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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nancy Gertner, U.S. District Judge]

Appellee Mark A. Kibbe (“Kibbe”) was charged with arson of a dwelling house in Hampden County court in Massachusetts. He was tried before a jury on June 9 and 10, 1992, and found guilty of the lesser included offense of arson of a building. After exhausting state court remedies, Kibbe petitioned for the writ of habeas corpus. The district court granted Kibbe’s petition, ruling that the prosecutor’s reference to Kibbe’s post-Miranda silence during cross examination and closing arguments was unconstitutional. Because we conclude that Kibbe has not satisfied his burden under the exacting standards of 28 U.S.C. � 2254(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996, we reverse the district court’s decision to grant Mark Kibbe’s petition for the writ of habeas corpus.

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