dissenting.
Although Mr. Gravley elected to give a statement to the police after receiving his Miranda warnings, I shall assume, for purposes of analysis, that the precepts of Doyle *791v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), were violated when the prosecutor questioned him at trial about his subsequent silence. As the majority opinion notes, however, Doyle error does not necessarily render the results of a trial unreliable — and I am satisfied that it did not do so here.
With or without the questioning of Mr. Gravley about his failure to come up with his consensual sex story earlier, and with or without the prosecutor’s brief comment thereon in final argument, it seems to me that a reasonable jury would have found that the story was a lie, just as Gravley’s original denial of having been in Ms. Guili’s apartment at all was a lie. The testimony given by Gravley at his trial was simply incredible, in my view — and Gravley’s testimony would have been just about equally incredible if the Tennessee trial court had kept the record completely free of any possible Doyle error.
I
Totally abandoning the story he told the police originally, Mr. Gravley testified at trial that he first encountered Ms. Guili in the parking lot of the Knoxville apartment complex where Gravley’s mother rented a unit in which he was living at the time. The parking lot encounter was supposed to have taken place on Saturday, September 22, 1984, at around 10 o’clock in the evening. The time element is important, and Mr. Gravley went into some detail in pinning it down.
He had worked all day Saturday at an automobile dealership, Mr. Gravley testified, and he did not finish work until about 9:30 p.m. He then came home to his mother’s apartment, had a bite to eat, and went back to his car about 30 minutes later.
When he returned to the parking lot, Mr. Gravley claimed, he was stopped by a. young woman he later learned was Ms. Guili. “Sir, excuse me,” she allegedly said; “[cjould you tell me if it would be all right for me to leave my car parked up at the trash dumpster in the parking lot?” On being told that her car was likely to be towed if left there more than 30 minutes, according to Mr. Gravley, Ms. Guili volunteered that she was “just in from out of town for the weekend visiting my friend, who lives in apartment A-ll----”
“That’s a coincidence,” Mr. Gravley allegedly replied, “I live in apartment A-21 right down below you.” Although he said he had to meet someone in a few minutes, Gravley testified, “I said, Maybe we’ll run into each other again before the weekend is over.” This was supposed to have evoked the following response from Ms. Guili:
“She said, I would like that. That would be nice. And she said, By the way, I’m going out this afternoon myself, [she] said, I should be back in before too late. She said, I’ll be staying up, and I’ll be by myself. If you see the light on, if and when you come back in, feel free to come up and knock.”
Mr. Gravley testified that he replied “all right” and then got into his car and drove off to pick up a friend named James Worley.
Mr. Gravley further testified that he was out drinking with Mr. Worley and another man, Mark Cox, until 3:30 or 3:45 in the morning. When he returned to the apartment complex in the small hours of September 23, he continued, he saw a light on in apartment A-ll.
After freshening up in his mother’s apartment, Mr. Gravley told the jury, he went upstairs and knocked on Ms. Guili’s door. She opened the door right away, “far enough for me to see her completely from head to toe and all,” as Mr. Gravley put it.
“Hello,” he allegedly said, “do you remember me? I’m the man that talked to you earlier on in the evening.” Ms. Guili was supposed to have responded in these words:
“I had no idea that you would show up here. As a matter of fact, I had forgotten talking to you this afternoon. But, after talking to you, by all means, come in.”
Mr. Gravley did so, he testified. After a brief conversation, Gravley continued, he asked if he could stay over until morning. “Well,” Ms. Guili allegedly replied, “If it’s sex you’re insinuating ... I grew up under guarded conditions. I attended a Catholic high school, and I’m not too familiar with sex like most girls my age might be, you know.” Ms. Guili said that she would rather not have *792conventional sexual intercourse, according to Mr. Gravley, but agreed that oral sex would be “fine.”
After “brief foreplay,” according to Gravley’s testimony, he started performing oral sex on Ms. Guili. He testified that he had “no idea” she was having her menstrual period, and never noticed the tampon she was wearing. Although interrupted when the telephone rang, Gravley said, the oral sex was resumed at the conclusion of the telephone conversation and continued until the phone rang again. After the second phone call, according to Gravley’s testimony, Ms. Guili “proceeded to return the favor, so to speak,” but soon broke off because he was not able to achieve an erection. Gravley then pulled up his underwear, he testified, just as Tom Enders and his cousin burst into the apartment.
Mr. Gravley’s story reads to me like an adolescent fantasy straight out of the pages of Playboy. Doyle error or no, I find it hard to imagine a reasonable jury viewing Mr. Gravley’s testimony as anything other than a work of fiction.
Mr. Gravley was not a rock star, after all, or a sports hero, or a charismatic politician. He was a college dropout who worked at a car dealership and lived in an apartment rented by his mother. The notion that a 21-year-old woman to whom he was a total stranger would have stopped Mr. Gravley in a parking lot at 10 o’clock on a Saturday night to give him her apartment number and an invitation to come up and see her sometime is inherently improbable, to say the least.
The improbability of Mr. Gravley’s story is compounded, as it happens, by the claim that Ms. Guili initiated the supposed conversation with a question about the propriety of parking her car by the dumpster. It is a mystery to me whose car Ms. Guili was supposed to have parked there — for the evidence is uncontroverted that she had no car.
Ms. Guili lived in Nashville, the evidence showed, and came up to Knoxville with a friend to visit Lucy Tinsley. On the Saturday night in question, Ms. Guili and Ms. Tinsley were taken to a University of Tennessee fraternity party by Tammy Walcott. They left the apartment to go to the party shortly before 9:00 p.m., Ms. Tinsley testified, and they were driven back to the apartment by Bubba Gower at about 1:30 a.m. The only times Ms. Guili drove a ear that evening were two occasions when she and Ms. Tinsley borrowed a vehicle to go out for cigarettes. Both times, Ms. Tinsley testified, the two women went straight back to the fraternity house.
Ms. Tinsley testified without contradiction that she was with Ms. Guili the entire time from 9:00 p.m. to 1:30 a.m. At no point within that time frame was Ms. Guili ever in the parking lot of the apartment complex, Ms. Tinsley testified, except when the young women walked to Tammy Walcott’s car shortly before 9:00 o’clock. The testimony is absolutely clear that they did not encounter Mr. Gravley then. And when asked where Ms. Guili was at 10:00 p.m. — the time at which Mr. Gravley claimed to have spoken with Ms. Guili in the parking lot — Ms. Tinsley testified unequivocally that Ms. Guili “was with me at the S.A.E. house.” The credibility of this testimony stands unimpeached.
In the account he gave to the jury, moreover, Mr. Gravley repeatedly attributed statements to Ms. Guili suggesting that the alleged conversation in the parking lot took place in the afternoon. But Mr. Gravley also testified that he was at work all afternoon — a fact that presumably could have been proved had he tried to claim that he talked to Ms. Guili then — and Gravley never explained why Ms. Guili should have thought that it was still “afternoon” at 10 o’clock in the evening.
Notwithstanding the surrealistic quality of Mr. Gravley’s testimony, my colleagues on the panel suggest that there were “significant problems with Guili’s version of events.” I respectfully disagree.
The testimony given by Ms. Guili, unlike that offered by Mr. Gravley, was clear, logical, and internally consistent. Unlike Mr. Gravley’s testimony, Ms. Guili’s testimony did not vary materially from her earlier statements. And Ms. Guili’s testimony was entirely consistent with the testimony of the other witnesses, as Mr. Gravley’s was not. *793Ms. Guili was subjected to lengthy cross-examination, moreover, and nothing that was developed on cross-examination would have given a rational juror any cause to doubt Ms. Guili’s veracity.
It is true that there was no physical evidence of the rape. The absence of such evidence is consistent with Mr. Gravley’s oral sex story, as is the fact that no menstrual fluid was detected on Mr. Gravley’s groin area when he was examined some hours later. But there is abundant evidence that Ms. Guili had a tampon in place, and the notion that Mr. Gravley would not have noticed Ms. Guili’s menstruation if he was really doing what he said he was doing strikes me as far more problematic than any lack of physical evidence.
The fact that Ms. Guili opened the apartment door when Mr. Gravley knocked on it gives me no concern at all. Ms. Guili was clearly expecting Tom Enders, who had telephoned to say that he would be coming over to retrieve his keys. Neither am I concerned by Ms. Guili’s failure to scream when, instead of finding Tom Enders at the door, she was confronted by someone with a stocking over his head and a knife in his hand. Ms. Guili could have screamed, to be sure, but by the same token the man with the knife could have slit her throat. And that is what he threatened to do, Ms. Guili testified, unless she did everything he told her to do.
Nor should it be a source of concern to us, in my view, that Ms. Guili wanted to answer the telephone and was allowed to do so. It would have made perfectly good sense for Ms. Guili to want to speak to the person on the other end of the line to try to convey the idea that she was in trouble. And if he was holding a knife on Ms. Guili, of course, it would not have been irrational for Mr. Gravley to think that he could keep her from arousing the caller’s suspicion. It would also have been reasonable for him to want to minimize the risk of another occupant of the apartment getting up to answer the phone.
We do not need to rely solely on Ms. Guili’s testimony to get an idea of the signals she tried to send Tom Enders when he phoned back because he could not find the apartment complex. Mr. Enders testified that Ms. Guili sounded very different than she had sounded when he telephoned earlier. During the earlier call, he explained, she had been “totally understandable.” This time, however, “she was speaking in broken sentences. She was whispering. I really didn’t understand what she was saying____”
Frightened and confused by Ms. Guili’s inexplicable behavior on the telephone, Mr. Enders had his friend Eric Stiles place a call to her. Mr. Stiles testified that he said Tom Enders was going to come over to the apartment if Ms. Guili didn’t start making sense. “Fine,” Stiles said she told him in a shaky voice, “that would be great. That’s what I want.” Mr. Enders took the phone from Stiles at that point, according to Enders’ testimony, and told Ms. Guili “I’m going to call the police and then I’m coming over.” Ms. Guili simply repeated the same thing over and over, whereupon Enders hung up and organized the rescue party that ultimately flushed Mr. Gravley out of the apartment.
The testimony of Ms. Guili, Mr. Enders, Mr. Stiles, Ms. Tinsley, the investigating officers and the other prosecution witnesses all rings true to my ear. The totally unsupported testimony of Mr. Gravley, for the reasons I have tried to explain, does not.
II
I am not alone, of course, in finding Mr. Gravley’s testimony less than compelling. Rejecting a “plain error” claim on direct appeal, to begin with, a three-judge panel of the Tennessee Court of Criminal Appeals pointed out that
“[t]he testimony of the victim is unimpeached in this record, whereas the defendant’s credibility underwent considerable erosion. In a statement to the police he claimed he was not present in the victim’s apartment as several witnesses said he was, a claim that contrasts drastically with his trial testimony that the sexual episode was consensual.” State v. Gravley, C.C.A. No. 1081, Jan. 6, 1987, slip opinion at 2, 1987 WL 5166.
Judge Martha Craig Daughtrey, then a member of the Tennessee Court of Appeals and now an esteemed member of our court, *794was one of the panelists who concurred in this opinion.
Mr. Gravley subsequently petitioned the Knox County Criminal Court for post-conviction relief. After conducting an evidentiary hearing, that court dismissed the petition on the ground, among others, that Mr. Gravley had not been prejudiced by the allegedly ineffective assistance of his lawyer. The lawyer, in the court’s words,
“was trying to convince a jury of her client’s truthfulness in view of the totality of the circumstances when his earlier statement and his in court testimony, which was consistent with what he had continually told her, were contradictory.” Gravley v. Tennessee, No. 32046, Criminal Court of Knox County Tennessee, June 17, 1988.
It is hardly surprising that counsel was unsuccessful. One wonders if Clarence Darrow himself could have won an acquittal in this case.
The dismissal of the petition for post-conviction relief was appealed to the Court of Criminal Appeals, where the dismissal was affirmed by a different three-judge panel. After quoting the passage in which the earlier panel had contrasted the “erosion” of Mr. Gravley’s credibility with the “unimpeached” testimony of the victim, the Court of Criminal Appeals held that any Doyle error was harmless: “We are satisfied beyond a reasonable doubt that absent [the] evidence of pretrial silence and the prosecutor’s comments thereon, no reasonable jury would have accepted the petitioner’s testimony given at trial.” Tennessee v. Gravley, C.C.A. No. 1233, March 6, 1990, slip opinion at 8.
The standard applied by the Tennessee Court of Criminal Appeals in 1990 was the “harmless beyond a reasonable doubt” standard explicated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Subsequent to the Tennessee court’s decision, however, the Supreme Court of the United States held, in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), that the Chapman standard is not to be used in determining whether to grant habeas relief on the basis of Doyle error. In cases of this type, the Supreme Court held, habeas courts must use the less onerous standard of Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). Under the Kotteakos/Brecht standard, habeas relief is only to be granted if the Doyle error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. at 1714 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253).
If Mr. Gravley was not entitled to habeas relief under the Chapman standard, it follows a fortiori that he was not entitled to habeas relief under the Kotteakos!Brecht standard. So the district court was to hold.
After Mr. Gravley filed his federal habeas petition, United States Magistrate Judge Thomas W. Phillips prepared a comprehensive report and recommendation in which he took note of Brecht and concluded that the trial error complained of was harmless. Summing up, the magistrate judge expressed himself as follows:
“After review of the trial transcript, it appears that the most devastating aspect of this trial in regard to petitioner’s credibility was petitioner’s performance on the stand. It is fair to say that the errors not objected to and which were not raised in the new trial motion did contribute somewhat to undermining the credibility of petitioner and could not be considered sound trial strategy. However, in my view, the errors did not make the result of this trial unreliable. Following the lead of the Supreme Court in such cases, the ultimate focus of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. The right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984). I am not convinced that counsel’s performance caused petitioner to lose what he otherwise would have won (Strickland v. Washington, 466 U.S. 668, 104 S.Ct. *7952052, 80 L.Ed.2d 674 (1984))[,] and it is not apparent that defeat was snatched from the hands of probable victory (United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992), cert. denied, 508 U.S. 975, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993)).” Slip opinion at 20-21.
United States District Judge James H. Jarvis agreed with the recommendation of the magistrate judge. Like all of the other judges who had examined the trial record up to that point, Judge Jarvis found that whereas the testimony of Ms. Guili was virtually unimpeached, the testimony of Mr. Gravley, “replete with untruths, was simply not credible.” Moreover, Judge Jarvis observed, the evidence of Mr. Gravley’s silence was not of “predominant importance.” The Doyle evidence
“was mentioned four times during testimony over two days. The assistant district attorney mentioned it in only two sentences during his closing argument. I conclude that the Doyle error did not ‘substantially influence’ the jury’s verdict under the Brecht standards and the error was harmless.” Slip opinion at 22-23 (footnote omitted).
I agree. The denial of Mr. Gravley’s habeas corpus petition should be affirmed, in my opinion.