*1 Pеtitioner, Appellee, KIBBE, Mark A. Respondents, DUBOIS, al.,
Larry et E.
Appellants. 00-2440.
No. Appeals, States
United
First Circuit. 6, 2001. June
Heard 23, 2001. Oct.
Decided *2 Benedetto, Attor-
Annette C. Assistant Reilly, General, F. whom Thomas ney brief, General, appel- was on Attorney *3 lants. brief, appel- for Speer, M.
Brownlow lee. TORRUELLA, Judge, Circuit
Before LYNCH, CYR, Judge, and Circuit Senior Judge. Circuit TORRUELLA, Judge. Circuit (“Kibbe”) was A. Kibbe Appellee Mark dwelling of a house with arson charged court in County Massachusetts. Hampden 9 and jury a June He tried before was lesser guilty of the found building. a of arson of included offense court, remedies, exhausting state After of habeas for the petitioned Kibbe writ granted The district corpus. refer- ruling prosecutor’s petition, dur- post-Miranda silence ence to Kibbe’s argu- closing examination ing cross Because we unconstitutional. ments was has satisfied Kibbe conclude that of 28 exacting standards under the burden 2254(d) by the Anti- § as amended U.S.C. Act Penalty Effective Death terrorism and court’s we reverse district petition Mark Kibbe’s grant deсision corpus. the writ of habeas
BACKGROUND Trial Testi- from the A. Facts Elicited mony 15, 1991, approximately On November Paul walked evening, in the Martin 11:15 and saw parents’ house outside Almira Road at 171 unoccupied house also in smoke. He heavily engulfed a crackling noises consistent heard parents’ returned to his Martin fire. “911,” house, mother to call told his vantage this street. From returned to the who was observed man point, Martin wearing down, what appeared to be a ei- officers then had a brief conversation with orange, brightly-colored jacket. ther red or Kibbe. Witkowski testified that an- The unidentified man walked from the swered questions and told him why he backyard of 171 down driveway Almira was in the area. edge to the of the road. When the sound trial, At Kibbe took the stand and of- audible, of sirens was the man walked back fered following testimony. On the uр the in the driveway direction from night in question, he attended an Alcohol-
which he had come. ics Anonymous meeting until approximate- minutes, Within few Detective Albert ly 9:00 p.m., and then took bus home. Rooke, Witkowski and Eugene Officer *4 home, Once he arrived at he immediately both Springfield members the police again went out pipe, smoke his because department, arrived at the scene. They he was not allowed to do inso the house. Martin, spoke with who told them that he He walked all around the neighborhood had a observed man come from back- the and a flashlight found and propane tank in yard. Witkowski went to the backyard to the woods. He then went into the back- investigate, person where he saw a in the yard of 171 Almira Road because he need- rear corner yard wearing a red There, ed to urinate. he noticed smoke jacket holding object and an in his hand. coming from the back of house. After Witkowski testified at trial that he identi- minutes, several he walked to the front of police fied himself as a officer and asked and, upon siren, house hearing a he the man if he talk with could him for a turned around and walked into the back- man, moment. In response, the later iden- yard. then “got He scared” and away, ran Kibbe, tified as ran. gave Witkowski allegedly because he was on parole. After chase and radioed for assistance. Officer he was by Rooke, apprehended Kibbe tes- Rooke, who had continued to interview tified that the “questioned officers me as Martin, responded to request Witkowski’s to what I was doing,” that he “an- and joined and the chase. Rooke down ran swered them over and again.” over Strеet, Newfield ordering Kibbe stop, allegedly which only hastened flight. his Friberg, Kenneth investigator arson continued, The chase terminating only af- scene, who was at the also testified. Once ter Kibbe fell in the wooded area in which the extinguished fire was and smoke running. red, he was Kibbe was a wearing cleared, had Friberg entered the cellar at heavy jacket winter gloves. and black He 171 Almira to determine the cause of the also had black soot marks on his and nose There, fire. he found an empty matchbook smelled of smoke. The officers recovered on top pile of a twenty about lumber. flashlight propane and small tank that feet from the cellar door. There was also Kibbe had dropped during flight. his some and paper rubbish the cellar. He could identify what kind of it paper officers advised Kibbe of his Mi- wаs due to its rights randa him charred sodden and asked state. return to There, From police observations, they cruiser. these other Fri- placed him berg under arrest and him told concluded that the they would had been de- fire pat-down conduct a liberately by search on set an open him for fire without the this, weapons. Hearing Kibbe use of voluntarily accelerants. He paper found towels matches, towels, paper removed just pipe, outside and to the of the cellar .left and pipe from pockets. tobacco door.1 alleges
1. The Friberg Commonwealth paper found the towels the cellar. inside this attorney reinforced closing, Trial In Excerpts from Relevant B. point: Transcript Mr. Kibbe told Mr. Kibbe? about What the stand above, took As noted night. to that up he was what police defense, offering explanation an
his own to, He told he did. have but He didn’t Road, his 171 Almira presence for his he went that where on the stand you possession police, and flight from to, he did. have He didn’t but night. towels, flashlight, matches, paper counter, said dur- To Commonwealth examination direct tank. On propane closing argument: ing oc- following exchanges attorney, because you he runs tells [Kibbe] And curred: A. Q. And [*] I’m now, # parole. why did [*] you [*] run? [*] [*] tell he a case where is on explanation but parole, that, for what you’re the finders didn’t offer you know he he was doing. of the didn’t credibility. facts, have to decide you you brought back after Q. [Rooke] And *5 credibility. You to decide have you do? You did to the car what what you whether believe must decide I me as to what questioned They A. ring had a it Kibbe Whether Mark said. and them over I doing. was answered you If it didn’t. truth or whether of over again.... sаid, Mark Kibbe believe what don’t ques- they were Q. right. All When is guilty. Kibbe Mark tell them?2 you did tioning you what % ‡ ;¡t % }¡; happened. had I them what A. told inference, the in- There’s reasonable cross-examination, the Common- During consciousness, guilt guilt of of ference Kibbe: wealth asked that he explanation flight. his from you that police Q. didn’t tell You believing. worthy not of you offered right? parole, were on you ran because one explanation, a fanciful This is No, A. I did not. your idea of common comports with you ran? why them Q. never told You sense. I I did.
A. believe don’t story. and Commonwealth It is the Both Kibbe It is not a reasonable forthright- Kibbe’s to mislead on the facts commented arrived after one thereof, ness, in his conversation lack you. or night of fire. on History Procedural C. attorney statement Kibbe’s opening
said: conviction, trial and jury Kibbe’s After Court Appeаls to the proceeded the case distance stopped a short was
[Kibbe] of Massachusetts. Commonwealth They spoke police. to the away, spoke Order, and In Memorandum what he was explained and he to him Common- conviction. affirmed Kibbe’s was what the doing and situation 1111, Kibbe, 646 Mass.App.Ct. v. 38 wealth evening. ques- claim, objected this Commonwealth our disputes this review tion, Friberg answered. allowed it to be supports assertion that but the court record just having paper towels testified to found cellar outside door.
31
(1995)
N.E.2d
(D.Mass.2000).
(affirming judgment
In analyzing
al-
Kibbe’s
(Mar. 3, 1995) (mem.
only), No. 93-P-1761
leged Doyle violation, the district court
1:28).
under
order
Rule
Relying
first found that the claim
subject
was
large part
Charles,
on Anderson v.
provisions
447 the
of the Antiterrorism and
404,
2180,
U.S.
100 S.Ct.
L.Ed.2d
Effective Death Penalty Act of 1996
(1980), and
(“AEDPA”),
v. McClary,
Commonwealth
2254(d),
§
28 U.S.C.
petition-
Mass.App.Ct.
(1992),
ment granting for ground alternative As an that the finding relief, held that basis the district court As a second habeas clearly contrary to adjudication involved an court court’s state decision the stаte law, court clearly the district estab- application established federal unreasonable misstated court Id. at 126. appeals held lished law. Id. at 125. disagreed v. Charles. pointedly of Anderson rule The district court relied, on the large part, that Kibbe The state court conclusion appeals appeal. in its en- rejecting McClary case silence had waived turn, incon- Instead, parsed on the focused not the district court McClary, tirety.5 arrest poten- the defendant’s sistency arson and Kibbe’s subject between *7 the statements, on categories: but instead and trial into two his tial involvement his to waive Almira being that the defendant chose at Road explanation fact for to answer right to silence and Miranda and evening the November on N.E.2d by police. po- the from the questions posed flight for his explanation that this The district court found 126-27. Because at 710. Id. at night. lice that the expanded impermissibly the rea- approach discuss with Kibbe did not re- a defendant for court found questioning flight, bounds the district son for out -Miranda silence set to remain garding post “waived that Kibbe had matters, to but respect Charles: with some silent Id. to all at respect in not with matters.” language the The breadth however, to 127. the door opened McClary, court based appeals that the belies the disagreement the district notion that
5. It was in this complete, appeals court the rather than explicitly that its on court held the affirmance silence, that was had made a factual determination than the partial, rather waiver evidence, light clearly of the unreasonable police about the crime speaking that tо idea the deci- determine but declined to whether prosecutorial comments opens to the door Kibbe, 120 on the error. sion was based story. conclude that one's We omissions in court's district F.Supp.2d 127 n. is a dead end. avenue to habeas relief this- decision interpretation of the court own state appeals court from Examining Rounding precedent, decisions out its favorable First, Second, Fifth, the Eighth, and district court discussed United States Casamento, (2d v. Tenth Circuits evaluate reasonable- decision, Cir.1989), ness of court the district holding prosecu the state its that the tor interpretation court concluded that its own erred in cross-examining the defendant “Doyle-Charles of the framework” was cor- about his pretrial silence when his and acknowledging Id. at 127-30. trial were rect. While statements inconsistent. district court applicable precedent First Circuit in- concluded: “These cases case, Hall, demonstrate that the only cludes one Kibbe decision runs Grieco (1st Cir.1981), directly contrary existing prece spe- F.2d 1029 in which we federal mentioned, Thus, dent I resolve, applying Charles. cifically but conclude failed not only that Kibbe has the the exact better two issue was before Rather, court, legal arguments. reasonable I the district cited Grieco as am firmly convinced error occurred “rejecting] analysis the loose waiver ex- and Kibbe,” that the Kibbe decision is an emplified by id. at 128. The court unreasonable Kibbe, that, outcome.” any F.Supp.2d stated “This does not mean that 130- time a makes any defendant statement door to full open is cross- The district court went on to find that examination about the defendant’s failure alleged not harm- Doyle errors were exculpatory story
to recount
earli-
less,
granted
petition
for a
protections
equally
er. Miranda
apply
to writ
corpus.
of habeas
Id. at 131-33.
refusals to answer
Id.
specific questions.”
1034).
Grieco,
(quoting
641 F.2d at
DISCUSSION
explicit
The district court found more
agree
We
the district court’s
support for its conclusion that
petition
Com-
statements that Kibbe’s habeas
is
governed
provisions
AEDPA,
monwealth
violation in
by
committed
closing
its
and that
cross-examination
com-
case
the most
Williams
comprehensive
ments
the Fifth and Tenth Circuits.
commentary by
Su
(5th
Laury,
preme
interpretation
United States v.
Yet,
holding
inqui
not end the
in
that
rather than Doyle,
this does
and,
prosecutor’s
case,
second,
because the
comments
ry,
controlled Kibbe’s
in
during
Kibbe’s
closing argument regarding
relying McClary,
on
an incorrect interpre-
explain
flight
to
take a different
failure
his
tation
Charles.
of
order to determine
than the
In clos
slant
cross-examination.
a state
contrary
whether
court decision is
prosecutor
ing,
said:
to
law
federal
as determined
the Su-
preme
you
And he
he runs
he is
Court:
tells
because
parole,
you
but
know he didn’t tell
key
bottom,
inquiry,
[T]he
is whether
that,
as an
didn’t offer that
rule—by
a Supreme Court
virtue of its
exрlanation for
he was
In a
doing.
what
similarity (though
factual
not necessarily
you’re
case where
finders of
identicality) or its distillation of general
facts, you
credibility.
have to decide
federal
law
into a
precepts
channeled
credibility.
You have to decide
analysis
of
specifically
mode
intended
exposing
Rather than
Kibbe’s cooperation
for application to variant factual situa-
was,
strategy
partial
for the
sham that it
fairly
require
tions—can
be said to
a
prosecutor’s
reference to
si-
Kibbe’s
particular
particular
result
in a
case.-
instead
attacking
lence
seems aimed at
O’Brien,
added).
(emphasis
F.3d at 25
credibility regarding
the proffered
category
falling
of cáses
under the
flight.
reason for his
This use of Kibbe’s
to”
“contrary
prong should not be con-
arguably
permissiblе
silence
exceeded the
broadly
“sap
ceived so
as to
the ‘unreason-
prescribed
cooperation
for the
ex-
bounds
application’
any
able
clause
meaning.”
of
government may
ception:
use
“[W]hile
Matesanz,
(1st
Phoenix
post-arrest
a defendant’s
im-
silence to
Cir.2000).
peach testimony about the circumstances
hand,
Turning to the case at
the appeals
arrest,
of an
then
government may
contrary
court
clearly
decision would be
to
that
in-
argue
the defendant’s silence was
if
established federal
a reading
law
of
claim
consistent with this
of innocence.”
Charles,
conjunction
in
Doyle,
com-
Shue,
lence
“if the state court identi
precedent
of
Court
post-
of
use
a defendant’s
admits
some
from
governing legal
fies the correct
rule
expose prior
to
inconsistent
arrest silence
unreasonably ap
Further,
this
cases but
a
Court’s
defendant’s silence
statements.
particular
it to the
of the
state
plies
facts
impeachment purposes
may be used
case,”
“if
ei
prisoner’s
or
the state court
a
has not received Mi-
when
defendant
a
unreasonably
legal principle
ther
extends
Weir,
warnings. Fletcher v.
455
randa
a
precedent
from our
to
new context
603, 606-07,
1309,
102
71
S.Ct.
U.S.
unreasonably
apply
it should not
or
where
(1982);
Anderson,
Jenkins v.
L.Ed.2d 490
to a new
principle
refuses to extend that
239,
231,
2124,
65
447 U.S.
Williams,
it
apply.”
where
should
context
(1980). These cases caution
L.Ed.2d 86
529
at
120
This
U.S.
S.Ct. 1495.
expansive
an absolute and
con-
against
analysis
“question
distills to a
of whether
mandate,
Doyle’s
especially
struction of
case-spe
court’s derivation of a
state
considering
particular
factual circum-
generally
cific rule from the Court’s
rele
found here.
stances
jurisprudence
appears objectively
vant
view,
cannot
ex
Doyle
our
be
(em
O’Brien, 145
at 25
reasonable.”
F.3d
contrary
so
a
compel
tended
far as
added);
Williams,
phasis
accord
529 U.S.
Indeed,
outcome Kibbe’s case.
were the
409-10,
at
(holding
S.Ct.
obvious,
outcome so
there would have been
of
assessment
unreasonableness demands
no reason for us to leave
unresolved
objective
an
analysis).
question
of whether
or Charles
broad, objective
Because of this
apply
should
“to
situation where the
standard, a
ha-
grant
federal court cannot
after
defendant has
maintained silence
disagrees
relief
because it
simply
beas
arrest,
exculpatory post-ar
but
made
has
finds an
in the
court’s
or
error
state
rest statements which are not themselves
application of
law.
at
federal
See id.
the exculpatory
inconsistent with
trial sto
end,
1495. In
S.Ct.
a state court
subject
ry, but which relate
a different
under
objectively
decision is
unreasonable
Grieco,
matter.”
Absent
court held
the state court
dispositive
ably
rule
law
Supreme
applied clearly
Court
that is
established federal
claim,
petitioner’s
by extending
federal habeas
Charles
the facts of
specifically,
must determine “whether the state
case.
the dis
court’s Kibbe’s
More
(or
use) existing
use of
failure to
law in trict court ruled that
the Kibbe court’s
deciding petitioner’s
application
claim involved
un
attempted
Charles “is devoid
support”
application
given
significant
reasonable
record
O’Brien,
A
precedent.”
factual dissimilarities between the two
Kibbe,
may
F.Supp.2d
state court decision
be set aside as an cases.
at 126. The
*11
district court noted that Charles
autho-
cross-examining the defendant about
rized a prosecutor to
questions
ask
about
his failure to recount the story upon his
post-Miranda omissions when those omis-
arrest.
U.S. at
Through credible
а
in
vehi-
finding
for
heroin
the
quite plausible
Upon
it is
at 1284.
precedent,
eral
cle,
court’s deci-
at the Kibbe
the defendant and
court to arrive
officials arrested
First,
some
argue,
a court could
as
gave
warnings.
sion.
him the Miranda
have,
prohibition
inquiring
Doyle’s
remain
right
then waived
to
defendant
only
post-arrest silence
into a defendant’s
exculpatory
and made
statements.
silent
invokes
when the defendant
applies
trial, the
testi-
Id. at 1286. At
defendant
Charles, 447
remain silent. See
right to
and details that he
fied to information
(characterizing
S.Ct. 2180
at
U.S.
statement,
post-arrest
from his
omitted
two defen-
a “case that involved
as
inquired
prosecutor
into these
and the
no
statements
postarrest
who made
dants
omissions,
though
even
some
the omis-
crime”);
in the
involvement
about
their
neces-
differed from—but were not
sions
Ochoa-Sánсhez,
F.2d
v.
United States
post-arrest
with—his
sarily inconsistent
(9th Cir.1982)
in a
(noting that
at
found
Id.
1287.
statement.
not
defendant does
in which the
situation
the
and comments re-
prosecutor’s inquiry
silent,
authority is
controlling
the
remain
permissible
the
because
garding
omissions
Second,
Charles,
the
Doyle).
though
testimony
trial
raised an
the defendant’s
prosecu-
only authorized a
Charles
“ar-
credibility,
prosecutor
and the
issue of
post-arrest
silence
tor
comment
closing argument
in
about
gued vigorously
be-
reveal inconsistencies
when omissions
trial testimo-
credibility
the
defendant’s
the
post-arrest statements and
tween the
ny.” Id.
ar-
testimony,
plausibly
a court could
trial
Ochoa-Sánchez,
in
prosecutor
in
the
As
holding
that this
should be extended
gue
exposed the
between the
of Kibbe’s case. In both Kibbe
differences
to cover
facts
cases,
testimony
their
voluntarily
post-arrest
waived
trial
defendants
defendant’s
to remain silent and offered
an
by emphasizing
important
statement
with their
testimony that was at variance
failure to
explain
omission—Kibbe’s
statement,
in-
either because
post-arrest
flight upon
divergence
his arrest. This
as in Kibbe or be-
formation was omitted
Fol-
gives
credibility.
rise to an issue of
given
were
as
cause inconsistent versions
Ochoa-Sánchez,
ruling in
lowing the
the thrust of
Charles. Because
question
prosecutor
proceeded
in Kibbe
holding
exposing
aimed at
Charles
was
credibility
focusing
defendant
multiple
diverging
version
defendants’
defendant]
on the omission: “And [the
events,
credibly
conclude
court could
is on
you
parole,
tells
he runs because he
read to allow
should be
Charles
that,
but
know he didn’t tell the
you
any
be-
prosecutor
probe
differences
exрlanation
what
didn’t offer that
an
for
and trial tes-
tween
statements
you’re
In
doing.
he
a case where
failure
timony, including
defendant’s
facts, you have to decide
finders of the
time
important information
provide
credibility.”
of arrest.
explicit support
Furthermore,
More
for the
support
there
can be found
United
existing
In Kibbe decision
Kibbe decision
case law.
(1st
Goldman,
Cir.
Ochoa-Sánchez,
car was States
defendant’s
1977).7
Goldman, the
defendant made
stopped
inspected by
customs officials
Charles,
positively.
Fur
Though
pre-dates
Goldman
Charles
thermore,
analysis in Goldman is
opinion,
the-waiver
the Charles Court cited Goldman
an exculpatory statement
during
inter matter.”
either by the determined argued First, when tion. U.S.C. States.” United on the with the cooperated he had 1996). all That is 2254(d)(1) II (Supp. § the door arrest, 'opened he night of reason, I reasoning. the same For issue, my as either to resolve case not the of O’Brien use majority opinion's consider here. same result yield the would standard dictum. reason, exposition engage in I do not For this we prefer need decide I engage
in extensive discussion in dicta possible
developments in law in this area.
AUGUSTA COMPANY, NEWS
Plaintiff, Appellant, CO.,
HUDSON NEWS Portland News
Co., and Hudson-Portland News
Co., Defendants, Appellees.
No. 01-1269.
United States Court of Appeals,
First Circuit. Aug.
Heard
Decided Oct.