PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 18-3111

__________

ADAM ROSEN,

Appellant

v.

SUPERINTENDENT MAHANOY SCI;

ATTORNEY GENERAL OF THE COMMONWEALTH OF

PENNSYLVANIA

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(15-cv-04539)

District Judge: Honorable Nitza I. Quiñones Alejandro

______________

Argued March 11, 2020

Before: McKEE, AMBRO, and PHIPPS Circuit Judges

(Opinion filed: August 26, 2020)

Karl D. Schwartz [Argued]

Jonathan D. Cioschi

Wiseman & Schwartz, LLP

718 Arch Street, Suite 702

Philadelphia, PA 19106

Counsel for Appellant
2

Adrienne D. Jappe [Argued]

Robert M. Falin

Montgomery County Office of District Attorney

P.O. Box 311

Norristown, PA 19404

Counsel for Appellees

_________

OPINION OF THE COURT

__________

McKEE, Circuit Judge.

Adam Rosen asks us to reverse the District Court’s 

denial of his petition for habeas corpus.

1 The Commonwealth 

of Pennsylvania requested a psychiatric exam of Rosen in 

preparation for his first murder trial, where he raised a 

diminished capacity defense. After his first conviction was 

overturned, he abandoned his diminished capacity defense. 

Rosen argues that the second trial court violated his Fifth 

Amendment right to remain silent when it ruled that his 

statements from the court-ordered psychiatric exam were 

admissible to impeach Rosen if he chose to testify at his second 

trial. After electing not to testify, Rosen was again convicted 

of murder. Because Rosen cannot demonstrate that using his 

statements to the Commonwealth’s psychiatric expert at the 

second trial for the limited purpose of impeachment would 

violate clearly established Fifth Amendment law, we will 

affirm the District Court’s dismissal.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

On June 30, 2001, Adam Rosen stabbed his wife, Hollie 

Rosen, to death in their home.

2 Thereafter, Rosen called the 

police and claimed that masked intruders had invaded his home 

and stabbed his wife.3 However, within several hours, he 

confessed to the stabbing but claimed it was an unintentional 

1 28 U.S.C. § 2254.

2 Rosen v. Kerestes, Civil Action No. 15-4539, 2017 U.S. 

Dist. LEXIS 179378, at *2 (E.D. Pa. Oct. 25, 2017).

3

Id.
3

response to his wife swinging a knife at him.4 According to 

Rosen, he and his wife had been arguing in the kitchen that 

morning when she nicked him on the neck and stomach with a 

knife.

5 He claimed he followed her upstairs and then blacked 

out. The next thing he said he remembered was seeing his 

severely wounded wife on the bedroom floor. Hollie Rosen 

died of stab wounds to her back, neck, and chest.6 Adam Rosen 

was arrested and charged with first degree murder.7

B. Rosen’s First and Second Murder Trials

At his first trial, Rosen presented a diminished capacity 

defense.8In support of his defense, Rosen retained and was 

evaluated by psychiatrist Dr. Paul Fink.9 The trial court granted 

the Commonwealth’s motion to have Rosen evaluated by its 

own expert, Dr. Timothy Michals, in order to rebut the

diminished capacity defense.10 The record does not show that 

he was Mirandized prior to this evaluation.11 Dr. Fink testified

4

Id. at *2-3, *6; Rosen Br. 2. 

5 This version of events is based on Rosen’s statements to 

his psychiatric expert. A121-22.

6 A122; see also Rosen, 2017 U.S. Dist. LEXIS 179378, at 

*2.

7 A69.

8 Rosen, 2017 U.S. Dist. LEXIS 179378, at *3.

9

Id.

10 Id. 

11 Rosen claims that Dr. Michals did not administer 

Miranda warnings before Rosen’s interview, and that he 

did not waive his right to remain silent. The 

Commonwealth, on the contrary, argues that Dr. Michals 

administered Miranda warnings and sought a waiver from 

Rosen before examining him. The Commonwealth bears 

the burden of establishing waiver and offers little to show 

that Rosen was indeed given a comprehensive set of 

warnings and thereafter knowingly and voluntarily waived 

his right to remain silent. See Commonwealth v. Rosen, 42 

A.3d 988, 1001 (Pa. 2012) (Saylor, J., dissenting)

(explaining that the Commonwealth did not argue or brief 

warning-as-waiver issues below and therefore cannot rely 

on waiver as a basis for admitting Rosen’s statements to 

Dr. Michals); see also Gibbs v. Frank, 387 F.3d 268, 274 

(3d Cir. 2004) (explaining that a compelled psychiatric 
4

at trial that Rosen was incapable of forming the intent to kill 

due to his manic-depressive mental illness, accompanied by 

psychotic features and paranoia, and the stress caused by the 

volatile deterioration of his marriage.12 Dr. Michals, on the 

other hand, testified that Rosen did not have a mental disorder 

that impaired his ability to form the specific intent to kill.13 Dr. 

Michals also testified that discrepancies between the 

statements Rosen made to the two psychiatric experts and 

Rosen’s changing version of events—including his initial false 

statement about the home invaders—demonstrated that Rosen 

was self-serving.14 Rosen did not testify in his own defense and 

the jury convicted him of first-degree murder.15

After Rosen was granted a new trial for reasons

unrelated to this appeal, he abandoned his diminished capacity 

defense and notified the Commonwealth that he did not intend 

to call a mental health expert.16 This time, Rosen planned to 

testify in his defense and argue that he did not premeditate or 

have the deliberate, willful intent to kill his wife.17

Nevertheless, the Commonwealth filed a motion in limine 

seeking to admit Rosen’s statements to Dr. Michals about 

killing his wife and those in which Rosen admitted he

previously attempted to rape her.18 The trial court ruled that 

Rosen’s statements could not be used as substantive evidence

in the Commonwealth’s case-in-chief, but that the 

Commonwealth could use the statements to impeach Rosen if 

interview implicates the Fifth Amendment and therefore 

the defendant-subject is entitled to Miranda warnings). 

Assuming arguendo that Rosen was not given Miranda 

warnings and did not waive his right to remain silent, 

Rosen still fails to establish that he is entitled to relief.

12 Rosen, 42 A.3d at 990; A199-120. 

13 Rosen, 42 A.3d at 990. 

14 A150-51; see also Rosen Br. 4.

15 A70; Rosen, 2017 U.S. Dist. LEXIS 179378, at *3. 

16 Rosen, 2017 U.S. Dist. LEXIS 179378, at *4. 

17 A191; Rosen Br. 7. 

18 A75. Rosen also submitted a motion in limine seeking to 

exclude the testimony, and the trial court held oral 

argument on the cross-motions. Rosen, 42 A.3d at 991.
5

he testified.19 After the trial court’s ruling, Rosen changed his 

mind and chose not to testify at the ensuing bench trial.20 At 

that trial, Rosen was convicted of first-degree murder and 

sentenced to life in prison without the possibility of parole.

C. Pennsylvania Supreme Court Ruling

After the Pennsylvania Superior Court affirmed the 

conviction, the Pennsylvania Supreme Court granted allocatur 

review on the question of “[w]hether the limited Fifth 

Amendment waiver occasioned by a mental health defense in 

a defendant’s first trial allows the Commonwealth to use the 

evidence obtained pursuant to such waiver as rebuttal in a 

subsequent trial where no mental health defense is 

presented.”21 Based upon several Pennsylvania state cases and 

Supreme Court law on the Fifth Amendment, the court 

affirmed the trial court’s ruling on the motion in limine.

In Commonwealth v. Morley, 681 A.2d 1254 (Pa. 1996), 

the court held that a defendant who raises a mental health 

defense in Pennsylvania waives the privilege against selfincrimination under the Fifth Amendment and can be 

compelled to submit to an examination by the 

Commonwealth’s psychiatric expert. Likewise, in 

Commonwealth v. Sartin, 751 A.2d 1140 (Pa. 2000), the court 

held that a defendant who intends to use the results of his or 

her own psychiatric exam can be compelled to submit to 

examination by an expert of the Commonwealth’s choosing for 

the purpose of rebutting the defense.22 Reading Morley and 

Sartin together with Commonwealth v. Santiago23 and 

19 This oral ruling was not transcribed. Fortunately, the 

parties agree on the trial court’s ruling. Rosen, 2017 U.S. 

Dist. LEXIS 179378, at *14. 

20 Rosen, 42 A.3d at 991.

21 Id. at 993. 

22 Sartin also made clear that the Fifth Amendment waiver 

only allowed the Commonwealth to use the results of its 

exam to rebut those issues implicated by the defense’s own 

expert. Sartin, 751 A.2d at 1143.

23 Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) 

(holding that a defendant who presents his own expert 
6

Commonwealth v. Boyle,

24 the Pennsylvania Supreme Court 

distilled the following rule: “[w]hen the defendant voluntarily 

presents a mental health defense that he subsequently 

abandons, the Commonwealth may, upon retrial, utilize the 

results of its psychological examination as to those issues that 

have been implicated by the defendant’s own expert.”25 The 

court explained that because the Commonwealth could 

introduce Dr. Fink’s testimony as substantive evidence, Dr. 

Michals’ testimony “clearly could have been utilized in 

response to those issues implicated by Dr. Fink’s testimony.”26

Finally, the court found that any error would have been 

harmless because, if Rosen had testified, “all of the 

impeachment evidence could have been elicited solely from 

Dr. Fink, who was in possession of the same mental health 

records and reports that Dr. Michals possessed.”27 Rosen 

“made admissions of guilt to both” experts and could have 

been impeached by the admissible statements he made to Dr. 

Fink.

28 Therefore, “there is no reasonable possibility that the 

error may have contributed to the verdict.”29

D. District Court’s Ruling on Habeas Review

Rosen filed a habeas petition pursuant to 28 U.S.C. § 

2254, arguing that the trial court’s ruling that his statements to 

the Commonwealth’s psychiatric expert could be used to 

impeach him violated his Fifth Amendment right to remain 

psychiatric testimony at a first trial waives psychiatristpatient privilege with regard to his expert’s testimony at a 

second trial where he no longer raises an insanity defense).

24 Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982) 

(admitting defendant’s testimony from his first trial at a 

subsequent trial where the defendant did not testify does 

not violate the Fifth Amendment right to remain silent 

because the constitutional privilege is waived).

25 Rosen, 42 A.3d at 997.

26 Id. 

27 Id. 

28 Id. 

29 Id. at 998.
7

silent.

30 The District Court denied the petition, explaining that 

Rosen failed to show that the Pennsylvania Supreme Court’s 

conclusion that there was no Fifth Amendment violation ran 

afoul of clearly established federal law.

31 The court explained

that Rosen “relies on snippets from several Supreme Court 

cases and a Third Circuit case, in an attempt to extrapolate 

‘clearly established Federal law’ from general principles and 

materially distinguishable holdings of the Supreme Court.”32

Thus, the District Court concluded that Rosen had failed to 

overcome the deference owed to state court decisions under the 

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA).

33

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

Rosen brought this habeas corpus action under 28 

U.S.C. § 2254. The District Court had jurisdiction under 28 

U.S.C. §§ 2241(a) and 2254(a). The order of the District Court 

dismissing the petition is an appealable final order. The District 

Court denied a certificate of appealability, but we later granted 

one on Rosen’s claimed Fifth Amendment violation.34

Jurisdiction for this appeal arises under 28 U.S.C. § 1291 and 

28 U.S.C. § 2253(c)(1).

B. Standard of Review under AEDPA

We exercise plenary review over the District Court’s 

denial of Rosen’s habeas petition.35 The Pennsylvania 

Supreme Court decided the Fifth Amendment issue on the 

merits. Therefore, pursuant to 28 U.S.C. § 2254(d), AEDPA 

requires Rosen to show that the state court ruling:

(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly 

30 Rosen v. Kerestes, Civil Action No. 15-4539, 2018 WL 

4030740 (E.D. Pa. Aug. 22, 2018). 

31 Id. at *1 n.1.

32 Id.

33 Id. 

34 A3. 

35 Ross v. Dist. Atty. Allegheny Cnty., 672 F.3d 198, 205 

(3d Cir. 2012). 
8

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.36

In Williams v. Taylor, 529 U.S. 362 (2000), the 

Supreme Court elaborated on § 2254(d)(1), explaining: 

Under the “contrary to” clause, a federal habeas 

court may grant the writ if the state court arrives 

at a conclusion opposite to that reached by this 

Court on a question of law or if the state court 

decides a case differently than this Court has on 

a set of materially indistinguishable facts. Under 

the “unreasonable application” clause, a federal 

habeas court may grant the writ if the state court 

identifies the correct governing legal principle 

from this Court's decisions but unreasonably 

applies that principle to the facts of the prisoner's 

case.37

We have further explained that a state court decision is 

“contrary to” clearly established law where “the Supreme 

Court has established a rule that determines the outcome of the 

petition.”38 “[I]t is not sufficient for the petitioner to show 

merely that his interpretation of Supreme Court precedent is 

more plausible than the state court’s; rather, the petitioner must 

demonstrate that Supreme Court precedent requires the 

contrary outcome.”39

A state court’s decision is an “unreasonable 

application” of clearly established law where “evaluated 

objectively and on the merits, [it] resulted in an outcome that 

cannot reasonably be justified under existing Supreme Court 

precedent. In making this determination, mere disagreement 

with the state court's conclusions is not enough to warrant 

36 28 U.S.C. § 2254(d).

37 Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

38 Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 

(3d Cir. 1999) (en banc), cert. denied 528 U.S. 824 (1999). 

39 Id. (emphasis in the original). 
9

habeas relief.”40 Importantly, this entails a “substantially 

higher threshold” than a federal court’s independent judgment 

that the state court’s application of Supreme Court precedent 

was incorrect.41 Instead, the state court’s application of federal 

law must be objectively unreasonable, not merely incorrect.42

Section 2254(d)(2), in turn, sharply restricts the 

circumstances in which a federal habeas court may grant relief 

based on a state court’s factual determinations. The petitioner 

must show that the state court verdict was based on an

unreasonable determination of the evidence and that a 

reasonable factfinder could not have reached the same 

conclusion.

43

III. DISCUSSION

A. Rosen failed to demonstrate that using his 

statements to the Commonwealth’s psychiatric 

expert to impeach him at his second trial would be 

contrary to or an unreasonable application of clearly 

established Fifth Amendment law.

We have previously described our approach to § 

2254(d)(1) as a two-step analysis whereby “federal habeas 

courts first . . . identify whether the Supreme Court has 

articulated a rule specific enough to trigger ‘contrary to’

review; and second, only if it has not, . . . evaluate whether the 

state court unreasonably applied the relevant body of 

precedent.”44 The plain language of § 2254(d)(1) applies to “a 

decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law”—applying the 

latter to both the “contrary to” and “unreasonable application” 

prongs of § 2254(d)(1).45 As we acknowledged in Matteo, there 

40 Id. at 890.

41 Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Schriro 

v. Landrigan, 550 U.S. 465, 473 (2007)).

42

 Williams, 529 U.S. at 410 

(“[A]n unreasonable application of federal law is different 

from an incorrect application of federal law.”) (emphasis 

in the original). 

43 Campbell v. Vaughn, 209 F.3d 280, 291 (3d Cir. 2000).

44 Matteo, 171 F.3d at 888. 

45 See Williams, 529 U.S. at 412 (“Under § 2254(d)(1), the 

writ may issue only if one of the following two conditions 
10

is likely some overlap amongst the parts of § 2254(d)(1), “but 

we must attempt to read the statute so that each has some 

operative effect . . . .”46

Accordingly, identifying an applicable principle of 

clearly established Supreme Court law can be treated as a 

prerequisite—or Step 0.5—to applying the two-step test from 

Matteo. This approach is consistent with our decision in 

Fischetti v. Johnson, where we explained that § 2254(d)(1) 

“requires us to determine what the clearly established Supreme 

Court decisional law was at the time petitioner’s conviction 

became final[,]” and then “analyze the challenged state 

decision in light of that decisional law under each of the two 

prongs of the AEDPA test.”47

“Clearly established” Supreme Court law “refers to the 

holdings, as opposed to the dicta, of [the Supreme] Court’s 

decisions as of the time of the relevant state-court decision.”48

Furthermore, in determining what is “clearly established,” 

Supreme Court decisions cannot be viewed “at a broad level of 

generality,” but instead must be viewed on a “case-specific 

level.”49 The “clearly established Federal law” provision 

requires Supreme Court decisions to be viewed through a 

“sharply focused lens.”50

is satisfied—the state-court adjudication resulted in a 

decision that (1) ‘was contrary to . . . clearly established 

Federal law, as determined by the Supreme Court of the 

United States,’ or (2) ‘involved an unreasonable 

application of . . . clearly established Federal law, as 

determined by the Supreme Court of the United States.’”). 

While Matteo was decided before Williams, we have since 

affirmed that the analytical framework from Matteo

remains applicable. See Werts v. Vaughn, 228 F.3d 178, 

197 (3d Cir. 2000).

46 Matteo, 171 F.3d at 888; see also Lindh v. Murphy, 521 

U.S. 320, 336 (1997) (“[I]n a world of silk purses and pigs’ 

ears, [AEDPA] is not a silk purse of the art of statutory 

drafting.”).

47 Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004).

48 Williams, 529 U.S. at 412.

49 Fischetti, 384 F.3d at 148. 

50 Id. at 149.
11

1. Clearly Established Supreme Court Law on the Fifth 

Amendment

Rosen claims that it is clearly established federal law 

that impeaching a defendant using evidence from the 

government’s mental health expert after a mental health 

defense is abandoned violates the Fifth Amendment. Rosen 

draws this proposed principle primarily from three Supreme 

Court cases: Estelle v. Smith, 451 U.S. 454 (1981); Buchanan 

v. Kentucky, 483 U.S. 402 (1987); and Kansas v. Cheever, 571 

U.S. 87 (2013). Rosen further relies on our decision in Gibbs 

v. Frank, 387 F.3d 268 (3d Cir. 2004), although he concedes 

that Gibbs is not clearly established Supreme Court law.51 

Rosen primarily relies upon Estelle v. Smith. There, the 

Supreme Court held that a “criminal defendant, who neither 

initiates a psychiatric evaluation nor attempts to introduce any 

psychiatric evidence, may not be compelled to respond to a 

psychiatrist if his statements can be used against him at a 

capital sentencing proceeding.”52 The trial judge had sua 

sponte ordered an evaluation to determine the defendant’s

competency to stand trial.

53 The prosecution later used 

statements from that exam in a capital sentencing proceeding 

as evidence of the defendant’s future dangerousness.54 The 

defendant was sentenced to death.55 On appeal, the Supreme 

Court reversed the sentence. It held that the Fifth Amendment 

precluded the use of the defendant’s compelled statements 

51 The state court judgment must not merely be contrary to 

law as articulated by any federal court; rather “[i]t must 

contradict ‘clearly established’ decisions of the United 

States Supreme Court alone.” Fischetti, 384 F.3d at 147. 

However, “[i]n determining whether a state decision is an 

unreasonable application of Supreme Court precedent, this 

court has taken the view that decisions of federal courts 

below the level of the . . . Supreme Court may be helpful . . 

. in ascertaining the reasonableness of state courts’

application of clearly established . . . Supreme Court 

precedent.” Id. at 149 (internal quotation marks and 

citation omitted).

52 Estelle, 451 U.S. at 468. 

53 Id. at 456-57.

54 Id. at 459-60.

55 Id. at 460.
12

against him at the penalty phase where he introduced no 

psychiatric evidence in his defense.56 The Court emphasized 

the compelled nature of the defendant’s statements, which 

were given in custody, pursuant to a court order, without 

counsel present, and in the absence of Miranda warnings.57

Because the defendant was compelled to submit to the 

evaluation and had not attempted to introduce any psychiatric 

evidence of his own, the statements were inadmissible unless 

the psychiatrist apprised the defendant of his rights and 

obtained a valid waiver before questioning him.58

Rosen also relies on Buchanan v. Kentucky, 483 U.S. 

402 (1987). In Buchanan, the defendant raised an extreme 

emotional disturbance defense at his murder trial and called his 

former social worker to testify in his defense.59 The prosecutor 

cross-examined the social worker using the report from a courtordered exam that defense counsel and the prosecutor had 

jointly requested for the purpose of seeking mental health 

treatment for the defendant.60 The Supreme Court found no 

Fifth Amendment violation, explaining that “if a defendant 

requests such an 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.”61 The Court distinguished 

Estelle because defense counsel here had jointly requested the 

exam and the defendant had placed his own mental health at 

issue.62 The Court concluded that “[t]he introduction of such a 

report for this limited rebuttal purpose does not constitute a 

Fifth Amendment violation.”63

56 Id. at 468.

57 Id. at 468-69.

58 Id. As we have noted, we will assume arguendo that 

Rosen likewise was not apprised of his rights and did not 

waive his right to remain silent before his psychiatric 

exam.

59 Buchanan, 483 U.S. at 408-09. 

60 Id. at 409-11.

61 Id. at 422-23.

62 Id. at 423.

63 Id. at 423-24.
13

The Supreme Court in Kansas v. Cheever, 571 U.S. 87 

(2013), applying Buchanan, found that the Fifth Amendment 

allowed the prosecution to introduce statements from a 

compelled mental health evaluation to rebut a mental health 

defense.64 At his murder trial, the defendant in Cheever offered 

a psychiatric expert to support his defense that voluntary 

intoxication had rendered him incapable of premeditation.

65

The state offered rebuttal testimony from the defendant’s 

court-ordered psychiatric examination.66 The Supreme Court 

held: “where a defense expert who has examined the defendant 

testifies that the defendant lacked the requisite mental state to 

commit a crime, the prosecution may offer evidence from a 

court-ordered psychological examination for the limited 

purpose of rebutting the defendant’s evidence.”67 The Court 

explained that once a defendant presents expert psychological 

evidence, the government cannot be denied “the only effective 

means of challenging that evidence: testimony from an expert 

who has also examined him.”68 The Court emphasized that the 

compelled testimony was used “only after” the defendant 

placed his mental health at issue and for the purpose of 

rebutting the mental health defense.69

Although our decision in Gibbs is not Supreme Court 

law, it is the most factually analogous case to Rosen’s and 

assists our inquiry into what is “clearly established” Fifth 

Amendment law in this court.

70 There, Gibbs raised a mental 

64 Cheever, 571 U.S. at 93-95.

65 Id. at 91.

66 Id. at 91-92.

67 Id. at 98.

68 Id. at 94.

69 Id. at 95.

70 Fischetti, 384 F.3d at 149 (“In determining whether a 

state decision is an unreasonable application of Supreme 

Court precedent . . . decisions of federal courts below the 

level of the . . . Supreme Court may be helpful . . . in 

ascertaining the reasonableness of state courts’ application 

of clearly established . . . Supreme Court precedent.”) 

(internal quotation marks and citation omitted). And while 

the Pennsylvania Supreme Court is not bound by Gibbs, it 

is a binding precedent in the District Court with respect to 
14

infirmity defense at his first murder trial.71 The

Commonwealth’s expert, Dr. Sadoff, testified at the first trial 

to rebut Gibbs’ expert testimony on diminished capacity.

72

That testimony introduced several inculpatory statements 

Gibbs made during the court-ordered exam.73 After his 

conviction was overturned on other grounds, Gibbs decided not

to raise a mental health defense at his second trial. Instead, he 

contested the identity of the shooter.74 Nevertheless, the trial 

court allowed Sadoff to testify during the Commonwealth’s 

case-in-chief.

75 That testimony included Gibbs’ inculpatory 

statements to Sadoff during his psychiatric interview.76 On 

habeas review, we found that the trial court’s decision, as 

affirmed by the Pennsylvania Superior Court, was an 

unreasonable application of clearly established Supreme Court 

law and granted Gibbs’ habeas petition.77 Importantly, we 

granted the petition based on the limited scope of the Miranda 

warnings given to Gibbs, which misstated the consequences of 

his Fifth Amendment waiver—an issue not relevant to Rosen’s 

appeal.78 However, we also stated that if Gibbs had not been 

Mirandized at all—as Rosen claims he was not—“the state 

ruling admitting the Gibbs interview in the second trial [would 

be] contrary to [Estelle v.] Smith itself.”79 In justifying this 

conclusion, we explained that “Sadoff was permitted to testify 

in the prosecution case in chief... simply to repeat 

incriminating statements that Gibbs had made.”80 This was 

problematic because those statements were offered “simply for 

the truth of the admissions of fact” and “not even to prove a 

psychological point, since the second trial presented no 

psychological issue before Sadoff testified.”81

what constitutes an unreasonable application of Fifth 

Amendment law on habeas review.

71 Gibbs, 387 F.3d at 271.

72 Id.

73 Id. 

74 Id.

75 Id. 

76 Id.

77 Id. at 277.

78 Id. at 276. 

79 Id. at 275.

80 Id.

81 Id. 
15

2. Application of Clearly Established Law to Rosen

Having reviewed the relevant Supreme Court law

through “a sharply focused lens[,]” we cannot conclude that 

there is a directly applicable Supreme Court precedent that 

would preclude the Commonwealth from using Rosen’s 

statements against him at his second trial for the limited 

purpose of impeachment.82 Rosen attempts to extrapolate a 

principle of Fifth Amendment law from the similar yet 

materially distinguishable cases we have just discussed.

83

However, AEDPA’s deferential standard of review demands 

more than this jigsaw approach. We therefore cannot find that 

the Pennsylvania Supreme Court’s decision was either 

“contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme 

Court . . . .”84

The rule from Estelle—that a “criminal defendant, who 

neither initiates a psychiatric evaluation nor attempts to 

introduce any psychiatric evidence, may not be compelled to 

respond to a psychiatrist if his statements can be used against 

him at a capital sentencing proceeding”—is far too narrow to 

help Rosen here.

85 Rosen both initiated an evaluation and 

introduced psychiatric evidence at his first criminal trial. It is 

undisputed that the Commonwealth could compel Rosen to be 

examined by its own expert for the purposes of preparing a 

rebuttal in the first trial.86 The Estelle Court expressly 

82 Fischetti, 384 F.3d at 149. 

83 We reiterate that cases Rosen relies upon are materially 

distinguishable, such that we can identify discrete issues 

the Supreme Court has not yet addressed. It would not be 

enough to point to irrelevant or meaningless differences. 

See Matteo, 171 F.3d at 888 (emphasizing that the 

petitioner is not required “to cite factually identical 

Supreme Court precedent”). The bar for relief under 

AEDPA is high but must not be insurmountable lest we 

effectively close the door to all relief on habeas. AEDPA 

requires that we defer, not that we abdicate.

84 28 U.S.C. § 2254(d)(1).

85 Estelle, 451 U.S. at 468. 

86 A529 (“Federal courts have consistently reiterated . . . 

that when a defendant places his mental status at issue, his 
16

acknowledged that “a different situation arises where a 

defendant intends to introduce psychiatric evidence” and 

expressed concern about the government’s ability to rebut such 

evidence.87 Viewed through a “sharply focused lens,” Estelle 

speaks only to the Fifth Amendment rights of someone who 

never raises a mental health defense and not to the scope of the 

Fifth Amendment waiver for someone, like Rosen, who raises 

and presents an unsuccessful mental health defense that he later 

abandons.88 The Pennsylvania Supreme Court could thus rely 

on Commonwealth v. Boyle to find that the Fifth Amendment 

waiver triggered by Rosen’s mental health defense at his first

trial extended to his second trial, at least with respect to the 

issues raised by his own expert.

89

Buchanan is even less helpful to Rosen. There, the 

defense had joined in the request for the psychiatric evaluation 

and therefore the defendant’s statements did not result from an

involuntary examination. Rosen stresses the phrase “limited 

Fifth Amendment privilege against self-incrimination is 

not violated by a court-ordered psychiatric examination.”); 

see also Rosen, 42 A.3d at 996-97 (discussing Morley and 

Sartin).

87 Estelle, 451 U.S. at 472; see also id. at 465 (“When a 

defendant asserts the insanity defense and introduces 

supporting psychiatric testimony, his silence may deprive 

the State of the only effective means it has of controverting 

his proof on an issue that he interjected into the case.”).

88 Penry v. Johnson, 532 U.S. 782, 795 (2001) (noting that 

the Supreme Court has “never extended Estelle's Fifth 

Amendment holding beyond its particular facts”).

89 447 A.2d 250 (Pa. 1982). In Boyle, the Pennsylvania 

Supreme Court held that a defendant who testifies at his 

first trial waives his Fifth Amendment privilege and cannot 

reclaim it at a later trial on the same indictment, even 

where he declines to testify. Id. at 256. Without endorsing 

this decision or its application to Rosen, we merely note 

that the Pennsylvania Supreme Court could reasonably, 

even if incorrectly, determine that Rosen waived his Fifth 

Amendment privilege at his first trial by introducing expert 

psychiatric testimony regarding his mental health, and that 

this waiver transferred to his second trial despite the 

abandonment of his mental health defense. 
17

rebuttal purpose” to conclude that “[t]he Buchanan [c]ourt 

could avoid the Fifth Amendment problem only because of this 

limitation on the use of such evidence.”90 Rosen therefore 

proposes that Buchanan “clearly establishes” that psychiatric 

evidence is only admissible to rebut the defendant’s mental 

health defense. This inference is not supported by either the 

text or reasoning of Buchanan. The Court explicitly stated that 

the psychiatric evidence there was admissible “at the very 

least” to rebut a mental health defense. The Court’s focus was 

on the voluntary nature of the examination jointly requested by 

the defense.

91 Buchanan leaves open the scope of a Fifth 

Amendment waiver triggered by a defendant’s mental health 

defense. For example, Buchanan does not address what would 

happen if the defense was raised and later abandoned, or 

whether the waiver applies to involuntary examinations 

compelled by the government.

The most compelling Supreme Court support for 

Rosen’s proposed principle of Fifth Amendment law comes 

from Cheever. The reasoning in Cheever focuses on the 

defendant placing his mental health at issue through his own 

evidence, and the right of the prosecution to rebut such 

evidence. The Supreme Court referred several times to the 

evidence being admissible for the “limited purpose of 

rebutting” the defense’s mental health defense. Citing to 

Buchanan, the Court explained that it previously “held that 

testimony based on a court-ordered psychiatric evaluation is 

admissible only for a ‘limited rebuttal purpose.’”92

According to Rosen, Cheever established that

compelled testimony from the government’s psychiatric expert 

is only admissible to the extent it directly rebuts psychiatric 

90 Rosen Br. 27.

91 Buchanan, 483 U.S. at 422; see also id. at 424 (“Here, in 

contrast [to Estelle], petitioner's counsel himself requested 

the psychiatric evaluation . . . .”).

92 Cheever, 571 U.S. at 97; see also id. at 93-94 (“The rule 

of Buchanan, which we reaffirm today, is that where a 

defense expert who has examined the defendant testifies 

that the defendant lacked the requisite mental state to 

commit an offense, the prosecution may present 

psychiatric evidence in rebuttal.”).
18

evidence presented by the defendant. Yet, even this narrow 

reading of Cheever does not touch on several vital aspects of 

Rosen’s case. Therefore, we cannot conclude that it clearly 

established an applicable precedent. Cheever, for example,

does not address whether impeaching the defendant with 

statements from the compelled exam, if he chose to testify, 

would constitute a proper “rebuttal purpose.” In fact, Cheever 

alluded to limitations on the Fifth Amendment protections for 

testifying defendants.93 The Court further explained that 

precluding the use of compelled psychiatric testimony “would 

undermine the adversarial process, allowing a defendant to 

provide the jury, through an expert operating as proxy, with a 

one-sided and potentially inaccurate view of his mental state at 

the time of the alleged crime.”94 These concerns about the 

integrity of the judicial process and fairness to the government 

undermine Rosen’s claim that he should have been allowed to 

testify at his second trial without impeachment by his own 

prior inconsistent statements. Nor does Cheever touch on 

whether the proper admission of testimony for a “limited 

rebuttal purpose” at one trial constitutes a Fifth Amendment 

waiver in future proceedings where the mental health defense 

is abandoned.

95

Given the limitations of AEDPA, the absence of 

Supreme Court precedent addressing the use of compelled 

statements given to the government’s mental health expert as

impeachment evidence is fatal to Rosen’s claim here. As we 

have noted, the second trial court ruled that Rosen’s compelled 

statements were inadmissible as substantive evidence and 

admissible only for the limited purpose of impeachment in the 

event Rosen testified. Estelle, Buchanan, and Cheever address 

situations where the government sought to admit the 

93 Id. at 94 (“The admission of this rebuttal testimony 

harmonizes with the principle that when a defendant

chooses to testify in a criminal case, the Fifth Amendment 

does not allow him to refuse to answer related questions on 

cross-examination.”). 

94 Id. 

95 See Boyle, 447 A.2d at 256 (acknowledging that a 

defendant who testifies in one trial and thus waives his 

Fifth Amendment privilege cannot object to the admission 

of testimony at a later trial even where he does not testify).
19

defendant’s statements to prove or disprove a contested 

issue—such as the defendant’s future dangerousness, intent, or 

mental state. However, there was no indication in any of these 

cases that the defendant intended to testify and was precluded 

from doing so by the prospect of impeachment by compelled 

statements.96 Therefore they do not address the admissibility of 

a defendant’s statements for the purpose of impeaching the 

defendant. 

Even Gibbs, with its otherwise striking factual 

similarity to Rosen’s circumstances, is distinguishable on this 

point. The testimony of the Commonwealth’s expert in Gibbs

was introduced “in the prosecution [case-in-chief]. . . simply to 

repeat incriminating statements” made by the defendant and 

offered “simply for the truth” of the matters asserted.97 In 

contrast, Rosen’s second trial court specifically found that Dr. 

Michals’ testimony was inadmissible in the case-in-chief and 

would be allowed solely for the purpose of impeachment if 

Rosen chose to testify. Impeachment evidence is not offered to 

prove the truth of the matter asserted, but rather is offered to 

96 Because we deny Rosen’s petition on other grounds, we 

do not reach the issue of whether the state court’s ruling on 

the motion in limine effectively denied Rosen his right to 

testify, or whether he forfeited his right to appeal the Fifth 

Amendment issue by electing not to testify. Compare Luce 

v. United States, 469 U.S. 38, 41-43 (1984) (holding that a 

defendant failed to preserve an issue for appeal where the 

trial court ruled that he could be impeached with a prior 

conviction under Fed. R. Evid. 609(a) and he thereafter 

declined to testify), with New Jersey v. Portash, 440 U.S. 

450, 454 (rejecting state’s claim that defendant’s Fifth 

Amendment challenge to the trial court’s ruling that his 

immunized testimony could be used as impeachment 

evidence is too “abstract and hypothetical” to review 

because defendant did not take the stand); and Brooks v.

Tennessee, 406 U.S. 605, 612 (1972) (reviewing a state 

statute requiring a testifying defendant to testify first at his 

trial, despite the petitioner choosing not to testify because 

of the statute, and finding it violates the Fifth 

Amendment).

97 Gibbs, 387 F.3d at 275.
20

impugn the credibility of the person testifying.98 Moreover, the 

jury can be specifically instructed that impeachment evidence 

may be considered only for that limited purpose and cannot be 

considered as substantive evidence of the defendant’s mental 

state or intent.

99

The trial court’s ruling that Rosen’s statements could be 

used only for impeachment is a material distinction on habeas 

review under AEDPA. There is reason to believe that the 

Supreme Court might treat impeachment by compelled 

statements differently than the admission of such testimony as 

substantive evidence in Rosen’s situation. In Harris v. New 

York, the Supreme Court held that statements obtained in 

violation of the Fifth Amendment under Miranda are still 

admissible for the purposes of impeachment, even though such 

statements are inadmissible as substantive evidence.100 The 

Supreme Court explained that the right of the defendant to 

testify “cannot be construed to include the right to commit 

perjury[,]” and therefore “[h]aving voluntarily taken the stand, 

[the defendant] was under an obligation to speak truthfully and 

accurately, and the prosecution . . . did no more than utilize the 

traditional truth-testing device[]” of impeachment by the 

defendant’s own inconsistent statements.101 On the other hand, 

98 Impeachment evidence, BLACK’S LAW DICTIONARY

(11th ed. 2019) (“Evidence used to undermine a witness’s 

credibility.”).

99 Because Rosen elected a bench trial and chose not to 

testify, such an instruction was not necessary here. 

However, the possibility of giving such an instruction in a 

similar case is relevant to distinguishing between the use of 

evidence for substantive versus impeachment purposes. In 

addition, a judge at a bench trial would understand that she 

could not consider impeachment evidence for any purpose 

other than assessing a witness’s credibility. 

100 Harris v. New York, 401 U.S. 222, 226 (1971) (“The 

shield provided by [Miranda] cannot be perverted into a 

license to use perjury by way of a defense, free from the 

risk of confrontation with prior inconsistent utterances.”).

101 Id. at 225; see also United States v. Havens, 446 U.S. 

620, 626 (1980) (explaining that “the deterrent function of 

the rules excluding unconstitutionally obtained evidence is 

sufficiently served by denying its use to the government on 
21

coerced statements—such as where “the [speaker] is told to 

talk or face the government’s coercive sanctions[]”—are 

deemed involuntary and therefore inadmissible for any 

purpose, including impeachment.

102

A court-ordered psychological or psychiatric exam, like 

a custodial police interrogation, is an inherently coercive 

situation. To the extent the District Court concluded that 

Rosen’s “statements to Dr. Michals cannot be deemed

involuntary, coerced, or compelled since he voluntarily raised 

the mental health defense[,]” we cannot agree.103 Rosen’s 

statements, given while in custody, under court order, without 

the benefit of Miranda warnings, are compelled testimony 

under the Fifth Amendment.104 Nevertheless, whether 

its direct case” and therefore allowing the government to 

impeach a testifying defendant using evidence 

inadmissible in the case-in-chief).

102 Portash, 440 U.S. at 459 (holding that testimony given 

in response to a grant of legislative immunity is “coerced 

testimony” because the person must testify or potentially 

face contempt charges, and under such circumstances

“there is no question whether physical or psychological 

pressures overrode the defendant’s will”); see also Kansas 

v. Ventris, 556 U.S. 586, 590 (2009) (“The Fifth 

Amendment guarantees that no person shall be compelled 

to give evidence against himself, and so is violated 

whenever a truly coerced confession is introduced at trial, 

whether by way of impeachment or otherwise.”); Mincey v. 

Arizona, 437 U.S. 385, 398-402 (1978) (holding that a 

statement taken from a defendant while he was 

hospitalized and in intensive care, slipping in and out of 

consciousness, and in “unbearable” pain was inadmissible, 

even for impeachment, because the statement was not “the 

product of his free and rational choice”). 

103 Rosen, 2018 WL 4030740, at *1 n.1.

104 Estelle, 451 U.S. at 467, 469 (“The considerations 

calling for the accused to be warned prior to custodial 

interrogation apply with no less force to the pretrial 

psychiatric examination” because an examination “while in 

custody with a court-ordered psychiatric” expert is “not 

given freely and voluntarily without any compelling 

influences.”) (internal quotation marks and citation 
22

testimony given to a psychiatrist under court order is “truly 

coerced” and therefore involuntary, or merely compelled in the 

same sense as a statement given to police in violation of 

Miranda (and therefore still admissible for impeachment), is 

yet to be determined by the Supreme Court.105

Nor do we decide today whether Rosen’s statements 

were voluntary or involuntary under the Fifth Amendment. 

Rather, we merely conclude that the Pennsylvania Supreme 

Court’s decision approving of the trial court’s admissibility 

ruling is not contrary to or an unreasonable application of an 

ambiguous area of Fifth Amendment law.106 This is not to say 

that Rosen’s interpretation of the Fifth Amendment is not 

plausible, or even compelling.107 However, such a rule is not 

omitted); see also Gibbs, 387 F.3d at 274 (affirming that 

Miranda warnings apply to court-compelled psychiatric 

interviews). And unlike in the Miranda context, the only 

way Rosen could remain silent was to forfeit his mental 

health defense at trial. See Morley, 681 A.2d at 1258, 1258 

n.5 (holding that a defendant who raises a mental infirmity 

defense “may not refuse to allow the Commonwealth 

psychiatrist to examine him or her on the basis that it 

violates the defendant’s privilege against selfincrimination” and “may be compelled to submit to a 

psychiatric exam”).

105 Compare Ventris, 556 U.S. at 590 (“The Fifth 

Amendment . . . is violated whenever a truly coerced 

confession is introduced at trial, whether by way of 

impeachment or otherwise.”), and Portash, 440 U.S. at 458 

(distinguishing Harris because there the defendant made 

no claim that his statements obtained in violation of 

Miranda were coerced or involuntary), with Harris, 401 

U.S. at 224 (admitting statement obtained in violation of 

Miranda for the purpose of impeachment where 

“[p]etitioner makes no claim that the statements made to 

the police were coerced or involuntary”).

106 See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) 

(denying habeas petition where “precedent from [the 

Supreme] Court is, at best, ambiguous”).

107 Rosen Br. 31-32 (arguing that testimony a defendant is 

compelled to give to the government’s expert is admissible 

only for the limited purpose of rebutting a psychological 
23

yet “clearly established.” Rosen’s credible argument about 

where the Supreme Court should draw the line between cases 

such as Harris and Portash does not satisfy the deferential 

standard under AEDPA.108 It is not enough that Rosen’s 

argument is persuasive; it must be required by law and the state 

court’s contrary decision must not just be incorrect, but 

unreasonable.109

B. Because there is no clear Fifth Amendment 

violation, Rosen failed to demonstrate that he is 

entitled to relief under § 2254(d)(2).

Rosen also argues that he is entitled to relief under 28 

U.S.C. § 2254(d)(2) because the Pennsylvania Supreme 

Court’s harmlessness analysis was based on “an unreasonable 

determination of the facts in light of the evidence presented.”110

defense and therefore inadmissible once that defense is 

abandoned, even for garden variety impeachment); see 

also Gibbs, 387 F.3d at 274 (explaining that the Fifth 

Amendment waiver triggered by a mental health defense 

“is not limitless; it only allows the prosecution to use the 

interview to provide rebuttal to the psychiatric defense”). 

108 Carey v. Musladin, 549 U.S. 70, 77 (2006) (holding that 

a state court’s decision is not contrary to or an 

unreasonable application of federal law where there is no 

Supreme Court holding that would require a different 

outcome).

109 Matteo, 171 F.3d at 888 (“[I]t is not sufficient . . . to 

show merely that [petitioner’s] interpretation of Supreme 

Court precedent is more plausible than the state court’s; 

rather, the petitioner must demonstrate that Supreme Court 

precedent requires the contrary outcome. This standard 

precludes granting habeas relief solely on the basis of 

simple disagreement with a reasonable state court 

interpretation of the applicable precedent.”); see also 

Williams, 529 U.S. at 411 (“[A] federal habeas court may 

not issue the writ simply because that court concludes in its 

independent judgment that the relevant state-court decision 

applied clearly established federal law erroneously or 

incorrectly. Rather, that application must also be 

unreasonable.”). 

110 This claim was not raised in the District Court and we 

could therefore deem the argument waived. See Nelson v. 
24

Rosen argues that the court improperly conflated the testimony 

given to Dr. Fink with that given to Dr. Michals in concluding 

that “the same admissions could have been established by 

either expert’s testimony[.]”

111 Based on that conclusion, the 

Pennsylvania Supreme Court held that since Dr. Fink’s 

testimony was indisputably admissible, “there is no reasonable 

possibility that the error may have contributed to the 

verdict.”112 However, Rosen is correct that there are significant 

discrepancies between the statements that he gave to the two 

experts. In fact, Dr. Michals testified to these discrepancies 

during Rosen’s first trial in order to suggest that Rosen was 

self-serving and challenge Rosen’s inconsistent version of 

events.113 It is therefore unlikely that, if Rosen had testified, 

“all of the impeachment evidence could have been elicited

solely from Dr. Fink, who was in possession of the same 

mental health records and reports that Dr. Michals 

possessed.”114

Nevertheless, Rosen’s challenge to the harmlessness 

analysis is predicated on a finding that there was indeed a Fifth 

Amendment violation. Consequently, rebutting the state 

court’s harmlessness analysis is a necessary but not sufficient 

basis for relief. As we discussed above, we cannot conclude 

that the Pennsylvania Supreme Court’s decision violated 

Rosen’s clearly established Fifth Amendment rights. We 

therefore need not delve into whether any such hypothetical 

error was prejudicial to Rosen at trial. 

IV. CONCLUSION

Adams USA, Inc., 529 U.S. 460, 469 (2000) (noting that 

“[i]t is indeed the general rule that issues must be raised in 

lower courts in order to be preserved as potential grounds 

of decision in higher courts”); Singleton v. Wulff, 428 U.S. 

106, 120 (1976) (noting that “[i]t is the general rule . . . 

that a federal appellate court does not consider an issue not 

passed upon below”). However, we can within our 

discretion choose to take up the issue on appeal and will do 

so briefly to dismiss the claim on the merits. Id. at 121.

111 Rosen, 42 A.3d at 998.

112 Id.

113 A149-50; Rosen Br. 35-40.

114 Rosen, 42 A.3d at 997.
25

For the foregoing reasons, we will affirm the District 

Court’s denial of the petition for habeas corpus.