United States Court of Appeals

For the First Circuit

No. 06-1491

CHRISTOPHER ELLEN,

Petitioner, Appellant,

v.

BERNARD BRADY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge, 

and Lipez, Circuit Judge.

David J. Barend for appellant.

Randall E. Ravitz, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief for appellee.

January 26, 2007
-2-

LIPEZ, Circuit Judge. In this habeas case, petitioner

Christopher Ellen claims that his trial for assault in the

Massachusetts Superior Court violated the Due Process Clause of the

Fourteenth Amendment because it was tainted by testimony that he

remained silent after receiving Miranda warnings. The testimony by

the arresting officer was followed by an immediate objection,

lengthy discussion between counsel and the court, and, ultimately,

a directive from the court that the officer's testimony about

Ellen's silence be stricken from the record. The court also gave

emphatic instructions to the jury about the importance of the

defendant's right against self-incrimination and the state's burden

of proof. Ellen claims that, nonetheless, the officer's comment

and the court's response violated his due process rights. The

Massachusetts Appeals Court rejected Ellen's claim. We conclude

that its decision was neither contrary to, nor an unreasonable

application of, clearly established federal law. See 28 U.S.C. §

2254(d). Therefore, we affirm the decision of the district court

denying habeas relief.

I.

A. Factual Background

Adair Rowland lived alone in a house adjacent to Ellen's

in Amesbury, Massachusetts. On the evening of Sunday, July 25,

1999, Rowland returned home after attending a dinner party to

discover signs of a recent intruder in her bedroom. She phoned a
-3-

friend, turned on a light, and opened her back door. While waiting

for her friend in the kitchen, Rowland heard a loud noise and saw

a man approaching her. This man, later identified as Ellen, was

wearing only a pair of shorts, and he had tube socks over his

hands. Ellen hit Rowland in the face, threw her against the

counter and then onto the floor. He also shut and locked the back

door she had just opened. Ellen then attempted to strangle her,

using a sash from her high school prom dress that he had taken from

a storage box in the attic.

Suddenly, Ellen ceased strangling Rowland and released

her. She asked who he was. He said that he was insane, and that

they were both victims. A neighbor heard the commotion in

Rowland's kitchen and called the police, who arrived shortly after

Ellen stopped his attack. The two officers who arrived at the

house first reported that Ellen was sweaty and bloody, and was

still wearing only shorts. Rowland was experiencing difficulty

breathing, had multiple bruises and abrasions, and appeared to be

in shock.

Ellen admitted to the officers that he had hit Rowland

but stated that he did not know why he had done so. The officers

subsequently searched Rowland's house, and found additional pieces

of clothing, taken from her bedroom closet and the storage box in

the attic, which were knotted, ripped, tied to furniture, or strewn

about. The phone in Rowland's bedroom had been unplugged; the
 The relevant portion of the exchange between the prosecutor and 1

Ouellet was as follows:

Q. Okay. As part of the booking process was he given

what is known as the Miranda warning?

A. Yes, he was.

Q. And where does that fit into the procedure of

booking?

A. Sometimes during booking it can be given at the

beginning, the middle, the end, or during.

Q. On this particular occasion do you recall when you

did that?

A. I can't recall exactly when.

Q. What procedure did you follow in giving him his

Miranda warning?

A. He was asked to read his Miranda warning on the board

in front of him, the wall beside him, and have him read

it along with me as I am reading it from a card to him.

Q. Did he read it out loud?

A. No.

-4-

bulkhead door providing access to Rowland's basement had been

wedged open.

Ellen was taken to the Amesbury police station, where he

was booked by Officer Ouellet and given Miranda warnings. He

declined to make any statements at that time. Ellen was tried in

October 2000 on four charges: burglary with assault on an occupant,

assault and battery with a dangerous weapon, assault with intent to

murder, and assault with intent to rape. At trial, Ouellet

testified at length about the chronology of events on the night of

the crime. At the end of a series of questions about the Miranda

warnings given during the booking process, Ouellet was asked what

he said to Ellen or did with him. Ouellet replied, arguably nonresponsively, that Ellen declined to make a statement to the police

at that time. 

1
Q. Did you read it out loud to him?

A. Yes.

Q. After each warning did you ask him if he had any

questions?

A. Yes.

Q. Did he respond to that?

A. Yes.

Q. Did he have any questions?

A. He had no questions.

Q. After completing the Miranda warning, did you read

off a small green card?

A. Yes.

Q. And that is the procedure you use at the Amesbury

Police Station?

A. Correct.

Q. At the conclusion of giving him his Miranda warning,

what, if anything, did you say or do with him?

A. On the bottom of the card is, you know, Do you wish

to speak to me now, is on the bottom of it. And on that,

when I asked him to sign it, he printed the word no, and

signed the card.

-5-

Immediately after this answer, defense counsel objected

and the lawyers and trial judge engaged in a sidebar discussion.

Ellen's lawyer requested a mistrial, but the judge asked for

argument and some research on the constitutional implications of

the prosecutor's question and the officer's answer. While the jury

took a recess, the lawyers presented arguments to the judge. After

reviewing relevant cases, the judge decided that an immediate

curative instruction could resolve the problem and that a mistrial

was unnecessary. Defense counsel again objected and argued that an

instruction to the jury would exacerbate the error. Nonetheless,

the judge recalled the jury, sustained the objection, struck

Officer Ouellet's final answer from the record, and gave a lengthy

instruction on the burden of proof and the right against self-
Since the particular language of the instruction is relevant to 2

our subsequent legal analysis, we include an excerpt of the

instruction here.

Just before we broke, there was a question that was

asked by the prosecutor with regard to Mr. Ellen being

given his so-called Miranda rights. . . . And one of

those [constitutional] principles is that we are

presumed, should we be charged with a crime, we are

presumed to be innocent, and that we cannot be forced to

testify against ourselves.

In other words, we have protection against

incrimination, self-incrimination. And those are very

important principles of law that I touched on briefly,

will define and discuss in more detail at the end of the

case. . . .

And so the defendant doesn't have to do anything.

No defendant in a criminal case has to do anything when

they're charged. They don't have to present witnesses,

they don't have to present exhibits, they don't have to,

they don't have to say anything. . . . 

And what goes with that is that when someone chooses

to avail themselves of that important constitutional

right . . . that should never be used against you. A

jury should never say, well, you know, he said he didn't

want to talk, that must mean something. That would be

wrong. And so that was an improper question that was put

to the witness to the extent the witness responded and

said, and gave the answer that he did.

So what I'm going to do is strike that answer that

you heard from the police officer and tell you and

instruct you that you are to disregard that. And I

wanted you to understand why. . . .

-6-

incrimination. The judge also explicitly told the jurors that they

could not draw any adverse inferences from the challenged

testimony. Defense counsel unsuccessfully renewed his motion for 2

a mistrial.

Ellen's defense was that he experienced a dissociative

episode on the night in question, and thus was not guilty by reason

of insanity. He testified that he had no memory of his entry into
 The trial court entered judgment as a matter of law for the 3

defendant on the charge of assault with intent to rape.

 Ellen also argued to the state appeals court that the prosecutor 4

made numerous inappropriate comments in his closing argument and

that there was insufficient evidence to support the nighttime

element of the burglary charge. 797 N.E.2d at 946. The court

rejected both of these claims as well. 

-7-

Rowland's house, or of his attack on her. Ellen also offered the

testimony of a psychiatrist who described various traumas in

Ellen's past. The psychiatrist opined that Ellen experienced two

prior incidents that were consistent with a diagnosis of

dissociative episodes, and that Ellen's behavior and symptoms on

July 25, 1999 were indicative of a third dissociative episode.

After Officer Ouellet's testimony and the judge's curative

instruction, no other reference was made to Ellen's post-Miranda

silence, either by a witness, or in the prosecutor's closing

argument.

B. Procedural Background

Ellen's conviction on three of the assault charges was

affirmed by the Massachusetts Appeals Court. The state court held 3

that Ouellet's disclosure that Ellen declined to speak to the

police after being given his Miranda warnings was not error because

the testimony was stricken from the record and the judge gave a

curative instruction. Commonwealth v. Ellen, 797 N.E.2d 946, 946

(Mass. App. Ct. 2003) (unpublished). Because the court found no

error, it did not discuss the issue of prejudice to the defendant.4
 The Antiterrorism and Effective Death Penalty Act ("AEDPA") also 5

provides for habeas relief if a federal court finds that the state

court adjudication "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)(2).

Ellen has not claimed that the state court made any unreasonable

factual determinations. Therefore, § 2254(d)(2) is not applicable

here.

-8-

Ellen's application to the Supreme Judicial Court for further

appellate review was denied.

Ellen filed a petition for a writ of habeas corpus in the

district court, claiming only that Officer Ouellet's disclosure of

his post-Miranda silence and the trial court's response to it was

a violation of his due process rights. The district court denied

the petition in a brief ruling from the bench. The court also

granted a certificate of appealability "as to the Issue of PostMiranda Silence" and Ellen filed this appeal.

II.

We review the district court's denial of habeas relief de

novo. See, e.g., Caputo v. Nelson, 455 F.3d 45, 49 (1st Cir.

2006). The question we must address is whether the Massachusetts

Appeals Court's finding that no constitutional error occurred was

either contrary to, or an unreasonable application of, clearly

established federal case law. 28 U.S.C. § 2254(d)(1). We must 5

first identify what constitutes the relevant "clearly established

Federal law, as determined by the Supreme Court." Id. We will

then consider whether the Appeals Court's decision was "contrary
-9-

to" that law, as that term has been narrowly defined by the Supreme

Court. Finally, we will examine whether the state court decision

was an unreasonable application of the clearly established law. In

making this evaluation of the state court's decision, we do not

focus on the quality of the court's reasoning but rather on the

reasonableness of the outcome. Hurtado v. Tucker, 245 F.3d 7, 20

(1st Cir. 2001) ("The ultimate question on habeas, however, is not

how well reasoned the state court decision is, but whether the

outcome is reasonable."). 

A. The "Clearly Established" Law

We begin with a brief survey of the relevant "clearly

established" federal law at the time of the state court's decision.

Williams v. Taylor, 529 U.S. 362, 379 (2000) (citing 28 U.S.C. §

2254(d)(1)). Our inquiry into whether a particular legal rule is

clearly established is de novo. The federal courts "must make an

independent evaluation of the precedent existing at the time the

state conviction became final." Wright v. West, 505 U.S. 277, 305

(1992) (O'Connor, J., concurring in the judgment).

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme

Court held that an individual's exercise of his right against selfincrimination cannot be used against him. Id. at 468 n.37 ("In

accord with our decision today, it is impermissible to penalize an

individual for exercising his Fifth Amendment privilege when he is

under police custodial interrogation. The prosecution may not,
-10-

therefore, use at trial the fact that he stood mute or claimed his

privilege in the face of accusation."). It has long been clear,

therefore, that a defendant's silence in response to the

prophylactic Miranda warnings cannot be used as substantive

evidence of his guilt. Id.

In Doyle v. Ohio, 426 U.S. 610 (1976), the two defendants

claimed in their separate trials that they had been framed by a

government informant. Given this defense, the prosecutor asked

during extensive cross-examination of each defendant why he said

nothing about being framed at the time of his arrest. Id. at 613-

14. The prosecutor repeatedly asked the defendants whether they

had "told [the arresting officer] all about what happened to

[them]" and why they didn't "protest [their] innocence." Id. The

state claimed that these questions by the prosecutor were a

justified form of impeachment because the defendants were offering

at trial a new exculpatory account of the events. Id. at 616-17.

The Supreme Court rejected the state's attempt to

distinguish impeachment from substantive evidence of guilt, holding

that "the use for impeachment purposes of petitioners' silence, at

the time of arrest and after receiving Miranda warnings, violated

the Due Process Clause of the Fourteenth Amendment." Id. at 619.

The Court based its decision on the assurances of fairness implicit

in the Miranda warnings: 

[W]hile it is true that the Miranda warnings

contain no express assurance that silence will
-11-

carry no penalty, such assurance is implicit

to any person who receives the warnings. In

such circumstances, it would be fundamentally

unfair and a deprivation of due process to

allow the arrested person's silence to be used

to impeach an explanation subsequently offered

at trial. 

Id. at 618.

The Supreme Court held the Doyle rationale equally

applicable where the prosecutor seeks to use evidence of a

defendant's post-Miranda silence as evidence of the defendant's

mental state. In Wainwright v. Greenfield, 474 U.S. 284 (1986),

the prosecutor asked each of the two arresting officers about the

multiple occasions on which the defendant invoked his right to

remain silent following the Miranda warnings. Id. at 286-87.

There, the defendant pled not guilty by reason of insanity, and the

prosecutor sought to show that his decision to remain silent after

arrest demonstrated his mental competence. Id. at 287. The

Supreme Court reaffirmed its reasoning in Doyle, citing the

unfairness of promising "an arrested person that his silence will

not be used against him and thereafter [] breach[ing] that promise

by using the silence to impeach his trial testimony." Id. at 292.

The Court concluded that the same unfairness would result from

using post-Miranda silence as evidence of sanity: "[t]he implicit

promise, the breach, and the consequent penalty are identical in

both situations." Id.
-12-

However, mere reference to a defendant's post-Miranda

silence does not necessarily amount to a due process violation. In

Greer v. Miller, 483 U.S. 756 (1987), the prosecutor's second

question to the defendant was "Why didn't you tell this story to

anybody when you got arrested?". Id. at 759. Defense counsel

objected to the question before the defendant could answer. The

judge sustained the objection and instructed the jury to ignore the

question, but gave no explanation for the ruling. The trial

continued without further reference to the defendant's silence

after receiving the Miranda warnings. The Supreme Court held that

there was no due process violation in these circumstances because

"[t]he fact of [the defendant's] postarrest silence was not

submitted to the jury as evidence from which it was allowed to draw

any permissible inference." Id. at 764-65.

We draw from Greer this proposition: in cases where a

prosecutor refers to the defendant's post-Miranda silence in a

question to a witness or a statement to the jury, or elicits

testimony about such silence from a witness, and the offending

question, statement or testimony is promptly addressed by the

court, in an instruction to disregard and/or strike from the

record, there may not necessarily be a Doyle violation because the

government has not been permitted to "use" the defendant's silence

against him. This is a case-by-case determination, as Greer made

clear. Id. at 764 n.5. The majority in Greer explicitly stated
-13-

that its decision was not based on the absence of prejudice to the

defendant. Instead, its ruling addressed the existence of a

constitutional error in the first place. Id. at 761 n.3 (noting

that the decision was not based on the "harmless-error" standard,

but on the "fundamental question" whether "an error of

constitutional dimension occurred").

These Supreme Court decisions comprise the core of

"clearly established" federal law governing the state's use at

trial of a defendant's post-Miranda silence. We turn now to an

examination of whether the Massachusetts Appeals Court's decision

was either contrary to or an unreasonable application of this law.

B. Was the Appeals Court's Decision "Contrary to" Federal Law?

A federal court may provide habeas relief to a state

court prisoner where the state court proceedings "resulted in a

decision that was contrary to . . . clearly established Federal

law." 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S.

362, the Supreme Court explained the two ways in which a state

court decision might be "contrary to" federal law. First, a state

court decision that applies an incorrect legal standard, or

misstates the rule articulated in a Supreme Court case, will be

"contrary to" clearly established Supreme Court precedent. Id. at

405. The Court was careful to define "incorrect," saying that it

requires a legal standard that is "substantially different," and

thereby "contradictory" or "opposite" to the appropriate standard.
 Ellen misconstrues the second definition of "contrary to" under 6

Williams. He cites to the differences between his case and Greer;

we interpret his argument as one under the "unreasonable

application" test.

-14-

Id. Second, if the state court "confronts a set of facts that are

materially indistinguishable from a decision of this Court and

nevertheless arrives at a result different from [Supreme Court]

precedent," that decision would also be contrary to federal law.

Id. at 406. 

Ellen's only developed "contrary to" argument relies on

the "incorrect legal standard" definition. Here, the 6

Massachusetts Appeals Court did not specifically refer to any

Supreme Court precedent in its discussion of the arresting

officer's testimony about Ellen's exercise of his right to remain

silent after receiving Miranda warnings. 797 N.E.2d at 946.

However, the Appeals Court cited to Commonwealth v. Mahdi, 448

N.E.2d 704 (Mass. 1983). Mahdi discusses the Supreme Court's

decision in Doyle at some length and accurately recites and applies

the rule announced therein. Id. at 713-14. Further, although

Mahdi was decided before Wainwright, the Massachusetts Supreme

Judicial Court predicted the rule later announced in Wainwright,

saying: "[W]e fail to see how use of evidence to infer sanity

substantively differs from use to infer guilt . . . . Fundamental

unfairness results from the use of evidence of such silence

regardless whether the person exercising his or her constitutional
-15-

right to remain silent claims insanity as a defense." Id. The

state court thus accurately stated the governing federal law

through its reliance on Mahdi.

C. Was the Appeals Court's Decision An "Unreasonable Application

of" Federal Law?

Federal courts may grant habeas relief to state prisoners

who can show that the state court decision in their case involved

an "unreasonable application" of clearly established federal law.

28 U.S.C. § 2254(d)(1). As with the "contrary to" provision, we

start with the Supreme Court's explanation of this statutory

language. In Williams, the Supreme Court held that "a federal

habeas court making the 'unreasonable application' inquiry should

ask whether the state court's application of clearly established

federal law was objectively unreasonable." 529 U.S. at 409. The

Court continued by noting that "the most important point is that an

unreasonable application of federal law is different from an

incorrect application of federal law." Id. at 410. See also

McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002).

The Massachusetts Appeals Court found that no Doyle

violation occurred. In Greer, the Supreme Court explained that the

hallmark of a Doyle violation is "the use" of the defendant's postMiranda silence against him, especially where the prosecution is

allowed to "'call attention to [the defendant's] silence.'" 483

U.S. at 763 (quoting Doyle, 426 U.S. at 619). The Court went on to

say that it was "significant that in each of the cases in which
-16-

this Court has applied Doyle, the trial court has permitted

specific inquiry or argument respecting the defendant's postMiranda silence." Id. at 764. This language suggests that in

order to establish the existence of a Doyle violation, the

defendant must show that the prosecution used the defendant's postMiranda silence against him by asking questions, eliciting

testimony, or making a statement or argument that invites or

encourages the jury to infer guilt (or sanity, as the case may be)

from the defendant's silence. The Court's decision in Greer,

finding that no Doyle violation occurred, hinged on two key facts:

the prosecutor was not permitted to call attention to the

defendant's silence (because the defendant's objection to the

prosecution's question was promptly sustained and no further

mention was made) and no evidence of that silence was submitted to

the jury. Id. at 764-65.

This case easily falls within the scope of the reasoning

in Greer. As in that case, the court here sustained the first and

only objection raising the Doyle issue after Ouellet's testimony

that Ellen chose to remain silent; no further references were made

to Ellen's silence; and no evidence of that silence was permitted

to go to the jury. Although Ellen accurately observes that the

prosecutor in his case asked Officer Ouellet a long series of

questions regarding the Miranda warnings, there was no reference in

that colloquy to Ellen's choice to remain silent until the end of
See supra note 1. The prosecutor's question was: "At the 7

conclusion of giving him his Miranda warning, what, if anything,

did you say or do with him?" In response, Officer Ouellet

responded as follows: "On the bottom of the card is, you know, Do

you wish to speak to me now, is on the bottom of it. And on that,

when I asked him to sign it, he printed the word no, and signed the

card."

-17-

the inquiry when Ouellet testified, arguably non-responsively, to

a vague and open-ended question by the prosecutor. At no point 7

did the prosecutor directly ask the officer about Ellen's postwarning silence; in fact, the prosecutor's question asked what the

officer himself did or said after the Miranda process, not what

Ellen did or said. Therefore, the prosecutor in this case did not

make specific inquiry about Ellen's silence, or argue to the jury

that his silence should be interpreted as evidence of guilt. 

Additionally, the lengthy curative instruction in this

case explained to the jurors that no adverse inferences could be

drawn from Ellen's silence and that Officer Ouellet's testimony on

that point was improper and ought not be given any weight. The

court further told the jury that it was striking Officer Ouellet's

answer. See supra note 2. In Greer, the judge did not give a

curative instruction beyond telling the jurors that the offensive

question should be disregarded, perhaps because the prosecutor's

accusatory question to the defendant about his silence was objected

to and stricken before any answer could be given. Seizing on this

distinction, Ellen claims that the instruction at his trial served

to compound the error of Ouellet's disclosure of his post-warning
 Also, what happened in this case emphasizes the risks for the 8

prosecution if it chooses to ask questions about the Miranda

procedure for whatever purpose. Cf. Wainwright, 474 U.S. at 295

(noting that questions regarding the defendant's demeanor or

behavior during booking or the administration of Miranda warnings

may be permissible, if "carefully framed" to "avoid[] any mention

of the defendant's exercise of his constitutional rights").

Indeed, in light of the clear precedent, the prosecutor should have

been particularly careful to ensure that Ellen's post-Miranda

silence was not mentioned, even in a more responsive answer. The

Supreme Court's decision in Wainwright was published in 1986,

fourteen years before this trial. That decision clearly proscribed

any attempt to use Ellen's post-Miranda silence as evidence of his

state of mind. 

-18-

silence by calling the jurors' attention to it. However, the

Supreme Court noted in Greer that courts should "normally presume

that a jury will follow an instruction to disregard inadmissible

evidence inadvertently presented to it." 483 U.S. at 766 n.8. On

the facts here — a singular reference to the defendant's silence in

an arguably non-responsive answer, the presumption of jury

adherence to an instruction from the court supports the conclusion

that the state court's application of clearly established federal

law was not unreasonable.

We emphasize, however, that a curative instruction will

not always offset an improper reference to a defendant's postMiranda silence contained in a question from the prosecution or a

statement to the jury, or elicited in testimony by a prosecutor's

question. See, e.g., United States v. Moreno, 185 F.3d 465, 474 8

(5th Cir. 1999) ("[A] sustained objection followed by a curative

instruction is not a panacea. It may militate against finding a
-19-

constitutional violation, or become central to the harmless error

analysis. But they do not automatically mean no violation has

occurred." (citations omitted)). A prosecutor's persistence in

referring to the defendant's post-Miranda silence or a trial

judge's failure to provide adequate curative instructions may

result in a Doyle violation even when no evidence of the

defendant's silence is submitted to the jury. This violation issue

will, of course, depend on the particular facts of a given case,

and will require a case-by-case analysis. See, e.g., Hill v.

Turpin, 135 F.3d 1411, 1413-16 (11th Cir. 1998) (finding a Doyle

violation where prosecutor repeatedly inquired about and reminded

the jury that the defendant remained silent after receiving Miranda

warnings, despite the trial judge's repeated instructions to the

jury to disregard that fact); United States v. Kallin, 50 F.3d 689,

693-95 (9th Cir. 1995) (finding a Doyle violation, notwithstanding

the judge's instruction that the jury disregard any evidence of the

defendant's silence, because the instruction was too delayed and

unduly emphasized the erroneous testimony).

Here, however, we have none of the concerns reflected in

these cases. Ellen's post-Miranda silence was not mentioned, by

either the prosecutor or a witness, after the judge sustained the

objection to Officer Ouellet's testimony. The prosecutor's

questions to the officer did not, on their face, call for testimony

in violation of Doyle. The judge's instructions were given
-20-

promptly and were proportional to the testimony given by Officer

Ouellet. This case falls squarely within the parameters of Greer.

The decision of the Massachusetts Appeals Court that no Doyle

violation occurred was not an unreasonable application of clearly

established federal law. 

Affirmed.