dissenting.
In this habeas corpus case, we are asked to disagree with the Supreme Court of Indiana which affirmed a sentence meted out by the Superior Court of Vandenburgh County, Indiana. Phelps v. State, 266 Ind. 66, 360 N.E.2d 191 (1977), certiorari denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110 (1977). Both the majority opinion and the district court have refused to credit the treatment of the prosecutor’s statements by the highest court of Indiana. It reasonably concluded that any improper statements by the prosecutor were overcome by the trial court’s admonishments to disregard the statements and by its instructions to the jury.
As to the criticized remarks of the prosecutor about innocence during voir dire, the trial court simultaneously told the jury “The law presumes him [defendant] to be innocent” and the jury was immediately told to disregard the prosecutor’s statement. The Indiana Supreme Court added:
Instructions were given the selected jury on the presumption of innocence and that an [criminal] information is not evidence against the defendant.
360 N.E.2d at 193. The prosecutor’s statement relied upon by the majority and Judge Brooks was invited by defense counsel’s misstatement of the law that “as this defendant sits here today, he’s innocent * * ” just after the prosecutor had correctly said “The law may presume him [innocent]” (emphasis supplied). Then after the defense counsel’s second failure to refer to the presumption of innocence, the prosecutor replied “he’s presumed innocent. There’s nothing in the law that says he’s innocent or he wouldn’t be here.” The last five words were of course in response to defense counsel’s reference to “as this defendant sits here today.” It is unfitting for us to overrule the Indiana Supreme Court’s assessment that the trial judge was within his discretion in not declaring a mistrial over these voir dire remarks, particularly when they were prompted by defense counsel’s erroneous reference to innocence and were twice modified by the prosecutor’s and trial court’s proper emphasis on the presumption of innocence. In any event, out of caution the jury was promptly admonished to disregard the single critical comment. Cf. Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).
As to the prosecutor’s reference to the complaining witness’ fear of testifying fully, the trial judge strongly admonished the jury to disregard the statement. I agree with the state Supreme Court that this was sufficient to cure any harm. Even Judge Brooks conceded that this incident would not warrant granting the habeas corpus petition (App. 19).
As to the prosecutor’s question in cross-examining the defendant that it might have been in the defendant’s best interests to have told the police and the prosecutor the same story he was telling the jury, an objection was immediately made and sustained. As Justice Hunter noted, the prosecutor was not permitted to repeat the question and it was given no sanction by the trial court. He also pointed out that the defendant “testified during the same sequence of questions that he had protested his innocence to the police on at least two occasions after his apprehension.” 360 N.E.2d at 194. In those circumstances, there being no comment on any silence of the defendant, the admonishment given was more than sufficient.
In his closing argument, the prosecutor stated that he would not ask anybody to send anyone to prison for life unless he thought it was richly deserved and necessary for the community. Although the defendant’s objection should have been sustained, as the Indiana Supreme Court noted, in the context of the entire closing *826argument the statement was not so prejudicial to call for reversal. 360 N.E.2d at 194.
As Justice Hunter pointed out in his opinion for the court, the trial judge halted the prosecutor almost every time he sought to exceed the bounds of propriety and delivered admonishments to the jury. The closing paragraph in the state Supreme Court opinion states the reason why reversal is inappropriate:
After having reviewed the entire record in this case, we believe it is apparent the prosecutor was constantly seeking to cloud the record with error and was only prevented from this accomplishment by an alert trial judge. We do not condone this variety of prosecutorial activity and an affirmance of this case is not to be considered as condonation of his ill-advised attempts.
360 N.E.2d at 194. Such a rebuke would surely teach this prosecutor a needed lesson, but in any event the culpability of the prosecutor is not “the touchstone of due process analysis.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982).
If we were reviewing a federal trial the majority opinion might possibly be justified because of our supervisory capacity. On the other hand, under our system of federalism, we should not interject ourselves to overrule state supreme courts’ assessments of the effect of prosecutorial misbehavior in the absence of extraordinary circumstances.
Like Judge Brooks, the majority relies principally on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, that case was recently explained in a per curiam opinion in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), “as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.” This is not such a case.
In Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), also dealing with post-arrest silence, Justice Powell pointed out:
Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadburn rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.
Thus it would have been permissible for the Indiana Supreme Court to determine that impeachment by silence did not violate the Fourteenth Amendment unless governmental action had induced the defendant to remain silent before arrest. 447 U.S. at 240, 100 S.Ct. at 2130. But more importantly, the majority and the district court failed to recognize that Phelps did not remain silent at the time of his arrest but denied his involvement in the crimes. It was permissible for the prosecutor to use Phelps’ statements against him after his Miranda warnings because “a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent” (Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980)) and indeed the per curiam opinion in. Anderson pointed out that Doyle was inapplicable in a situation like ours. 447 U.S. at 408, 409, 100 S.Ct. at 2182, 2183.1
It should be noted that District Judge Brooks’ and the majority opinions favoring the petition for habeas corpus especially focused on petitioner’s previous failure to offer the same story at trial as he offered after arrest. But, as seen, the majority opinion and Judge Brooks overlooked the fact that instead of being silent, Phelps told the jury that he had protested his innocence to the police on at least two *827occasions after his apprehension. 360 N.E.2d at 194. Therefore their reliance on Doyle for granting the writ was improper.
We were taught by Donnelly v. De-Christoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974), that the scope of federal habeas corpus review on a claim of prosecutorial misconduct during a state criminal proceeding is generally a narrow one tailored by the Due Process Clause of the Fourteenth Amendment. Since the district judge was wrong in relying on the supposed “denial of defendant’s right to silence by the questions asked by the prosecutor in his cross-examination of the petitioner” (App. 22), the principal basis for him and for the majority to grant habeas corpus relief disappears. The trial record reveals that the. evidence against Phelps was overwhelming and his story at trial unworthy of belief, so that any prosecutorial misconduct cannot be said to have caused the guilty verdict and was harmless beyond a reasonable doubt.
The judgment of the district court should be reversed.
. Cases in accord in our Circuit are United States v. Samples, 713 F.2d 298, 304 (1983); United States ex rel. Saulsbury v. Greer, 702 F.2d 651, 655-656 (1983), certiorari denied, 461 U.S. 935, 103 S.Ct. 2104, 77 L.Ed.2d 310 (1983); Jacks v. Duckworth, 651 F.2d 480, 483 (1981), certiorari denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982).