Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
10-14-2004
Gibbs v. Frank Precedential or Non-Precedential: Precedential
Docket No. 02-3924
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Recommended Citation "Gibbs v. Frank" (2004). 2004 Decisions. Paper 171. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/171
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Mark A. Berman, Esq. (Argued) Gibbons, Del Deo, Dolan, Griffinger & Vecchione UNITED STATES COURT OF One Riverfront Plaza APPEALS FOR THE THIRD CIRCUIT Newark, NJ 07102-5497
Counsel for Appellant No. 02-3924 Gerald J. Pappert Attorney General BARRY GIBBS, Richard A. Sheetz, Jr. Executive Deputy Attorney General Appellant Director, Criminal Law Division Amy Zapp v. Chief Deputy Attorney General Appeals and Legal Services Section FREDERICK K. FRANK; DISTRICT Frank G. Fina (Argued) ATTORNEY OF PIKE COUNTY; Senior Deputy Attorney General ATTORNEY GENERAL OF Appeals and Legal Services Section PENNSYLVANIA Office of Attorney General of Pennsylvania 16th Floor-Strawberry Square Harrisburg, PA 17120 On Appeal from the United States District Court for the Counsel for Appellee Middle District of Pennsylvania (Dist. Court No. 99-cv-01627) District Judge: Hon. Edwin M. Kosik OPINION OF THE COURT
Argued: June 22, 2004 CHERTOFF, Circuit Judge. Before: NYGAARD, MCKEE and Appellant Barry Gibbs appeals from CHERTOFF, Circuit Judges. the District Court’s judgment denying his petition for a writ of habeas corpus. Gibbs, who is currently serving a sentence (Filed: October 14, 2004) of twenty to forty years imprisonment, argues that the state court’s decision was contrary to or an unreasonable application
1 of clearly established federal law. We death. The Pennsylvania Supreme Court agree and reverse. eventually reversed Gibbs’s conviction on grounds unrelated to this appeal, see I. Pennsylvania v. Gibbs, 553 A.2d 409 (Pa. In March of 1984 th e 1989), and the Commonwealth thereafter Commonwealth of Pennsylvania charged retried Gibbs. Gibbs with, inter alia, criminal homicide Gibbs decided not to pursue a for shooting and killing a security guard mental infirmity defense at his second named George Mehl. The Commonwealth trial. The defense decided instead to charged that Gibbs shot Mehl after a contest identity—that is, to raise doubt that woman named Sharon Burke hired him to it was Gibbs who shot George Mehl. kill her husband, Wayne Burke, who was Nonetheless, the Commonwealth moved in also a security guard. Mehl was shot as he limine for permission to call Sadoff as a sat beside Burke while they were both at witness to testify about the inculpatory work. statements Gibbs made to him. The court Prior to his trial in the Court of granted the Commonwealth’s motion Common Pleas of Pike County, Gibbs under the theory that a defendant’s petitioned the state judge to appoint an “testimony from an earlier trial may be expert to explore the possibility of raising introduced in the prosecution’s case a mental infirmity defense. The court against a defendant regardless of whether appointed Dr. A ntho ny Turc hetti. that defendant takes the stand or not in the Following Turchetti’s evaluation, Gibbs second proceeding,” because a defendant notified the Commonwealth that he in fact waives his right against self-incrimination intended to raise a mental infirmity by taking the stand in a previous defense at trial. proceeding. App. A10 (internal citations and quotations omitted). Sadoff testified The Commonwealth consequently at the second trial as a part of the secured an order from the court requiring Commonwealth’s case-in-chief; he related Gibbs to submit to an examination from a the inculpatory statements Gibbs made to state psychiatrist, Dr. Robert Sadoff. him. Sadoff gave Gibbs Miranda warnings prior to the examination, and Gibbs thereafter The jury again found Gibbs guilty, made several inculpatory statements. and the Pennsylvania Superior Court affirmed his conviction and sentence. The At the trial, Gibbs offered expert Pennsylvania Supreme Court denied testimony from Turchetti to support a allocatur, and Gibbs brought this petition diminished capacity defense, and the for a writ of habeas corpus pursuant to 28 Commonwealth called Sadoff as a witness U.S.C. § 2254 in the United States District to rebut Turchetti’s testimony. The jury Court for the M iddle D istrict of found Gibbs guilty and sentenced him to Pennsylvania. The District Court denied
2 the petition as to all the claims. We (1) resulted in a decision granted a certificate of appealability on the that was contrary to, or issue “whether Gibbs’ Fifth Amendment involved an unreasonable privilege against self-incrimination was application of, clearly violated during his retrial when the established Federal law, as Commonwealth was permitted to introduce determined by the Supreme Sadoff’s psychiatric testimony, which had Court of the United States; o r i g in a lly been offe red b y the or Commonwealth to rebut the diminished (2) resulted in a decision capacity defense asserted by Gibbs at his that was based on an first trial, relating incriminating statements unreasonable determination made by Gibbs despite the fact that Gibbs of the facts in light of the did not raise that defense at his second evidence presented in the trial.” State court proceeding. II. 28 U.S.C. § 2254(d). In addition, “a We exercise jurisdiction under 28 determination of a factual issue made by a U.S.C. §§ 1291 and 2253. Where (as here) State court shall be presumed to be a District Court relied exclusively on the correct” unless the petitioner rebuts “the state court record and did not hold an presumption of correctness by clear and evidentiary hearing on habeas review, this convincing evidence.” 28 U.S.C. § Court’s review is plenary. See Moore v. 2254(e)(1). Morton, 255 F.3d 95, 103 (3d Cir. 2001). “[C]learly established Federal law, Like the District Court, we review the state as determined by the Supreme Court of the court’s determinations with the deference United States” means “the holdings, as the 1996 Antiterrorism and Effective opposed to the dicta, of [the Supreme] Death Penalty Act (“AEDPA”) requires. Court’s decisions as of the time of the The statute provides: relevant state-court decision.” Williams v. (d) An application for a writ Taylor, 529 U.S. 362, 412 (2000); see also of habeas corpus on behalf Lockyer v. Andrade, 538 U.S. 63, 71-72 of a person in custody (2003) (“‘[C]learly established Federal pursuant to the judgment of law’ under § 2254(d)(1) is the governing a State court shall not be legal principle or principles set forth by granted with respect to any the Supreme Court at the time the state claim that was adjudicated court renders its decision.”). A state-court on the merits in State court decision is “contrary to” clearly proceedings unless the established federal law if the state court adjudication of the claim— (1) “contradicts the governing law set forth in [the Supreme Court’s] cases”’ or (2)
3 “confronts a set of facts that are materially that the defendant’s interview had been indistinguishable from a decision of [the compelled and without notice to the Supreme] Court and nevertheless arrives at defense attorney; and that no Miranda a [different] result.” Williams, 529 U.S. at warnings had been given. See Miranda v. 405-06. A state-court decision “involve[s] Arizona, 384 U.S. 436 (1966).1 The Court an unreasonable application” of clearly expressly observed—in language of established federal law if the state court s i g n if i c a n c e h e r e — t h a t b e f o r e (1) “identifies the correct governing legal interrogation the state must provide the rule from [the Supreme] Court’s cases but defendant “with an awareness of the Fifth unreasonably applies it to the facts of the A m e n d me n t privilege and th e particular . . . case”; or (2) “unreasonably consequences of forgoing it.” 451 U.S. at extends a legal principle from [Supreme 467. Court] precedent to a new context where it The Court in Smith emphasized that should not apply or unreasonably refuses there were two “distinct circumstances” to extend that principle to a new context that were elements of its conclusion: The where it should apply.” Id. at 407; see also state court compelled the defendant to Mitchell v. Esparza, 540 U.S. 12, 124 S. submit to the examination and the Ct. 7, 11 (2003) (per curiam); Werts v. defendant himself never placed his mental Vaughn, 228 F.3d 178, 197 (3d Cir. state in issue at either the guilt or penalty 2000). phase of the trial. 451 U.S. at 468. III. The Supreme Court soon addressed We begin by identifying the a case where these two circumstances did relevant Supreme Court precedents. The not exist in Buchanan v. Kentucky, 483 case law begins with Estelle v. Smith, 451 U.S. 402 (1987). There, the murder U.S. 454 (1981). There, the state judge defendant’s counsel and the prosecutor ordered a capital defendant to undergo a jointly petitioned the state court to order a psychiatric examination by a state-retained psychiatric examination of the defendant doctor. The defendant did not offer a to see if he should be treated during defense of mental infirmity at the guilt incarceration. At trial, the defendant phase of the trial, but at the capital penalty raised a defense of extreme emotional phase the state sought to offer the doctor’s disturbance, and the court allowed the testimony about the defendant’s prosecutor to use the earlier psychiatric admissions as proof of “future report to rebut the defense. dangerousness.” The Supreme Court granted habeas 1 relief. The Court determined that the Fifth We note that Gibbs challenges the and Sixth Amendments (through the admissibility of the testimony under the Fourteenth) applied at the penalty phase; Fifth Amendment, but not under the Sixth Amendment.
4 The Buchanan Court distinguished refined what was implicit in Smith by Smith, drawing on language in its earlier holding that a defendant’s initiation of the decision suggesting that “if a defendant psychiatric issue at trial could waive a requests [a psychiatric evaluation] or Fifth Amendment objection—but not a presents psychiatric evidence, then, at the Sixth Amendment objection—to the very least, the prosecution may rebut this state’s subsequent use of a mandatory presentation with evidence from the psychiatric report. As part of its analysis, reports of the examination that the the Court observed that there could be no defendant requested.” 483 U.S. at 422-23. Sixth Amendment waiver because no Since, in Buchanan, defense counsel Supreme Court case had suggested that by sought the examination and then placed “opening the door” to the admission of his mental state in issue, there was no state psychiatric evidence in the guilt constitutional violation when the state phase, the door would also “open” offered the examination for a “limited automatically to the admission of that rebuttal purpose.” Id. at 424 (emphasis evidence for a different purpose in the added). penalty phase. 492 U.S. at 685 n.3. Since Buchanan, the ruling in Most recently, the Supreme Court Smith was reaffirmed and applied to revisited this issue in the context of a invalidate convictions in two further habeas challenge mounted after the 1996 Supreme Court cases. Satterwhite v. AEDPA habeas amendments, and under Texas, 486 U.S. 249 (1988) presented the narrower standard of review which facts almost identical to Smith, in that the now applies.2 In Penry v. Johnson, Penry state offered penalty phase evidence from was charged with a 1979 capital murder. a compelled psychiatric examination of the 532 U.S. 782 (2001). Earlier, in 1977, he defendant, even though the defendant did had been subjected to a psychiatric not put his psychological state in issue. examination requested by defense counsel The Court held that because the for an unrelated non-capital crime. Penry examinations occurred after indictment, placed mental state in issue both in his and without proper notice to defense capital trial and in the previous trial for the counsel, there was a Sixth Amendment earlier crime. In the capital trial, the state violation. 486 U.S. at 255-56. Powell v. was permitted to use the voluntary Texas, 492 U.S. 680 (1989) presented a psychiatric report from the prior trial to somewhat different factual pattern. There, the state examined the defendant and 2 offered the psychiatric report at the Because the earlier Court cases penalty phase. The state argued that this discussed predate the 1996 habeas did not run afoul of Smith because at the amendments, they do not address whether guilt phase the defendant himself had the state court ruling was “contrary to” or raised a psychiatric defense. The Court an “unreasonable application” of Supreme Court precedent.
5 impeach Penry’s own psychological Penry). Similarly, the Fifth—but not witness. The Supreme Court held the state Sixth—Amendment right can be waived court rulings not contrary to, or when the defendant initiates a trial defense unreasonable in applying, prior Supreme of mental incapacity or disturbance, even Court precedent because it distinguished though the defendant had not been given Smith. In particular, the Court Miranda warnings (Buchanan, Powell). underscored the following differences: In But that waiver is not limitless; it only Smith, the defendant did not place his allows the prosecution to use the interview mental state in issue; in Penry he did. In to provide rebuttal to the psychiatric Smith, the psychiatric examination was defense (Buchanan, Powell). Finally, the compelled by the court and conducted by state has no obligation to warn about a state doctor; in Penry, the defense possible uses of the interview that cannot attorney requested the examination. In be foreseen because of future events, such Smith, the state put on the psychological as uncommitted crimes (Penry).3 evidence in its case in chief; in Penry it How does the state court decision was limited to cross-examination. Finally, in this case stack up against these 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 3 It is not clear whether this last preceded the capital crime itself, so the point follows from the Fifth Amendment, state could not have anticipated—or as interpreted by the Supreme Court in warned about—the possibility of its future Penry, or whether it is simply not use in the capital case. 532 U.S. at 794. unreasonable for a state court to apply the If we lay these decisions out, the Supreme Court’s precedent this way. The following landscape emerges. A Court’s decision in Penry tends to indicate compelled psychiatric interview implicates the latter. 532 U.S. at 794-95. After Fifth and Sixth Amendment rights explaining several differences between (Smith). Before submitting to that Penry’s case and prior Supreme Court examination, the defendant must receive precedent, the Court expressly stated that Miranda warnings and (once the Sixth it did not have to “decide whether these Amendment attaches) counsel must be differences affect the merits of Penry’s notified (Smith). The warnings must Fifth Amendment claim,” because “the advise the defendant of the “consequences question is whether the [state] court’s of foregoing” his right to remain silent decision was contrary to or an (Smith). The Fifth and Sixth Amendments unreasonable application of our do not necessarily attach, however, when precedent.” Id. (emphasis added). We the defendant himself initiates the assume for purposes of this decision, psychiatric examination (Buchanan, however, that this last point is a matter of substantive Fifth Amendment law.
6 precedents? 4 Here, the defense initially not even to prove a psychological point, indicated it would raise a psychiatric since the second trial presented no defense and accordingly the court ordered psychological issue before Sadoff as a condition that the defendant submit to testified. The statement was offered an interview by a state doctor, Robert simply for the truth of the admissions of Sadoff. Sadoff gave Gibbs Miranda fact. In this sense, the psychiatric warnings. During the first trial, Gibbs in interview was used for a purpose even less fact offered insanity and diminished justifiable than that in Smith, where at capacity defenses, and Sadoff testified in least the state’s purpose in offering a rebuttal. Undoubtedly, Sadoff’s testimony psychiatric analysis at the penalty phase was permissible in that trial under Smith was to establish a psychological and Buchanan. But that trial was reversed disposition to be dangerous in the future. and vacated, by the Pennsylvania Supreme If these facts were all that were Court, on other grounds. before us, we could say that the state At the second trial, Gibbs presented ruling admitting the Gibbs interview in the no mental capacity defense. Sadoff was second trial was contrary to Smith itself. permitted to testify in the prosecution case But there is a crucial additional fact that in chief, however, simply to repeat makes a difference. According to the incriminating statements that Gibbs had finding of the state court, Sadoff made in the interview. “mirandized” Gibbs. App. A17. The state argues that this takes the case out of the As in Smith, Gibbs’s interview template of Smith altogether.5 with Sadoff was mandated by the state court, and Sadoff was the state-selected doctor. As in Smith, the statement was not 5 The Commonwealth asserts that offered at the second trial after the defense Gibbs did not raise his “limited waiver” put psychiatry in issue, and it was not argument before the state courts or the limited to rebuttal. In fact, the purpose for District Court, and thus cannot do so which it was offered at Gibbs’s trial was before us. We disagree. The waiver issue was implicit in Gibbs’s Fifth Amendment argument, which he has asserted 4 The state decision actually throughout the state and federal discussed none of these cases. But the proceedings. In fact, the state courts and Supreme Court has instructed that “a state the District Court, while not characterizing court need not even be aware of our their analysis as one of waiver, based their precedents ‘so long as neither the decision on a waiver theory. See App. reasoning nor the result of the state-court A48 (“In choosing to pursue a mental decision contradicts them.’” Mitchell v. defense in his first trial and reap any Esparza, 124 S. Ct. at 10 (quoting Early v. possible benefits therefrom, the fact that Packer, 537 U.S. 3, 8 (2002)). he is not acquitted and is required to go
7 We agree that the warning takes the testifies at suppression hearing asserting fact pattern outside the strict bounds of Fourth Amendment claim does not waive Smith, so that this case is not contrary to his Fifth Amendment privilege and his Smith, or any other decision. That leaves statements cannot be used against him at the question whether the admission of trial on the issue of guilt). Gibbs’s interview is either an The record is silent as to what unreasonable application of Smith to the Sadoff said precisely, and the state court facts or an unreasonable failure to extend made no factual findings in this regard, Smith to the facts. either explicit or implicit. The inference We initially recall that Smith from the term of art “mirandized” is that explicitly held that the warnings given to he offered the standard language a potential psychiatric interviewee must articulated in the Miranda decision. See advise him of the “consequences of” Dickerson v. United States, 530 U.S. 428, waiving his Fifth Amendment rights. 435 (2000). Since that warning states Under any reasonable view, this requires without limitation that “anything you say an accurate statement of those may be used against you in a court of consequences. Thus, if Sadoff told Gibbs law,” one might conclude that Gibbs gave that his statements could be used against a general waiver. But Sadoff’s warning him only if he raised a mental state did not occur in a vacuum. Everyone defense at trial, any waiver by Gibbs understood that the psychiatric interview would be specific to that condition, and was a court-ordered precondition to the only reasonable application of Smith Gibbs’s presentation of a psychiatric would mandate that the statements be defense. More important, Pennsylvania excluded if no such defense was raised. law expressly limited the scope of any On the other hand, if Sadoff told Gibbs psychiatric examination waiver so that the that his statement could be used against evidence could not be used for any him in court for any purpose whatsoever, purpose other than a proceeding about the whether or not he offered any kind of defendant’s “mental condition.” 50 Pa. psychological defense, then it would Stat. § 7402(e)(3). arguably be a general waiver, and it would Accordingly, Gibbs (and his be reasonable to regard Smith as satisfied. attorney) were legally entitled to But cf. Simmons v. United States, 390 understand any Miranda waiver in the U.S. 377, 393-94 (1968) (defendant who context of existing state law and the procedural setting of the case. That is, that through a second trial wherein he decides the waiver covered only use of any not to utilize a mental defense, does not psychiatric interview in a proceeding in enable Gibbs to take back the voluntary which defendant’s mental state was raised statements previously given to Dr. by the defense. Here, the state does not Sadoff”). contend that it was unreasonable for the
8 defense to assume that any Fifth warnings that misstate the consequences Amendment waiver was predicated on the of the waiver. use of the statement only in a trial where Two other Supreme Court psychiatric evidence was in issue. Such an decisions reinforce this conclusion. First, assumption was dictated by the context of in Penry, the Supreme Court distinguished the examination, and the mandate of state Smith by pointing out that at the time of law. Smith’s psychological examination it was That being so, we face the ultimate evident that the issue of his state of mind question. Would it be unreasonable for a and dangerousness could arise at state court to read Smith as permitting the sentencing; it was therefore necessary that use of a “mirandized” psychiatric he be advised of this consequence before interview for a purpose that is utterly he waived his Fifth Amendment rights. different than that which formed the Penry, on the other hand, was examined underlying basis for the waiver? Put for a crime other than the capital crime he another way, if the interview is obtained later committed; it would, therefore, have based on an understanding of the limited been impossible to advise him at the time consequences of Gibbs’s waiver, and if of his waiver that his statements might be the limitation is then disregarded, is use of relevant in a future prosecution for a crime the interview reasonable under Smith? that had not yet occurred. This distinction That answer must be that it would be emphasizes the importance of advising a unreasonable. defendant like Gibbs accurately about the foreseeable consequences of his waiver. The language of Smith itself says Here, it was foreseeable that Gibbs might that the interviewee must be made aware ultimately go to trial and opt not to raise a of “the Fifth Amendment privilege and the psychiatric defense; indeed, the consequences of forgoing it.” 451 U.S. at foreseeability of that possibility is implicit 467 (emphasis added). Obviously a false in the state statute that limits the use of statement of the consequences or a psychiatric examinations to proceedings statement that is misleading by omission involving a defendant’s mental condition. does not satisfy that standard. Cf. Moran v. Burbine, 475 U.S. 412, 423-24 (1986) Second, in Powell, the Court (withholding information is “relevant to emphasized that waivers of Fifth the constitutional validity of a waiver if it Amendment rights are limited to the deprives a defendant of knowledge specific consequences as to which the essential to his ability to understand the defendant is given notice. Powell rejected nature of his rights and the consequences the idea that raising an insanity defense at of abandoning them”). It could hardly be trial would automatically waive the right reasonable, therefore, to hold that Smith is to object to admission of psychiatric satisfied by securing a waiver based on evidence at a penalty hearing. 492 U.S. at 685 n.3. This underscores that the scope
9 of the waiver must be measured in terms judgment of the District Court and remand of the consequences about which the the cause for it to grant Gibbs’ petition for defendant is warned.6 A reading of a writ of habeas corpus and require the Powell and Smith that overlooked this state to either release Gibbs or retry him crucial limitation would be an within a specified time period. unreasonable application of those precedents. IV. We conclude that the writ should issue here.7 We will therefore reverse the
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)).
10 Gibbs v. Frank, No. 02-3924 courts, that determines federal law for the purposes of habeas review. 529 U.S. at 381 (“If this Court has not broken NYGAARD, Circuit Judge, concurring sufficient legal ground to establish an asked-for constitutional principle, the I agree with the majority’s lower federal courts cannot themselves conclusion. I, too, would reverse. I write establish such a principle with clarity briefly, however, to state my view of what sufficient to satisfy the AEDPA bar.”) the phrase “clearly established federal law (Stevens, J., concurring). The Court, as defined by the Supreme Court of the however, did not hold that AEDPA United States,” means, and should mean. somehow disestablished the Constitution To me, the Fifth Amendment and its itself as clear federal law. axiomatic injunction is clearly established federal law, and has been since Malloy v. Precluding the text of the Hogan, when the Supreme Court through Constitution from being considered as the doctrine of incorporation ruled that the clearly established federal law could create Fifth Amendment’s protections applied to the anomaly of having an explicit and self- the states as well as the federal evident constitutional right that is government. 378 U.S. 1, 6 (1964). unenforceable in habeas proceedings simply because the Supreme Court has not First, I believe that neither the Anti- elaborated upon the contours of that right. Terrorism and Effective Death Penalty Act It is after all the Constitution, and not the of 1996 nor Williams v. Taylor, 529 .S.Ct. Supreme Court, that created the cherished 362 (2000), preclude us from looking to American rights relied upon, inter alia, by the actual text of the Constitution to habeas petitioners. I conclude that the determine the relevant clearly established clearest statement of federal law is found federal law when the Supreme Court has in the express text, and derived from the not addressed the issue. It is my opinion obvious intent, of the Fifth Amendment that Congress’ statement that a state itself. court’s decision must stand unless it is “contrary to, or an unreasonable The well-known text of the Fifth application of, clearly established federal Amendment itself ensures that no person law, as determined by the Supreme Court “shall be compelled in any criminal case to of the United States” was not meant to be a witness against himself.” U.S. Const. pretermit consideration of a protection Amend. V. I cannot believe that Congress expressly provided by the Bill of Rights. would consider anything to be more clearly established. I certainly do not. The To me, a fair reading of essence of this Amendment’s language is Williams indicates that what the Court was “the requirement that the state which establishing therein, is that it is to be its proposes to convict and punish an word, as opposed to that from the inferior individual produce the evidence against
11 him by the independent labor of its trial court admitted the statement, it officers, not by the simple, cruel expedient deprived Gibbs of his right against self- of forcing it from his own lips.” Smith, incrimination by violating the express 451 U.S. at 462 (quoting Colombe v. language of the Fifth Amendment. Its Connecticut, 367 U.S. 568, 581-82 decision was contrary to clearly (1961)). In Gibbs’ second trial, when the established federal law; and I too, would Commonwealth introduced Gibbs’ own reverse. 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 ( 4 th 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