                                                                                                                           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Precedential or Non-Precedential: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 2 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)
BECKER, Chief Judge, concurring.

I agree that the order of the District Court denying
Matteo's application for writ of habeas corpus should be
affirmed, because, whether the interpretation of AEDPA
applied by the majority or the one that I would apply is
correct, the decision of the state court that Lubking was not
a government agent at the time of the telephone calls and
that the incriminating statements were not deliberately
elicited by the police cannot be set aside. I also agree that
any error was harmless. I therefore join in Parts III and IV
of the majority opinion.

I disagree with the majority, however, as to the correct
legal standard for reviewing state court decisions under
S 2254(d)(1). I believe that the majority's approach, which I
see as expanding the availability of plenary review under
S 2254(d)(1), fails to ensure that federal habeas courts grant
state court decisions the deference S 2254(d)(1) requires. In
addition to explaining why I believe that the O'Brien
standard adopted by the majority is incorrect, I also set
forth my reasons for believing that we should adopt instead
a modified version of the standard announced by the
United States Court of Appeals for the Fourth Circuit in
Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied,
119 S. Ct. 844 (1999).1

I.

The signal difference between the two approaches is the
amount of deference they afford to state court decisions. In
Green, the court set out an elaborate categorization of
_________________________________________________________________

1. The majority rightly rejects the other approach adopted by various
courts, exemplified by Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.
1996), revd. on other grounds,521 U.S. 320 (1997). See also Drinkard v.
Johnson, 97 F.3d 751, 767 (5th Cir. 1996), cert. denied, 520 U.S. 1107
(1997). Under Lindh, a habeas court would apply plenary "contrary to"
review to purely legal questions and deferential"unreasonable
application of " review to mixed questions of law and fact. The Lindh
bifurcated standard of review represents an improper reading of
S 2254(d)(1), because it is inconsistent with the text and legislative
history of S 2254(d)(1). See O'Brien v. Dubois, 145 F.3d 16, 22 (1st Cir.
1998) (discussing this problem with the Lindh approach).

                               38
cases in which the two parts of S 2254(d)(1) apply. It
specified when plenary review under the "contrary to"
clause should apply, and when deferential "unreasonable
application of" review should apply:

       [A] decision is "contrary to" precedent only 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. In
       contrast, a decision represents an "unreasonable
       application of " precedent only when that 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).

Green, 143 F.3d at 870; accord Davis v. Kramer, 167 F.3d
494, 500 n.8 (9th Cir. 1999) (defining cases in which
S 2254(d)(1) would require a grant of habeas relief) (citing
Green), petition for cert. filed, 65 U.S.L.W. 3570 (Mar. 8,
1999) (No. 98-1427). Thus, under Green, where the
Supreme Court has established a rule but not specified
how it should apply in the specific factual circumstances at
issue, a federal habeas court would review a state court
decision under a deferential reasonableness standard.

The majority adopts the O'Brien standard, under which
"[t]he 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.' " Slip Op.

                               39
at 20 (quoting O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.
1998)). But query what would happen if a Supreme Court
case provided a clear rule, but did not dictate how that rule
should apply in particular factual situations? I cannot find
an answer to this question in the majority's decision, but as
I read O'Brien, from which the majority draws its overall
approach, the First Circuit would apply plenary review
under the "contrary to" standard even where Supreme
Court precedent dictates a controlling general rule without
applying it to particular facts. See O'Brien, 145 F.3d at 24
("First, the 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."). Thus, once a
court following O'Brien finds that Supreme Court precedent
dictated the applicable legal rule in a case, the court would
engage in plenary review to determine whether, in its
opinion, the state court decision correctly applied the
precedent, even if the Supreme Court had not indicated
how the rule should be applied in similar contexts. This
result is facilitated by O'Brien's elastic formulation of the
"contrary to" standard.

Of course, where the Supreme Court has indicated how
the law should be applied to the facts, a state court
decision ignoring the Court's directions is ipso facto
unreasonable and "contrary to" clearly established
precedent. But by proposing to apply plenary review beyond
the scope of direct Supreme Court precedent, and leaving
the concept of reasonableness out of the first stage of its
inquiry, O'Brien underemphasizes the deference S 2254(d)(1)
requires federal habeas courts to give to state court
decisions. This approach gives greater flexibility for the
application of plenary review than is available under Green,
as Green would require the habeas court to consider only
whether the state court's application of the precedent was
reasonable.

A good example of this is an ineffective assistance of
counsel claim under Strickland. See Stevens v. Maloney, 32
F. Supp. 2d 478 (D. Mass. 1998). In Stevens, the
defendant's attorney failed to file a written motion
challenging the pre trial use of a photographic array with

                                40
an eyewitness. In considering the habeas petition claiming
ineffective assistance of counsel, the district court, applying
O'Brien, first concluded that Strickland v. Washington, 466
U.S. 668, 687, 694 (1984), sets forth a rule directly
applicable to the case. See Stevens, 32 F. Supp. 2d at 481.
The court therefore applied "contrary to" review under
O'Brien and inquired whether the state court decision was
correct, not whether it was a reasonable application of
Strickland. See Stevens, 32 F. Supp. 2d at 481-82. Under
Green, by contrast, the district court would have been
limited to considering only whether the state court's
application of Strickland was reasonable, since the Supreme
Court has not specified how Strickland should be applied to
such claims.2

This expanded role for plenary review under S 2254(d)(1)
in O'Brien is inconsistent with the text and legislative
history of AEDPA. First, I do not think that it is consistent
with a common sense understanding of when a state court
decision is "contrary to" clearly established Supreme Court
precedent. Under O'Brien, a federal habeas court would be
able to grant relief under S 2254(d)(1) solely because it
disagreed with the state court's application of the
appropriate Supreme Court precedent, even though it was
a reasonable interpretation of how the Supreme Court
would have applied the precedent. I do not think such a
reasonable interpretation could fairly be denominated
"contrary to" clearly established Supreme Court precedent.
As the majority itself recognizes in the context of the
"unreasonable application of " clause,S 2254(d)(1) "does not
empower a habeas court to grant the writ merely because
_________________________________________________________________

2. Judge Stapleton's concurrence also provides an example of the
problem with the majority's approach. Judge Stapleton, contra the
majority, would apply plenary "contrary to" review to the state court's
decision that Lubking did not deliberately elicit statements from Matteo.
Although he reaches the correct result, he does so only because he
concludes that, reviewed de novo, the state court's conclusion was
correct. I agree with the majority, however, that the proper framework for
analysis in this case is deferential review under the "unreasonable
application of" test. Judge Stapleton's concurrence simply demonstrates
the ambiguities inherent in the majority's approach, which lead to the
lack of deference that I think is inappropriate.

                               41
it disagrees with the state court's decision, or because, left
to its own devices , it would have reached a different
result." Slip Op. at 20 (quoting O'Brien, 145 F.3d at 25).

Furthermore, Congress's express intent in enacting
AEDPA demonstrates that the reduced deference O'Brien
permits is inappropriate. That S 2254(d)(1) requires a
habeas court to give deference to reasonable state court
decisions where the Supreme Court has not spoken directly
to an issue is evident from Senator Hatch's explication of
the provision:

       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,
       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). Similarly,
Senator Specter recognized 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 should be
upheld." 142 Cong. Rec. S3742 (daily ed. April 17, 1996).
Given these statements, I do not think it is appropriate to
apply plenary review to state court decisions applying
clearly established legal principles in contexts that the
Supreme Court has not directly addressed.

While distancing itself from O'Brien's treatment of the
"unreasonable application of " facet ofS 2254(d)(1),3 the
_________________________________________________________________

3. I agree with the majority that, in the context of the "unreasonable
application of" inquiry, the federal habeas court must apply an objective
standard, and examine the reasonableness simpliciter of the state court
decision. See Slip Op. at 21. The definitions of reasonableness that other
courts, including Green, 143 F.3d at 870, have announced, see, e.g.,
Nevers v. Killinger, ___ F.3d ___, No. 98-1039, 1999 WL 97993, at *10
(6th Cir. Mar. 1, 1999) (relying on O'Brien, Green and Drinkard), which
the majority terms "subjective," require too much deference to state
court decisions and therefore are inconsistent with Congress's intent and
the case law out of which S 2254(d)(1) arose. Just as the majority rejects
this aspect of O'Brien, I would decline to adopt this aspect of Green.

                               42
majority appears to adopt explicitly O'Brien's treatment of
the "contrary to" clause. If the majority is not adopting this
aspect of O'Brien, it would, I assume, inquire into whether
the state court reasonably determined the manner in which
the rule should be applied to the particular facts, if it found
a Supreme Court rule on point but the Supreme Court had
not applied that rule to particular facts. But even so, the
fact of this ambiguity, along with the language of the
majority, suggests a lower level of deference to state court
decisions than is properly required by Green.

II.

In addition to the decreased deference O'Brien permits
federal habeas courts to give to state court decisions, I
think the Green approach provides a more useful
framework for future federal habeas courts engaged in
review of state court decisions under S 2254(d)(1). More
specifically, it focuses the habeas court's attention on the
precise nature of the issue the state court decided and its
relation to clearly established Supreme Court precedent.
For example, by focusing on the inquiry whether"through
a decision of pure law . . . [the state court] decision reaches
a legal conclusion or a result opposite to and irreconcilable
with that reached in the precedent that addresses the
identical issue," 143 F.3d at 870, the Green approach
focuses the habeas court's attention on whether the state
court decision of a legal issue is properly reconcilable with
precedent. Similarly, by focusing on whether a state court
"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)," 143 F.3d at 870, the rule properly focuses
the habeas court's attention on whether the state court
reasonably distinguished or failed to distinguish the facts of
the case under review from the precedent.

The majority criticizes the Green approach for setting out
different frameworks for addressing different sorts of
questions, contending that this may lead to confusion on
the part of federal habeas courts. "Although we find th[e

                                43
Green court's] 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." Slip Op. at 19. Without
further explication of this ipse dixit, however, I am unsure
why the majority thinks the Green approach would be
difficult to apply. I prefer the Green approach precisely
because it attempts to provide at least some analytical
structure beyond simply restating S 2254(d)(1), as O'Brien
and the majority do. The rare cases in which it is difficult
to determine which of the Green categories is relevant are
hardly reason for abandoning such a useful framework.

III.

Although I would apply Green, I agree with the majority's
application of S 2254(d)(1) to this case, for under either
Green or O'Brien the state court's decision was not
"contrary to, [nor did it] involve[ ] an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
See 28 U.S.C. S 2254(d)(1). Therefore, I concur in the
judgment of the Court.

                                44
STAPLETON, Circuit Judge, concurring:

I join in Parts I and II of Judge Scirica's opinion, and I
agree that (i) Matteos Sixth Amendment right had attached
at the time of his conversations with Lubking, (ii) no
violation of Matteos Sixth Amendment right occurred, and
(iii) any error would be harmless. I write separately to
emphasize the importance and utility of interpreting AEDPA
in light of Teague v. Lane, 489 U.S. 288 (1989) and related
Supreme Court caselaw.

I.

The court appropriately seeks to read the AEDPA
provisions at issue in a manner that "comports with pre-
AEDPA law in this area, which was governed primarily by
Teague." Slip Op. at 23. Indeed, the overall interpretative
approach urged by the O'Brien court, and largely adopted
here, rests on the notion that AEDPA was conceived in the
spirit of Teague. See, e.g., O'Brien v. DuBois, 145 F.3d 16,
23 (1st Cir. 1998) (explaining that S 2254(d)(1)
"perpetuates" the teachings of Teague and its progeny
through a "sort of choice of law provision" that "closely
emulates Teague."). I agree that a careful consideration of
Teague and the Supreme Court cases following it should
inform our interpretation of S 2254(d). I write separately to
emphasize that the Teague body of caselaw provides a well-
developed analytical framework for determining whether a
habeas petition governed by AEDPA should be analyzed
under the "contrary to" or the "unreasonable application
of " standard of S 2254(d)(1). This initial determination by
the habeas court is pivotal, as it represents a decision as to
which of two substantially different standards of review
should govern its consideration of the state court's
determination.

Echoing O'Brien, the majority opinion explains 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 petitioners
claim." Slip Op. at 19. The difficulty lies in determining
whether the Supreme Court has articulated a rule specific
enough to trigger "contrary to" review. Although the statute

                               45
provides little guidance, the Teague body of caselaw is
particularly instructive in this endeavor.

Teague established the general rule that (with narrow
exceptions1) "new constitutional rules of criminal procedure
will not be applicable to those cases which have become
final before the new rules are announced." Teague, 489
U.S. at 310. Under the Teague scheme, a habeas court
exercises plenary review only insofar as the petitioner seeks
relief on the basis of jurisprudence existing at the time the
petitioner's conviction became final. If the petitioner either
seeks relief on the basis of a "new rule" (i.e., a decision
issued after the conviction became final) or seeks relief that
would require the habeas court to announce (and
retroactively apply) a new rule, Teague sharply restricts the
habeas court's review. In the interests of "comity,
predictability, and finality," Stringer v. Black, 503 U.S. 222,
228 (1992), Teague requires habeas courts to defer to
"reasonable, good-faith interpretations of existing
precedents by state courts, even though they are shown to
be contrary to later decisions." Butler v. McKellar, 494 U.S.
407, 414 (1990).

Under Teague, the habeas court first must determine
whether the relief sought by the petitioner would constitute
a "new rule." If it would, the relief is barred and a
(reasonable) state decision will stand; if, on the other hand,
the relief sought is sufficiently within the scope of then-
existing jurisprudence to be considered "dictated by
precedent," Teague permits the habeas court to grant the
relief. Like this "new rule" inquiry under Teague, which
considers whether the relief sought is dictated by
precedent, the initial inquiry under AEDPA considers
whether the relief sought is governed by clearly established
Supreme Court law. Under AEDPA, as under Teague, the
habeas court's plenary review powers exist only if the relief
_________________________________________________________________

1. Under Teague, the habeas court may also consider a new rule of law
in two exceptional circumstances: first, if the rule places "certain kinds
of primary, private individual conduct beyond the power of the criminal
law-making authority to proscribe," Teague, 489 U.S. at 307; or second,
if the rule "requires the observance of procedures that are implicit in
the
concept of ordered liberty." Id. at 311.

                               46
the petitioner seeks is governed by clearly established law.
Under AEDPA, as under Teague, if the result sought is not
"dictated by precedent," the habeas court must defer to the
state court's reasonable application of prevailing law. Thus,
the analysis under AEDPA of whether the Supreme Court
has articulated a rule specific enough to trigger "contrary
to" review may be guided by the standards already
established, under Teague, for determining whether the
existing precedent (i.e., old rules) govern the petitioner's
claim (or, put differently, whether the relief sought would
constitute a new rule).

Since Teague, the Supreme Court has wrestled repeatedly
with the question of when a "rule" -- articulated in a case
decided after the petitioners conviction becamefinal --
should be considered "new" and thus inapplicable to the
(subsequent) petition. In this context, the Supreme Court
has explained that "a case announces a new rule when it
breaks new ground or imposes a new obligation on the
[government]." Id. at 301. In addition, the Supreme Court
has explained that the principles of Teague also apply if a
petitioner, although relying on an "old" rule, seeks a result
in his case that would create a new rule "because the prior
decision is applied in a novel setting, thereby extending the
precedent." Stringer, 503 U.S. at 228. This analysis is
particularly apt here. Put differently, under Teague, the
Supreme Court directed habeas courts to consider whether
the result -- either sought by the petitioner through the
application of an old rule, or achieved in another case
through the establishment of an arguably new rule-- was
"dictated by precedent existing at the time the defendants
conviction became final." Teague, 489 U.S. at 301.
Compare, e.g., Saffle v. Parks, 494 U.S. 484 (1990) (new
rule would be established where prior case dictated only
what mitigating evidence the jury must be permitted to
hear, and petitioner sought rule -- not compelled by prior
cases -- establishing how the evidence must be considered)
with Stringer v. Black, 503 U.S. 222 (1992) (no new rule
established where the prior cases rule "emerges not from
any single case . . . but from our long line of authority" on
the matter and, despite differences in the petitioners case,
the result petitioner seeks "follows a fortiori" from the
earlier case).

                               47
Thus, out of deference to state court decisions, Teague
requires habeas courts to refrain from judging state
determinations according to rules (or results) that were not
dictated by existing precedent. Similarly, out of the same
concern for state court adjudications, S 2254(d)(1) requires
habeas courts to employ a deferential, "reasonableness"
standard of review unless the Supreme Court has
articulated a rule that, "by virtue of its factual similarity
. . . or its distillation of general federal law precepts into a
channeled mode of analysis . . . can fairly be said to require
a particular result in a particular case." Slip Op. at 20
(quoting O'Brien, 145 F.3d at 25). In the latter case, under
AEDPA, the habeas court does not consider simply the
objective reasonableness of the state decision, but rather
determines whether it was "contrary to" such clearly
established Supreme Court law.

The difficult initial inquiry under AEDPA -- whether the
Supreme Court has articulated a rule specific enough to
trigger "contrary to" review -- is thus guided by the well-
developed Teague caselaw, which is aimed toward the same
end, and in which jurisprudential context Congress enacted
AEDPA. Accord O'Brien, 145 F.3d 25 (noting that "[n]ot
coincidentally, the Courts pre-AEDPA habeas case law
employed this approach in conducting Teagues "new rule"
inquiries, and other federal courts have followed this praxis
(wisely, we believe) when construing section 2254(3)(1).")
(citations omitted). For example, the habeas court must not
require the petitioner to point to a factually identical
precedent in order to obtain review under the "contrary to"
prong, just as, under Teague, a petitioner who sought to
apply an old rule to a new factual setting was not
necessarily barred by Teague. As Justice Kennedy has
explained:

        "If the rule in question is one which of necessity
       requires a case-by-case examination of the evidence,
       then we can tolerate a number of specific applications
       without saying that those applications themselves
       create a new rule. . . . Where the beginning point is a
       rule of this general application, a rule designed for the
       specific purpose of evaluating a myriad of factual
       contexts, it will be the infrequent case that yields a

                               48
       result so novel that it forges a new rule, one not
       dictated by precedent."

Wright v. West, 505 U.S. 277, 308 (1992) (J. Kennedy,
concurring).

II.

The issue presented in this case -- deliberate government
elicitation of incriminating statements in the absence of
counsel -- is one in which the Supreme Court has provided
a well-established principle for resolution. Guided by
Teague, I would analyze Matteos claim under the"contrary
to" prong of S 2254(d)(1) and conclude that the state courts
decision was not contrary to clearly established Supreme
Court law.

Although no Supreme Court case has addressed precisely
the facts presented here, Massiah and subsequent cases
illustrate the fact-dependent nature of the Massiah rule.
After Massiah, in which statements made in a car by a
defendant not in custody were "deliberately elicited" in
violation of the Sixth Amendment, United States v. Henry,
447 U.S. 264 (1980) established that statements made in a
cellblock to a paid informant were impermissible under the
same theory. Subsequently, Maine v. Moulton, 474 U.S. 159
(1985) established that the same rule applied to
surreptitiously recorded statements between codefendants,
and Kuhlmann v. Wilson, 477 U.S. 436 (1986) drew the line
at statements wholly volunteered with no hint of elicitation.
In other words, each case in this line embellished the
Massiah rule with new factual predicates.

Regardless of whether Henry, Moulton or Kuhlmann
established a new rule when each was decided, given the
constellation of factual settings and commentary these
cases now provide, coupled with the necessarily fact-
dependent nature of the analysis, the application of this
line of cases to Matteos claim would not, in my view, result
in a new rule under Teague. The facts of this case are not
sufficiently different from those in the Massiah line of cases
to require an extension or modification of the legal
principles set forth in that caselaw. As such, drawing on
Teague, I conclude that the Massiah caselaw "governs" or

                               49
"dictates" a result in Matteo, thus triggering "contrary to"
analysis under S 2254(d)(1).

Having determined that the proper inquiry is whether the
state decision is "contrary to" clearly established Supreme
Court law, I would conclude that neither phone
conversation between Lubking and Matteo violated the
Massiah rule against deliberate elicitation. Although the
second conversation contains some direct questions from
Lubking as to the location of the rifle, this conversation
must be viewed in the context of the first and in terms of
its substance, rather than its format. Matteo initiated both
conversations for his own purpose -- to get Lubking to
recover (and hide) the rifle. Lubking was unsuccessful in
finding the rifle based on the directions Matteo gave during
the first call, and when Matteo called a second time to
inquire whether the rifle had been located, Lubking
informed him of this fact. Predictably, he volunteered more
specific directions in order to assure that his purpose
would be achieved. In this context, it would elevate form
over substance to give controlling significance to the fact
that Lubking asked an occasional clarifying question.
Matteos statements were made on his own initiative, not
because they were in response to anything said or urged by
Lubking. Lubkings incidental questions were not
"affirmative steps" to elicit incriminating information.
Henry, 447 U.S. at 271.

Because I would conclude that no deliberate elicitation
occurred, I would not reach the issue of whether Lubkings
actions were attributable to the state. Finally, I agree that
any error was harmless in light of the overwhelming
evidence against Matteo.

                               50
McKEE, Circuit Judge, with whom Judges Sloviter and Roth
join, concurring.

I agree with the majority's analysis of S 2254(d)(1), but I
believe that the state court's Sixth Amendment analysis
was contrary to clearly established law as decided by the
Supreme Court. However, I join in the judgment of the
court because I agree that the erroneous admission of the
rifle into evidence was harmless in view of the quality and
quantity of admissible evidence that connected Matteo to
this murder. I write separately to voice my disagreement
with the majority's application of the standard we are
adopting. I believe that Massiah v. United States, 377 U.S.
201, 206 (1964), compels a different resolution of the
agency inquiry we must undertake to resolve Matteo's
claim. In Massiah, the Court held that, absent a valid
waiver, a government agent may not "deliberately elicit"
incriminating statements from an accused after the right to
counsel has attached. In holding that the outcome of the
state court's inquiry was not compelled by "clearly
established Federal law" I believe we are demanding a level
of precision and specificity that is neither required by the
language of AEDPA, nor consistent with reasoned use of
Supreme Court precedent.

I.

The majority holds that "contrary to" review is not
warranted here because there is no Supreme Court case
defining the term "government agent." That conclusion
illustrates the many problems buried in the analytical
minefield lurking beneath the surface of AEDPA. One of the
unresolved issues created by AEDPA is the level of
specificity the Supreme Court must use in fashioning a rule
in order for it to be applied as "clearly established Federal
Law" under AEDPA. In resolving that issue we must
consider that rules fashioned by the Supreme Court are
often intended to reach beyond the confines of the
particular case in which the rule was enunciated.

In Massiah, the Court announced a specific rule which
requires a case-by-case inquiry for determining whether the
government has violated a defendant's Sixth Amendment

                               51
right to counsel. See United States v. Henry, 447 U.S. 264,
270 (1980) ("The question here is whether under the facts
of this case a Government agent `deliberately elicited'
incriminating statements from Henry within the meaning of
Massiah.") (emphasis added). The Court has repeatedly
rejected efforts to distinguish or limit Massiah's
applicability. See eg. Brewer v. Williams, 430 U.S. 387, 390
(1977) ("The circumstances of this case are thus
constitutionally indistinguishable from those presented in
Massiah v. United States."); Maine v. Moulton, 474 U.S. 159,
179 (1985) ("reaffirm[ing] the holding" in Massiah after
rejecting the state's attempt to limit it and distinguish the
case on its facts); Henry, 447 U.S. at 271-72 (rejecting
argument that it modified the Massiah rule in Brewer v.
Williams rather than applying it to a new factual setting).
Though a court must undertake a specific inquiry into the
facts of the case before it, the inquiry is governed by the
rule enunciated in Massiah, and I believe that rule compels
a different outcome here.

In Maine v. Moulton, 474 U.S. 159 (1985), the Supreme
Court succinctly stated the analysis that is required under
Massiah and its progeny.

       [T]he State's attempt to limit our holdings in Massiah
       and Henry fundamentally misunderstands the nature
       of the right we recognized in those cases. The Sixth
       Amendment guarantees the accused, at least after the
       initiation of formal charges, the right to rely on counsel
       as a `medium' between him and the State. . . .[T]his
       guarantee includes the State's affirmative obligation
       not to act in a manner that circumvents the
       protections accorded the accused by invoking this
       right. The determination whether particular action by
       state agents violates the accused's right to the
       assistance of counsel must be made in light of this
       obligation.

474 U.S. at 176.

There are, of course, fact patterns that transcend the
parameters that can fairly be said to have been erected by
Supreme Court case law. When that situation occurs
Supreme Court decisions do not compel a particular result

                                52
without an extension of a particular principle. See
Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986) (answering
in the negative the question, explicitly left open in Henry
and Moulton, whether the Sixth Amendment forbids
admission into evidence of an accused's statements to a
jailhouse informant who was "placed in close proximity but
[made] no effort to stimulate conversations about the crime
charged"). However, this is not such a case.

As the majority notes, the Supreme Court has set forth
factors which are "important" in determining whether the
Massiah standard has been violated. Henry, 447 U.S. at
270. However, the infinite number of ways that
investigators and informants can combine to elicit
information from an unsuspecting defendant precludes us
from establishing any litmus test for determining when an
informant is acting as a government agent under Massiah.
Compare Brewer, 430 U.S. 387 (police officer gave speech
designed to extract incriminating responses from
defendant); with Henry, 447 U.S. 264 (agent was a paid
jailhouse informant who was directed not to question the
defendant) and Moulton, 474 U.S. 159 (agent was a
codefendant out on bail who had "cut a deal" with the
government and was directed to engage the defendant).
Thus, as the majority points out, the Eleventh Circuit Court
of Appeals has noted that "[t]here is, by necessity, no
bright-line rule for determining whether an individual is a
government agent for purposes of the sixth amendment
right to counsel." Depree v. Thomas, 946 F.2d 784, 793
(11th Cir. 1991) (emphasis added). See Slip. Op. at 27.
"Contrary to" review cannot be reserved only for those cases
that are eerily identical to Supreme Court precedent, and I
do not interpret the majority's opinion as suggesting any
such evisceration of "contrary to" review under AEDPA. See
Slip Op. at 20.

II.

The majority's analysis focuses upon the factors which
the Supreme Court relied upon in Henry infinding a Sixth
Amendment violation there. In Henry, a paid informant who
appeared to be no more than a fellow inmate was acting
under instructions from the government to elicit

                               53
incriminating statements from the defendant while he was
in custody. See Henry, 447 U.S. at 270. The majority
emphasizes that here, there was no "quid pro quo"
exchange between Lubking and the police because Lubking
was "not a suspect in the crime, had little to gain by
cooperating with the investigation and in fact received no
compensation." Slip Op. At 30. However, Lubking believed
that his rifle was the murder weapon and he cooperated to
"keep himself out of trouble" and to allay his fears about
being connected with the murder. App. at 153-54a, 157a,
168a, 269a, 278a, 291a. Lubking said that he contacted his
lawyer, after being called by Matteo, "[j]ust to keep my butt
clean." App. at 157a. When asked why he agreed to help,
Lubking reiterated: "To get my name out of any problems
that might have happened. I mean, really, to keep my butt
clean." App. at 291a. Although Lubking did not have a
"deal" with the government, his motivations make him no
less capable of being an agent of the investigating
authorities. Lubking was not an uninterested citizen so
driven by altruism that he offered to tell police what he
knew about the crime they were investigating. To be sure,
Lubking was also not a coconspirator or cellmate hoping to
win favors from police. However, Lubking's situation is no
less analogous to cases where the Court has found an
agency relationship. Rather than being paid, or being
assured that his cooperation would be made known to a
sentencing judge, Lubking attempted to assure himself that
he would remain "clean" altogether. He had no less
incentive to assist the police than one hoping for a reduced
sentence, and the police made good use of his offer to
assist. See Henry, 447 U.S. at 270.

Nothing in Massiah or its progeny suggests that the
Supreme Court intended to restrict an agency analysis
under the Sixth Amendment as narrowly as the majority's
reasoning requires. The fact of an arrangement between the
government and the informant pursuant to which "the
informant [i]s charged with the task of obtaining
information from an accused" can be sufficient to establish
the agency required under Massiah. See. Henry 447 U.S. at
273. In concluding that Lubking was not acting as a
government agent during either call from Matteo the
majority focuses on the instructions the police initially gave

                               54
Lubking regarding the operation of the recording
equipment, and their instructions to not directly elicit
incriminating information from Matteo. If that were all that
appeared on this record I would agree with the majority's
conclusion that there was no agency;1 but there is more.
Matteo made a second call, and Lubking's role during that
call was qualitatively different from the role he played
during the first call. I believe the majority fails to give
sufficient weight to the totality of the circumstances
surrounding Lubking's recording of the second telephone
call. Moreover, both the first and second call came after
Chief Deputy District Attorney Joseph Carroll had informed
Lubking that "the purpose of the interception was to obtain
potential evidence in a prosecution against Mr. Matteo for
murder." App. at 169a. Carroll told Lubking that the police
wanted to recover the gun which they believed to be the
murder weapon, "but in addition I told him we are not only
interested in finding the gun, but also recording the
conversation." App. at 181a.

Despite the initial instructions to Lubking to act as a
passive listener, Detective Sergeant Michael Carroll
subsequently charged Lubking with the task of obtaining
more specific directions as to the location of the rifle. The
instructions that were given following the initial,
unsuccessful search transformed Matteo from informant to
agent. After Matteo's directions in the initial call proved
insufficient to direct the police to the hidden rifle, Detective
Michael Carroll escorted Lubking back to Lubking's home
where Carroll knew Matteo would call a second time to
check on the results of the search. Carroll explained his
instructions to Lubking as follows:

       Q: What if anything did you say to Lubking regardi ng
       the second phone call?

       Carroll: I told him that I did not want him questi oning
       Mr. Matteo outside the area of direction to where the
       gun was located. I told him if he could get us more
       specific directions, that would be helpful. If he wasn't
_________________________________________________________________

1. If that were the situation there would still be "clearly established
Federal law," but the state court's ruling that there was no agency would
not be "contrary to" it.

                               55
       able to get us more specific directions under the
       narrow area we allowed him to discuss, that that would
       be all right, also . . .

       Q. And you said, and again you have told us this, but
       you said basically try to get him to be as specific as
       you can, but stay in that area of facts, don't go outside
       of those factual areas; am I correct on that?

       Carroll: Yes.

App. at .243a, 248a.

Thus, Lubking's efforts to get Matteo to be more specific
about where the rifle had been hidden during the second
telephone call must be attributed to the government. The
government told him to attempt to get Matteo to be more
specific and that is what Lubking did. Matteo relied upon
his relationship with Lubking to respond to Lubking's
probing just as police hoped he would.

III.

This record clearly establishes that Lubking did "directly
elicit" incriminating information from Matteo, and I believe
the state court's conclusion to the contrary is "contrary to"
the conclusion that is required by Massiah, Henry, and
their progeny. Lubking, no less than the informant in
Henry, was more than a "listening post" during the second
phone conversation. The following exchange occurred
during the second telephone call:

       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 couldn't 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 --

                               56
       * * *

       Matteo: Yeah. It goes under that cement bridge.

       Lubking. Yeah. On the far side, on the side all the way
       closer to your house?

       * * *

       Lubking: . . . I looked there too, but they -- is it in the
       water?

         * * *

         . . . So it's not in the grass?

         * * *

         . . . So it's almost underneath the bridge?

         * * *

         . . . Was the water frozen when you dropped
       it?

App. at 141a-147a. Unlike the first conversation where, as
the majority states, Lubking said "virtually nothing at all "
in response to Matteo's directions, see Slip. Op. at 33,
Lubking took "affirmative steps" during the second
conversation to elicit information about the exact location
of the rifle. See Kuhlmann, 477 U.S. at 459 (defendant may
establish a constitutional violation by "demonstrat[ing] that
the police and their informant took some action, beyond
merely listening, that was designed deliberately to elicit
incriminating remarks."). These questions were more than
"a few clarifying questions." Slip. Op. at 34. They were
pointed inquiries prompted by Detective Carroll's need for
more specific information. In Henry, the Court stated: "By
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." 447 U.S. at 274. Here, all
that is necessary is to substitute "Matteo" for "Henry."
Lubking's "monosyllabic rejoinders," Slip. Op. at 33, during
the second conversation cannot transform his role into that
of a listening post. Indeed, insofar as the location of the
rifle was concerned, he was more of an interviewer.

                               57
Nor am I persuaded by the majority's attempts to
distinguish this case from Moulton. Given the
circumstances here, it is immaterial that Matteo voluntarily
called Lubking. See Moulton, 474 U.S. at 175-75 (noting
that "the identity of the party who instigated the meeting at
which the Government obtained incriminating statements
[is] not decisive or even important"). The fact that Matteo
sought to discuss the location of the gun does not preclude
a finding that the information was surreptitiously obtained.
As the Supreme Court noted in Moulton, once the
government is aware that the sole topic of discussion
between the agent and the accused is going to be the
pending charge, "a Sixth Amendment violation[i]s
inevitable." Id. at 177 n.14. Here, as in Moulton, the
government "knowing[ly] exploit[ed]" an opportunity to
confront Matteo in the absence of counsel in violation of his
Sixth Amendment rights. Id. at 176.

V.

I applaud the majority's efforts to extract a workable
standard from this inartfully drafted statute even though I
disagree with the majority's conclusion. The Supreme
Court's metaphorical retort that AEDPA is not exactly a
"silk purse," see Slip. Op. at 18, is all too accurate. The
difficulty of interpreting this statute is evidenced by the
number of competing interpretations given the statute by
the courts of appeals that have interpreted it, as well as by
the divergent views expressed here. Although it is not
implicated here, I cannot help but express concern that
such an elusive and inartful statute will often be the basis
for deciding if someone was "properly" sentenced to death
in a state court. Given the divergent interpretations of this
statute one can only hope that Congress will clarify its
intent, or that the Supreme Court will provide a single
explanation of it.

However, that day is not yet here and,   as noted above,
that problem is not implicated here. I   am convinced that
the state court's holding in this case   was "contrary to" the
"clearly established" rule of Massiah.   However, I concur in
the judgment of this Court because the   resulting error was
harmless.

                               58
RENDELL, Circuit Judge, Concurring

I concur in the result we reach in this case, because the
somewhat different analysis I propose, and the variation on
the test I advocate, would nonetheless lead to the same
result in this case -- affirmance of the District Court's
denial of habeas relief.

I caution, however, that our analysis of the standard, as
applied to the facts of the case, may well consider too
casually the entire AEDPA test and, in dealing with the
issues, lose the necessary focus. I also part ways with the
need to define "unreasonable application" as we do in the
majority court's opinion.

I suggest we adhere closely to the statutory dictate that
the threshold through which review must pass is clearly
established Supreme Court precedent. Only if the Supreme
Court has ventured into a pertinent area of the law that
formed the basis for the state court's decision or reasoning
do we have the power of review. As a practical matter, using
this as a starting point, we can, as here, eliminate many of
an appellant's contentions at the outset. I note that while I
hesitate to critique a colleague's thoughtful analysis, I think
we need to endorse an approach that is clear and easy to
apply, so as to give guidance to the lower courts in this
area.

As we indicate at the outset of the majority opinion, we
must determine whether "the adjudication of the claim (by
the state court) 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." The inquiry, therefore, should
begin by identifying what the state court decided and what,
if any, clearly established federal law, as determined by the
Supreme Court of the United States, has a bearing on the
decision rendered by the state court. We may act only if the
state court's decision is either contrary to or involved an
unreasonable application of clearly established Supreme
Court precedent.

In the instant case, clearly Massiah and its progeny have
a bearing on the outcome. What clearly established
principles that are set forth in the Massiah line of cases

                                59
bear on the decision reached by the state court? I suggest
that even though the state court determined that Lubking
was not an agent because he was a volunteer and there
was no agreement or "quid pro quo" for the information he
gave, we needn't dwell on the issue of agency. Although the
majority opinion discusses the agency relationship involved
in the Henry opinion, the Supreme Court has made no
pronouncement, in Henry or in any other decision, as to
when an individual is or is not an "agent" under this line of
cases. Its statement in Henry that the combination of
circumstances -- namely, a paid informant pretending to be
a fellow inmate -- was "sufficient to support" the court of
appeals' determination that the individual was an agent for
the government hardly equates to clearly established
Supreme Court precedent on this issue.1 See United States
v. Henry, 447 U.S. 264, 270-71 (1980). The majority
opinion correctly notes that the concept of "clearly
established federal law, as determined by the Supreme
Court of the United States" requires that we not entertain
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." If we lose sight
of this requirement in our analysis, we stray from the
dictates of the statutory language, and I submit that the
resulting inquiry into "contrary to" and "unreasonable
application" can easily lead to a form of plenary review.
Therefore, since the Supreme Court has not addressed the
issue of the parameters of agency for purposes of Massiah,
there is no federal law as determined by the Supreme Court
on this issue, let alone any "clearly established" law. Even
if a determination of the state court as to agency were
pivotal in its adjudication and its decision, we need not
examine this aspect, because the Supreme Court
jurisprudence on the issue is nonexistent.

Clearly, the issue in Massiah and its progeny that has
bearing on this case is the question of what constitutes
_________________________________________________________________

1. Even in O'Brien the court noted that the Supreme Court
pronouncement should set a "governing rule" or "erect a framework
specifically intended for application to variant factual situations."
O'Brien
v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998). The Supreme Court has
not done this in the agency context.

                               60
"deliberate elicitation." We must, therefore, ask, first, what
is the federal law as determined by the Supreme Court
regarding this issue, and, assuming the Supreme Court has
addressed it, determine whether the law is "clearly
established." The Supreme Court has in fact "erected" the
necessary "framework" in the case law. We then position
the state court's decision alongside the Supreme Court
precedent, to determine if the decision itself is "contrary to"
the dictates of that precedent, and, if not, whether the
adjudication of the claim involved an "unreasonable
application" of the precedent.2 I reach the same result as
the majority opinion by proceeding in this fashion in this
case because the Supreme Court has established the
framework, and the state court's decision was neither
contrary to it, nor an unreasonable application of it. I
suggest that the focus on Supreme Court precedent and the
pointed inquiries is the essence of the narrower review
envisioned by the statute, and will prevent us from
venturing into the forbidden area of whether we agree with
the state court decision -- which the majority opinion
seems to do as it works through the elements, and, indeed,
at the conclusion of its analysis.

In addition, unlike the majority, I would embrace the
statutory language regarding "unreasonable application" as
the standard and decline, as we and most other circuits
have done, to dwell on interpreting it, for as we redefine it,
it loses its meaning. I read the statute as permitting us to
examine whether the state court, as it applied the Supreme
Court precedent to the case at hand, applied the law in an
unreasonable manner. This may well be different from
_________________________________________________________________

2. I submit that a more focused look at whether the precise issues have
been addressed by the Supreme Court, and, if so, a comparison of the
Supreme Court dictates in order to answer the "contrary to" question,
might well reduce the concerns expressed by Chief Judge Becker as to
the potential for expansive, plenary review at this stage. While I agree
with our preference for the standard wherein we ask what does the
Supreme Court's pronouncement require or dictate, as opposed to the
standard requiring near identicality, if we zero in on particular
pronouncements by the Supreme Court that are clearly established, I
wonder whether the result of the exercise we engage in will be all that
different under one or the other.

                               61
asking whether the outcome reached by state court"cannot
reasonably be justified," or the outcome is not"objectively
reasonable." (In fact, I even view these two standards
employed in the majority opinion as somewhat different
from each other.) If it is not different, why the need to
interpret it further?

The statutory test is whether the adjudication that
resulted in the decision "involved an unreasonable
application," and I suggest that this says it all.3 The
majority opinion has, as have other circuits, imposed a
negative spin, namely, that no jurist would disagree, or
debate, or that an outcome cannot reasonably be justified,
whereas the language does not require or compel this. If
anything, "objectively unreasonable" -- as used at the end
of the majority's analysis -- comes closer to the mark than
does "cannot reasonably be justified." However, we have
adopted the latter as the standard. I would leave the door
open for the federal courts to do exactly what the statute
dictates, namely, to determine whether the adjudication
involved an unreasonable application. I think any attempt
to define the phrase in more absolute terms impermissibly
rewrites the statutory language.4 I would suggest further
_________________________________________________________________

3. We could debate at length whether and to what extent the discussions
of Teague in recent Supreme Court cases should influence our view of
the statutory language. See Wright v. West, 505 U.S. 277, 290-94 (1992);
505 U.S. at 303-05 (O'Connor, J., concurring); 505 U.S. at 306-09
(Kennedy, J., concurring); 505 U.S. at 311-13 (Souter, J., concurring);
Butler v. McKellar, 494 U.S. 407, 412-16 (1990); 494 U.S. at 417-22
(Brennan, J., dissenting); see also Teague v. Lane, 489 U.S. 288, 308-14
(1989). I only note that Congress, presumably aware of the numerous
ways in which to describe the confined nature of the inquiry as set forth
in Butler v. McKellar and Wright v. West, nevertheless employs the term
"unreasonable application," not "patently" or "clearly" unreasonable, with
no reference to good faith or debate by reasonable jurists. Cf. 141 Cong.
Rec. S7803-01, S7836, S7844 (daily ed. June 7, 1995) (remarks of Sen.
Biden regarding significance of Wright v. West); 141 Cong. Rec. S7803-
01, S7878-79 (daily ed. June 7, 1995) (remarks of Emergency Committee
to Save Habeas Corpus, reproduced in the Congressional Record). In a
departure from the more convoluted route taken by other courts of
appeals, the Ninth Circuit Court of Appeals has taken a straightforward
reading of the terms included in section 2254(d)(1). See Davis v. Kramer,
167 F.3d 494, 500 (9th Cir. 1999).

4. In fact, it is curious that the other courts of appeals concentrate on
other jurists' agreeing, or not agreeing, and we talk in terms of
"objective

                               62
that by the use of the word "application," the statute invites
us to look at the reasoning process, rather than merely
answering yes or no as to whether the result can be
reasonably justified.5 I would, therefore, adopt an approach
to "unreasonable application" whereby the federal courts
examine the footing or basis in reason of the state court
ruling as an extension of Supreme Court law. Only if it is
unreasonable, is it disturbed.6 I see this as different from
determining whether the outcome reached by the state
court cannot reasonably be justified. Rather,"unreasonable
application" conjures up a different inquiry that tests
whether the state court's reasoning is or is not sound.

To those who would argue that our ability to correct
flawed state court reasoning violates the deference intended
to be given to state court rulings, I would answer that the
statutory standard is extremely deferential, even as I
propose to constitute it. Congress has said that we can
grant relief only if the Supreme Court has addressed a
specific area, and then only if the law is clearly established,
and then, only if the state court had disregarded the law or
has engaged in flawed reasoning in applying it. This is, in
fact, deferential.7
_________________________________________________________________

reasonableness" and "justification," yet the   statute uses the word
"unreasonable," the dictionary definition of   which is, "not governed by
reason" or "going beyond reasonable limits."   Websters II New Riverside
University Dictionary 1265 (1988). These are   very different concepts.

5. Nor should we lose sight of the fact that the AEDPA standard requires
that we examine whether the state court decision was "contrary to," or
whether the adjudication that resulted in a decision involved an
"unreasonable application" of Supreme Court precedent.

6. It is at this point -- when we examine the reasoning process -- that
we consider the views of lower federal courts.

7. Interestingly, the floor debates do not support a narrow reading of the
concept of "unreasonable application." Both sides of the aisle appear to
have viewed it as meaning that unless the state "improperly appl[ied]"
clearly established Supreme Court law, the state decision would stand.
Senator Hatch, one of the bill's sponsors, incorporated these very words
in his explication of the law. See 141 Cong. Rec. S7803-01, S7848 (daily

                               63
A True Copy:
Teste:

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

ed. June 7, 1995). Another reading of the language was set forth by
Senator Biden, who read the proposed provision as requiring deference
if the "court decision could be described by a lawyer as being
reasonable," and claimed that "unreasonable application" was so limiting
as to deprive the federal courts of their power. See Cong. Rec. S7803-01,
S7841(daily ed. June 7, 1995). At the least, these views do not support
a need for further definition or restriction of the statutory language.

                               64
