1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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"Matteo v. Supt SCI Albion" (1999). 1999 Decisions. Paper 77.

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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 twostep 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. 

 36