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


3-24-1999

Matteo v. Supt SCI Albion
Precedential or Non-Precedential:

Docket 96-2115




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Volume 1 of 2

Filed March 24, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-2115

ANTHONY N. MATTEO,
        Appellant

v.

SUPERINTENDENT, SCI ALBION;
THE DISTRICT ATTORNEY OF THE COUNTY OF
CHESTER; THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 96-cv-06041
(Honorable Joseph L. McGlynn, Jr.)

Argued January 30, 1998
Before: MANSMANN, COWEN and RENDELL, Circuit Judges

Argued En Banc November 23, 1998
Before: BECKER, Chief Judge, SLOVITER, STAPLETON,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS,
McKEE, RENDELL and COWEN, Circuit Judges

(Filed March 24, 1999)
WALTER M. PHILLIPS, JR.,
 ESQUIRE (ARGUED)
Hoyle, Morris & Kerr
4900 One Liberty Place
1650 Market Street
Philadelphia, Pennsylvania 19103

Attorney for Appellant

STUART SUSS, ESQUIRE (ARGUED)
NICHOLAS J. CASENTA, JR.,
 ESQUIRE
Office of District Attorney
17 North Church Street
Courthouse Annex - Second Floor
West Chester, Pennsylvania 19380

Attorney for Appellees,
The District Attorney of the
County of Chester; The Attorney
General of the Commonwealth of
Pennsylvania

JAMES S. LIEBMAN, ESQUIRE
 (ARGUED)
Columbia University School of Law
435 West 116th Street
Box B-16
New York, New York 10027

                         2
MATTHEW C. LAWRY, ESQUIRE
Defender Association of Philadelphia
Federal Court Division
Lafayette Building, Suite 800
437 Chestnut Street
Philadelphia, Pennsylvania
 19106-2414

Attorneys for Federal Defender
Organization Amici Curiae
Appellants, Richard Couglin, Esq.,
Federal Public Defender, District of
New Jersey; James V. Wade, Esq.,
Federal Public Defender, Middle
District of Pennsylvania; Shelley
Stark, Esq., Federal Public
Defender, Western District of
Pennsylvania; Penny Marshall,
Esq., Assistant Federal Public
Defender, District of Delaware;
and Maureen Kearney Rowley,
Chief Federal Defender, Federal
Court Division, Defender
Association of Philadelphia

PETER J. GARDNER, ESQUIRE
 (ARGUED)
DONNA G. ZUCKER, ESQUIRE
Office of District Attorney
1421 Arch Street, 5th Floor
Philadelphia, Pennsylvania 19102

Attorneys for Amici Curiae
Appellees, Attorney General, State
of Delaware; Attorney General,
State of New Jersey; Attorney
General, Commonwealth of
Pennsylvania; District Attorney,
Allegheny County; and District
Attorney, Philadelphia County

                       3
OPINION OF THE COURT

SCIRICA, Circuit Judge.

Like our sister courts of appeals, we are asked to
determine the appropriate standard of review governing
petitions for a writ of habeas corpus. Anthony Matteo seeks
habeas relief from his state convictions for first degree
murder, robbery, theft, and possession of marijuana,
contending the Commonwealth of Pennsylvania violated his
Sixth Amendment right to counsel by using incriminating
statements he made in two telephone conversations from
prison to an outside informant. In evaluating Matteo's
petition, the en banc court must interpret the standard of
review provision incorporated into 28 U.S.C. S 2254(d) by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), which revised the standard of review for habeas
corpus petitions. We hold that the revised statute 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. Applying this
analysis, we will affirm the District Court's dismissal of
Matteo's habeas petition.

I. Background

A. Facts

In September 1988, Anthony Matteo was convicted of
first degree murder, robbery, theft, and possession of
marijuana and subsequently sentenced to life
imprisonment on the murder conviction and twenty years'
consecutive probation on the robbery conviction. The facts
underlying Matteo's convictions were aptly summarized in
the opinion of the Court of Common Pleas of Chester
County, Pennsylvania:

                                4
 On January 17, 1988, Patrick Calandriello was found
dead in the trunk of his Cadillac which was parked in
the North parking lot of the Holiday Inn in Lionville,
Pennsylvania. Calandriello had been shot in the head
with a .22 caliber rifle and stuffed in the trunk of his
own car. Although Calandriello had been known to
carry large sums of money, usually in large
denominations, no money was found on him.
Additionally, he was missing both his apartment and
his car keys. Investigators also discovered white cat
hairs on Calandriello's pants and a sneaker print on
the rear bumper of his car.

 The story which ended in Calandriello's death and
Matteo's conviction commences in September 1987.
Edward Beson, a friend of Calandriello's, testified that
Calandriello sought Beson's assistance in storing
$20,000 worth of stolen golf carts which Calandriello
was soon to acquire. Beson learned from Calandriello
that Anthony Matteo was going to obtain these stolen
golf carts for Calandriello.

 Apparently, the first of two "attempts" to obtain the
stolen golf carts, in September of 1987 and January 5,
1988, was unsuccessful. At approximately 11:20 a.m.
on January 13, 1988, Calandriello telephoned Beson
and stated that he was going to pick up Anthony
Matteo at Matteo's house and that he, Calandriello,
would be carrying $5,000 or $6,000. Another $15,000
was to be left in the care of Calandriello's friend
Richard Ross. Calandriello told Beson that he would
meet Beson at 2:00 p.m. that afternoon at Denny's
Restaurant, but Calandriello never arrived.

 Shortly after noon on January 13, 1998, Calandriello
did indeed leave $15,000 in an envelope with Richard
Ross at a Roy Rogers Restaurant in Paoli. Calandriello
told Ross that he was going to Routes 401 and 113 to
pick someone up and that he would return in
approximately forty-five minutes to an hour; Matteo's
home is nearby this intersection. Ross awaited
Calandriello's return for over three hours before he
gave up and left the Roy Rogers Restaurant.

                       5
  Sara Kessock, Calandriello's girlfriend, reported
Calandriello missing and an investigation of his
disappearance ensued. Eventually, the investigation led
 to Anthony Matteo, and the police conducted two
 searches of the Matteo home. The searches revealed
 the following:

  1. In Defendant's room was .22 ammo consistent
 with the type that killed Calandriello;

  2. In Defendant's room were sets of Calandriel lo's car
 and apartment keys;

  3. Under the mattress in Defendant's brother's   room
 was $1,200 in $100 bills;

  4. At the Matteo house was a white cat whose h air
 was consistent with the hairs found on Calandriello's
 pants;

  5. In Defendant's room were sneakers that an F BI
 expert was "90% to 95% certain" were the sneakers
 that made the print on Calandriello's car's rear
 bumper; and

  6. Blood was found in the defendant's garage t hat
 was consistent with Calandriello's and only 3% of the
 rest of the population.

  Crucial testimony was provided by a number of
 Matteo's friends. First, Timothy Flynn stated that he
 and the Defendant had gone target shooting on
 January 10, 1988. Flynn also stated that on the
 evening of January 13, 1988, the Defendant was
 carrying a wad of bills and was spending $100 bills.

  Next, C. John Stanchina, a longtime friend of the
 Defendant's, testified that at approximately 2:25 p.m.
 on January 13, 1988, he picked up the Defendant at
 the North end parking lot of the Holiday Inn in
 Lionville. As it would turn out, this was near where
 Calandriello's frozen body was later discovered.

  Finally, Douglas Lubking testified that he had lent
 the Defendant a .22 rifle in December of 1987. Lubking
 and the Defendant had been target shooting and
 Defendant asked Lubking to loan Defendant the rifle so

                        6
        he could practice. Subsequent to his arrest for murder,
        the Defendant called Lubking from the Chester County
        Prison. The Defendant told Lubking that he had hidden
        Lubking's rifle near the Defendant's home. Defendant
        asked Lubking to retrieve the .22 rifle and to hide it in
        Lubking's attic. Defendant also instructed Lubking to
        tell the police and Defendant's own attorneys that
        Lubking did not own a .22 rifle. As a bribe, Defendant
        offered $1,500 worth of cocaine if he would retrieve the
        gun. As a result of Defendant's instructions, the gun
        was located by the police on February 1, 1988. It was
        this same gun which was later identified by Timothy
        Flynn as the gun with which Defendant had been
        target shooting on January 10, 1988. This gun was
        found to be consistent with the type of gun that killed
        Calandriello.

Commonwealth v. Matteo, No. 419-88, mem. op. at 1-4 (Pa.
C.C.P. Mar. 19, 1990).

Of particular importance in this appeal are the telephone
conversations between Matteo and Lubking that took place
after Matteo's arrest. The evidence in the record shows that
on January 28, 1988, Matteo called Lubking from prison
and asked him to retrieve the rifle that Matteo had
borrowed from Lubking shortly before Calandriello's
murder. Matteo told Lubking that he had nothing to do
with Patrick Calandriello's murder, but that he had hidden
the rifle so that Lubking would not become a suspect.
Lubking responded that he wanted to consult with an
attorney before deciding what to do. He told Matteo to call
him back the following evening at 8:30 p.m.

The next morning, January 29, 1988, Lubking met with
an attorney, who advised him to inform the Chester County
District Attorney's office of his conversation with Matteo.
Lubking did so, meeting with Chester County detectives
that afternoon. During that meeting, Lubking provided
written consent to let police intercept and record the
anticipated phone call from Matteo that night. The
detectives instructed Lubking that he was not to ask
questions or otherwise elicit information from Matteo.

As expected, Matteo called Lubking around 8:30 that
evening. The police recorded the conversation. At trial,

                               7
Lubking identified the recorded voices as his and Matteo's.
The conversation, which need not be reproduced in full
here, consists mainly of Matteo instructing Lubking on how
to retrieve the rifle as Lubking provides brief
acknowledgments of understanding:

        MATTEO: I got rid of that [the rifle], and I put it
        outside. Any damage that the weather has done to it,
        I will replace. Okay?

        LUBKING: Okay.

        MATTEO: If it has. So I just don't want you gettin g
        nervous too. So if anybody asks, you don't have a .22
        and you didn't -- eh-eh, what do you call. All right?

        LUBKING: Uh-huh.

        * * * * *

        MATTEO: Ahm -- ah -- when are you able to go g et it,
        from when I tell you to get it.

        LUBKING: As soon as possible. I want this thing-- I
        want it here.

        MATTEO: Can you leave right now to get it?

        LUBKING: Yeah.

        MATTEO:   Okay. Now I'm going to tell you where it's at,
        but you   got to leave this instant to get it . . . . And once
        you get   it, clean it up and just like, you know, put it
        away in   your attic or something.

Matteo then suggested that Lubking fabricate a pretense to
drop something off at Matteo's house, so that Lubking
could retrieve the rifle while there. At this point in the
conversation, Lubking's extremely brief responses-- he had
been instructed not to elicit information -- aroused
Matteo's suspicion:

        MATTEO: What's the matter? Why do you seem so
        hesitant?

        LUBKING: No. I'm not hesitant. I'm just --

        MATTEO: You just make me nervous.

        LUBKING: Sorry.

                                 8
        * * *

        MATTEO: What's the matter?

        LUBKING: Nothing.

        MATTEO: You're sure?

        LUBKING: I'm positive.

        MATTEO: I don't want to be getting set up here too.

        LUBKING: No. Don't worry about it.

        MATTEO: I'm worrying about it. Okay?

        LUBKING: Okay. Yeah. I want this -- I don't-- I want
        this out of the way.

        MATTEO: Okay.

        LUBKING: That's why I'm nervous. I just want it ou t of
        the way.

His fears allayed, Matteo proceeded to give Lubking detailed
instructions on how to find the rifle, which was buried
under the snow in Matteo's back yard.

        MATTEO: Okay. I'm gonna do it. Are you ready?

        LUBKING: Uh-huh.

        MATTEO: Go in my driveway. Okay. You know how
        you go down a dirt road and you come to that little tiny
        bridge?

        LUBKING: Uh-huh.

        MATTEO: All right. Well, you stop your car and tur n
        your lights off, leave your car running.

        LUBKING: Uh-huh.

        * * * *

        MATTEO: You go onto the right-hand side of the roa d,
        the passenger side of the road, and you go down. And
        on the side of the right, on the side, there's like a
        cement wall going down into the water.

        LUBKING: Uh-huh.
9
        MATTEO: Right next to the cement wall is where it' s
        at, but you got to dig through the snow to get to it.

        LUBKING: Okay.

        MATTEO: You get out of the car. You go around the
        front of the car with your lights off and you go to the
        railing.

        LUBKING: The driver's side?

        MATTEO: By the passenger's side.

        LUBKING: Uh, okay.

        MATTEO: You gotta go around the front of the car i f
        you're facing forward.

        LUBKING: Uh-huh.

        MATTEO: Okay. Go around the -- go down the, you
        know, it's like a steep little incline, an incline going
        down.

        LUBKING: Yeah.

        MATTEO: Right on that incline there's like a littl e
        cement wall, I believe. And it's right next to that. And
        it's under the snow, so you gotta, you know, bury it.
        And make sure nobody sees you do it. Okay? Open the
        trunk. Throw it in the trunk. Okay. Don't put it in the
        back of your car. Throw it in the trunk. I don't care
        how wet it is, through it in the trunk. And then leave,
        then go put it in your attic. All right? So then nobody
        will bother you.

        LUBKING: All right.

        MATTEO: And if anybody asks, you know, you don't
        have one. Now, when can you do this?

        LUBKING: Right now.

The two agreed that Matteo would call Lubking again at
10:00 p.m.

After the conversation ended, police went to Matteo's
house with Lubking and searched the backyard for the rifle.
Despite Matteo's instructions, however, they were unable to
find it. The police and Lubking then returned to Lubking's

                               10
home and awaited Matteo's call. It appears the police gave
Lubking no further instructions at this time. As arranged,
Matteo called Lubking again at 10:00 p.m. and police
recorded the call:

        LUBKING: Yeah?

        MATTEO: It's Anthony. What's up?

        LUBKING: I couldn't find it. You oughta get-- I need
        more explicit -- this is --

        MATTEO: What did you say?

        LUBKING: I could not find it.

        MATTEO: What do you mean you couldn't find it?

        LUBKING: Well, you said the bridge.

        MATTEO: Yeah.

        LUBKING: And there's two bridges there. There's a
        sewer pipe and there's --

        MATTEO: You got to speak up. I can hardly hear you.

        LUBKING: There's a sewer pipe.

        MATTEO: A big -- real, real huge one?

        LUBKING: Yeah.

        MATTEO: Yeah. It goes under that cement bridge.

        LUBKING: Yeah. On the far side, on the -- all th e way
        closer to your house?

        MATTEO: Okay. You're talking -- I'm talking-- you
        drive on the road, right, you're driving on the road.

        LUBKING: Right.

        MATTEO: And you come to the cement bridge with the
        two railings on either side.

        LUBKING: Pardon me?

        MATTEO: Is there two railings on either side?

        LUBKING: Yeah.
MATTEO: All right.

                     11
        LUBKING: That's -- that's a stone bridge.

        MATTEO: Yeah. That's what I'm talking about.

        LUBKING: Oh, okay.

The conversation continued in this vein, as Matteo
attempted to explain exactly where he had hidden the rifle
and Lubking asked various clarifying questions. The two
agreed to speak again later that night or the next evening.
After the conversation, police returned to Matteo's property
-- this time without Lubking -- and successfully located
the rifle. Both the rifle and the recorded conversations were
admitted into evidence at Matteo's trial.

B. Procedural History

As noted, following a jury trial in the Chester County
Court of Commons Pleas, Matteo was convicted of all
charges and sentenced accordingly. The Superior Court of
Pennsylvania affirmed his convictions, see Commonwealth
v. Matteo, 589 A.2d 1175 (Pa. Super. Ct. 1991), and the
Supreme Court of Pennsylvania denied his Petition for
Allowance of Appeal, see Commonwealth v. Matteo, 604
A.2d 1030 (Pa. 1992), and Petition for Reconsideration.

On November 30, 1994, Matteo filed a petition for habeas
corpus relief in United States District Court for the Eastern
District of Pennsylvania. The District Court adopted the
Magistrate Judge's recommendation that Matteo's petition
be dismissed unless Matteo withdrew two unexhausted
claims. After Matteo declined to do so, the District Court
dismissed the petition and later denied Matteo's request for
reinstatement of the petition.

In September 1996, Matteo's new counsel filed another
petition for habeas relief, alleging that his Sixth
Amendment right to counsel had been violated by the
wiretapping of his two telephone conversations with
Lubking. The Magistrate Judge recommended that his
petition be denied on the grounds that Matteo's right to
counsel had not attached at the time of the telephone calls.
The District Court dismissed the petition, but on different
grounds, holding that under Massiah v. United States, 377
U.S. 201 (1964), Lubking had not acted as a government
agent and the police had not deliberately elicited

                               12
incriminating information from Matteo. See Matteo v.
Superintendent, No. 96-6041, mem. op. at 10 (E.D. Pa. Nov.
25, 1996). We granted Matteo's request for a certificate of
appealability; following oral argument before a panel but
prior to the issuance of an opinion, the case was listed for
rehearing en banc pursuant to Rule 9.4.1 of our Internal
Operating Procedure. See Matteo v. Superintendent, 144
F.3d 882 (3d Cir. 1998).

II. Interpretation of AEDPA

Matteo's argument on appeal is that his Sixth
Amendment right to counsel was violated by the state's
elicitation of the location of the rifle. Before addressing the
merits, however, we must determine the appropriate
standard of review. Specifically, we must discern the
meaning of 28 U.S.C. S 2254(d) (West Supp. 1998) as
amended by the Antiterrorisim and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214.
The amended section provides, in part:

        (d) 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 with respect to
        any claim that was adjudicated on the merits in State
        court proceedings unless the adjudication of that
        claim--

         (1) resulted in a decision that was contrary t o, 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 a n
        unreasonable determination of the facts in light of the
        evidence presented in the State court proceeding.

28 U.S.C. S 2254(d) (West Supp. 1998). The proper
interpretation of this language has been the subject of
much debate, engendering at least three distinct
approaches among the federal courts of appeals. The crux
of the debate has been what degree of deference, if any,
AEDPA requires a federal habeas court to accord a state
court's construction of federal constitutional issues and

                               13
interpretation of Supreme Court precedent. Previously,
federal habeas courts were not required to "pay any special
heed to the underlying state court decision." O'Brien v.
Dubois, 145 F.3d 16, 20 (1st Cir. 1998) (citing Brown v.
Allen, 344 U.S. 443, 458 (1953)). That is no longer the case
-- the text of section 2254(d) firmly establishes the state
court decision as the starting point in habeas review. But
the precise extent of the changes wrought by AEDPA
remains to be determined. Because this is a matter of first
impression in our court of appeals, we begin by examining
how other courts have interpreted the provisions at issue.

A. Approaches of Other Circuits

In O'Brien, the Court of Appeals for the First Circuit held
that AEDPA does not require uniform deference to state
court decisions but "restricts the armamentarium of legal
rules available to a federal habeas court in evaluating a
state court judgment" by "confin[ing] the set of relevant
rules to those `clearly established by the Supreme Court.' "
145 F.3d at 23. As such, the First Circuit held, AEDPA did
not codify the Supreme Court's decision in Teague v. Lane,
489 U.S. 288 (1989), but "embrace[d] one of its primary
goals," namely, preventing federal habeas courts from
requiring state courts to act as "innovators in the field of
criminal procedure." O'Brien, 145 F.3d at 23. Accordingly,
the O'Brien approach interprets AEDPA to require a two-
step inquiry. First, under section 2254(d)(1) the federal
habeas court "asks whether the Supreme Court has
prescribed a rule that governs the petitioner's claim. If so,
the habeas court gauges whether the state court decision is
`contrary to' the governing rule." Id. at 24. Under this
formulation, "contrary to" analysis applies only if the
Supreme Court has articulated a rule that governs the
claim, though factual identity is not required:

        [A]n affirmative answer to the first section 2254(d)(1)
        inquiry -- whether the Supreme Court has prescribed
        a rule that governs the petitioner's claim -- requires
        something more than a recognition that the Supreme
        Court has articulated a general standard that covers
        the claim. To obtain relief at this stage, a habeas
        petitioner must show that Supreme Court precedent

                                  14
        requires an outcome contrary to that reached by the
        relevant state court.

         We caution that this criterion should not be applied
        in too rigid a manner. A petitioner need not point a
        habeas court to a factually identical precedent.
        Oftentimes, Supreme Court holdings are "general" in
        the sense that they erect a framework specifically
        intended for application to variant factual situations.
        These rules sufficiently shape the contours of an
        appropriate analysis of a claim of constitutional error
        to merit review of a state court's decision under section
        2254(d)(1)'s "contrary to" prong.

Id. at 24-25 (citations omitted).

The second step of the O'Brien approach is necessary
only if no Supreme Court rule governs the petitioner's
claim. Then, the federal habeas court is required to
determine whether the state court decision involved an
"unreasonable application of" clearly established federal
law, as determined by the Supreme Court. See id. at 24.
The writ of habeas corpus should be granted only if the
state court decision was "so offensive to existing precedent,
so devoid of record support, or so arbitrary, as to indicate
that it is outside the universe of plausible, credible
outcomes." Id. at 25 (citing Hall v. Washington, 106 F.3d
742, 748-49 (7th Cir. 1997)). Applying this analysis, the
O'Brien court upheld the state court's decision that the
scope of recross examination had not violated the
petitioner's Sixth Amendment rights. See O'Brien, 145 F.3d
at 27.

A different analysis was propounded by the Court of
Appeals for the Fourth Circuit in Green v. French, 143 F.3d
865 (4th Cir. 1998). The Green court held that a decision is
"contrary to" Supreme Court precedent when"either
through a decision of pure law or the application of law to
facts indistinguishable in any material way from those on
the basis of which the precedent was decided, that decision
reaches a legal conclusion or a result opposite to and
irreconcilable with that reached in the precedent that
addresses the identical issue." Id. at 870. The court further
explicated the meaning of "contrary to" as follows:

                               15
         A lower court's decision . . . certainly is said to be
        "contrary to" supreme court precedent when, through
        the resolution of a question of pure law, that decision
        reaches a legal conclusion or a result opposite to that
        reached in a supreme court opinion which addresses
        the identical question of law. A lower court's decision is
        likewise "contrary to" a higher court's precedent when
        that decision correctly identifies the governing legal
        principle from the precedent but applies that principle
        to facts that are indistinguishable in any material
        respect from those on the basis of which the precedent
        was decided in such a way as to reach a conclusion
        different from that reached by the higher court. It is
        also common to characterize a lower court decision as
        "contrary to" supreme court precedent when that
        decision applies a precedent in a factual context
        different from the one in which the precedent was
        decided and one to which extension of the legal
        principle of the precedent is indisputably unjustified,
        or, conversely, when that decision fails to apply a
        precedent in a different context to which the
        precedent's principle clearly does apply.

Id. at 869.

Under Green, "unreasonable application of " Supreme
Court precedent occurs when the state court decision

        applies a precedent in a context different from the one
        in which the precedent was decided and one to which
        extension of the legal principle of the precedent is not
        reasonable, when that decision fails to apply the
        principle of a precedent in a context where such failure
        is unreasonable, or when that decision recognizes the
        correct principle from the higher court's precedent, but
        unreasonably applies that principle to the facts before
        it (assuming the facts are insufficiently different from
        those that gave rise to the precedent as to constitute a
        new context for consideration of the principle's
        applicability).

Id. at 870; see also Davis v. Kramer, 167 F.3d 494, 500 &
n.8 (9th Cir. 1999) (employing a similar analysis). Thus,
under this approach "unreasonable application of" clearly

                               16
established Supreme Court encompasses three distinct
scenarios: (1) the state court extends Supreme Court
precedent to cover a new factual context in which
application of the precedent is unreasonable; (2) the state
court unreasonably fails to apply a precedent in a factual
context that warrants its application; or (3) the state court
applies the correct precedent, but unreasonably in light of
the facts of the case before it. Of course, all three scenarios
require a definition of "unreasonable"; in the Fourth
Circuit's view, the habeas court must inquire whether "the
state courts have decided the question by interpreting or
applying the relevant precedent in a manner that
reasonable jurists would all agree is reasonable." Id.

Yet a third distinct approach has been espoused by the
Courts of Appeals for the Fifth, Seventh, and Eleventh
Circuits, which interpret AEDPA to require a distinction
between pure questions of law, which are reviewed de novo,
and mixed questions of law and fact, which receive more
deferential treatment. See Neelley v. Nagle, 138 F.3d 917,
924 (11th Cir. 1998); Drinkard, 97 F.3d at 768; Lindh v.
Murphy, 96 F.3d 856, 870 (7th Cir. 1996) (en banc), rev'd
on other grounds, 521 U.S. 320 (1997).1 As explained by the
Fifth Circuit in Drinkard, this approach is premised on the
view that courts resolve three types of questions: questions
of law, questions of fact, and mixed questions of law and
fact. See 97 F.3d at 767. Section 2254(d)(2) appears to
apply solely to questions of fact: it allows habeas relief
where the state court decision "was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. S 2254(d)(2) (West Supp. 1998). Thus, as these
courts read it, section 2254(d)(1) must cover questions of
law and mixed questions of law and fact. These courts
interpret the "contrary to law" provision as governing
questions of pure law and the "unreasonable application
of " provision as applying to mixed questions of law and
fact. Accordingly, they apply de novo review to questions of
_________________________________________________________________

1. The Seventh Circuit developed the bifurcated approach in Lindh, but
more recently appears to have abandoned it. See Hall v. Washington, 106
F.3d 742, 748 (7th Cir. 1997); see also O'Brien, 145 F.3d at 21 n.4
(noting the discrepancy between Lindh and Hall).

                               17
pure law, which fall within the "contrary to" clause, and a
more deferential standard to mixed questions falling within
the "unreasonable application of" clause.

B. Analysis

As several courts have recognized, the text of AEDPA
offers little guidance to the courts charged with applying it.
See Lindh v. Murphy, 521 U.S. 320, 336 (1997) ("[I]n a
world of silk purses and pigs' ears, [AEDPA] is not a silk
purse of the art of statutory drafting."); O'Brien, 145 F.3d at
20 (noting that AEDPA is "hardly a model of clarity . . . and
its standard of review provision is far from self-explicating").
Nevertheless, we must begin our analysis with the words of
the statute. See, e.g., Bailey v. United States, 516 U.S. 137,
144 (1995). Section 2254(d) states that applications for
habeas corpus relief "shall not be granted" unless one of
the conditions set forth in subsections (d)(1) and (d)(2) is
met. 28 U.S.C. S 2254(d) (West Supp. 1998). These
conditions, as demarcated by AEDPA, are twofold:first,
habeas corpus relief is warranted when the state
adjudication resulted in a decision that was "contrary to" or
an "unreasonable application of" clearly established federal
law, as determined by the Supreme Court, see id.
S 2254(d)(1); second, relief is warranted when the state
adjudication resulted in a decision that was "based on an
unreasonable determination of the facts in light of the
evidence." Id. S 2254(d)(2). Only the first -- section
2254(d)(1) -- is at issue in this appeal.

Consequently, our task is to discern the meaning of the
phrases "contrary to" and "unreasonable application of " as
used in AEDPA. The two may overlap, but we must attempt
to read the statute so that each has some operative effect,
see United States v. Nordic Village, Inc., 503 U.S. 30, 36
(1992), and we must assume the legislative purpose "is
expressed by the ordinary meaning of the words used,"
Richards v. United States, 369 U.S. 1, 9 (1962); see also
Green, 143 F.3d at 870 ("[A]ccording each term its most
natural (even if not its only) meaning, results in an
interpretation of [AEDPA] most faithful to the plain purpose
of the statute.").

As noted, the Fourth Circuit's interpretation of AEDPA
attempts to catalogue the situations in which a result might

                               18
be "contrary to" or an "unreasonable application of" a
higher court's precedent. See 143 F.3d at 869-70. The
Green court held that a decision is "contrary to" precedent
when "either through a decision of pure law or the
application of law to facts indistinguishable in any material
way from those on the basis of which the precedent was
decided, that decision reaches a legal conclusion or a result
opposite to and irreconcilable with that reached in the
precedent that addresses the identical issue." Id. at 870.
The court also held that a decision constitutes an
"unreasonable application of" the relevant law when it
unjustifiably extends the precedent's legal principle to a
new context, fails to apply the principle in a context where
such failure is "unreasonable," or identifies the correct
principle but unreasonably applies it to the facts before it
(assuming those facts are not so different as to"constitute
a new context for consideration of the principle's
applicability"). Id. Although we find this analysis insightful,
we decline to adopt it as the basis for scrutinizing state
court judgments under AEDPA. We believe that in practice,
it will be difficult for a court to determine which, if any, of
the foregoing scenarios is implicated in the case before it. In
our view, a better analytical framework is provided by the
First Circuit in O'Brien, which directs federal habeas courts
first to identify whether the Supreme Court has articulated
a rule specific enough to trigger "contrary to" review; and
second, only if it has not, to evaluate whether the state
court unreasonably applied the relevant body of precedent.
See 145 F.3d at 24-25.

Consequently, we hold that the "contrary to" provision of
AEDPA requires a federal habeas court first to identify the
applicable Supreme Court precedent and determine
whether it resolves the petitioner's claim. Like the First
Circuit, we believe this analysis requires "something more
than a recognition that the Supreme Court has articulated
a general standard that covers the claim." Id. at 24.
Instead, the inquiry must be whether the Supreme Court
has established a rule that determines the outcome of the
petition. Accordingly, we adopt O'Brien's holding that "[t]o
obtain relief at this stage, a habeas petitioner must show
that Supreme Court precedent requires an outcome
contrary to that reached by the relevant state court." Id. at

                               19
24-25. In other words, it 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. This standard
precludes granting habeas relief solely on the basis of
simple disagreement with a reasonable state court
interpretation of the applicable precedent.

We also emphasize that it is not necessary for the
petitioner to cite factually identical Supreme Court
precedent. Rather, the critical question is "whether a
Supreme Court rule -- by virtue of its factual similarity
(though not necessarily identicality) or its distillation of
general federal law precepts into a channeled mode of
analysis specifically intended for application to variant
factual situations -- can fairly be said to require a
particular result in a particular case." Id. at 25.

If the federal habeas court determines that the state
court decision was not "contrary to" the applicable body of
Supreme Court law -- either because the state court
decision complies with the Supreme Court rule governing
the claim, or because no such rule has been established --
then the federal habeas court should undertake the second
step of analyzing whether the decision was based on an
"unreasonable application of " Supreme Court precedent.
We agree with the First Circuit's observation that"the
`unreasonable application' clause does not empower a
habeas court to grant the writ merely because it disagrees
with the state court's decision, or because, left to its own
devices, it would have reached a different result." O'Brien,
145 F.3d at 25; see also Neelley, 138 F.3d at 924 ("[T]he
mere fact that a district court disagrees with a state court
does not render that state court's decision `unreasonable';
certainly two courts can differ over the proper resolution of
a close question without either viewpoint being
unreasonable."); Hennon v. Cooper, 109 F.3d 330, 334 (7th
Cir. 1997) ("[T]he fact that we might disagree with the state
court's determination . . . would not carry the day."). To
hold otherwise would resemble de novo review, which we
believe is proscribed by the statute. But we depart from the
First Circuit in our understanding of what constitutes an

                               20
"unreasonable application" of clearly established federal
law. As noted, O'Brien holds that a state court's application
of law is unreasonable only if it is "so offensive to existing
precedent, so devoid of record support, or so arbitrary, as
to indicate that it is outside the universe of plausible,
credible outcomes." 145 F.3d at 25. This definition
seemingly would exclude all but the most implausible of
holdings. As a practical matter, we believe its effect would
be to render the "unreasonable application" clause a virtual
nullity, as granting habeas relief would require an explicit
finding that the state court decision -- often, a decision of
the state's highest court -- was so far off the mark as to
suggest judicial incompetence.

We find the same flaw in the standard espoused by the
Fourth and Fifth Circuits. As noted, their approach
inquires whether a reasonable jurist could reach the result
in question. See Green, 143 F.3d at 870 ("[H]abeas relief is
authorized only when the state courts have decided the
question by interpreting or applying the relevant precedent
in a manner that reasonable jurists would all agree is
unreasonable."); Drinkard, 97 F.3d at 769 ("[A]n application
of law to facts is unreasonable only when it can be said
that reasonable jurists considering the question would be of
one view that the state court ruling was correct. In other
words, we can grant habeas relief only if a state court
decision is so clearly incorrect that it would not be
debatable among reasonable jurists.") We believe a "no
reasonable jurist" definition unduly discourages the
granting of relief insofar as it requires the federal habeas
court to hold that the state court judges acted in a way that
no reasonable jurists would under the circumstances. As
such, it has the tendency to focus attention on the
reasonableness of the jurists rather than the merits of the
decision itself. For example, in Drinkard one member of the
panel dissented from the majority's interpretation of the
petitioner's constitutional claim; the court expressly relied
on this disagreement as the basis for concluding that the
state court's application of the law was not unreasonable.
See 97 F.3d at 769.

We do not believe AEDPA requires such unanimity of
opinion. Nor do we think it entails an examination of

                               21
whether the jurists responsible for the state court decision
are reasonable: such an approach, like that of O'Brien,
would doubtless lead to the denial of virtually all petitions.
Rather, we hold the appropriate question is whether the
state court's application of Supreme Court precedent was
objectively unreasonable. The federal habeas court should
not grant the petition unless the state court decision,
evaluated objectively and on the merits, resulted in an
outcome that cannot reasonably be justified under existing
Supreme Court precedent. In making this determination,
mere disagreement with the state court's conclusions is not
enough to warrant habeas relief. Furthermore, although
AEDPA refers to "clearly established Federal law, `as
determined by the Supreme Court of the United States,' "
28 U.S.C. S 2254(d)(1) (West Supp. 1998), we do not believe
federal habeas courts are precluded from considering the
decisions of the inferior federal courts when evaluating
whether the state court's application of the law was
reasonable. See O'Brien, 145 F.3d at 25 ("To the extent that
inferior federal courts have decided factually similar cases,
reference to those decisions is appropriate in assessing the
reasonableness vel non of the state court's treatment of the
contested issue."). Instead, the primary significance of the
phrase "as determined by the Supreme Court of the United
States" is that federal courts may not grant habeas corpus
relief based on the state court's failure to adhere to the
precedent of a lower federal court on an issue that the
Supreme Court has not addressed. Thus, in certain cases
it may be appropriate to consider the decisions of inferior
federal courts as helpful amplifications of Supreme Court
precedent.

We believe this interpretation is supported by AEDPA's
legislative history, which indicates Congress sought to
preserve independent review of federal constitutional
claims, but to curtail its scope by mandating deference to
reasonable state court decisions. Explaining the
"unreasonable application" provision, Senator Hatch, the
bill's primary sponsor, stated:

        What does this mean? It means that if the State court
        reasonably applied Federal law, its decision must be
        upheld. Why is that a problematic standard? After all,

                                22
        Federal habeas review exists to correct fundamental
        defects in the law. If the State court decision has
        reasonably applied Federal law it is hard to say that a
        fundamental defect exists.

141 Cong. Rec. S7848 (daily ed. June 7, 1995) (statement
of Sen. Hatch). Another of the bill's sponsors, Senator
Specter, observed that "under the bill deference will be
owed to State courts' decisions on the application of Federal
law to the facts. Unless it is unreasonable, a State court's
decision applying the law to the facts will be upheld." 142
Cong. Rec. S3472 (daily ed. Apr. 17, 1996) (statement of
Sen. Specter). These and other statements from the
legislative history persuade us that Congress intended to
restrict habeas relief to cases in which the state court
judgment rested upon an objectively flawed interpretation
of Supreme Court precedent. See also H.R. Conf. Rep. No.
104-518, at 111 (1996) (stating that AEDPA "requires
deference to the determinations of state courts that are
neither `contrary to,' nor an `unreasonable application of,'
clearly established federal law"). As one commentator
accurately recounts, in both houses of Congress section
2254(d) "was called a `deference' standard by every member
who spoke on the question, opponents as well as
supporters." Kent S. Scheidegger, Habeas Corpus,
Relitigation, and the Legislative Power, 98 Colum. L. Rev.
888, 945 (1998).

Regarding the objective nature of the standard, we believe
our reading comports with pre-AEDPA law in this area,
which was governed primarily by Teague v. Lane, 489 U.S.
288 (1989). There, the Supreme Court held that a federal
court cannot grant habeas relief to a petitioner based on a
rule announced after his conviction and sentence became
final. See id. at 311. The Supreme Court has repeatedly
recognized that "the Teague doctrine`validates reasonable,
good-faith interpretations of existing precedents made by
state courts . . . .' " O'Dell v. Netherland, 521 U.S. 151, 156
(1997) (quoting Butler v. McKellar, 494 U.S. 407, 414 (1990)).2
_________________________________________________________________

2. Although the Teague doctrine was supplemented by the passage of
AEDPA, Teague continues to be applied in its own right. See, e.g., Breard
v. Greene, 523 U.S. 371 (1998) (applying Teague to a post-AEDPA
habeas petition).

                               23
The test of reasonableness in this context is objective, not
subjective: "Reasonableness, in this as in many other
contexts, is an objective standard." O'Dell , 521 U.S. at 156
(quoting Stringer v. Black, 503 U.S. 222, 237 (1992)).

Of course, we recognize that an "objective
unreasonableness" test will fail to dictate an obvious result
in many cases. But we believe the same would be true
under any faithful reading of the statute. Notions of
reasonableness abound in the law and are not ordinarily
considered problematic, despite their imprecision. See Bell
v. Wolfish, 441 U.S. 520, 559 (1979) (observing, in the
Fourth Amendment context, that "the test of
reasonableness . . . is not capable of precise definition or
mechanical application"), quoted in Graham v. Connor, 490
U.S. 386, 396 (1989). As the Seventh Circuit recently
observed, the "unreasonable application of " standard
admits of no a fortiori definition: "None of this answers the
question when a departure is so great as to be
`unreasonable,' for that questions lacks an abstract answer
. . . . Questions of degree -- like questions about the proper
use of `discretion' -- lack answers to which the labels `right'
and `wrong' may be attached." Lindh, 96 F.3d at 871. Thus,
the imprecision of the "objective unreasonableness" test
does not pose an insurmountable obstacle; indeed, we
believe it is the intended result of the statutory language.

To summarize, we adopt the First Circuit's view that
section 2254(d)(1) requires a two-step analysis. First, the
federal habeas court must determine whether the state
court decision was "contrary to" Supreme Court precedent
that governs the petitioner's claim. Relief is appropriate
only if the petitioner shows that "Supreme Court precedent
requires an outcome contrary to that reached by the
relevant state court." O'Brien, 145 F.3d at 24-25. In the
absence of such a showing, the federal habeas court must
ask whether the state court decision represents an
"unreasonable application of" Supreme Court precedent:
that is, whether the state court decision, evaluated
objectively and on the merits, resulted in an outcome that
cannot reasonably be justified. If so, then the petition
should be granted.

                               24
With this analytical framework in place, we turn to the
merits of Matteo's petition.

III. Matteo's Sixth Amendment Claim

Matteo's sole argument on the merits is that the taping,
and subsequent use in evidence, of his two telephone
conversations with Lubking deprived him of his right to
counsel as secured by the Sixth and Fourteenth
Amendments to the United States Constitution. The Sixth
Amendment provides in part that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence." U.S. Const.
amend. VI. Relying on Massiah v. United States , 377 U.S.
201 (1964) and its progeny, Matteo claims the Pennsylvania
Superior Court's rejection of his Sixth Amendment
argument was both "contrary to" and an "unreasonable
application of " relevant Supreme Court precedent.

In Massiah, the Supreme Court held that deliberate
elicitation of incriminating statements by a government
agent, outside the presence of a charged defendant's
attorney, violates the Sixth Amendment. Federal agents had
secured the cooperation of an informant who agreed to let
the agents place a radio transmitter underneath the seat of
his car. An agent then overheard a conversation between
Massiah and the informant, in which Massiah made several
incriminating remarks about his drug importation
activities. At trial, the agent was permitted to testify as to
what he overheard on the radio transmitter, and Massiah
was convicted. The Supreme Court overturned his
conviction, holding that "the petitioner was denied the basic
protections of [the Sixth Amendment] guarantee when there
was used against him at his trial evidence of his own
incriminating words, which federal agents had deliberately
elicited from him after he had been indicted and in the
absence of his counsel." 377 U.S. at 206. In a subsequent
line of cases, the Court developed the Massiah doctrine
governing the constitutionality of these so-called"secret
interrogations." The cases establish three basic
requirements for finding a Sixth Amendment violation: (1)
the right to counsel must have attached at the time of the
alleged infringement; (2) the informant must have been

                               25
acting as a "government agent"; and (3) the informant must
have engaged in "deliberate elicitation" of incriminating
information from the defendant. See, e.g., Maine v. Moulton,
474 U.S. 159, 170-71 (1985); United States v. Henry, 447
U.S. 264, 269-270 (1980). We will review each separately to
determine whether the state court's conclusion withstands
scrutiny under AEDPA.

A. Attachment of the Right to Counsel

The Pennsylvania Superior Court did not explicitly
address whether Matteo's right to counsel had attached at
the time in question. It did, however, analyze whether
Lubking acted as a government agent and deliberately
elicited information from Matteo. Because such an analysis
would be unnecessary if Matteo's right to counsel had not
attached, we believe the state court implicitly concluded
that it had.

Generally, the Sixth Amendment right to counsel
attaches "only at or after the initiation of adversary judicial
proceedings against the defendant." United States v.
Gouveia, 467 U.S. 180, 187 (1984); see also Estelle v.
Smith, 451 U.S. 454, 469-70 (1981); Moore v. Illinois 434
U.S. 220, 226 (1977); Brewer v. Williams, 430 U.S. 387,
398 (1977); Kirby v. Illinois, 406 U.S. 682, 688 (1972). Such
proceedings include "formal charge, preliminary hearing,
indictment, information, or arraignment." Kirby, 406 U.S. at
689. The right also may attach at earlier stages, when "the
accused is confronted, just as at trial, by the procedural
system, or by his expert adversary, or by both, in a
situation where the results of the confrontation might well
settle the accused's fate and reduce the trial itself to a mere
formality." Gouveia, 467 U.S. at 189 (citations omitted). The
crucial point is that the defendant is guaranteed the
protection of counsel from the moment he "finds himself
faced with the prosecutorial forces of organized society, and
immersed in the intricacies of substantive and procedural
criminal law." Kirby, 406 U.S. at 689.

At the time of Matteo's two telephone conversations,
which took place on January 29-30, 1988, Matteo had been
arrested and incarcerated for over a week. He had retained
a lawyer, who ultimately represented him through the trial.

                                26
Matteo's preliminary hearing took place on February 12,
1988; the district attorney filed an information on March 3,
1988; and the arraignment was held on March 4, 1988.
Citing these facts, the Magistrate Judge recommended
denial of Matteo's petition on the grounds that his right to
counsel had not yet attached. The District Court held
otherwise, ruling that the right to counsel had attached but
denying the petition on other grounds. See Matteo, mem.
op. at 3.

We hold that Matteo's right to counsel had attached at
the time of the telephone conversations. By this time
Matteo had undergone preliminary arraignment.
Additionally, he "was in custody as a result of an arrest
warrant charging him with the murder, and he was, in fact,
represented by counsel from the day he surrendered." Id. at
2-3. Moreover, both before and after the telephone calls,
Matteo was confronted with the organized resources of an
ongoing police investigation by agents who were well aware
of his legal representation. Under these circumstances, we
believe Matteo's right to counsel had attached and he was
entitled to the full protection of the Sixth Amendment.

B. Lubking's Status as a Government Agent

The state court concluded that Lubking did not act as a
government agent at the time of his two telephone
conversations with Matteo. Applying our AEDPA analysis,
we first determine whether the Supreme Court has
established a rule that governs Matteo's claim. The
Supreme Court has not formally defined the term
"government agent" for Sixth Amendment purposes. See
Depree v. Thomas, 946 F.2d 784, 793-94 (11th Cir. 1991)
("There is, by necessity, no brightline rule for determining
whether an individual is a government agent for purposes
of the Sixth Amendment right to counsel."). In its sole case
focusing on a determination of government agency, the
Supreme Court found the informant was an agent because
he was paid and "acting under instructions" from the
government. See Henry, 447 U.S. at 270. The Court also
cited facts that the informant was ostensibly a mere fellow
inmate rather than a trusted friend of the defendant and
that the defendant was in custody and under indictment at
the time of the alleged elicitation. The Court did not

                               27
attempt to generalize these factors into a rule defining
government agency for future cases, nor has it revisited
them in subsequent cases. Consequently, although our
analysis is informed by the facts emphasized in Henry, we
do not believe the Supreme Court has announced a rule of
sufficient specificity to merit "contrary to" review. Cf.
O'Brien, 145 F.3d at 24 ("[T]he chief question is how
specific a rule must be to qualify as dispositive, thus
triggering review under the `contrary to' clause.").

We next focus on whether the state court decision was
based upon an objectively unreasonable application of
existing law. The lower federal courts have explicated the
holding of Henry in some detail: in particular, several have
held that the existence of an express or implied agreement
between the state and the informant is an additional factor
supporting a finding of agency: "At a minimum .. . there
must be some evidence that an agreement, express or
implied, between the individual and a government official
existed at the time the elicitation takes place." Depree, 946
F.2d at 794; see also United States v. Taylor , 800 F.2d
1012, 1016 (10th Cir. 1986); Thomas v. Cox, 708 F.2d 132,
137 (4th Cir. 1983); United States v. Metcalfe, 698 F.2d
877, 882 (7th Cir. 1983); United States v. Calder, 641 F.2d
76, 79 (2d Cir. 1981). Applying this line of cases, the
Pennsylvania Superior Court determined that Lubking was
not an agent because " `there was no agreement or prior
arrangement between Lubking and the District Attorney or
the police; Lubking did not receive any compensation for
the information he provided; he had no history of acting as
a paid informant; and Lubking went to the police of his own
volition after he had initially been contacted by the
Defendant on January 28, 1988.' " Commonwealth v.
Matteo, No. 01158, mem. op. at 10 (Pa. Super. Ct. Feb. 12,
1991) (quoting trial court opinion).

Matteo disputes this conclusion on several grounds.
First, he contends the state court erred in finding that
Lubking received no compensation or benefit for his aid to
the police. Although it is agreed that Lubking received no
monetary compensation, Matteo argues Lubking's decision
to cooperate with authorities was motivated by his desire
not to become a suspect in the investigation of

                                28
Calandriello's murder. As such, Matteo claims, the
arrangement between Lubking and the police amounted to
a "quid pro quo" exchange in which the police agreed not to
investigate Lubking in return for his cooperation. Such a
quid pro quo -- in which the informant receives some type
of benefit, even if nonpecuniary, in exchange for assisting
the authorities -- may constitute evidence of an agency
relationship. See United States v. Brink, 39 F.3d 419, 423
n.5 (3d Cir. 1994) ("[W]e believe the Court meant that any
informant who is offered money, benefits, preferential
treatment, or some future consideration, including, but not
limited to, a reduction in sentence, in exchange for eliciting
information is a paid informant."). As noted, Matteo
contends that Lubking cooperated in order to prevent
himself from becoming a suspect in the investigation.
Whatever Lubking's motivation, the record amply supports
the state court's determination that no deal was struck
between Lubking and the police. Lubking himself testified
as follows:

        Q. Now, prior to these calls, did the police make any
        threats to you?

        A. No.

        Q. Any promises?

        A. Nope.

        Q. Did you have any deal with them?

        A. No.

        Q. Were you paid for cooperating with the police?

        A. No.

        Q. What if any benefit did you receive [for] helping
        them?

        A. None.

This testimony was corroborated by that of Chester County
Detective Carroll, who testified that there was no deal of
any kind between Lubking and the police. Furthermore,
Detective Lampman, also of the Chester County Detective's
Office, testified that Lubking was not scheduled to be
interviewed as part of the investigation, thus belying

                                29
Matteo's argument that Lubking cooperated to deflect
suspicion from himself. Nor was there any evidence
suggesting that Lubking believed he was a suspect in
Calandriello's killing. We will not speculate or infer the
existence of a quid pro quo agreement simply because the
informant's motives may not have been entirely altruistic.
The record shows that Lubking was not a suspect in the
crime, had little to gain by cooperating with the
investigation, and in fact received no compensation or
benefits of any kind. Under these circumstances, we agree
with the state court that Lubking neither sought nor
received any benefit for his cooperation with the police.

Matteo next argues that Lubking was acting under
instructions from the police, a factor identified in Henry,
see 447 U.S. at 270, but not relied upon by the state court.
Matteo cites the fact that authorities showed Lubking how
to use the recording equipment on the phone and directed
him not to ask questions or otherwise elicit information
from Matteo. We do not believe these instructions are the
kind contemplated by Henry. The instruction on how to
operate the recording device was trivial and does not pose
a problem of constitutional dimension. As for the
instruction not to elicit information from Matteo, it would
be perverse to hold that police informants may not
deliberately elicit information and yet to forbid police from
notifying potential informants of this fact. In many
circumstances, such a holding would preclude police from
using informants at all, a result we find untenable.
Consequently, we are not convinced by Matteo's argument
that Lubking was acting under police instructions.

On the other hand, there is some evidence of an agency
relationship in this case. Lubking was not a jailhouse
acquaintance, but a trusted friend of Matteo's. See 447 U.S.
at 270. The police therefore knew that Matteo would be
relatively more likely to make incriminating statements to
Lubking. In addition, Matteo was in custody at the time of
the elicitation. See id. (examining whether defendant was in
custody with formal charges pending when the
incriminating statements were elicited). As the Supreme
Court has held, "the mere fact of custody imposes
pressures on the accused; confinement may bring into play

                                30
subtle influences that will make him particularly
susceptible to the ploys of undercover Government agents."
Id. at 274. The use of an informant in these circumstances
"intentionally creat[es] a situation likely to induce [the
accused] to make incriminating statements without the
assistance of counsel," and therefore is significant to a
finding of agency. Id. At the time of his conversations with
Lubking, Matteo had been arrested for murder,
preliminarily arraigned, and incarcerated. Certainly, the
"special pressures" of custody were present.

On balance, however, we agree with the state court that
Lubking was not acting as a government agent at the time
of the phone calls. To the extent the issue is a close one,
AEDPA directs us to defer to the state court decision. See
O'Brien, 145 F.3d at 27 ("We regard the question as a close
one -- but, under AEDPA's newly minted standard of
review, the very closeness of the call militates strongly
against the granting of habeas relief."). Therefore, we hold
the state court's decision was not contrary to, or an
unreasonable application of, clearly established Supreme
Court precedent.

C. Deliberate Elicitation

Under Massiah and its progeny, the petitioner also must
show "deliberate elicitation" of incriminating statements by
the police informant. Matteo argues that Lubking
deliberately elicited incriminating statements from him in
both the first and second telephone conversations. In the
first conversation, Matteo claims, Lubking deliberately
elicited information about the location of the gun by falsely
telling Matteo he was not working for the police. This
falsehood allegedly induced Matteo to tell Lubking where
the gun was hidden. Regarding the second conversation,
Matteo bases his claim on the fact that Lubking asked
several questions about the precise location of the gun: for
example, "So it's not in the grass?"; "So it's almost
underneath the bridge?"; "Was it frozen?"; and "Was the
water frozen when you dropped it?" We must determine
whether the state court's decision that these statements did
not qualify as "deliberate elicitation" was contrary to, or an
unreasonable application of, the relevant Supreme Court
precedent.

                               31
The Supreme Court has made clear that "the primary
concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the
equivalent of direct police interrogation." Kuhlmann v.
Wilson, 477 U.S. 436, 459 (1986). Accordingly, a defendant
does not prove a Sixth Amendment violation "simply by
showing that an informant, either through prior
arrangement or voluntarily, reported his incriminating
statements to the police. Rather, 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. Applying
this reasoning, the Court in Kuhlmann found no
constitutional deprivation where police placed a man who
had previously agreed to act as an informant in the same
jail cell as the suspect, who then spontaneously made
incriminating remarks to the informant. The lesson of
Kuhlmann, we believe, is that the use of an informant --
even surreptitiously and through prior arrangement-- does
not violate the Sixth Amendment so long as the informant
merely listens to and reports the incriminating statements,
rather than affirmatively seeking to induce them. See Brink,
39 F.3d at 422 (noting that the Sixth Amendment requires
an informant to be no more than a passive "listening post").
In this sense, the limitations on police conduct are
analogous to those imposed by the entrapment defense,
where police may use undercover agents to afford
opportunities to break the law but may not affirmatively
"originate a criminal design" or "implant in an innocent
person's mind the disposition to commit a criminal act."
Jacobson v. United States, 503 U.S. 540, 548 (1992) (citing
Sorrells v. United States, 287 U.S. 435, 442 (1932)).

Matteo argues his case is more similar to Maine v.
Moulton, 474 U.S. 159 (1985), in which the Supreme Court
held the Sixth Amendment forbids "knowing exploitation by
the State of an opportunity to confront the accused without
counsel being present." Id. at 176; accord Henry, 447 U.S.
at 274 (holding that the Sixth Amendment forbids the state
from "intentionally creating a situation likely to induce
[defendant] to make incriminating statements without the
assistance of counsel"). In Moulton, however, the informant
actively induced the defendant to make incriminating

                               32
statements by feigning memory loss about the events of the
night in question: "Apologizing for his poor memory, he
repeatedly asked Moulton to remind him about the details
of what had happened, and this technique caused Moulton
to make numerous incriminating statements." 474 U.S. at
166. For example, at one point the informant asked "I want
you to help me with some dates. . . . [W]hat night did we
break into Lothrop Ford? What date?" Id. at 166 n.5. He
also " `reminisced' about events surrounding the various
thefts, and this technique too elicited additional
incriminating statements from Moulton." Id. at 166.
Similarly, in Henry the informant took "affirmative steps" to
elicit incriminating information. 447 U.S. at 271.

In contrast, Lubking's conduct did not approach this
level of deliberate elicitation in either phone call. Lubking
did not prompt Matteo to disclose the gun's location;
rather, Matteo voluntarily called Lubking on January 27
and asked Lubking to retrieve the gun for him, obviously in
an attempt to prevent the police from finding the murder
weapon. Plainly, it was necessary for Matteo to tell Lubking
where the gun was hidden. In fact, the entire purpose of
Matteo's calls to Lubking was to enlist his help in locating
the rifle, a task that necessarily required Matteo to furnish
Lubking with details of the gun's location. Although we
recognize that it is unimportant whether Matteo initiated
the contact with Lubking, see Moulton, 474 U.S. at 174, we
believe the voluntariness of Matteo's disclosure is relevant
to the issue of elicitation. Furthermore, we note that after
being notified of Matteo's initial request, the police merely
"listened in" as Matteo provided the information that was
essential for Lubking to carry out the task. In the first
conversation, Lubking said virtually nothing at all, causing
Matteo to grow suspicious and question whether he was
"getting set up." This pattern was repeated in the second
phone call, as Matteo willingly provided a detailed
description of the gun's location and Lubking responded
almost exclusively with monosyllabic rejoinders such as
"okay," "yeah," "uh-huh," and the like.3 The fact that near
_________________________________________________________________

3. According to appellee's brief, Lubking responded "okay," "yeah," or
"uh-huh" 73 times in the first conversation, which lasted 10 minutes,
and 32 times in the second, which lasted approximately 5 minutes.
Regardless of the precise number of such responses, appellee is correct
that both conversations consisted almost entirely of detailed statements
by Matteo followed by one-word answers from Lubking.

                               33
the end of the second call Lubking asked a few clarifying
questions, which were directly responsive to statements
Matteo had just made, does not alter the fundamental
nature of the exchange between the two men: namely,
Matteo enlisted Lubking's help to track down the murder
weapon and voluntarily provided him with the information
necessary to do so.4

We are also not convinced by Matteo's argument that
deliberate elicitation is proved by Lubking's statements in
the first conversation that he was not acting at the behest
of police. Although the statements were false, we are aware
of no rule suggesting that deliberate elicitation occurs
whenever an informant misrepresents that he is not
cooperating with authorities. Matteo claims such a principle
is established by the following statement in Moulton: "By
concealing the fact that [the informant] was an agent of the
State, the police denied [defendant] the opportunity to
consult with counsel and thus denied him the assistance of
counsel guaranteed by the Sixth Amendment." Id. at 177.
But we do not interpret this language to mean that police
informants must disclose, if asked, that they are
cooperating with the authorities, or else any incriminating
statements made to them are excluded by the Sixth
Amendment. If that were the case, criminal suspects could
easily circumvent all undercover investigative techniques.
Rather, "[w]hen an accused voluntarily chooses to make an
incriminatory remark in these circumstances, he knowingly
assumes the risk that his confidant may be untrustworthy."
Henry, 447 U.S. at 297-98 (Rehnquist, J., dissenting).

We agree with the Pennsylvania Superior Court's
determination that Lubking did not deliberately elicit
incriminating information from Matteo in either phone call.
Certainly, we do not believe the state court decision
contravened established Supreme Court precedent to the
_________________________________________________________________

4. To hold that Lubking's few clarifying questions constituted "deliberate
elicitation" under Massiah would imply that a Sixth Amendment
violation hinged on whether Matteo successfully communicated the rifle's
location on the first try. We do not believe Matteo's inability to do so
affects the substance of the conversations, both of which make clear
Matteo voluntarily disclosed the rifle's location.

                               34
extent that it could be characterized as "contrary to" the
applicable body of law. Nor do we find its holding to be an
objectively "unreasonable application of" this law. As noted,
the "primary concern" of the Massiah doctrine is to
proscribe "secret interrogation by investigatory techniques
that are the equivalent of direct police interrogation."
Kuhlmann, 477 U.S. at 459; Moulton, 474 U.S. at 177 n.13
(finding Sixth Amendment violation because the elicitation
in that case was " `the functional equivalent of
interrogation' ") (quoting Henry, 447 U.S. at 277 (Powell, J.,
concurring)). In this case, it was objectively reasonable for
the state court to conclude that police conduct did not
amount to surreptitious interrogation of Matteo but
consisted merely of listening as Matteo voluntarily revealed
incriminating information to Lubking. Consequently, we do
not believe the state court's decision was contrary to, or an
unreasonable application of, the Massiah line of cases.

IV. Harmless Error

We also note that even if a Sixth Amendment violation
had occurred, we would still affirm on the grounds that the
state court's failure to exclude the recorded conversations
and the gun was harmless. The other evidence against
Matteo, although circumstantial, was very strong. The jury
still would have been presented evidence that Lubking
loaned Matteo a .22 caliber rifle that was never returned
and that this rifle was consistent with the type of gun that
killed Calandriello. Additionally, the following facts still
would have been presented to the jury: Matteo and
Calandriello had scheduled a meeting for noon on January
13, 1998; Calandriello left for this meeting and never
returned; Calandriello's car and apartment keys were found
in Matteo's apartment along with a wad of $100 bills
similar to the bills Calandriello told friends he would bring
to the meeting with Matteo; Matteo was picked up by John
Stanchina at the Holiday Inn parking lot where the body
was soon found; blood consistent with Calandriello's and
only 3 percent of the population was found in Matteo's
garage; and Matteo's sneakerprint was found on the rear
bumper of the car containing the body. Under these
circumstances, we believe the admission of the

                               35
conversations and the gun had no " `substantial and
injurious effect or influence in determining the jury's
verdict.' " California v. Roy, 519 U.S. 2, 5 (1996) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We
therefore find it unnecessary to decide whether the
Pennsylvania Superior Court correctly concluded that the
police inevitably would have discovered the gun.

V. Conclusion

The state court decision was neither contrary to, nor an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.
Accordingly, the District Court correctly dismissed Matteo's
habeas petition.

We will affirm the judgment of the District Court.

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