Barry Gibbs v. Frederick K. Frank

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 02-3924
BARRY GIBBS,
Appellant
v.
FREDERICK K. FRANK; DISTRICT
ATTORNEY OF PIKE COUNTY;
ATTORNEY GENERAL OF
PENNSYLVANIA
On Appeal from the United States
District Court for the
Middle District of Pennsylvania
(Dist. Court No. 99-cv-01627)
District Judge: Hon. Edwin M. Kosik
Argued: June 22, 2004
Before: NYGAARD, MCKEE and
CHERTOFF, Circuit Judges.
(Filed: October 14, 2004)
Mark A. Berman, Esq. (Argued)
Gibbons, Del Deo, Dolan, Griffinger &
Vecchione
One Riverfront Plaza
Newark, NJ 07102-5497
Counsel for Appellant
Gerald J. Pappert
Attorney General
Richard A. Sheetz, Jr.
Executive Deputy Attorney General
Director, Criminal Law Division
Amy Zapp
Chief Deputy Attorney General
Appeals and Legal Services Section
Frank G. Fina (Argued)
Senior Deputy Attorney General
Appeals and Legal Services Section
Office of Attorney General of
Pennsylvania
16th Floor-Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Appellant Barry Gibbs appeals from
the District Court’s judgment denying his
petition for a writ of habeas corpus.
Gibbs, who is currently serving a sentence
of twenty to forty years imprisonment,
argues that the state court’s decision was
contrary to or an unreasonable application

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of clearly established federal law. We
agree and reverse.
I.
I n M a r c h o f 1 9 8 4 t h e
Commonwealth of Pennsylvania charged
Gibbs with, inter alia, criminal homicide
for shooting and killing a security guard
named George Mehl. The Commonwealth
charged that Gibbs shot Mehl after a
woman named Sharon Burke hired him to
kill her husband, Wayne Burke, who was
also a security guard. Mehl was shot as he
sat beside Burke while they were both at
work.
Prior to his trial in the Court of
Common Pleas of Pike County, Gibbs
petitioned the state judge to appoint an
expert to explore the possibility of raising
a mental infirmity defense. The court
appointed Dr. A nthony Turc hetti.
Following Turchetti’s evaluation, Gibbs
notified the Commonwealth that he in fact
intended to raise a mental infirmity
defense at trial.
The Commonwealth consequently
secured an order from the court requiring
Gibbs to submit to an examination from a
state psychiatrist, Dr. Robert Sadoff.
Sadoff gave Gibbs Miranda warnings prior
to the examination, and Gibbs thereafter
made several inculpatory statements.
At the trial, Gibbs offered expert
testimony from Turchetti to support a
diminished capacity defense, and the
Commonwealth called Sadoff as a witness
to rebut Turchetti’s testimony. The jury
found Gibbs guilty and sentenced him to
death. The Pennsylvania Supreme Court
eventually reversed Gibbs’s conviction on
grounds unrelated to this appeal, see
Pennsylvania v. Gibbs, 553 A.2d 409 (Pa.
1989), and the Commonwealth thereafter
retried Gibbs.
Gibbs decided not to pursue a
mental infirmity defense at his second
trial. The defense decided instead to
contest identity—that is, to raise doubt that
it was Gibbs who shot George Mehl.
Nonetheless, the Commonwealth moved in
limine for permission to call Sadoff as a
witness to testify about the inculpatory
statements Gibbs made to him. The court
granted the Commonwealth’s motion
under the theory that a defendant’s
“testimony from an earlier trial may be
introduced in the prosecution’s case
against a defendant regardless of whether
that defendant takes the stand or not in the
second proceeding,” because a defendant
waives his right against self-incrimination
by taking the stand in a previous
proceeding. App. A10 (internal citations
and quotations omitted). Sadoff testified
at the second trial as a part of the
Commonwealth’s case-in-chief; he related
the inculpatory statements Gibbs made to
him.
The jury again found Gibbs guilty,
and the Pennsylvania Superior Court
affirmed his conviction and sentence. The
Pennsylvania Supreme Court denied
allocatur, and Gibbs brought this petition
for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 in the United States District
Court for the M iddle D istrict of
Pennsylvania. The District Court denied

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the petition as to all the claims. We
granted a certificate of appealability on the
issue “whether Gibbs’ Fifth Amendment
privilege against self-incrimination was
violated during his retrial when the
Commonwealth was permitted to introduce
Sadoff’s psychiatric testimony, which had
o riginally been offe red b y the
Commonwealth to rebut the diminished
capacity defense asserted by Gibbs at his
first trial, relating incriminating statements
made by Gibbs despite the fact that Gibbs
did not raise that defense at his second
trial.”
II.
We exercise jurisdiction under 28
U.S.C. §§ 1291 and 2253. Where (as here)
a District Court relied exclusively on the
state court record and did not hold an
evidentiary hearing on habeas review, this
Court’s review is plenary. See Moore v.
Morton, 255 F.3d 95, 103 (3d Cir. 2001).
Like the District Court, we review the state
court’s determinations with the deference
the 1996 Antiterrorism and Effective
Death Penalty Act (“AEDPA”) requires.
The statute provides:
(d) An application for a writ
of habeas corpus on behalf
of a person in custody
pursuant to the judgment of
a State court shall not be
granted with respect to any
claim that was adjudicated
on the merits in State court
proceedings unless the
adjudication of the claim—
(1) resulted in a decision
that was contrary to, or
involved an unreasonable
application of, clearly
established Federal law, as
determined by the Supreme
Court of the United States;
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.
28 U.S.C. § 2254(d). In addition, “a
determination of a factual issue made by a
State court shall be presumed to be
correct” unless the petitioner rebuts “the
presumption of correctness by clear and
convincing evidence.” 28 U.S.C. §
2254(e)(1).
“[C]learly established Federal law,
as determined by the Supreme Court of the
United States” means “the holdings, as
opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003) (“‘[C]learly established Federal
law’ under § 2254(d)(1) is the governing
legal principle or principles set forth by
the Supreme Court at the time the state
court renders its decision.”). A state-court
decision is “contrary to” clearly
established federal law if the state court
(1) “contradicts the governing law set forth
in [the Supreme Court’s] cases”’ or (2)

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“confronts a set of facts that are materially
indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at
a [different] result.” Williams, 529 U.S. at
405-06. A state-court decision “involve[s]
an unreasonable application” of clearly
established federal law if the state court
(1) “identifies the correct governing legal
rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the
particular . . . case”; or (2) “unreasonably
extends a legal principle from [Supreme
Court] precedent to a new context where it
should not apply or unreasonably refuses
to extend that principle to a new context
where it should apply.” Id. at 407; see also
Mitchell v. Esparza, 540 U.S. 12, 124 S.
Ct. 7, 11 (2003) (per curiam); Werts v.
Vaughn, 228 F.3d 178, 197 (3d Cir.
2000).
III.
We begin by identifying the
relevant Supreme Court precedents. The
case law begins with Estelle v. Smith, 451
U.S. 454 (1981). There, the state judge
ordered a capital defendant to undergo a
psychiatric examination by a state-retained
doctor. The defendant did not offer a
defense of mental infirmity at the guilt
phase of the trial, but at the capital penalty
phase the state sought to offer the doctor’s
testimony about the defendant’s
admissions as proof of “future
dangerousness.”
The Supreme Court granted habeas
relief. The Court determined that the Fifth
and Sixth Amendments (through the
Fourteenth) applied at the penalty phase;
that the defendant’s interview had been
compelled and without notice to the
defense attorney; and that no Miranda
warnings had been given. See Miranda v.
Arizona, 384 U.S. 436 (1966).1 The Court
expressly observed—in language of
s i g n if i c a n c e here—that b e f o r e
interrogation the state must provide the
defendant “with an awareness of the Fifth
Amendment privilege and th e
consequences of forgoing it.” 451 U.S. at
467.
The Court in Smith emphasized that
there were two “distinct circumstances”
that were elements of its conclusion: The
state court compelled the defendant to
submit to the examination and the
defendant himself never placed his mental
state in issue at either the guilt or penalty
phase of the trial. 451 U.S. at 468.
The Supreme Court soon addressed
a case where these two circumstances did
not exist in Buchanan v. Kentucky, 483
U.S. 402 (1987). There, the murder
defendant’s counsel and the prosecutor
jointly petitioned the state court to order a
psychiatric examination of the defendant
to see if he should be treated during
incarceration. At trial, the defendant
raised a defense of extreme emotional
disturbance, and the court allowed the
prosecutor to use the earlier psychiatric
report to rebut the defense.
1 We note that Gibbs challenges the
admissibility of the testimony under the
Fifth Amendment, but not under the Sixth
Amendment.

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The Buchanan Court distinguished
Smith, drawing on language in its earlier
decision suggesting that “if a defendant
requests [a psychiatric 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.” 483 U.S. at 422-23.
Since, in Buchanan, defense counsel
sought the examination and then placed
his mental state in issue, there was no
constitutional violation when the state
offered the examination for a “limited
rebuttal purpose.” Id. at 424 (emphasis
added).
Since Buchanan, the ruling in
Smith was reaffirmed and applied to
invalidate convictions in two further
Supreme Court cases. Satterwhite v.
Texas, 486 U.S. 249 (1988) presented
facts almost identical to Smith, in that the
state offered penalty phase evidence from
a compelled psychiatric examination of the
defendant, even though the defendant did
not put his psychological state in issue.
The Court held that because the
examinations occurred after indictment,
and without proper notice to defense
counsel, there was a Sixth Amendment
violation. 486 U.S. at 255-56. Powell v.
Texas, 492 U.S. 680 (1989) presented a
somewhat different factual pattern. There,
the state examined the defendant and
offered the psychiatric report at the
penalty phase. The state argued that this
did not run afoul of Smith because at the
guilt phase the defendant himself had
raised a psychiatric defense. The Court
refined what was implicit in Smith by
holding that a defendant’s initiation of the
psychiatric issue at trial could waive a
Fifth Amendment objection—but not a
Sixth Amendment objection—to the
state’s subsequent use of a mandatory
psychiatric report. As part of its analysis,
the Court observed that there could be no
Sixth Amendment waiver because no
Supreme Court case had suggested that by
“opening the door” to the admission of
state psychiatric evidence in the guilt
phase, the door would also “open”
automatically to the admission of that
evidence for a different purpose in the
penalty phase. 492 U.S. at 685 n.3.
Most recently, the Supreme Court
revisited this issue in the context of a
habeas challenge mounted after the 1996
AEDPA habeas amendments, and under
the narrower standard of review which
now applies.2 In Penry v. Johnson, Penry
was charged with a 1979 capital murder.
532 U.S. 782 (2001). Earlier, in 1977, he
had been subjected to a psychiatric
examination requested by defense counsel
for an unrelated non-capital crime. Penry
placed mental state in issue both in his
capital trial and in the previous trial for the
earlier crime. In the capital trial, the state
was permitted to use the voluntary
psychiatric report from the prior trial to
2 Because the earlier Court cases
discussed predate the 1996 habeas
amendments, they do not address whether
the state court ruling was “contrary to” or
an “unreasonable application” of Supreme
Court precedent.

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impeach Penry’s own psychological
witness. The Supreme Court held the state
court rulings not contrary to, or
unreasonable in applying, prior Supreme
Court precedent because it distinguished
Smith. In particular, the Court
underscored the following differences: In
Smith, the defendant did not place his
mental state in issue; in Penry he did. In
Smith, the psychiatric examination was
compelled by the court and conducted by
a state doctor; in Penry, the defense
attorney requested the examination. In
Smith, the state put on the psychological
evidence in its case in chief; in Penry it
was limited to cross-examination. Finally,
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
preceded the capital crime itself, so the
state could not have anticipated—or
warned about—the possibility of its future
use in the capital case. 532 U.S. at 794.
If we lay these decisions out, the
following landscape emerges. A
compelled psychiatric interview implicates
Fifth and Sixth Amendment rights
(Smith). Before submitting to that
examination, the defendant must receive
Miranda warnings and (once the Sixth
Amendment attaches) counsel must be
notified (Smith). The warnings must
advise the defendant of the “consequences
of foregoing” his right to remain silent
(Smith). The Fifth and Sixth Amendments
do not necessarily attach, however, when
the defendant himself initiates the
psychiatric examination (Buchanan,
Penry). Similarly, the Fifth—but not
Sixth—Amendment right can be waived
when the defendant initiates a trial defense
of mental incapacity or disturbance, even
though the defendant had not been given
Miranda warnings (Buchanan, Powell).
But that waiver is not limitless; it only
allows the prosecution to use the interview
to provide rebuttal to the psychiatric
defense (Buchanan, Powell). Finally, the
state has no obligation to warn about
possible uses of the interview that cannot
be foreseen because of future events, such
as uncommitted crimes (Penry).3
How does the state court decision
in this case stack up against these
3 It is not clear whether this last
point follows from the Fifth Amendment,
as interpreted by the Supreme Court in
Penry, or whether it is simply not
unreasonable for a state court to apply the
Supreme Court’s precedent this way. The
Court’s decision in Penry tends to indicate
the latter. 532 U.S. at 794-95. After
explaining several differences between
Penry’s case and prior Supreme Court
precedent, the Court expressly stated that
it did not have to “decide whether these
differences affect the merits of Penry’s
Fifth Amendment claim,” because “the
question is whether the [state] court’s
decision was contrary to or an
unreasonable application of our
precedent.” Id. (emphasis added). We
assume for purposes of this decision,
however, that this last point is a matter of
substantive Fifth Amendment law.

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precedents?4 Here, the defense initially
indicated it would raise a psychiatric
defense and accordingly the court ordered
as a condition that the defendant submit to
an interview by a state doctor, Robert
Sadoff. Sadoff gave Gibbs Miranda
warnings. During the first trial, Gibbs in
fact offered insanity and diminished
capacity defenses, and Sadoff testified in
rebuttal. Undoubtedly, Sadoff’s testimony
was permissible in that trial under Smith
and Buchanan. But that trial was reversed
and vacated, by the Pennsylvania Supreme
Court, on other grounds.
At the second trial, Gibbs presented
no mental capacity defense. Sadoff was
permitted to testify in the prosecution case
in chief, however, simply to repeat
incriminating statements that Gibbs had
made in the interview.
As in Smith, Gibbs’s interview
with Sadoff was mandated by the state
court, and Sadoff was the state-selected
doctor. As in Smith, the statement was not
offered at the second trial after the defense
put psychiatry in issue, and it was not
limited to rebuttal. In fact, the purpose for
which it was offered at Gibbs’s trial was
not even to prove a psychological point,
since the second trial presented no
psychological issue before Sadoff
testified. The statement was offered
simply for the truth of the admissions of
fact. In this sense, the psychiatric
interview was used for a purpose even less
justifiable than that in Smith, where at
least the state’s purpose in offering a
psychiatric analysis at the penalty phase
was to establish a psychological
disposition to be dangerous in the future.
If these facts were all that were
before us, we could say that the state
ruling admitting the Gibbs interview in the
second trial was contrary to Smith itself.
But there is a crucial additional fact that
makes a difference. According to the
finding of the state court, Sadoff
“mirandized” Gibbs. App. A17. The state
argues that this takes the case out of the
template of Smith altogether.5
4 The state decision actually
discussed none of these cases. But the
Supreme Court has instructed that “a state
court need not even be aware of our
precedents ‘so long as neither the
reasoning nor the result of the state-court
decision contradicts them.’” Mitchell v.
Esparza, 124 S. Ct. at 10 (quoting Early v.
Packer, 537 U.S. 3, 8 (2002)).
5 The Commonwealth asserts that
Gibbs did not raise his “limited waiver”
argument before the state courts or the
District Court, and thus cannot do so
before us. We disagree. The waiver issue
was implicit in Gibbs’s Fifth Amendment
argument, which he has asserted
throughout the state and federal
proceedings. In fact, the state courts and
the District Court, while not characterizing
their analysis as one of waiver, based their
decision on a waiver theory. See App.
A48 (“In choosing to pursue a mental
defense in his first trial and reap any
possible benefits therefrom, the fact that
he is not acquitted and is required to go

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We agree that the warning takes the
fact pattern outside the strict bounds of
Smith, so that this case is not contrary to
Smith, or any other decision. That leaves
the question whether the admission of
Gibbs’s interview is either an
unreasonable application of Smith to the
facts or an unreasonable failure to extend
Smith to the facts.
We initially recall that Smith
explicitly held that the warnings given to
a potential psychiatric interviewee must
advise him of the “consequences of”
waiving his Fifth Amendment rights.
Under any reasonable view, this requires
an accurate statement of those
consequences. Thus, if Sadoff told Gibbs
that his statements could be used against
him only if he raised a mental state
defense at trial, any waiver by Gibbs
would be specific to that condition, and
the only reasonable application of Smith
would mandate that the statements be
excluded if no such defense was raised.
On the other hand, if Sadoff told Gibbs
that his statement could be used against
him in court for any purpose whatsoever,
whether or not he offered any kind of
psychological defense, then it would
arguably be a general waiver, and it would
be reasonable to regard Smith as satisfied.
But cf. Simmons v. United States, 390
U.S. 377, 393-94 (1968) (defendant who
testifies at suppression hearing asserting
Fourth Amendment claim does not waive
his Fifth Amendment privilege and his
statements cannot be used against him at
trial on the issue of guilt).
The record is silent as to what
Sadoff said precisely, and the state court
made no factual findings in this regard,
either explicit or implicit. The inference
from the term of art “mirandized” is that
he offered the standard language
articulated in the Miranda decision. See
Dickerson v. United States, 530 U.S. 428,
435 (2000). Since that warning states
without limitation that “anything you say
may be used against you in a court of
law,” one might conclude that Gibbs gave
a general waiver. But Sadoff’s warning
did not occur in a vacuum. Everyone
understood that the psychiatric interview
was a court-ordered precondition to
Gibbs’s presentation of a psychiatric
defense. More important, Pennsylvania
law expressly limited the scope of any
psychiatric examination waiver so that the
evidence could not be used for any
purpose other than a proceeding about the
defendant’s “mental condition.” 50 Pa.
Stat. § 7402(e)(3).
Accordingly, Gibbs (and his
attorney) were legally entitled to
understand any Miranda waiver in the
context of existing state law and the
procedural setting of the case. That is, that
the waiver covered only use of any
psychiatric interview in a proceeding in
which defendant’s mental state was raised
by the defense. Here, the state does not
contend that it was unreasonable for the
through a second trial wherein he decides
not to utilize a mental defense, does not
enable Gibbs to take back the voluntary
statements previously given to Dr.
Sadoff”).

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defense to assume that any Fifth
Amendment waiver was predicated on the
use of the statement only in a trial where
psychiatric evidence was in issue. Such an
assumption was dictated by the context of
the examination, and the mandate of state
law.
That being so, we face the ultimate
question. Would it be unreasonable for a
state court to read Smith as permitting the
use of a “mirandized” psychiatric
interview for a purpose that is utterly
different than that which formed the
underlying basis for the waiver? Put
another way, if the interview is obtained
based on an understanding of the limited
consequences of Gibbs’s waiver, and if
the limitation is then disregarded, is use of
the interview reasonable under Smith?
That answer must be that it would be
unreasonable.
The language of Smith itself says
that the interviewee must be made aware
of “the Fifth Amendment privilege and the
consequences of forgoing it.” 451 U.S. at
467 (emphasis added). Obviously a false
statement of the consequences or a
statement that is misleading by omission
does not satisfy that standard. Cf. Moran
v. Burbine, 475 U.S. 412, 423-24 (1986)
(withholding information is “relevant to
the constitutional validity of a waiver if it
deprives a defendant of knowledge
essential to his ability to understand the
nature of his rights and the consequences
of abandoning them”). It could hardly be
reasonable, therefore, to hold that Smith is
satisfied by securing a waiver based on
warnings that misstate the consequences
of the waiver.
Two other Supreme Court
decisions reinforce this conclusion. First,
in Penry, the Supreme Court distinguished
Smith by pointing out that at the time of
Smith’s psychological examination it was
evident that the issue of his state of mind
and dangerousness could arise at
sentencing; it was therefore necessary that
he be advised of this consequence before
he waived his Fifth Amendment rights.
Penry, on the other hand, was examined
for a crime other than the capital crime he
later committed; it would, therefore, have
been impossible to advise him at the time
of his waiver that his statements might be
relevant in a future prosecution for a crime
that had not yet occurred. This distinction
emphasizes the importance of advising a
defendant like Gibbs accurately about the
foreseeable consequences of his waiver.
Here, it was foreseeable that Gibbs might
ultimately go to trial and opt not to raise a
psychiatric defense; indeed, the
foreseeability of that possibility is implicit
in the state statute that limits the use of
psychiatric examinations to proceedings
involving a defendant’s mental condition.
Second, in Powell, the Court
emphasized that waivers of Fifth
Amendment rights are limited to the
specific consequences as to which the
defendant is given notice. Powell rejected
the idea that raising an insanity defense at
trial would automatically waive the right
to object to admission of psychiatric
evidence at a penalty hearing. 492 U.S. at
685 n.3. This underscores that the scope

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of the waiver must be measured in terms
of the consequences about which the
defendant is warned.6 A reading of
Powell and Smith that overlooked this
crucial limitation would be an
unreasonable application of those
precedents.
IV.
We conclude that the writ should
issue here.7 We will therefore reverse the
judgment of the District Court and remand
the cause for it to grant Gibbs’ petition for
a writ of habeas corpus and require the
state to either release Gibbs or retry him
within a specified time period.
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)).

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Gibbs v. Frank, No. 02-3924
NYGAARD, Circuit Judge, concurring
I agree with the majority’s
conclusion. I, too, would reverse. I write
briefly, however, to state my view of what
the phrase “clearly established federal law
as defined by the Supreme Court of the
United States,” means, and should mean.
To me, the Fifth Amendment and its
axiomatic injunction is clearly established
federal law, and has been since Malloy v.
Hogan, when the Supreme Court through
the doctrine of incorporation ruled that the
Fifth Amendment’s protections applied to
the states as well as the federal
government. 378 U.S. 1, 6 (1964).
First, I believe that neither the Anti-
Terrorism and Effective Death Penalty Act
of 1996 nor Williams v. Taylor, 529 .S.Ct.
362 (2000), preclude us from looking to
the actual text of the Constitution to
determine the relevant clearly established
federal law when the Supreme Court has
not addressed the issue. It is my opinion
that Congress’ statement that a state
court’s decision must stand unless it is
“contrary to, or an unreasonable
application of, clearly established federal
law, as determined by the Supreme Court
of the United States” was not meant to
pretermit consideration of a protection
expressly provided by the Bill of Rights.
To me, a fair reading of
Williams indicates that what the Court was
establishing therein, is that it is to be its
word, as opposed to that from the inferior
courts, that determines federal law for the
purposes of habeas review. 529 U.S. at
381 (“If this Court has not broken
sufficient legal ground to establish an
asked-for constitutional principle, the
lower federal courts cannot themselves
establish such a principle with clarity
sufficient to satisfy the AEDPA bar.”)
(Stevens, J., concurring). The Court,
however, did not hold that AEDPA
somehow disestablished the Constitution
itself as clear federal law.
Precluding the text of the
Constitution from being considered as
clearly established federal law could create
the anomaly of having an explicit and self-
evident constitutional right that is
unenforceable in habeas proceedings
simply because the Supreme Court has not
elaborated upon the contours of that right.
It is after all the Constitution, and not the
Supreme Court, that created the cherished
American rights relied upon, inter alia, by
habeas petitioners. I conclude that the
clearest statement of federal law is found
in the express text, and derived from the
obvious intent, of the Fifth Amendment
itself.
The well-known text of the Fifth
Amendment itself ensures that no person
“shall be compelled in any criminal case to
be a witness against himself.” U.S. Const.
Amend. V. I cannot believe that Congress
would consider anything to be more
clearly established. I certainly do not. The
essence of this Amendment’s language is
“the requirement that the state which
proposes to convict and punish an
individual produce the evidence against

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him by the independent labor of its
officers, not by the simple, cruel expedient
of forcing it from his own lips.” Smith,
451 U.S. at 462 (quoting Colombe v.
Connecticut, 367 U.S. 568, 581-82
(1961)). In Gibbs’ second trial, when the
Commonwealth introduced Gibbs’ own
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 ( 4th 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
trial court admitted the statement, it
deprived Gibbs of his right against self-
incrimination by violating the express
language of the Fifth Amendment. Its
decision was contrary to clearly
established federal law; and I too, would
reverse.

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