                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
             ______________

                  No. 15-1833
                 ______________

           JAMES DELLAVECCHIA,

                                   Appellant

                        v.

SECRETARY PENNSYLVANIA DEPARTMENT OF
    CORRECTIONS; ATTORNEY GENERAL
   PENNSYLVANIA; DISTRICT ATTORNEY
          DELAWARE COUNTY
             ______________

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
          (D.C. Civ. No. 2-14-cv-05014)
   Honorable Harvey Bartle, III, District Judge
                ______________

    Submitted under Third Circuit LAR 34.1(a)
                 March 3, 2016


    BEFORE: JORDAN, GREENBERG, and
         SCIRICA, Circuit Judges
                  (Filed: April 15, 2016)
                     ______________

Burton A. Rose
1731 Spring Garden Street
Philadelphia, PA 19103

  Attorney for Appellant

Kelly M. Sekula
Bruce R. Beemer
First Deputy Attorney General
Lawrence M. Cherra
Executive Deputy Attorney General
Criminal Law Division
Amy Zapp
Chief Deputy Attorney General
Appeals and Legal Services Section
Suite 310
1000 Madison Avenue
Norristown, PA 19403

  Attorneys for Appellees



                     ______________

               OPINION OF THE COURT
                   ______________

GREENBERG, Circuit Judge.




                            2
                      I. INTRODUCTION

        On this appeal from an order denying a petition for a writ
of habeas corpus we consider the Sixth Amendment right to
counsel in an unusual set of circumstances. In September 2012,
a state-court jury convicted appellant, James Dellavecchia, of
first-degree murder, criminal attempt (homicide), three counts of
recklessly endangering another person, and weapons-related
offenses. At the trial, Lieutenant Scott Willoughby of the
Ridley Township, Pennsylvania, Police Department, the lead
officer investigating the crimes, gave testimony that is at the
center of this opinion. In particular, Willoughby testified that
Dellavecchia made an incriminating statement immediately
following a bedside arraignment conducted while he was
hospitalized for a self-inflicted head injury on the day following
his arrest for the commission of the offenses.

       It is undisputed that when Dellavecchia made his
statement without counsel present and without having been
given Miranda1 warnings, he had not waived the right to
counsel. Thus, as the case law we discuss below demonstrates,
the dispute concerns whether Willoughby deliberately elicited
Dellavecchia’s statement or was a mere “listening post” when
Dellavecchia, spontaneously and without prompting,
volunteered incriminating information.

      We conclude that Willoughby did not deliberately elicit
Dellavecchia’s statement and consequently did not violate
Dellavecchia’s Sixth Amendment right to counsel. We also

1
    See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).




                                3
conclude that the evidence at the trial, even disregarding
Dellavecchia’s statement, overwhelmingly supported his
convictions and thus, even if his Sixth Amendment rights had
been violated when he gave the statement, the ensuing error
when Willoughby recounted the statement at trial was harmless.
 Therefore, we will affirm the District Court order denying
Dellavecchia’s petition for habeas corpus.


    II. FACTUAL AND PROCEDURAL BACKGROUND

          A. Factual Background

       Because the District Court did not hold an evidentiary
hearing, we draw our statement of facts from the evidence at the
trial and a state-court pretrial hearing on a motion that
Dellavecchia filed seeking to suppress his statement.2
Dellavecchia committed the crimes on October 10, 2011. The
events of that day started at approximately 6:00 a.m., when Scott
Robins exited his house on Sylvania Avenue in Folsom in
Ridley Township, Pennsylvania, to leave for work. His
colleague, Rick Wallace, was waiting for him in the front
passenger seat of their work van, which was parked in Robins’s
driveway. According to Wallace, who testified at the trial,
Robins opened the driver’s side door and then placed his
belongings in the center console of the van and started to step
into the vehicle. Then Wallace heard gun shots and looked in
the direction of Robins who told him to run. Instead, Wallace
exited the van and hid underneath it. From that position when

2
 The parties submitted separate appendices. We will cite
Dellavecchia’s appendix as “Pet. App.” and will cite the
Attorney General of Pennsylvania’s appendix as “Pa. App.”




                               4
he looked in the direction of the driver’s side of the vehicle, he
saw the legs and feet of an individual wearing white sneakers
and jeans walking toward the street. Wallace testified that when
that individual turned left toward the back bumper of the van, he
rolled out from under the vehicle and started to run across the
street. At that time, Wallace heard additional gunshots.

        Robins’s stepdaughter, Kristen Snow, was in a
downstairs bedroom in the Robins’s family house when Robins
left for work. When she heard gunshots, she ran upstairs and
went out the front door to look for Robins. Dellavecchia then
shot Snow in the stomach and she fell to the ground. Snow
testified that after she was shot, “somebody—Mr. Dellavecchia
came from behind the van,” walked up to her, and “held the gun
to [her] head.” (Pa. App. at 98a, 136:13-15). She stated that she
“stared at his face, [he] stared back [at me, and then] he just
turned around and walked away.” (Pa. App. at 98a, 136:15-18).

       Francis Freeman, a neighbor and long-time acquaintance
of Scott Robins, awakened when he heard gunshots that
morning. He heard a second round of gunshots and then “heard
a woman say, help, call the police.” (Pa. App. at 120a, 158:17-
18). Freeman called 911, reported the gunshots, and then ran
over to Robins and Snow. He was with Robins when the police
arrived, and his wife, who came to the scene of the shootings
shortly after he did, was with Snow when they arrived.

        The first police officer to reach the scene of the shootings
was Corporal Michael Bongiorno of the Ridley Township Police
Department. Bongiorno knew Robins and Dellavecchia because
the latter had made complaints to the Ridley Township Police
Department regarding Robins. When he arrived, Bongiorno saw
Snow sitting in “a crunched position” on the front lawn




                                 5
“writhing in pain.” (Pa. App. at 140a, 178:15-18). When
informed that there was another victim, Bongiorno went around
the van and found Robins partially underneath the front of the
vehicle. Bongiorno testified at the trial that he then had the
following conversation with Robins: “I said to him, you know,
what the hell happened? What happened? Who shot you? And
he said, Dellavecchia. And I said, your neighbor? And he said,
yeah. And he went like that with his left hand and kind of
pointed towards Ninth Avenue.” (Pa. App. at 142a, 180:6-11).
Snow and Freeman testified at the trial that they also heard
Robins identify Dellavecchia as the shooter to Bongiorno.

        After the above exchange, other officers arrived, and
Bongiorno, along with Officer Robert Ruskowski, also of the
Ridley Township Police Department, left the scene of the
shootings and moved toward Ninth Avenue in the direction to
which Robins had pointed. While going toward Ninth Avenue,
Bongiorno contacted the police dispatcher via his radio
communication system and provided the name “Dellavecchia”
to the dispatcher whom he asked to get Dellavecchia’s address
and telephone number. The dispatcher did so and gave
Bongiorno this information minutes later. At approximately the
same time, a neighbor called out to Bongiorno from across the
street, “Dellavecchia’s house is that one,” and pointed to a
particular house. (Pa. App. at 145a, 183:9-17). While still
outside the Dellavecchia house, Bongiorno called the dispatcher
with a direction to call the Dellavecchia telephone number and
ask whoever answered to step outside. “Some seconds later,”
the dispatcher informed Bongiorno that Mrs. Dellavecchia was
on the phone, and she then came to the front door where
Bongiorno was standing. (Pa. App. at 146a, 184:11 to 147a,
185:2). In response to Bongiorno’s questioning about who else
was in the house, Mrs. Dellavecchia stated that her husband was




                              6
in the shower. Bongiorno then escorted Mrs. Dellavecchia
down the driveway and handed her off to another officer with a
direction to prevent her from returning to the house.

        Bongiorno, along with Ruskowski, then entered the house
and walked up the stairs in the direction of the shower. After
they found Dellavecchia in an upstairs bedroom getting dressed,
they instructed him to freeze.          Bongiorno handcuffed
Dellavecchia and informed him that he was being detained for
an investigation involving a shooting. The officers then
removed Dellavecchia from the house, and Ruskowski
transported him to the police station. Bongiorno testified that as
he stood with Dellavecchia in the upstairs bedroom, he noticed a
spot of blood on the bureau and saw a pair of white sneakers that
appeared to be wet. Ruskowski, while securing the house,
discovered a partially obscured briefcase underneath the bed
near where Dellavecchia was dressing. Ruskowski informed
Bongiorno of the discovery and pointed out that there was an
additional spot of blood on top of the briefcase. At that time,
Bongiorno cautioned Ruskowski and another officer who was
securing the house not to touch the briefcase and to make sure
that no one else was inside the house. While Ruskowski was
taking Dellavecchia to the police station and Robins and Snow
were being transported to a hospital, Bongiorno turned the crime
scene over to detectives and supervisors from the next shift who
had begun to arrive at the scene.

       Willoughby was one of the officers who arrived at the
crime scene at that time. According to Willoughby, he had the
responsibility to direct the other officers in the collection of
evidence, containment of the crime scene, and coordination with
witnesses, among other tasks. Under his supervision, Ridley
Township police officers collected evidence from the scene of




                                7
the shootings including 13 .40 caliber federal ammunition shell
casings and four bullet fragments.

       Shortly after his arrival on the scene, Willoughby
directed a sergeant who was back at the police station to seek a
search warrant for the Dellavecchia home. The sergeant
obtained the warrant and delivered it to Willoughby. Then, with
the assistance of other members of the Ridley Township Police
Department, Willoughby entered the Dellavecchia home to
execute the warrant. During the ensuing search the police seized
the pair of white sneakers that Bongiorno earlier had noticed.
Willoughby explained that as he circled the residence, he
noticed a hose in the back of the house where there was a fresh
puddle of water with muddy footprints. He surmised that
someone recently had cleaned off his shoes at that location.
Inasmuch as the white sneakers in the bedroom were wet,
Willoughby collected them as evidence.

        The officers next seized the briefcase that Ruskowski had
discovered underneath the bed. When Willoughby removed the
briefcase from that location, he noted “drippings of blood” on
the visible top portion. (Pa. App. at 197a, 20:1). The contents
of the briefcase included a black plastic box in a plastic bag
containing a Ruger .40 caliber semi-automatic handgun and two
boxes of .40 caliber federal ammunition which, like the
handgun, were inside a black plastic bag. The .40 caliber
federal ammunition matched the shell casings found at the scene
of the shootings. One box was full and contained all 50 live
rounds but the other box was missing 17 rounds.

      During the search, Willoughby seized a pair of jeans and
a white sweater from Dellavecchia’s basement from a spot
immediately inside the back door near the place where the hose




                               8
and fresh puddle were found. Willoughby observed what he
thought was a blood stain on the white sweater. It appeared to
him that someone hurriedly had removed the clothing so he
seized both articles as evidence.

        After the officers collected evidence, Willoughby
returned to the Ridley Township police station to speak with
Dellavecchia. As he prepared to do so, he “heard a loud bang up
in the cell.” (Pa. App. at 204a, 27:6-8). When Willoughby went
to the cell to investigate the noise, he discovered that
Dellavecchia had run head first into the jail cell bars and
required immediate medical attention. The police then took him
to the Chester-Crozer Hospital where he was admitted.

        The following day, Willoughby learned that Dellavecchia
was coherent, though still hospitalized. Willoughby then
brought Vincent Gallagher, Magisterial District Judge for Ridley
Township, to the hospital to conduct a bedside arraignment for
Dellavecchia. At the arraignment, Dellavecchia was advised
that he had been charged with various crimes including the
murder of Scott Robins who had died and also was advised of
his defendant’s rights. Thereafter, as described below, he made
the statement to Willoughby that is the basis for this appeal.

       After he was indicted, Dellavecchia made a motion to
suppress his bedside statement and the state common pleas court
held a hearing on the motion on July 18, 2012. At the hearing
Willoughby gave, inter alia, the following testimony:

       [A]s soon as District Justice Gallagher arraigned
       the Defendant he turned and started to walk out of
       the room. Mr. Dellavecchia asked me who are
       you. I introduced myself as Lieutenant Scott




                               9
       Willoughby from the Ridley Township Police
       Department. I told him I was in charge of the
       investigation, at which time he asked me to sit. I
       sat. He put out his hand. I shook his hand. And
       he stated this. I really fucked up. He asked me to
       sit down. And he says Scotty, I want to tell you
       what happened. I sat in the chair and Mr.
       Dellavecchia began to talk freely and openly.

(Pet. App. at 65a, 48:8-19). Willoughby testified that he did not
go to the hospital intending to interview Dellavecchia and
consequently did not bring a notepad or a Miranda waiver form
with him when he went there. Willoughby explained that until
the arraignment, the Ridley Township Police Department was
responsible for supervising Dellavecchia’s custody, but that
after the arraignment that responsibility shifted to prison
personnel.     Accordingly, Willoughby intended to have
Dellavecchia arraigned as soon as possible to facilitate this
administrative transition. Willoughby testified that after
Dellavecchia blurted out the above statement, he asked
Willoughby “if I say anything can it be used against me[?]”
(Pet. App. at 70a, 53:11-13). Willoughby responded that
anything he said could be used against him.

       The first substantive topic that Dellavecchia addressed
after his initial statement to Willoughby was his relationship
with Scott Robins. Dellavecchia said that they had known each
other since Robins was a child because Robins had grown up in
the house in which he was living at the time he was shot.
Dellavecchia stated that he never was fond of Robins.
Dellavecchia told Willoughby that for several months, Robins
had been building a shed too close to the property line without
the required permits. Dellavecchia also complained that, while




                               10
Robins was building the shed, he played loud music and used an
air staple gun near the property line. On several occasions in the
months leading up to the shooting, Dellavecchia had contacted
the Ridley Township Police Department to complain about the
construction of the shed. He explained that on one occasion,
Robins threatened him, and he was intimidated by Robins’s size,
which prompted him to buy the gun.

       Willoughby testified that Dellavecchia continued his
uninterrupted narrative and provided the following account of
the events of the previous morning. He was “awoken by the
sound of somebody tapping on a tin shed” in his yard. (Pet.
App. at 73a, 56:16-17). He got up, got dressed, got out his
gun, went downstairs, and loaded the gun. “His plan was to go
out back and investigate the noise.” (Pet. App. at 73a, 56:20-
21). He searched his yard, but “wasn’t able to find anyone near
the shed.” (Pet. App. at 73a, 56:24-25). He did, however,
“notice that the light was on over at Scott’s house,” so he
“figured that Scott was fucking with him.” (Pet. App. at 74a,
57:1-3). He left his yard and walked away from Sylvania
Avenue toward Swarthmore Avenue, in the opposite direction
from Robins’s house. He then made the first left on
Swarthmore, the first left on Tenth Avenue, and the first left on
Sylvania Avenue—the street on which Scott Robins lived—on
his route to return home.

        As Dellavecchia approached Robins’s house, “Scott’s
van was running and Scott was standing outside the van door.”
(Pet. App. at 74a, 57:23-24). Dellavecchia “thought of turning
around,” but he didn’t. (Pet. App. at 74a, 57:24-25). “He just
kept walking until he saw that Scott had given him a stare.”
(Pet. App. at 74a, 57:25 to 75a, 58:2). Then, “Dellavecchia felt
really threatened by the way that Scott was looking at him,” so




                               11
he “pointed his gun and he fired.” (Pet. App. at 75a, 58:4-7).
Dellavecchia fired the gun “until Scott was gone,” at which time
“he saw a figure in a white shirt running at him” so he turned
and “aimlessly started firing at the figure.” (Pet. App. at 75a,
58:10-14). He then noticed that “the gun wouldn’t fire any
more” and “the slide had been locked back, which meant the
gun was empty.” (Pet. App. at 75a, 58:14-17). Dellavecchia
then ran home, and while doing so defecated on himself. He
entered his house through the basement, removed his clothing,
and went upstairs to shower. “[T]he next thing he knew the
police were coming up the steps and they put him in handcuffs.”
 (Pet. App. at 76a, 59:9-10).

        After recounting Dellavecchia’s statement at the
suppression hearing, Willoughby reiterated that during
Dellavecchia’s entire narrative, he did not pose any questions to
Dellavecchia. Rather, he “just sat and listened” and took notes
on several Crozer Hospital forms that he took from a nearby
table. (Pet. App. at 76a, 59:24 to 77a, 60:14). Willoughby
stated that following this narrative, he asked a series of
questions that Dellavecchia answered. Willoughby indicated
that he did not give Dellavecchia Miranda warnings. Moreover,
even though, as Willoughby was aware, Dellavecchia’s son had
obtained an attorney for him, Willoughby did not inform
Dellavecchia that his son had done so. At the trial, Willoughby
provided an account of Dellavecchia’s statement similar to the
one he gave at the suppression hearing, although in slightly less
detail.

       Dellavecchia testified at the trial. He first explained his
fear of Robins, as well as their feud related to Robins’s shed.
He then provided a narrative of the events of the day of the
shooting, which was, in many respects, consistent with




                               12
Willoughby’s account of Dellavecchia’s October 2011
statement. This narrative differed, however, with respect to the
point at which Dellavecchia was walking past Robins’s house
when returning home. Specifically, at trial Dellavecchia
testified as follows:

       [Robins] had this expression on his face. He had
       his left hand on the steering wheel, his right hand
       on the door and he was leaning forward. So I
       looked away and within a moment’s notice I felt
       his presence on me and he had me by my right --
       right side of my clothing. I went to duck and he
       hit me right here on the side of my left temple and
       my ear, knocking my glasses down. As I bent
       down, he uppercut at me. This guy, amazing. I
       started seeing stars and I hear my ears ringing. I
       got my gun in my -- belt, my hands -- my glasses
       in my hand and he’s throwing me around.

(Pa. App. at 320a, 94:3-14). He continued:

       I tried to pull away from [Robins] and he was
       pulling up on my shirt and what not and my -- I
       felt my gun come up and I had -- had my gun in
       my hand and we were banging against the -- the
       van’s side and I was trying . . . to pull away from
       him, but unfortunately he swung me around the
       door and now we’re in the front of the van.

(Pa. App. at 325a, 99:21 to 326a, 100:10). When asked what
happened next, Dellavecchia responded, “I heard gunshots, so
obvious[ly] I was firing the gun.” (Pa. App. at 326a, 100:25 to
327a, 101:1). Dellavecchia testified that he does not remember




                               13
pulling the trigger or aiming the weapon at Robins but stated
that they: “were flailing around. I was flailing around. I was
just trying to get away from him.” (Pa. App. at 328a, 102:15-
22).

Dellavecchia continued his testimony as follows:

       I was let loose. I broke away. I ran to the van
       and I notice as I’m running down Sylvania
       Avenue that I was -- I was in pain. My back was
       hurting and I was limping and I felt something
       wet on my spine. I thought I had been shot. I got
       to my basement. I start taking my clothes off and
       I soiled myself. I left my clothing there, went
       upstairs and I was going to clean off.

(Pa. App. at 329a, 103:15-22). He concluded this portion of his
testimony by stating that he did not recall being arrested.

        After Dellavecchia gave the above testimony he was
questioned about the statement he gave to Willoughby in the
hospital. When asked whether he understood Willoughby,
Dellavecchia stated as follows: “He said do you understand and
I said, no. And he said do you want a lawyer, I said I need a
lawyer. I don’t understand the meaning of what you’re saying
to me.” (Pa. App. at 334a, 108:7-12). Dellavecchia also stated
that during this meeting Willoughby asked questions, and when
Dellavecchia said he wanted to see his wife, Willoughby
responded that he needed a statement first.

       On cross-examination, Dellavecchia stated that at the
time of his arrest on October 10, 2011, he “had two black eyes,
[a] bloody nose, cut lip, bit [his] tongue, [his] right shin area was




                                 14
bleeding and [he] had bruises and contusions [on his] back and
arms.” (Pa. App. at 351a, 125:11-14). He several times made
the crucial statement that he shot Scott Robins. In fact, he stated
that it was “obvious” that he “shot and killed Scott Robins.”
(Pa. App. at 377a, 138:21-25).

        To counter Dellavecchia’s testimony implying that he
shot Robins in self-defense and had sustained injuries in their
struggle, the Commonwealth called a law enforcement officer to
introduce photographs of Dellavecchia taken on October 12,
2011, two days after the shootings. These photographs did not
show that Dellavecchia had been injured. The Commonwealth
also introduced testimony from Ruskowski, who had taken
Dellavecchia to the Ridley Township police station from his
house when he was arrested. Ruskowski testified that during
that transport, Dellavecchia did not have black eyes, a bloody
nose, a split lip, or any other visible injuries to his face.

        The Commonwealth also introduced evidence from the
medical examiner in the case, Dr. Frederic Hellman, who
testified about, among other things, the cause of death, manner
of death, and the removal and transfer of ballistics related to
Robins. Hellman said that the cause of death was multiple
gunshot wounds and the manner of death was homicide. He
testified that he recovered three bullets from Robins’s body,
including one that entered the right lower back, one that entered
the left buttock, and one that entered the beginning of the right
thigh bone. Hellman also recovered several bullet fragments in
Robins’s left and right forearms.

      Hellman testified that he did not find in any of these
gunshot wounds evidence of “soot, which is the residual of the
primer at the base of the bullet,” or evidence of “gunpowder




                                15
stippling, which would be small scrapes or abrasions” on
Robins’s skin that would have resulted from “gunpowder
particles impacting adjacent to an entrance wound.” (Pa. App.
at 275a, 29:15-24). Hellman explained that generally he finds
soot when the distance between the muzzle of the gun and the
target area at the time of the shooting measures approximately
eight to ten inches and that he generally finds stippling when the
distance between the muzzle of the gun and the target area
measures two-and-a-half to three feet. Based on this evidence,
Hellman indicated that in his opinion the gunshot wounds were
not inflicted by a weapon fired within two-and-a-half to three
feet of Robins.

           B. Procedural History

        As we have indicated, prior to the trial Dellavecchia filed
a motion to suppress his October 11 statement to Willoughby.
On September 25, 2012, the common pleas court denied the
suppression motion with respect to Dellavecchia’s spontaneous
and unsolicited statement but suppressed his responses to
Willoughby’s subsequent questions. These rulings were oral,
but after Dellavecchia appealed, the common pleas court filed a
written opinion explaining the reasons for its decision.3

       On September 28, 2012, a jury convicted Dellavecchia of
the offenses that we set forth above. The common pleas court
sentenced Dellavecchia to a mandatory term of life in prison
without parole for the murder of Scott Robins and to custodial

3
  The written opinion also rejected Dellavecchia’s claim
contending that the prosecutor was guilty of misconduct relating
to credibility issues but we are not concerned with that issue on
this appeal.




                                16
sentences consecutive to the life sentence for the other offenses.

       On December 12, 2012, Dellavecchia filed a timely
appeal to the Superior Court of Pennsylvania, and on November
20, 2013, a three-judge panel of the Superior Court affirmed his
conviction. See Commonwealth v. Dellavecchia, 91 A.3d 1291
(Pa. Super. Ct. 2013); Commonwealth v. Dellavecchia, No.
3418 EDA 2012, 2013 Pa. Super. Unpub. LEXIS 2776 (Pa.
Super. Ct. Nov. 23, 2013). That court held that although the
Sixth Amendment right to counsel had attached by the time
Dellavecchia gave his statement because the Commonwealth
already had initiated an adversarial proceeding against him,
Dellavecchia’s Sixth Amendment rights had not been infringed
as Willoughby did not elicit the statement. Dellavecchia filed an
application for reargument en banc, which the Superior Court
denied on January 28, 2014. Dellavecchia then filed a petition
for allowance of an appeal by the Supreme Court of
Pennsylvania but that court denied the petition on July 8, 2014.
Commonwealth v. Dellavecchia, 95 A.3d 275 (Pa. 2014).

       Following the exhaustion of his state-court remedies,
Dellavecchia filed a petition for a writ of habeas corpus in the
District Court pursuant to 28 U.S.C § 2254 asserting that his
Sixth Amendment rights were violated when he gave his
statement.4 The Court referred the case to a magistrate judge
who on January 28, 2015, issued a report with a
recommendation that the Court deny the petition. On March 2,
2015, the Court approved and adopted the magistrate judge’s
report and recommendation and denied the petition.
Dellavecchia then appealed to this Court and sought a certificate

4
 Dellavecchia does not contend that his Fifth Amendment rights
were violated.




                               17
of appealability which we granted.


III. STATEMENT OF JURISDICTION AND STANDARD
                  OF REVIEW

        The District Court had jurisdiction over this action
pursuant to 28 U.S.C. § 2254, and we have jurisdiction pursuant
to 28 U.S.C. § 1291. Because the District Court did not conduct
an evidentiary hearing, our review of its denial of
Dellavecchia’s petition for habeas corpus is plenary. See
Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009). However,
the state court’s factual findings are entitled to a presumption of
correctness, and Dellavecchia bears the burden to rebut that
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); see also Kuhlmann v. Wilson, 477 U.S. 436, 459,
106 S.Ct. 2616, 2630 (1986).


                       IV. DISCUSSION

           A. Habeas Corpus

       A district court has authority to issue a writ of habeas
corpus on a petition filed by a prisoner in state custody solely on
the ground that he “is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Death Penalty Act of 1996 (“AEDPA”), sets forth as follows:

       An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted




                                18
      with respect to any claim that was adjudicated on
      the merits in State court proceedings unless the
      adjudication of the claim –

      (1) resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly
      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.

28 U.S.C. § 2254(d).

        We have explained that this provision “mandates a two-
part inquiry.” Matteo v. Superintendent, SCI Albion, 171 F.3d
877, 880 (3d Cir. 1999) (en banc). “[F]irst, 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.”5 Id. “[S]econd, 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.” Id. Furthermore, we
recognize that, in conducting this inquiry, “[f]actual issues

5
  Although Dellavecchia has argued that the state courts
unreasonably applied federal law, he has not argued that the
state courts’ decisions were contrary to clearly established
federal law, nor has he rebutted the Commonwealth’s contention
that such decisions were not contrary to such law. Therefore,
our analysis does not address that part of the AEDPA test.




                              19
determined by a state court are presumed to be correct and the
petitioner bears the burden of rebutting this presumption by
clear and convincing evidence.” Werts v. Vaughn, 228 F.3d
178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).

        It is a well-established principle that “habeas corpus is
not to be used as a second criminal trial, and federal courts are
not to run roughshod over the considered findings and
judgments of the state courts that conducted the original trial
and heard the initial appeals.” Williams v. Taylor, 529 U.S.
362, 383, 120 S.Ct. 1495, 1508 (2000). Rather, the Supreme
Court has “long insisted that federal habeas courts attend closely
to those considered decisions, and give them full effect when
their findings and judgments are consistent with federal law.”
Id. The respect given to state-court decisions by the federal
courts on habeas proceedings is demonstrated by “the fact that
[even if] constitutional error occurred in the proceedings that led
to a state-court conviction [that circumstance] may not alone be
sufficient reason for concluding that a prisoner is entitled to the
remedy of habeas.” Id. at 375, 120 S.Ct. at 1503 (citations
omitted).

           B. Constitutionality of the Admission of the
              Statement Pursuant to Established
              Sixth Amendment Precedent

        The Sixth Amendment, made applicable to the states
through the Fourteenth Amendment, provides in relevant part
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense.”
U.S. Const. amend VI. Dellavecchia relies on the progeny of
Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964), to
contend that the trial court’s admission of his hospital statement




                                20
to Willoughby was an “unreasonable application of” Supreme
Court precedent.

         The Sixth Amendment “serves to safeguard the
adversarial process by ensuring that once the right to counsel
has attached the accused ‘need not stand alone against the State’
at any ‘critical stage’ of the aggregate proceedings against
him.”6 Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997)
(quoting Estelle v. Smith, 451 U.S. 454, 470, 101 S.Ct. 1866,
1876-77 (1981)). The Supreme Court long has held that “an
individual who stands indicted of a crime is denied his right to
counsel when agents of the state circumvent that right by
‘deliberately eliciting’ inculpatory statements from him in the
absence of his counsel, absent a voluntary and knowing waiver.”
 Id. (alteration omitted) (quoting Michigan v. Harvey, 494 U.S.
344, 348-49, 110 S.Ct. 1176, 1179 (1990)). The “deliberate
elicitation” doctrine is derived from Massiah, a case in which
the Court concluded that the Sixth Amendment protections
extend to “indirect and surreptitious interrogations as well as
those conducted in the jailhouse.” Massiah, 377 U.S. at 206, 84
S.Ct. at 1203.

        The Supreme Court applied this doctrine in the well-
known case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232
(1977), which involved a Christmas Eve murder of a ten-year-
old girl in Des Moines, Iowa. Id. at 390, 97 S.Ct. at 1235. Two
days after the girl disappeared while her whereabouts still were
unknown, an individual who became the defendant in the case,
Robert Williams, on advice of a Des Moines attorney, Henry

6
 The Commonwealth does not dispute that Dellavecchia’s Sixth
Amendment right to counsel had attached at the time that he
made his post-arraignment hospital statement.




                               21
McKnight, turned himself in to the police in Davenport, Iowa,
160 miles from Des Moines. Id. In Davenport, a second
attorney represented Williams at his arraignment and advised
Williams not to make any statements until he consulted with
McKnight. Id. at 391, 97 S.Ct. at 1236. Moreover, the police
advised Williams of his Miranda rights while he was in
Davenport.

        After Williams surrendered, two officers from the Des
Moines police department traveled to Davenport to take custody
of him to transport him to Des Moines. Id. Before the trip,
McKnight, who was waiting in Des Moines, advised Williams
on the telephone not to speak to the officers while they were
taking him to Des Moines. Id. at 391, 97 S.Ct. at 1235.
Moreover, McKnight told the officers not to interrogate him. Id.
at 391, 97 S.Ct. at 1236. The Supreme Court indicated that “[a]t
no time during the trip did Williams express a willingness to be
interrogated in the absence of an attorney. Instead, he stated
several times that ‘[w]hen I get to Des Moines and see [my
attorney], I am going to tell you the whole story.’” Id. at 392,
97 S.Ct. at 1236.

       During the transport, a Des Moines detective delivered
what has since been called the “Christian burial speech.” Id.
The detective, who knew that Williams was an escaped mental
patient and a deeply religious man, id. at 403, 97 S.Ct. at 1241,
asked Williams to think about the fact that the weather
conditions were poor and a delay in identifying the location of
the girl’s body could prevent her eventual discovery, thus
denying her parents the ability to give her a “Christian burial.”
Id. at 392-93, 97 S.Ct. at 1236-37. Following this speech,
Williams informed the officers that he would show them the
location of the body, and ultimately he did so. Id. at 393, 97




                               22
S.Ct. at 1237.

        The critical point in the Supreme Court’s opinion holding
that there was a Sixth Amendment violation was that a detective
transporting him to Des Moines “deliberately and designedly set
out to elicit information from Williams just as surely as—and
perhaps more effectively than—if he had formally interrogated
him.” Id. at 399, 97 S.Ct. at 1240. The Court expressly noted
that “he purposely sought during Williams’ isolation from his
lawyers to obtain as much incriminating information as
possible.” Id. In the Court’s view, this approach amounted to
an interrogation so that its occurrence in the absence of counsel
constituted a violation of Williams’s Sixth Amendment rights.
Id. at 401, 97 S.Ct. 1240-41.

        The Supreme Court’s development of Sixth Amendment
law continued in United States v. Henry, 447 U.S. 264, 100
S.Ct. 2183 (1980). In Henry, the government obtained the
assistance of a confidential informant inmate housed in the same
cellblock with Henry who was then awaiting trial for bank
robbery. Id. at 266, 100 S.Ct. at 2184. The FBI agent in charge
of the investigation instructed the confidential informant “to be
alert to any statements” but “not to initiate any conversation
with or question Henry regarding the bank robbery.” Id. at 266,
100 S.Ct. at 2184-85. Ultimately, the informant testified at trial
that he had “an opportunity to have some conversations with Mr.
Henry while he was in jail” and Henry had “described to him the
details of the robbery[.]” Id. at 267, 100 S.Ct. at 2185 (internal
quotation marks omitted).

       The Supreme Court concluded that the above interaction
was impermissible. Id. at 274, 100 S.Ct. at 2189. The Court
highlighted the fact that, according to the testimony of the




                               23
informant, he was “not a passive listener; rather, he had some
conversations with Mr. Henry while he was in jail and Henry’s
incriminatory statements were the product of this conversation.”
 Id. at 271, 100 S.Ct. at 2187 (internal quotation marks omitted).
 The Court likewise emphasized that Henry was unaware of the
inmate’s role as a government informant. Id. at 272, 100 S.Ct.
at 2188. In light of these factors, the Court held that “[b]y
intentionally creating a situation likely to induce Henry to make
incriminating statements without the assistance of counsel, the
Government violated Henry’s Sixth Amendment right to
counsel.” Id. at 274, 100 S.Ct. at 2189.

        In contrast to what happened in Henry, the Supreme
Court found that the facts in Kuhlmann did not constitute a Sixth
Amendment violation. Kuhlmann, like Henry, involved a
jailhouse informant, but in Kuhlmann the trial court expressly
noted that the defendant’s statements to the informant were
“unsolicited” and “spontaneous.” Kuhlmann, 477 U.S. at 440,
106 S.Ct. at 2620 (internal quotation marks omitted).
Specifically, the trial court found that the informant “at no time
asked any questions with respect to the crime” and that he “only
listened to [the defendant] and made notes regarding what [the
defendant] had to say.” Id. (internal quotation marks omitted).
The Supreme Court made clear that “the Sixth Amendment is
not violated whenever—by luck or happenstance—the State
obtains incriminating statements from the accused after the right
to counsel has attached[.]” Id. at 459, 106 S.Ct. at 2630
(quoting Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477,
487 (1985)). Rather, to show a violation, “the defendant must
demonstrate that the police and their informant took some
action, beyond merely listening, that was designed deliberately
to elicit incriminating remarks.” Id.




                               24
       Applying the Supreme Court’s Sixth Amendment
precedent to the facts here, we conclude that Willoughby by his
conduct did not deliberately elicit a statement from
Dellavecchia.7 As was true of the informant in Kuhlmann,
Willoughby did nothing more than listen to a defendant’s
spontaneous and unsolicited statement that was both
unprompted and willingly provided. In contrast to what
happened in Brewer where the Court found “no serious doubt”
that the police officer “deliberately and designedly set out to
elicit information,” here the state courts concluded that
Willoughby did not go to the hospital with the intent to question
Dellavecchia. Brewer, 430 U.S. at 499, 97 S.Ct. at 1240. We
have no basis on which to reject that finding. Moreover,
Dellavecchia asked whether—and was advised by Willoughby
that—anything he said could be used against him. Thus,
Willoughby rather than eliciting a statement from Dellavecchia
in effect encouraged him to remain silent. After all, a police

7
 Although our analysis turns, as it must, on “clearly established
federal law[] as determined by the Supreme Court,” 28 U.S.C. §
2254(d)(1), our conclusion also comports with our own
precedent. In Bey v. Morton, we analyzed the Supreme Court’s
Sixth Amendment line of cases to determine if “there are any
circumstances under which the state can deliberately undertake
to secure incriminating information from a represented
defendant in the absence of counsel and can thereafter use in
court the incriminating information it obtains.” 124 F.3d at 530.
 We concluded that the “answer that has evolved is that it can,
only if there is not ‘elicitation’—only if the government does no
more than listen.” Id. “It cannot if the police or their informants
question or otherwise encourage or facilitate the defendant’s
discussion of the crime, and this is true even if the defendant
initiates the discussion of the criminal conduct.” Id.




                                25
officer seeking to induce a defendant to make a statement would
recognize that he would not be doing so by warning the
defendant that if he made a statement, his statement could be
used against him.

       In light of the unassailable state-court findings on the
motion to suppress, the Superior Court, in affirming the
common pleas court’s decision denying the motion with respect
to Dellavecchia’s spontaneous statement, did not come to a
conclusion that unreasonably applied clearly established Federal
law as determined by the Supreme Court and did not make an
unreasonable determination of the facts.8 In short, there is
nothing in the Massiah line of cases requiring a police officer to
reject or ignore a defendant’s voluntary statements. To the
contrary, when a defendant provides an uninterrupted narrative
about his offenses, a state has no obligation to hinder him in
making that statement and is not required to persuade an
otherwise willing individual to remain silent.

       Even though the Supreme Court has said “that the clear
rule of Massiah is that once adversary proceedings have
commenced against an individual, he has a right to legal
representation when the government interrogates him,” Brewer,
430 U.S. at 401, 97 S.Ct. at 1240, spontaneous and unprompted
statements voluntarily provided to the police may be used at trial
when there has not been an interrogation of the type the Court
described in Brewer. Here there was no such interrogation so
Dellavecchia’s statement could be used at the trial.


8
 While we review the Superior Court decision, we would reach
the same result if we directly were reviewing the common pleas
court’s decision.




                               26
            C. Harmless Error
        Finally we point out that even if the state courts erred
when they did not exclude evidence of Dellavecchia’s statement,
we still would affirm the District Court order denying
Dellavecchia’s petition because the evidence of Dellavecchia’s
guilt was overwhelming. See Brecht v. Abrahamson, 507 U.S.
619, 637, 113 S.Ct. 1710, 1721-22 (1993); Alston v. Redman,
34 F.3d 1237, 1252 (3d Cir. 1994). It is well established that
“[t]he writ of habeas corpus has limited scope” as “the federal
courts do not sit to re-try state cases de novo, but, rather, to
review for violation of federal constitutional standards.” Milton
v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178 (1972).
But “[i]n that process we do not close our eyes to the reality of
overwhelming evidence of guilt fairly established in the state
court . . . .” Id. Applying this principle to the facts at hand, we
conclude that the unchallenged evidence of Dellavecchia’s guilt
would require that we affirm the District Court’s order denying
his petition even if there was a Sixth Amendment violation
because it is clear that the admission of Dellavecchia’s statement
was harmless even if judged on the most exacting standard.

        To start, there is no dispute that Dellavecchia shot and
killed Scott Robins. After all, Dellavecchia conceded this point
numerous times during his testimony at trial.               Thus,
Dellavecchia does not dispute Robins’s identification of him to
Bongiorno as his shooter at the time the police arrived on scene.
 Rather, Dellavecchia’s sole defense was that he shot and killed
Robins in self-defense during a struggle. But the physical
evidence cannot be reconciled with Dellavecchia’s self-defense
account of the homicide. The medical examiner’s testimony
showed that two of the three penetrating gunshot wounds
entered Robins’s body through his right lower back and his left
buttock, thus indicating that Robins was shot with his back to




                                27
his shooter—a point which is consistent with the testimony of
Robins’s colleague, Richard Wallace. Moreover, the medical
examiner noted that the lack of soot or stippling on Robins’s
body indicates that the shots were fired from more than three
feet away, again contradicting Dellavecchia’s testimony that the
shots were fired during a hand-to-hand struggle. Finally,
photographs entered in evidence as well as the testimony of the
officer who transported Dellavecchia from his residence to the
police station contradicted Dellavecchia’s testimony that he had
two black eyes and various other facial injuries as a result of this
struggle. In short, we hold that even if Willoughby’s testimony
regarding the October 11 statement was improperly admitted at
trial, such admission was harmless in light of the overwhelming
evidence of Dellavecchia’s guilt.9


                       V. CONCLUSION

       For the foregoing reasons, we will affirm the District
Court’s order of March 2, 2015, denying Dellavecchia’s petition
for a writ of habeas corpus.




9
 Although we focus our harmless error analysis on the murder
conviction, it applies to all of the offenses for which the jury
convicted Dellavecchia.




                                28
