Barry GIBBS, Appellant v. Frederick K. FRANK; District Attorney of Pike County; Attorney General of Pennsylvania.
No. 02-3924.
United States Court of Appeals, Third Circuit.
Argued June 22, 2004. Oct. 14, 2004.
Before NYGAARD, MCKEE and CHERTOFF, Circuit Judges.
The writ of habeas corpus, as implemented by the statute, empowers a federal court to overturn a state conviction only when it is contrary to federal law or an unreasonable application of law or determination of the facts. Comity and finality, as embodied in the statute and emphasized by the Supreme Court, mandate considerable deference to the determination of the state fact-finder and appellate courts.
Regrettably, the initial habeas decision here upended these fundamental principles of comity and finality. In concluding that Lambert was actually innocent and that her prosecutors were guilty of horrendous misconduct, Judge Dalzell effectively permitted Lambert to retry the criminal case—with hindsight—in a federal courtroom. Judge Dalzell‘s initial opinion reversed the traditional approach to reviewing convictions, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (every inference in favor of verdict); he effectively drew every inference against the verdict, and accepted Lambert‘s view that every discrepancy between her version and the state‘s established that the state was acting in bad faith. As a consequence, the first habeas decision treated every dispute in testimony as state perjury, and every minor inconsistency as momentous. The costs of this misguided approach in terms of comity and finality are very substantial.
By contrast, the decision of the second District Judge—Judge Brody—properly weighed the evidence and applied the law under the principles of federalism and finality mandated by the statute. We agree with Judge Brody that Lisa Michelle Lambert was not “actually innocent,” and was not the victim of a miscarriage of justice or gross prosecutorial misconduct. A careful, dispassionate review of the entire record convincingly demonstrates that Lambert‘s trial was fair, constitutionally correct, and well-supported by the evidence. Accordingly, there is no reason to disturb the conviction. We will affirm Judge Brody‘s denial of the writ.
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, Harrisburg, 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 of clearly established federal law. We agree and reverse.
I.
In March of 1984 the 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 hus
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. Anthony Turchetti. 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, 520 Pa. 151, 553 A.2d 409 (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
II.
We exercise jurisdiction under
(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.
“[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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (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) “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, 120 S.Ct. 1495. 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 not apply.” Id. at 407, 120 S.Ct. 1495; see also Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 11, 157 L.Ed.2d 263 (2003); 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, 101 S.Ct. 1866, 68 L.Ed.2d 359 (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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).1 The Court expressly observed in
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, 101 S.Ct. 1866.
The Supreme Court soon addressed a case where these two circumstances did not exist in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (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.
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, 107 S.Ct. 2906. 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, 107 S.Ct. 2906 (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, 108 S.Ct. 1792, 100 L.Ed.2d 284 (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, 108 S.Ct. 1792. Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (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, 109 S.Ct. 3146.
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 ap
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 forgoing” 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 precedents?4 Here, the defense initially indi
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 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
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
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, 120 S.Ct. 2326, 147 L.Ed.2d 405 (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.”
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 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, 101 S.Ct. 1866 (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, 106 S.Ct. 1135, 89 L.Ed.2d 410 (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
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, 109 S.Ct. 3146. This underscores that the scope 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.
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, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), 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.
First, I believe that neither the Anti-Terrorism and Effective Death Penalty Act of 1996 nor Williams v. Taylor, 529
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, 120 S.Ct. 1495 (“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.”
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, 135 L.Ed.2d 827 (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,
In my view, a trial judge with a modest understanding of the Constitution would quickly conclude that the injunction con
No. 03-1085.
United States Court of Appeals, Third Circuit.
Argued April 16, 2004. Filed Oct. 26, 2004.