
Id. at 277.
78
Id. at 276.
79
Id. at 275.
80
Id.
81
Id.
14
 2. Application of Clearly Established Law to Rosen
Having reviewed the relevant Supreme Court law
through “a sharply focused lens[,]” we cannot conclude that
there is a directly applicable Supreme Court precedent that
would preclude the Commonwealth from using Rosen’s
statements against him at his second trial for the limited
purpose of impeachment.82 Rosen attempts to extrapolate a
principle of Fifth Amendment law from the similar yet
materially distinguishable cases we have just discussed.83
However, AEDPA’s deferential standard of review demands
more than this jigsaw approach. We therefore cannot find that
the Pennsylvania Supreme Court’s decision was either
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court . . . .”84

The rule from Estelle—that a “criminal defendant, who
neither initiates a psychiatric evaluation nor attempts to
introduce any psychiatric evidence, may not be compelled to
respond to a psychiatrist if his statements can be used against
him at a capital sentencing proceeding”—is far too narrow to
help Rosen here.85 Rosen both initiated an evaluation and
introduced psychiatric evidence at his first criminal trial. It is
undisputed that the Commonwealth could compel Rosen to be
examined by its own expert for the purposes of preparing a
rebuttal in the first trial.86 The Estelle Court expressly

82
Fischetti, 384 F.3d at 149.
83
We reiterate that cases Rosen relies upon are materially
distinguishable, such that we can identify discrete issues
the Supreme Court has not yet addressed. It would not be
enough to point to irrelevant or meaningless differences.
See Matteo, 171 F.3d at 888 (emphasizing that the
petitioner is not required “to cite factually identical
Supreme Court precedent”). The bar for relief under
AEDPA is high but must not be insurmountable lest we
effectively close the door to all relief on habeas. AEDPA
requires that we defer, not that we abdicate.
84
28 U.S.C. § 2254(d)(1).
85
Estelle, 451 U.S. at 468.
86
A529 (“Federal courts have consistently reiterated . . .
that when a defendant places his mental status at issue, his
15
acknowledged that “a different situation arises where a
defendant intends to introduce psychiatric evidence” and
expressed concern about the government’s ability to rebut such
evidence.87 Viewed through a “sharply focused lens,” Estelle
speaks only to the Fifth Amendment rights of someone who
never raises a mental health defense and not to the scope of the
Fifth Amendment waiver for someone, like Rosen, who raises
and presents an unsuccessful mental health defense that he later
abandons.88 The Pennsylvania Supreme Court could thus rely
on Commonwealth v. Boyle to find that the Fifth Amendment
waiver triggered by Rosen’s mental health defense at his first
trial extended to his second trial, at least with respect to the
issues raised by his own expert.89

Buchanan is even less helpful to Rosen. There, the
defense had joined in the request for the psychiatric evaluation
and therefore the defendant’s statements did not result from an
involuntary examination. Rosen stresses the phrase “limited

Fifth Amendment privilege against self-incrimination is
not violated by a court-ordered psychiatric examination.”);
see also Rosen, 42 A.3d at 996-97 (discussing Morley and
Sartin).
87
Estelle, 451 U.S. at 472; see also id. at 465 (“When a
defendant asserts the insanity defense and introduces
supporting psychiatric testimony, his silence may deprive
the State of the only effective means it has of controverting
his proof on an issue that he interjected into the case.”).
88
Penry v. Johnson, 532 U.S. 782, 795 (2001) (noting that
the Supreme Court has “never extended Estelle's Fifth
Amendment holding beyond its particular facts”).
89
447 A.2d 250 (Pa. 1982). In Boyle, the Pennsylvania
Supreme Court held that a defendant who testifies at his
first trial waives his Fifth Amendment privilege and cannot
reclaim it at a later trial on the same indictment, even
where he declines to testify. Id. at 256. Without endorsing
this decision or its application to Rosen, we merely note
that the Pennsylvania Supreme Court could reasonably,
even if incorrectly, determine that Rosen waived his Fifth
Amendment privilege at his first trial by introducing expert
psychiatric testimony regarding his mental health, and that
this waiver transferred to his second trial despite the
abandonment of his mental health defense.
16
rebuttal purpose” to conclude that “[t]he Buchanan [c]ourt
could avoid the Fifth Amendment problem only because of this
limitation on the use of such evidence.”90 Rosen therefore
proposes that Buchanan “clearly establishes” that psychiatric
evidence is only admissible to rebut the defendant’s mental
health defense. This inference is not supported by either the
text or reasoning of Buchanan. The Court explicitly stated that
the psychiatric evidence there was admissible “at the very
least” to rebut a mental health defense. The Court’s focus was
on the voluntary nature of the examination jointly requested by
the defense.91 Buchanan leaves open the scope of a Fifth
Amendment waiver triggered by a defendant’s mental health
defense. For example, Buchanan does not address what would
happen if the defense was raised and later abandoned, or
whether the waiver applies to involuntary examinations
compelled by the government.

The most compelling Supreme Court support for
Rosen’s proposed principle of Fifth Amendment law comes
from Cheever. The reasoning in Cheever focuses on the
defendant placing his mental health at issue through his own
evidence, and the right of the prosecution to rebut such
evidence. The Supreme Court referred several times to the
evidence being admissible for the “limited purpose of
rebutting” the defense’s mental health defense. Citing to
Buchanan, the Court explained that it previously “held that
testimony based on a court-ordered psychiatric evaluation is
admissible only for a ‘limited rebuttal purpose.’”92

According to Rosen, Cheever established that
compelled testimony from the government’s psychiatric expert
is only admissible to the extent it directly rebuts psychiatric

90
Rosen Br. 27.
91
Buchanan, 483 U.S. at 422; see also id. at 424 (“Here, in
contrast [to Estelle], petitioner's counsel himself requested
the psychiatric evaluation . . . .”).
92
Cheever, 571 U.S. at 97; see also id. at 93-94 (“The rule
of Buchanan, which we reaffirm today, is that where a
defense expert who has examined the defendant testifies
that the defendant lacked the requisite mental state to
commit an offense, the prosecution may present
psychiatric evidence in rebuttal.”).
17
evidence presented by the defendant. Yet, even this narrow
reading of Cheever does not touch on several vital aspects of
Rosen’s case. Therefore, we cannot conclude that it clearly
established an applicable precedent. Cheever, for example,
does not address whether impeaching the defendant with
statements from the compelled exam, if he chose to testify,
would constitute a proper “rebuttal purpose.” In fact, Cheever
alluded to limitations on the Fifth Amendment protections for
testifying defendants.93 The Court further explained that
precluding the use of compelled psychiatric testimony “would
undermine the adversarial process, allowing a defendant to
provide the jury, through an expert operating as proxy, with a
one-sided and potentially inaccurate view of his mental state at
the time of the alleged crime.”94 These concerns about the
integrity of the judicial process and fairness to the government
undermine Rosen’s claim that he should have been allowed to
testify at his second trial without impeachment by his own
prior inconsistent statements. Nor does Cheever touch on
whether the proper admission of testimony for a “limited
rebuttal purpose” at one trial constitutes a Fifth Amendment
waiver in future proceedings where the mental health defense
is abandoned.95

Given the limitations of AEDPA, the absence of
Supreme Court precedent addressing the use of compelled
statements given to the government’s mental health expert as
impeachment evidence is fatal to Rosen’s claim here. As we
have noted, the second trial court ruled that Rosen’s compelled
statements were inadmissible as substantive evidence and
admissible only for the limited purpose of impeachment in the
event Rosen testified. Estelle, Buchanan, and Cheever address
situations where the government sought to admit the

93
Id. at 94 (“The admission of this rebuttal testimony
harmonizes with the principle that when a defendant
chooses to testify in a criminal case, the Fifth Amendment
does not allow him to refuse to answer related questions on
cross-examination.”).
94
Id.
95
See Boyle, 447 A.2d at 256 (acknowledging that a
defendant who testifies in one trial and thus waives his
Fifth Amendment privilege cannot object to the admission
of testimony at a later trial even where he does not testify).
18
defendant’s statements to prove or disprove a contested
issue—such as the defendant’s future dangerousness, intent, or
mental state. However, there was no indication in any of these
cases that the defendant intended to testify and was precluded
from doing so by the prospect of impeachment by compelled
statements.96 Therefore they do not address the admissibility of
a defendant’s statements for the purpose of impeaching the
defendant.

Even Gibbs, with its otherwise striking factual
similarity to Rosen’s circumstances, is distinguishable on this
point. The testimony of the Commonwealth’s expert in Gibbs
was introduced “in the prosecution [case-in-chief]. . . simply to
repeat incriminating statements” made by the defendant and
offered “simply for the truth” of the matters asserted.97 In
contrast, Rosen’s second trial court specifically found that Dr.
Michals’ testimony was inadmissible in the case-in-chief and
would be allowed solely for the purpose of impeachment if
Rosen chose to testify. Impeachment evidence is not offered to
prove the truth of the matter asserted, but rather is offered to

96
Because we deny Rosen’s petition on other grounds, we
do not reach the issue of whether the state court’s ruling on
the motion in limine effectively denied Rosen his right to
testify, or whether he forfeited his right to appeal the Fifth
Amendment issue by electing not to testify. Compare Luce
v. United States, 469 U.S. 38, 41-43 (1984) (holding that a
defendant failed to preserve an issue for appeal where the
trial court ruled that he could be impeached with a prior
conviction under Fed. R. Evid. 609(a) and he thereafter
declined to testify), with New Jersey v. Portash, 440 U.S.
450, 454 (rejecting state’s claim that defendant’s Fifth
Amendment challenge to the trial court’s ruling that his
immunized testimony could be used as impeachment
evidence is too “abstract and hypothetical” to review
because defendant did not take the stand); and Brooks v.
Tennessee, 406 U.S. 605, 612 (1972) (reviewing a state
statute requiring a testifying defendant to testify first at his
trial, despite the petitioner choosing not to testify because
of the statute, and finding it violates the Fifth
Amendment).
97
Gibbs, 387 F.3d at 275.
19
impugn the credibility of the person testifying.98 Moreover, the
jury can be specifically instructed that impeachment evidence
may be considered only for that limited purpose and cannot be
considered as substantive evidence of the defendant’s mental
state or intent.99

The trial court’s ruling that Rosen’s statements could be
used only for impeachment is a material distinction on habeas
review under AEDPA. There is reason to believe that the
Supreme Court might treat impeachment by compelled
statements differently than the admission of such testimony as
substantive evidence in Rosen’s situation. In Harris v. New
York, the Supreme Court held that statements obtained in
violation of the Fifth Amendment under Miranda are still
admissible for the purposes of impeachment, even though such
statements are inadmissible as substantive evidence.100 The
Supreme Court explained that the right of the defendant to
testify “cannot be construed to include the right to commit
perjury[,]” and therefore “[h]aving voluntarily taken the stand,
[the defendant] was under an obligation to speak truthfully and
accurately, and the prosecution . . . did no more than utilize the
traditional truth-testing device[]” of impeachment by the
defendant’s own inconsistent statements.101 On the other hand,

98
Impeachment evidence, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“Evidence used to undermine a witness’s
credibility.”).
99
Because Rosen elected a bench trial and chose not to
testify, such an instruction was not necessary here.
However, the possibility of giving such an instruction in a
similar case is relevant to distinguishing between the use of
evidence for substantive versus impeachment purposes. In
addition, a judge at a bench trial would understand that she
could not consider impeachment evidence for any purpose
other than assessing a witness’s credibility.
100
Harris v. New York, 401 U.S. 222, 226 (1971) (“The
shield provided by [Miranda] cannot be perverted into a
license to use perjury by way of a defense, free from the
risk of confrontation with prior inconsistent utterances.”).
101
Id. at 225; see also United States v. Havens, 446 U.S.
620, 626 (1980) (explaining that “the deterrent function of
the rules excluding unconstitutionally obtained evidence is
sufficiently served by denying its use to the government on
20
coerced statements—such as where “the [speaker] is told to
talk or face the government’s coercive sanctions[]”—are
deemed involuntary and therefore inadmissible for any
purpose, including impeachment.102

A court-ordered psychological or psychiatric exam, like
a custodial police interrogation, is an inherently coercive
situation. To the extent the District Court concluded that
Rosen’s “statements to Dr. Michals cannot be deemed
involuntary, coerced, or compelled since he voluntarily raised
the mental health defense[,]” we cannot agree.103 Rosen’s
statements, given while in custody, under court order, without
the benefit of Miranda warnings, are compelled testimony
under the Fifth Amendment.104 Nevertheless, whether

its direct case” and therefore allowing the government to
impeach a testifying defendant using evidence
inadmissible in the case-in-chief).
102
Portash, 440 U.S. at 459 (holding that testimony given
in response to a grant of legislative immunity is “coerced
testimony” because the person must testify or potentially
face contempt charges, and under such circumstances
“there is no question whether physical or psychological
pressures overrode the defendant’s will”); see also Kansas
v. Ventris, 556 U.S. 586, 590 (2009) (“The Fifth
Amendment guarantees that no person shall be compelled
to give evidence against himself, and so is violated
whenever a truly coerced confession is introduced at trial,
whether by way of impeachment or otherwise.”); Mincey v.
Arizona, 437 U.S. 385, 398-402 (1978) (holding that a
statement taken from a defendant while he was
hospitalized and in intensive care, slipping in and out of
consciousness, and in “unbearable” pain was inadmissible,
even for impeachment, because the statement was not “the
product of his free and rational choice”).
103
Rosen, 2018 WL 4030740, at *1 n.1.
104
Estelle, 451 U.S. at 467, 469 (“The considerations
calling for the accused to be warned prior to custodial
interrogation apply with no less force to the pretrial
psychiatric examination” because an examination “while in
custody with a court-ordered psychiatric” expert is “not
given freely and voluntarily without any compelling
influences.”) (internal quotation marks and citation
21
testimony given to a psychiatrist under court order is “truly
coerced” and therefore involuntary, or merely compelled in the
same sense as a statement given to police in violation of
Miranda (and therefore still admissible for impeachment), is
yet to be determined by the Supreme Court.105

Nor do we decide today whether Rosen’s statements
were voluntary or involuntary under the Fifth Amendment.
Rather, we merely conclude that the Pennsylvania Supreme
Court’s decision approving of the trial court’s admissibility
ruling is not contrary to or an unreasonable application of an
ambiguous area of Fifth Amendment law.106 This is not to say
that Rosen’s interpretation of the Fifth Amendment is not
plausible, or even compelling.107 However, such a rule is not

omitted); see also Gibbs, 387 F.3d at 274 (affirming that
Miranda warnings apply to court-compelled psychiatric
interviews). And unlike in the Miranda context, the only
way Rosen could remain silent was to forfeit his mental
health defense at trial. See Morley, 681 A.2d at 1258, 1258
n.5 (holding that a defendant who raises a mental infirmity
defense “may not refuse to allow the Commonwealth
psychiatrist to examine him or her on the basis that it
violates the defendant’s privilege against self-
incrimination” and “may be compelled to submit to a
psychiatric exam”).
105
Compare Ventris, 556 U.S. at 590 (“The Fifth
Amendment . . . is violated whenever a truly coerced
confession is introduced at trial, whether by way of
impeachment or otherwise.”), and Portash, 440 U.S. at 458
(distinguishing Harris because there the defendant made
no claim that his statements obtained in violation of
Miranda were coerced or involuntary), with Harris, 401
U.S. at 224 (admitting statement obtained in violation of
Miranda for the purpose of impeachment where
“[p]etitioner makes no claim that the statements made to
the police were coerced or involuntary”).
106
See Mitchell v. Esparza, 540 U.S. 12, 17 (2003)
(denying habeas petition where “precedent from [the
Supreme] Court is, at best, ambiguous”).
107
Rosen Br. 31-32 (arguing that testimony a defendant is
compelled to give to the government’s expert is admissible
only for the limited purpose of rebutting a psychological
22
yet “clearly established.” Rosen’s credible argument about
where the Supreme Court should draw the line between cases
such as Harris and Portash does not satisfy the deferential
standard under AEDPA.108 It is not enough that Rosen’s
argument is persuasive; it must be required by law and the state
court’s contrary decision must not just be incorrect, but
unreasonable.109
B. Because there is no clear Fifth Amendment
violation, Rosen failed to demonstrate that he is
entitled to relief under § 2254(d)(2).
Rosen also argues that he is entitled to relief under 28
U.S.C. § 2254(d)(2) because the Pennsylvania Supreme
Court’s harmlessness analysis was based on “an unreasonable
determination of the facts in light of the evidence presented.”110

defense and therefore inadmissible once that defense is
abandoned, even for garden variety impeachment); see
also Gibbs, 387 F.3d at 274 (explaining that the Fifth
Amendment waiver triggered by a mental health defense
“is not limitless; it only allows the prosecution to use the
interview to provide rebuttal to the psychiatric defense”).
108
Carey v. Musladin, 549 U.S. 70, 77 (2006) (holding that
a state court’s decision is not contrary to or an
unreasonable application of federal law where there is no
Supreme Court holding that would require a different
outcome).
109
Matteo, 171 F.3d at 888 (“[I]t is not sufficient . . . to
show merely that [petitioner’s] interpretation of Supreme
Court precedent is more plausible than the state court’s;
rather, the petitioner must demonstrate that Supreme Court
precedent requires the contrary outcome. This standard
precludes granting habeas relief solely on the basis of
simple disagreement with a reasonable state court
interpretation of the applicable precedent.”); see also
Williams, 529 U.S. at 411 (“[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.”).
110
This claim was not raised in the District Court and we
could therefore deem the argument waived. See Nelson v.
23
Rosen argues that the court improperly conflated the testimony
given to Dr. Fink with that given to Dr. Michals in concluding
that “the same admissions could have been established by
either expert’s testimony[.]”111 Based on that conclusion, the
Pennsylvania Supreme Court held that since Dr. Fink’s
testimony was indisputably admissible, “there is no reasonable
possibility that the error may have contributed to the
verdict.”112 However, Rosen is correct that there are significant
discrepancies between the statements that he gave to the two
experts. In fact, Dr. Michals testified to these discrepancies
during Rosen’s first trial in order to suggest that Rosen was
self-serving and challenge Rosen’s inconsistent version of
events.113 It is therefore unlikely that, if Rosen had testified,
“all of the impeachment evidence could have been elicited
solely from Dr. Fink, who was in possession of the same
mental health records and reports that Dr. Michals
possessed.”114

Nevertheless, Rosen’s challenge to the harmlessness
analysis is predicated on a finding that there was indeed a Fifth
Amendment violation. Consequently, rebutting the state
court’s harmlessness analysis is a necessary but not sufficient
basis for relief. As we discussed above, we cannot conclude
that the Pennsylvania Supreme Court’s decision violated
Rosen’s clearly established Fifth Amendment rights. We
therefore need not delve into whether any such hypothetical
error was prejudicial to Rosen at trial.

IV. CONCLUSION

Adams USA, Inc., 529 U.S. 460, 469 (2000) (noting that
“[i]t is indeed the general rule that issues must be raised in
lower courts in order to be preserved as potential grounds
of decision in higher courts”); Singleton v. Wulff, 428 U.S.
106, 120 (1976) (noting that “[i]t is the general rule . . .
that a federal appellate court does not consider an issue not
passed upon below”). However, we can within our
discretion choose to take up the issue on appeal and will do
so briefly to dismiss the claim on the merits. Id. at 121.
111
Rosen, 42 A.3d at 998.
112
Id.
113
A149-50; Rosen Br. 35-40.
114
Rosen, 42 A.3d at 997.
24
 For the foregoing reasons, we will affirm the District
Court’s denial of the petition for habeas corpus.

25