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

P ENNSYLVANIA

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

( 15

- cv

- 04539 ) District Judge: Hon orable Nitza I. Quiñones Alejandro

______________
Argued March 1 1

, 20 20

Before : M c KEE

, AMBRO, and P H IPPS Circuit Judges

( Opinion f

iled: August 2 6 , 2020 )

Karl D. Schwartz [Argued]

Jonathan D. Cioschi

Wiseman & Schwartz , LLP 718 Arch Street, Suite 702 Philadelphia, PA 19106

Counsel for Appell ant2 Adrienne D. Jappe [Argued]

Robert M. Falin Montgomery County Office of District Attorney

P.O. Box 311 Norristown, PA 19404

Counsel for Appell ee s

_________

OPINION OF THE COURT

__________ McKEE

, Circuit Judge

.

Adam Rosen asks us to reverse the D istrict C ourt’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 no t 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 Amendm ent law, we will

affirm the D istrict C ourt’s dismissal.

I. FACTS AND PROCEDURAL HISTORY

A. Fact ual 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, w ithin 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 remember ed 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. 8 In 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 defens e. 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

administ ered 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 voluntari ly 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 fo r admitting Rosen’s statements to Dr. Michals); see also Gibbs v. Frank , 387 F.3d 268, 274 (3d Cir. 2004) (explaining that a compelled psychiatric4 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 disc repancies between the

statements Rosen made to the two psychiatric experts and

Rosen’s changing v ersion 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 di d 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 Supre me Court granted allocat u r 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 i n 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 self

incrimination 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 psychiatri c 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. Santiago 23 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 expert6 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, utili ze 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 T herefore

, “there is no reasonable p ossibilit y 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 psychiatrist

patient 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

becau se 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 D istrict C ourt 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 D istrict C ourt 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 D istrict C ourt had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254(a). The order of the D istrict C ourt dismissing the petition is a n appealable final order. The D istrict

C ourt denied a ce rtificate 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 D istrict C ourt’s

denial of Rosen’s habeas petition. 35 T he 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 base d 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 indistingui shable 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 “unreasonab le application” of clearly established law whe re “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 stat e 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 determinat ion 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 w ould 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 firs t . . . 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 conditions10 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 a n 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

decisi ons 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. Vaugh n , 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’

e ars, [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 i s 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 Suprem e 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 s entencing proceeding.” 52 T he trial judge had sua sponte ordered a n 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

c ourt 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 45 6

- 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 sta tements 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 court

ordered exam that defense counsel and the prosecutor ha d 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 ver y 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

. a t 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 T he 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, i t i s the most f

actually 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 (“I n 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 omitt ed)

. And while the Pennsylvania Supreme Court is not bound by Gibbs , it is a binding precedent in the D istrict C ourt with respect to14 infirmity defense at his first murder trial. 71 T he 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 overtu rned on other grounds, Gibbs decided not

to raise a mental health defense at his second trial

. Instead, he

contest ed the identity of the shooter. 74 Nevertheless, t he trial court allowed Sadoff to testify during the Commonwealth’s

case

- in

- chief

. 75 That test imony 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 Su preme 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

co nclusion, 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 th os e statements were offered “simply for

the truth of the admissi ons 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. A pplication of Clearly Establish ed Law to Rosen

Having reviewed the relevant Supreme Court law through “a sharply focused lens[,]” we cannot conclude that

there i s 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 fi nd 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”

— i s 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 c ite 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, his16 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 a n 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 Morl e y 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 h as of controverting his proof on an issue that he interjected into the case.”).

88 Penry v. Johnson , 532 U.S. 782, 7 95 (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 exper t 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 ex plicitly state d that the psychiatric evidence there was a dmissible “at the very

least” to rebut a mental health defense

. T he 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 suppor t 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 re f err ed several times to the evidence being admissible for the “limited purpose of rebutting” the defense’s mental health defense. Citing to

Buchanan , the Court explain ed 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 establishe d 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 Estel le ], 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

establish ed an applicable precedent. Cheever , for example, does not address whether impeaching the defendant with statements from the compelled exam, if he chose to testif y, would constitute a proper “rebuttal purpose .” In fact, Cheever

allude d 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 ju dicial 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 te stimony 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 so ught 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 hi s 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 dis p rove a contested

issue

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

mental state

. However, t here 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

- chi ef 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 b y 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) a nd 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, th e 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 di stinction 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

subs tantive evidence in Rosen’s situation

. In Harris v. New
York , the Supreme Court held that s tatements 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 T he 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

, B LACK ’ S L AW D ICTIONARY (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 ve rsus 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 pr ovided 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 on21 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 D istrict C ourt concluded that
Rosen’s “statements to Dr. Michals cannot be deemed involuntary, coerced, or comp elled 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

inadm issible 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

pressure s 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.”); Min cey 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 th e 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 citation22 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 impeac hment )

, 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 Gib bs , 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 self

incrimination” and “may be compelle d 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 (disting uishing 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 wh ere “[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 psychological23 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 2 8 U.S.C. § 2254(d)(2) because the Pennsylvania Supreme
Court’s harmle ssness 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 i mpeachment); 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 stan dard 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 becaus e 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 D istric t C ourt 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 adm issions 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 d iscrepancies 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 discusse d 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 decis ion 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 D istrict

C ourt’s denial of the petition for habeas corpus.