                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1999

Hartey v. Vaughn
Precedential or Non-Precedential:

Docket 97-2034




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Filed July 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2034

PATRICK HARTEY,

       Appellant

v.

DONALD VAUGHN,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 96-06812)
District Judge: Honorable Herbert J. Hutton

Argued October 8, 1998

BEFORE: GREENBERG, NYGAARD, and
NOONAN,* Circuit Judges

(Filed: July 30, 1999)

       Norris E. Gelman (argued)
       6th & Walnut Streets
       The Curtis Center
       Philadelphia, Pa. 19106

        Attorney for Appellant
_________________________________________________________________

*Honorable John T. Noonan, Jr., Senior Judge of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
       Donna G. Zucker (argued)
       Chief, Federal Litigation
       Ronald Eisenberg
       Deputy District Attorney
       Lynne Abraham
       District Attorney
       1421 Arch Street
       Philadelphia, Pa. 19102

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. INTRODUCTION

Patrick Hartey, the petitioner in this habeas corpus
proceeding under 28 U.S.C. S 2254, appeals from an order
of the district court entered on November 14, 1997,
adopting the report and recommendation of a magistrate
judge dated April 1, 1997, and denying Hartey's petition
without an evidentiary hearing. Inasmuch as both the
magistrate judge and the district court wrote
comprehensive opinions, see Hartey v. Vaughn, 1997 WL
710946 (E.D. Pa. Nov. 14, 1997) (district court opinion), the
Superior Court of Pennsylvania wrote a published opinion
on Hartey's direct appeal, see Commonwealth v. Hartey,
621 A.2d 1023 (Pa. Super. Ct. 1993), and we recently wrote
a published opinion in a habeas corpus case brought by
Thomas McCandless, a codefendant, see McCandless v.
Vaughn, 172 F.3d 255 (3d Cir. 1999), we only need
summarize the background of the case.

In August 1982, the Commonwealth of Pennsylvania tried
Hartey and McCandless together in the Philadelphia
Common Pleas Court for crimes arising from the murder of
Theodore Stebelski. Originally, the police arrested John
Barth for the murder, but in part as a result of information
Barth supplied, the Commonwealth refocused the
investigation on Hartey and McCandless. The prosecution's
theory at the trial was that McCandless and Hartey killed

                                 2
Stebelski so that he could not testify against McCandless at
a criminal trial. Although the prosecution intended to call
Barth as a witness to testify about the killing, and expected
that his testimony would directly link Hartey to the murder
scene, Barth did not appear at trial. The trial judge ruled,
however, that Barth's preliminary hearing testimony could
be read into the record as a substitute for his live testimony
and the court permitted its use against both defendants.
The jury convicted both Hartey and McCandless offirst
degree murder, criminal conspiracy, and possession of an
instrument of crime.

Unfortunately, Hartey's original attorneys (not counsel on
this appeal) did not prosecute his appeal appropriately and
thus there were substantial delays in his direct appellate
process. When the appeal finally was prosecuted, Hartey
presented six issues to the Superior Court, all framed as
ineffective assistance of counsel claims. The Superior Court
denied all six claims on the merits in its published opinion.
See Commonwealth v. Hartey, 621 A.2d 1023. Hartey
thereafter unsuccessfully sought allocatur from the
Supreme Court of Pennsylvania, Commonwealth v. Hartey,
656 A.2d 117 (Pa. 1993), advancing only four of the claims.

Then on October 4, 1996, Hartey filed the proceedings in
the district court leading to this appeal, raising the
following four issues which he also had presented to the
Pennsylvania Superior and Supreme Courts:

       1. Trial counsel was ineffective for failing to ob ject to
       the Court's accomplice instruction which permitted the
       conviction of an accomplice based on his joining the
       actor in `an illegal act' and failed to focus the attention
       of the jury on whether or not the accomplice shared or
       harbored the specific intent to kill that had to be found
       as to the actor.

       2. Trial counsel was ineffective for failing to pr eserve
       his objections to the improper bolstering of the Barth
       preliminary hearing testimony in his written post trial
       motions, and was also ineffective for failing to object to
       the improper bolstering of the Barth testimony by the
       prosecutor in her opening address.

                               3
       3. Trial counsel was ineffective for failing to ob ject to
       the Court's exclusion of defense witnesses who would
       have testified to the poor reputation for truth and
       veracity on the part of the most critical Commonwealth
       witness, John Barth.

       4. Trial counsel was ineffective for failing to pr operly
       preserve his objection to the Court's refusal to answer
       the first jury inquiry in the affirmative.

On this appeal Hartey raises only the first two issues
noted above but expands on them as he presents them as
both ineffective assistance of counsel claims and due
process claims. Hartey's refocusing of the claims is
understandable as our order granting the certificate of
appealability recites as follows:

       The foregoing request for a certificate of appealability is
       granted for the purpose of deciding whether Hartey's
       right to due process was denied by: (1) the prosecutor's
       opening statement and the testimony of Assistant
       District Attorney Murray which may have led the jury
       to believe that the prosecution had independent
       evidence corroborating witness Barth's testimony that
       was not presented to the jury. See United States v.
       Molina- Guevara, 96 F.3d 698, 704-705 (3d Cir. 1996);
       United States v. DiLoreto, 888 F.2d 996, 999 (3d Cir
       1989), overruled in part, on other grounds, by United
       States v. Zehrbach, 47 F.3d 1252 (3d Cir. 1995) (en
       banc); and (2) the court's instruction regarding the
       definition of an accomplice. See Smith v. Horn, 120
       F.3d 400, 411-15 (3d Cir. 1997); Rock v. Zimmerman,
       959 F.2d 1237, 1246 (3d Cir. 1992).

Nevertheless, we must consider our order granting the
certificate of appealability in the context of this case, which
established that Hartey pursued a writ of habeas corpus in
the district court solely on ineffective assistance of counsel
grounds, and the court denied the writ concluding that
Hartey was not entitled to relief on that theory. Thus, we
are constrained to assess Hartey's claims under the Sixth
Amendment and not under the Due Process Clause. See
Smith v. Farley, 25 F.3d 1363, 1365 n.2 (7th Cir. 1994)
(claims not raised before district court in habeas petition
are waived on appeal).

                               4
II. DISCUSSION

At the outset of our discussion of the merits of Hartey's
claims we refer to our recent opinion in McCandless v.
Vaughn, 172 F.3d 255. In that habeas corpus proceeding
under 28 U.S.C. S 2254, we granted a writ to McCandless,
Hartey's co-defendant, on the ground "that the prosecution
did not fulfill its duty to protect McCandless's
constitutional right to confront the key witness[John
Barth] against him." See McCandless, 172 F.3d at 258.
Hartey, however, did not raise this Confrontation Clause
claim before the Pennsylvania state courts or in the district
court. In fact, Hartey did not advance this point even in his
primary briefs to this court; instead, he challenged his
incarceration based on this confrontation violation only
after we requested the parties to submit letter briefs
detailing what effect, if any, McCandless had on this
appeal. Thus, Hartey cannot raise the confrontation issue
at this late date, and McCandless cannot control our result
on this appeal. See Baker v. Barbo, 177 F.3d 149, 156 n.7
(3d Cir. 1999).

Hartey seeks to avoid this rather obvious result by relying
on Finney v. Zant, 709 F.2d 643, 646-47 (11th Cir. 1983),
for the proposition that "justice" requires that we permit
him to obtain relief on the basis of McCandless. Certainly,
we can understand how it might appear to be incongruous
that only one of two petitioners can obtain relief on the
basis of a constitutional error apparently applicable to
both. Nevertheless, habeas corpus law involves the
application of well-established principles that, among other
things, recognize the comity between the federal and state
courts and usually require that a petitioner under 28
U.S.C. S 2254 present his claims for relief in the first
instance in the state courts. We are not at liberty to
disregard these principles because our concept of what
"justice" might require and thus Hartey's failure to raise the
Confrontation Clause issue until after argument on this
appeal bars him from relying on it now. Therefore, we
confine our discussion to the ineffective assistance of
counsel claims that are actually before us.1
_________________________________________________________________

1. We delayed our decision on this appeal pending disposition of
McCandless, which was argued before we heard argument in this case.

                               5
The thrust of Hartey's claim relating to the prosecutor's
opening statement and Murray's testimony is that they
invited the jury to believe that independent evidence not
presented to it corroborated Barth's preliminary hearing
testimony. Hartey's challenge to the jury instructions
centers on their alleged failure to inform the jury that it
could convict him of first degree murder only if it
determined that he, rather than merely McCandless, had a
specific intent to kill.

Inasmuch as Hartey (unlike McCandless) filed his habeas
corpus petition after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA") we must
apply the standard of review as required by that Act in 28
U.S.C. S 2254(d). The AEDPA greatly circumscribes our
review of state court decisions. Thus, we recently indicated
that the AEDPA

       mandates a two-part inquiry; first, the federal court
       must inquire whether the state court decision was
       `contrary to' clearly established federal law, as
       determined by the Supreme Court of the United States;
       second, if it was not, the federal court must evaluate
       whether the state court judgment rests upon an
       objectively unreasonable application of clearly
       established Supreme Court jurisprudence.

Matteo v. Superintendent, 171 F.3d 877, 880 (3d Cir. 1999)
(en banc). Accordingly, as we explained in Matteo, section
2254(d) "firmly establishes the state court decision as the
starting point in habeas review." Id. at 885. Of course, on
this appeal we exercise plenary review over the order of the
district court as that court did not conduct an evidentiary
hearing and nothing in the AEDPA or Matteo requires that
we do otherwise. See Cabrera v. Barbo, 175 F.3d 307, 312
(3d Cir. 1999); Zettlemoyer v. Fulcomer, 923 F.2d 284, 291
n.5 (3d Cir. 1991).
_________________________________________________________________

Moreover, we further delayed our decision in order to give the parties an
opportunity to file letter briefs commenting on McCandless. As it
happens, however, McCandless is of limited significance here because
that case turned on an issue not properly before us on this appeal.

                               6
A. Improper Vouching

Hartey's first claim is that his trial counsel was ineffective
for failing to object to improper vouching for Barth's
preliminary hearing testimony, which he alleges illegally
bolstered the statements of the key witness against him.
Specifically, Hartey complains that there was improper
vouching when the prosecutor stated in her opening
argument that the government's agreement with Barth was
based on "verifying" his statements, and when Assistant
District Attorney Murray testified that the agreement was
conditioned on "corroborating" Barth's information. Hartey
is correct that federal law establishes that reference to
extra-record evidence by the government constitutes
improper bolstering that, in certain circumstances, may
justify a reversal of a defendant's conviction. See United
States v. DiLoreto, 888 F.2d 996, 998-99 (3d Cir. 1989)
(overruled in part, on other grounds, by United States v.
Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (en banc)).
Thus, an attorney's failure to object to the government's
improper vouching for its witnesses could give rise to an
ineffective assistance of counsel claim.

The Pennsylvania Superior Court, however, rejected
Hartey's ineffective assistance claim because it concluded
that there had not been improper vouching. See Hartey,
621 A.2d at 1026-27. The court noted first that, under
state law, it was the government's obligation to provide full
disclosure about any favorable agreements reached with its
witnesses. See id. at 1026. Then, it stated that the
prosecutor's statements and Murray's testimony had not
referred to extra-record evidence as the government
presented corroborating evidence during the trial. See id. at
1027. Specifically, the court pointed to the testimony of the
medical examiner, who confirmed Barth's account of how
the murder had occurred, as well as other evidence
establishing the ill will between McCandless and Stebelski.
See id.

Applying the Matteo standard, we cannot conclude that
the Superior Court's application of law was contrary to
established Supreme Court precedent or was an
unreasonable application of clearly established Supreme
Court jurisprudence. A defendant's ineffective assistance of

                               7
counsel claim can succeed only if he can show that
counsel's conduct was professionally unreasonable. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064 (1984). Thus, if there is no merit to Hartey's
claims that the prosecution's statements and Murray's
testimony should not have been permitted at trial, his
counsel cannot be deemed ineffective for not having
objected to their presentation, as it was not unreasonable
for him to acquiesce in the presentation of proper
statements and testimony.

We have indicated that a determination of whether there
has been improper vouching and, if so, whether there
should be a reversal must be determined on a case by case
basis. See United States v. Zehrbach, 47 F.3d at 1264-67.
Moreover, much as did the Superior Court, we have looked
to the extensive trial record to determine whether an
allegedly improper statement in fact referred to extra-record
evidence. See DiLoreto, 888 F.2d at 999.

The Superior Court's conclusion that the government
presented corroborating evidence at Hartey's trial was not
contrary to clearly established federal law as determined by
the Supreme Court and was not an unreasonable
application of Supreme Court jurisprudence. See 28 U.S.C.
S 2254(d)(2) (stating that district court can grant writ for
petitioner in state custody if state court decision was based
on unreasonable determination of the facts). For instance,
the prosecution presented the medical examiner's opinion
that the victim, Stebelski, first had been hit with a blunt
object on the head and then shot in the back. This
testimony confirmed Barth's statements that McCandless
had pistol-whipped Stebelski and then shot him as he was
running away. Other evidence that generally supported
Barth's statements included testimony that McCandless
had a motive to kill Stebelski, who had brought various
criminal complaints against McCandless and shot at
McCandless' wife's car, that Stebelski came to McCandless'
garage that day at McCandless' urging, and that the garage,
which McCandless owned, contained the type of bullets
used in the shooting.

Hartey argues, however, that this corroborating evidence
did not verify his involvement in the murder but only that

                                8
of McCandless. We find this argument unconvincing. The
prosecutor and Murray spoke merely of corroborating
Barth's account of how the murder occurred; the evidence
presented at trial supplied this corroboration. The jury was
thus free to infer, although it need not have done so, that
given the accuracy of Barth's account in many respects, his
statements implicating Hartey were also accurate.

Therefore, we conclude that the Superior Court did not
act unreasonably in finding that there had not been
improper vouching because the prosecution had in fact
presented evidence corroborating Barth's statements at
trial. Like the Superior Court, we have reversed convictions
based on improper vouching only where we have concluded
that evidence in the record could not have supported the
prosecution's statements. See DiLoreto, 888 F.2d at 999
(reversing on direct appeal where prosecutor in closing
argument stated that its witnesses were not liars because
government does not "take liars" but there was no evidence
presented at trial of how government ascertains the honesty
of its witnesses); United States v. Molina-Guevara, 96 F.3d
698, 704-05 (3d Cir. 1996) (reversing on direct appeal
where prosecutor stated in closing that had an absent
witness testified, he would have confirmed the testimony of
other government witnesses). For us to grant a writ in this
case would require us to hold that the government never
may reveal that its agreement with a witness included a
corroboration requirement, even when it presents
corroborating evidence at trial. Neither Supreme Court
jurisprudence nor our own case law requires such a ruling,
and therefore, applying the Matteo standard, we must reject
Hartey's ineffective assistance of counsel claim based on his
attorney's failure to object to and preserve objections to
improper vouching.2
_________________________________________________________________

2. We also note that this is not a case where the government emphasized
the corroboration required by its agreement throughout the trial. The
prosecutor mentioned the verification requirement briefly in her opening,
and Murray, who testified early in this ten-day trial, referred to it at
only
one point in his testimony, within the context of describing Barth's
agreement with the government. The prosecutor did not discuss the
issue in her closing statement.

                               9
B. The Jury Charge

We now consider Hartey's claims that his counsel was
ineffective for failing to object and preserve his objection to
the accomplice liability charge read to the jury. The
Superior Court explained this issue as follows:

        Appellant next contends that trial counsel was
       ineffective for failing to object to the trial court's jury
       charge. Specifically, appellant argues that the court's
       charge directed the attention of the jury to the state of
       mind of the co-defendant and permitted appellant's
       conviction based on the state of mind of the co-
       defendant. Appellant asserts that the court never
       informed the jury that in order to convict appellant of
       first degree murder it had to find, beyond a reasonable
       doubt, that appellant had the specific intent to kill.

Commonwealth v. Hartey, 621 A.2d at 1028. Once again,
the Superior Court disposed of the issue by looking at the
underlying merit of Hartey's claim; it found that counsel
was not ineffective because the jury instructions were
correct.

We need not evaluate the accomplice liability instruction
itself because we conclude that the record establishes that
Hartey's counsel was effective on this issue by making and
preserving his objections. In any event, the Superior Court
considered Hartey's challenge to the accomplice liability
instruction, and thus Hartey suffered no prejudice from
counsel's alleged failure to preserve his objections to the
instruction. See Strickland, 466 U.S. at 694, 104 S.Ct. at
2068 (defendant must show prejudice caused by counsel's
conduct to succeed on ineffective assistance of counsel
claim).

As we have indicated, the trial transcript shows that
Hartey's counsel did object to the accomplice liability
charge. As the district court discussed in its decision, the
transcript reveals that Hartey's counsel sought changes to
the accomplice liability instruction that the trial judge
rejected. For instance, counsel asked for the accomplice
charge to include an instruction that the jury should
consider the evidence against each defendant separately.
The judge rejected this instruction and counsel noted his

                                10
objections for the record. Finally, when the jury showed its
confusion about the nature of accomplice liability by asking
during its deliberations whether two individuals tried for
the same charge could be innocent or guilty of different
degrees of murder, Hartey's counsel vigorously argued that
the trial court should simply answer this question yes.
Such an answer implicitly would have told the jury that it
had to consider the intent of each defendant separately.
The judge disagreed with Hartey's counsel, stating his view
that, legally, the answer to the question should be no.
Ultimately, over counsel's objection, the court asked the
jurors to rephrase their question and then re-read to them
the charge it previously had given on accomplice liability.
Based on these facts, and particularly in light of the
Superior Court's consideration of Hartey's challenge to the
instruction on the merits, we find that Hartey's counsel was
not ineffective under Strickland.

III. CONCLUSION

For the foregoing reasons the order of November 14,
1997, will be affirmed.

                               11
NOONAN, Circuit Judge, dissenting:

Before the Pennsylvania Superior and Supreme Courts,
Hartey's first point on appeal was this: "Trial counsel was
ineffective for failing to object to the Court's accomplice
instruction which permitted the conviction of an accomplice
based on his joining the actor in `an illegal act' and failed
to focus the attention of the jury on whether or not the
accomplice shared or harbored the specific intent to kill
that had to be found as to the actor."

Hartey made ineffective assistance of counsel in regard to
this instruction his first claim in his habeas petition to the
district court. As the majority observes, it is this claim that
is before us now.

Hartey was tried for a murder committed by McCandless,
as to which the state's theory was that Hartey was an
accomplice. The trial court instructed the jury: "A
defendant is guilty of a crime if he is an accomplice of
another person who commits a crime. He is an accomplice
if with the intent of promoting or facilitating the
commission of the crime, he solicits, commands,
encourages, requests the other person to commit it, or aids,
agrees to aid or attempts to aid the other person in
planning or committing it. . . . You may find the defendant
guilty of a crime on the theory that he was an accomplice
as long as you are satisfied beyond a reasonable doubt that
the crime was committed and that the defendant was an
accomplice of the person who committed it."

The trial court went on to define murder in thefirst
degree. It instructed the jury that first degree murder was
an intentional killing. Intentional killing, the court said,
was "by means of poison, or by lying in wait, or by any
other kind of wilful, deliberate, and premeditated killing.
Therefore, in order to find the defendants guilty of murder
in the first degree, you must find that the killing was a
wilful, deliberate, and premeditated act. You must ask
yourself the question, Did the defendants have the wilful,
deliberate and premeditated specific intent to kill at the
time of the killing?"

Defense counsel did not competently object to these
instructions. The instructions, however, permitted the jury

                               12
to convict Hartey of first degree murder if it found that he
had the intent of promoting McCandless's crime of murder.
Under Pennsylvania law, specific intent to kill is an
ingredient of first degree murder. See Smith v. Horn, 120
F.3d 400, 411 (3rd Cir. 1997). The trial court omitted this
factual requirement and so instructed the jury in a way
contrary to Sandstrom v. Montana, 442 U.S. 510, 521
(1979). Defense counsel's failure to object to Sandstrom
error constituted ineffective assistance. It fell below
professional standards of competence and there is a
reasonable probability that, but for counsel's error, the
result of the proceedings would have been different. See
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

The commonwealth contends that the jury instructions
were correct as the decision of the Superior Court so holds,
Commonwealth v. Hartey, 621 A.2d 1023, 1028 (Pa. Super.
Ct. 1993), and that this decision of state law binds this
court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28
U.S.C. S 2254(d)(1). But the omission in a jury instruction
of an element of the crime is contrary to Sandstrom; the
Superior Court's endorsement of the error does not supply
the omission or correct the error.

The majority in this court states: "We need not evaluate
the accomplice liability instruction itself because we
conclude that the record establishes that Hartey's counsel
was effective on this issue by making and preserving his
objections." But in no way did counsel point out the
Sandstrom error. No one looking at the vague and halting
remonstrance of counsel could imagine that he was calling
the attention of the trial judge to a problem of
constitutional dimensions and citing to Supreme Court
authority already five years old and already employed to
vacate a number of state criminal convictions. See e.g.,
Arroyo v. Jones, 685 F.2d 35, 39-41 (2d Cir. 1982); Guthrie
v. Warden, Maryland Penitentiary, 683 F.2d 820, 826 (4th
Cir. 1982).

The majority opinion goes on to say, "In any event, the
Superior Court considered Hartey's challenge to the
accomplice liability instruction and thus Hartey suffered no
prejudice from counsel's alleged failure to preserve his
objections to the instructions." But the Superior Court

                               13
reached the unconstitutional conclusion that the
accomplice instructions were correct; and therefore the
Superior Court did not adequately address Hartey's
contention that his counsel failed to object to them.

The Superior Court contented itself with noting that the
trial court's charge on accomplice liability had "mirrored
the relevant statutory definitions" and that the trial court
had told the jurors to ask themselves if "the defendants"
had the "premeditated specific intent to kill at the time of
killing." Commonwealth v. Hartey, 621 A.2d at 1028. The
reference to "the defendants" in the plural did not save a
charge that had unequivocally told the jury they could find
Hartey to be guilty as an accomplice to murder if he had
had the intent of promoting the killing. The single reference
to "defendants" was cloudy; it was not specified that each
of the defendants must independently have the specific
intent to kill; a juror could reasonably have understood
that the intent of one defendant should be attributed to the
other as the instruction on accomplice suggested. At the
very least, the instruction, if taken to require the specific
intent to kill on the part of the accomplice, was
contradicted by the instruction on accomplice liability.
Contradictory instructions cancel each other out, leaving no
instruction. They do not cure the Sandstrom error. The
error was of constitutional dimension. See Smith v. Horn,
120 F.3d at 415. So was counsel's failure to object to it.

The commonwealth has a fallback position: the error was
harmless because the jury convicted Hartey of conspiracy
to murder, and conspiracy to murder is an agreement
intentionally to kill. The commonwealth relies on the trial
court's instruction that first degree murder consists in
intentional killing. But the trial court's instruction on
conspiracy to murder blunted the focus on intentional
killing by stating that the jurors would have tofind that in
planning or committing murder "the defendants do so with
the intent of promoting or facilitating the commission of the
crime of murder." Specific intent to kill was not noted. That
the jury was in fact at sea because of the erroneous
instruction is confirmed by their note during deliberations
asking the court "to explain what an accomplice is
according to law" in response to which the court magnified

                               14
its error by repeating its accomplice instructions without
objection. In any event, the commonwealth's point has no
relevance now. Hartey was sentenced to no less thanfive,
and no more than ten, years on the conspiracy count, the
term to run concurrently with his life imprisonment for
murder. Long ago he finished his sentence for conspiracy.

Hartey's claim of ineffective assistance of counsel in his
prosecution for murder suffices for him to be accorded
habeas. Two further considerations make grant of the great
writ not only legally appropriate but morally fair. First,
review of Hartey's case is narrowly circumscribed by the
AEDPA because no less than three members of the bar
undertook to represent him in the 1980's and defaulted his
state appeal by failing to file an appellate brief. The
Superior Court cured these defaults as best it could by
reinstating the appeal. No federal remedy exists for the
harm that they inflicted on Hartey. But no one familiar with
the AEDPA can doubt that Hartey's position today has
suffered because of these lapses by his lawyers.

Second, Thomas McCandless, the co-defendant, the
already-convicted murderer, has been held by this court to
deserve a new trial. See McCandless v. Vaughn, 172 F.3d
255, 270 (3d Cir. 1999). It is possible, indeed it is likely,
that he will walk. The opinion of this court throws out the
principal testimony offered against him by John Barth
seventeen years ago, "the only substantial evidence
implicating McCandless in the murder." Id. at 266. Barth,
the missing witness whose preliminary hearing testimony
the state then relied on, is now deceased, apparently having
committed suicide after being arrested in a drug bust. As
our opinion in McCandless observes, the state "did not
expend the minimal effort necessary" to get a warrant for
telephone records by which they could track Barth and
have him on hand for the trial. Id. at 268. The prosecutor's
efforts to locate their star witness were "casual." Id. The
prosecutor "did not satisfy its Sixth Amendment duty to
make reasonable good faith efforts to obtain Barth's
presence at trial." Id. at 270.

Hartey was as deeply injured by the prosecutor's
procedure as McCandless. This court finds that a
procedural bar, enacted in the interest of state-federal

                                15
comity, forbids us to consider this injury now. This court
concedes that the disparate results "might appear to be
incongruous." Not incongruous, I should say, but unjust. It
is good that there be a way, not procedurally barred, by
which the injustice may be avoided.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               16
