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D ock e t 96-2115

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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

2MATTHEW 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

3OPINION OF THE COURT

SCIRICA, Circuit Judge.

Like our sister courts of appeals, we are asked to determine the appropriate standard of review govern ing petitions for a writ of habeas corpus. Anthony Matt eo seeks

habeas relief from his state convictions for first degree murder, robbery, theft, and possession of marijuana

, contending the Commonwealth of Pennsylvania violate d his Sixth Amendment right to counsel by using incrimina ting statements he made in two telephone conversations f rom prison to an outside informant. In evaluating Matte o's petition, the en banc court must interpret the stan dard of review provision incorporated into 28 U.S.C. S 2254 (d) by the Antiterrorism and Effective Death Penalty Act o f 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 i nquire whether the state court decision was "contrary to" clearly established federal law, as determined by the Supre me Court of the United States; second, if it was not, the federal court must evaluate whether the state court judgmen t rests upon an objectively unreasonable application of cle arly established Supreme Court jurisprudence. Applying t his analysis, we will affirm the District Court's dismi ssal 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 ye ars' consecutive probation on the robbery conviction. Th e facts underlying Matteo's convictions were aptly summariz ed in the opinion of the Court of Common Pleas of Chester County, Pennsylvania:

4On 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 kno wn to carry large sums of money, usually in large denominations, no money was found on him. Additionally, he was missing both his apart ment 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 de ath and Matteo's conviction commences in September 1987. Edward Beson, a friend of Calandriello's, t estified that Calandriello sought Beson's assistance in s toring $20,000 worth of stolen golf carts which Ca landriello was soon to acquire. Beson learned from Cal andriello that Anthony Matteo was going to obtain the se 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 telephone d Beson and stated that he was going to pick up Ant hony Matteo at Matteo's house and that he, Calan driello, 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 D enny's Restaurant, but Calandriello never arrived.

Shortly after noon on January 13, 1998, Ca landriello did indeed leave $15,000 in an envelope wit h Richard Ross at a Roy Rogers Restaurant in Paoli. C alandriello told Ross that he was going to Routes 401 a nd 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 awai ted

Calandriello's return for over three hours before he gave up and left the Roy Rogers Restaurant.

5Sara Kessock, Calandriello's girlfriend, r eported

Calandriello missing and an investigation of his disappearance ensued. Eventually, the invest igation led to Anthony Matteo, and the police conducted two

searches of the Matteo home. The searches r evealed the following:

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

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

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

4. At the Matteo house was a white cat who se h air

was consistent with the hairs found on Cala ndriello's

pants;

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

6. Blood was found in the defendant's gara ge 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 stat ed 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 $1 00 bills.

Next, C. John Stanchina, a longtime friend of the Defendant's, testified that at approximatel y 2:25 p.m. on January 13, 1988, he picked up the Defen dant at the North end parking lot of the Holiday In n in Lionville. As it would turn out, this was n ear where Calandriello's frozen body was later discov ered.

Finally, Douglas Lubking testified that he had lent

the Defendant a .22 rifle in December of 19 87. Lubking and the Defendant had been target shooting and Defendant asked Lubking to loan Defendant t he rifle so

6he could practice. Subsequent to his arrest for murder,

the Defendant called Lubking from the Chest er 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 attorne ys 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 instruction s, the gun was located by the police on February 1, 19 88. It was this same gun which was later identified by Timothy Flynn as the gun with which Defendant had b een target shooting on January 10, 1988. This g un 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 tel ephone conversations between Matteo and Lubking that took place

after Matteo's arrest. The evidence in the record s hows that on January 28, 1988, Matteo called Lubking from pri son 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 suspec t. 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 wit h 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 detecti ves that afternoon. During that meeting, Lubking provid ed 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 as k questions or otherwise elicit information from Matt eo.

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

7Lubking identified the recorded voices as his and M atteo's.

The conversation, which need not be reproduced in f ull 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 do ne 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 g o g et it, from when I tell you to get it.

LUBKING: As soon as possible. I want this t hing-- I

want it here.

MATTEO: Can you leave right now to get it?

LUBKING: Yeah.

MATTEO: Okay. Now I'm going to tell you whe re 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 pret ense to drop something off at Matteo's house, so that Lubki ng 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 -- arouse d 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 h ere 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 wan t it ou t of the way.

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

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

LUBKING: Uh-huh.

MATTEO: Go in my driveway. Okay. You know h ow you go down a dirt road and you come to tha t 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, ther e's like a cement wall going down into the water.

LUBKING: Uh-huh.9MATTEO: Right next to the cement wall is wh ere 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 arou nd the front of the car with your lights off and y ou 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 th e 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 p ut 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 th e rifle. Despite Matteo's instructions, however, they were u nable to find it. The police and Lubking then returned to Lu bking's

10home and awaited Matteo's call. It appears the poli ce gave

Lubking no further instructions at this time. As ar ranged, Matteo called Lubking again at 10:00 p.m. and polic e 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. The re's a sewer pipe and there's --

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

LUBKING: There's a sewer pipe.

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

LUBKING: Yeah.

MATTEO: Yeah. It goes under that cement bri dge.

LUBKING: Yeah. On the far side, on the -- a ll 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 w ith the two railings on either side.

LUBKING: Pardon me?

MATTEO: Is there two railings on either sid e?

LUBKING: Yeah.MATTEO: All right.

11LUBKING: 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 th e 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 lo cated

the rifle. Both the rifle and the recorded conversa tions were

admitted into evidence at Matteo's trial.

B. Procedural History

As noted, following a jury trial in the Chester Cou nty Court of Commons Pleas, Matteo was convicted of all charges and sentenced accordingly. The Superior Cou rt of Pennsylvania affirmed his convictions, see Commonwe alth v. Matteo, 589 A.2d 1175 (Pa. Super. Ct. 1991), and the Supreme Court of Pennsylvania denied his Petition f or Allowance of Appeal, see Commonwealth v. Matteo, 60 4 A.2d 1030 (Pa. 1992), and Petition for Reconsiderat ion.

On November 30, 1994, Matteo filed a petition for h abeas corpus relief in United States District Court for t he Eastern District of Pennsylvania. The District Court adopte d the Magistrate Judge's recommendation that Matteo's pet ition

be dismissed unless Matteo withdrew two unexhausted claims. After Matteo declined to do so, the Distric t Court dismissed the petition and later denied Matteo's re quest for reinstatement of the petition.

In September 1996, Matteo's new counsel filed anoth er 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 rig ht to counsel had not attached at the time of the telepho ne calls. The District Court dismissed the petition, but on d ifferent grounds, holding that under Massiah v. United State s, 377 U.S. 201 (1964), Lubking had not acted as a governm ent agent and the police had not deliberately elicited

12incriminating information from Matteo. See Matteo v

.

Superintendent, No. 96-6041, mem. op. at 10 (E.D. P a. Nov. 25, 1996). We granted Matteo's request for a certif icate of appealability; following oral argument before a pan el but prior to the issuance of an opinion, the case was l isted for rehearing en banc pursuant to Rule 9.4.1 of our Int ernal 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 stat e's

elicitation of the location of the rifle. Before ad dressing the merits, however, we must determine the appropriate standard of review. Specifically, we must discern t he meaning of 28 U.S.C. S 2254(d) (West Supp. 1998) as amended by the Antiterrorisim and Effective Death P enalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1 214. The amended section provides, in part:

(d) An application for a writ of habeas cor pus on behalf of a person in custody pursuant to t he judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merit s in State court proceedings unless the adjudication o f that

claim--

(1) resulted in a decision that was contra ry t o, or involved an unreasonable application of, cl early established Federal law, as determined by t he 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 proce eding.

28 U.S.C. S 2254(d) (West Supp. 1998). The proper interpretation of this language has been the subjec t 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 s tate

court's construction of federal constitutional issu es and

13interpretation of Supreme Court precedent. Previous ly,

federal habeas courts were not required to "pay any special heed to the underlying state court decision." O'Bri en v. Dubois, 145 F.3d 16, 20 (1st Cir. 1998) (citing Bro wn v. Allen, 344 U.S. 443, 458 (1953)). That is no longer the case -- the text of section 2254(d) firmly establishes t he state court decision as the starting point in habeas revi ew. 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 exa mining how other courts have interpreted the provisions at issue.

A. Approaches of Other Circuits

In O'Brien, the Court of Appeals for the First Circ uit held that AEDPA does not require uniform deference to st ate

court decisions but "restricts the armamentarium of legal

rules available to a federal habeas court in evalua ting a state court judgment" by "confin[ing] the set of re levant rules to those `clearly established by the Supreme Court.' " 145 F.3d at 23. As such, the First Circuit held, AE DPA did not codify the Supreme Court's decision in Teague v . Lane, 489 U.S. 288 (1989), but "embrace[d] one of its pri mary goals," namely, preventing federal habeas courts fr om requiring state courts to act as "innovators in the field of criminal procedure." O'Brien, 145 F.3d at 23. Accor dingly, the O'Brien approach interprets AEDPA to require a twostep inquiry. First, under section 2254(d)(1) the f ederal habeas court "asks whether the Supreme Court has prescribed a rule that governs the petitioner's cla im. If so, the habeas court gauges whether the state court dec ision 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 t he claim, though factual identity is not required:

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

14requires an outcome contrary to that reache d by the

relevant state court.

We caution that this criterion should not be applied in too rigid a manner. A petitioner need no t point a habeas court to a factually identical prece dent. Oftentimes, Supreme Court holdings are "gen eral" in the sense that they erect a framework speci fically intended for application to variant factual situations. These rules sufficiently shape the contours of an appropriate analysis of a claim of constitu tional 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 necessar y only if no Supreme Court rule governs the petitione r's claim. Then, the federal habeas court is required t o determine whether the state court decision involved an "unreasonable application of" clearly established f ederal 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, credi ble outcomes." Id. at 25 (citing Hall v. Washington, 10 6 F.3d 742, 748-49 (7th Cir. 1997)). Applying this analysi s, the O'Brien court upheld the state court's decision tha t the scope of recross examination had not violated the petitioner's Sixth Amendment rights. See O'Brien, 1 45 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 de cision is "contrary to" Supreme Court precedent when"either through a decision of pure law or the application o f law to facts indistinguishable in any material way from th ose 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 t hat

addresses the identical issue." Id. at 870. The cou rt further explicated the meaning of "contrary to" as follows:

15A lower court's decision . . . certainly i s said to be

"contrary to" supreme court precedent when, through the resolution of a question of pure law, t hat decision reaches a legal conclusion or a result oppo site to that reached in a supreme court opinion which ad dresses the identical question of law. A lower cour t's decision is likewise "contrary to" a higher court's pre cedent when that decision correctly identifies the gove rning legal principle from the precedent but applies th at principle to facts that are indistinguishable in any material respect from those on the basis of which th e precedent was decided in such a way as to reach a con clusion different from that reached by the higher c ourt. It is

also common to characterize a lower court d ecision as "contrary to" supreme court precedent when that decision applies a precedent in a factual c ontext different from the one in which the precede nt was

decided and one to which extension of the l egal principle of the precedent is indisputably unjustified, or, conversely, when that decision fails to apply a precedent in a different context to which t he precedent's principle clearly does apply.

Id. at 869.

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

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 pre cedent is not reasonable, when that decision fails to app ly the principle of a precedent in a context where such failure is unreasonable, or when that decision reco gnizes the correct principle from the higher court's p recedent, but unreasonably applies that principle to the facts before it (assuming the facts are insufficiently d ifferent from those that gave rise to the precedent as to constitute a new context for consideration of the princi ple'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" c learly

16established Supreme Court encompasses three distinc t

scenarios: (1) the state court extends Supreme Cour t precedent to cover a new factual context in which application of the precedent is unreasonable; (2) t he state court unreasonably fails to apply a precedent in a factual context that warrants its application; or (3) the s tate court applies the correct precedent, but unreasonably in light of the facts of the case before it. Of course, all thr ee scenarios require a definition of "unreasonable"; in the Four th Circuit's view, the habeas court must inquire wheth er "the state courts have decided the question by interpret ing 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 Eleve nth Circuits, which interpret AEDPA to require a distin ction between pure questions of law, which are reviewed d e 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; Lin dh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997).1 As explaine d by the Fifth Circuit in Drinkard, this approach is premise d on the view that courts resolve three types of questions: questions of law, questions of fact, and mixed questions of l aw and fact. See 97 F.3d at 767. Section 2254(d)(2) appear s 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 the se courts read it, section 2254(d)(1) must cover quest ions of law and mixed questions of law and fact. These cour ts interpret the "contrary to law" provision as govern ing questions of pure law and the "unreasonable applica tion of " provision as applying to mixed questions of la w and fact. Accordingly, they apply de novo review to que stions of

___________________________________________________ ______________

1. The Seventh Circuit developed the bifurcated app roach in Lindh, but more recently appears to have abandoned it. See Hal l v. Washington, 106 F.3d 742, 748 (7th Cir. 1997); see also O'Brien, 14 5 F.3d at 21 n.4 (noting the discrepancy between Lindh and Hall).

17pure law, which fall within the "contrary to" claus e, and a

more deferential standard to mixed questions fallin g within the "unreasonable application of" clause.

B. Analysis

As several courts have recognized, the text of AEDP A offers little guidance to the courts charged with a pplying 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-e xplicating"). Nevertheless, we must begin our analysis with the w ords of the statute. See, e.g., Bailey v. United States, 51 6 U.S. 137, 144 (1995). Section 2254(d) states that application s 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:fir st, habeas corpus relief is warranted when the state adjudication resulted in a decision that was "contr ary to" or an "unreasonable application of" clearly establishe d 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 -- sect ion 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 att empt 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); se e 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 plai n purpose of the statute.").

As noted, the Fourth Circuit's interpretation of AE DPA attempts to catalogue the situations in which a res ult might

18be "contrary to" or an "unreasonable application of " a

higher court's precedent. See 143 F.3d at 869-70. T he Green court held that a decision is "contrary to" p recedent when "either through a decision of pure law or the application of law to facts indistinguishable in an y material way from those on the basis of which the precedent was decided, that decision reaches a legal conclusion o r 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 princip le to a new context, fails to apply the principle in a cont ext where such failure is "unreasonable," or identifies the c orrect principle but unreasonably applies it to the facts before it (assuming those facts are not so different as to"co nstitute 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 scrutinizin g state court judgments under AEDPA. We believe that in pra ctice,

it will be difficult for a court to determine which , if any, of the foregoing scenarios is implicated in the case b efore it. In our view, a better analytical framework is provided by the First Circuit in O'Brien, which directs federal hab eas courts first to identify whether the Supreme Court has art iculated a rule specific enough to trigger "contrary to" rev iew; and second, only if it has not, to evaluate whether the state court unreasonably applied the relevant body of pre cedent.

See 145 F.3d at 24-25.

Consequently, we hold that the "contrary to" provis ion of AEDPA requires a federal habeas court first to iden tify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim. Like th e First Circuit, we believe this analysis requires "somethi ng more than a recognition that the Supreme Court has artic ulated a general standard that covers the claim." Id. at 2 4. Instead, the inquiry must be whether the Supreme Co urt

has established a rule that determines the outcome of the petition. Accordingly, we adopt O'Brien's holding t hat "[t]o obtain relief at this stage, a habeas petitioner mu st show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state cour t." Id. at

1924-25. In other words, it is not sufficient for the petitioner

to show merely that his interpretation of Supreme C ourt precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. This stand ard precludes granting habeas relief solely on the basi s 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 Cour t precedent. Rather, the critical question is "whethe r a Supreme Court rule -- by virtue of its factual simi larity (though not necessarily identicality) or its distil lation of general federal law precepts into a channeled mode of analysis specifically intended for application to v ariant 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 sta te 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 gover ning the claim, or because no such rule has been establi shed --

then the federal habeas court should undertake the second step of analyzing whether the decision was based on an "unreasonable application of " Supreme Court preced ent. 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 di sagrees with the state court's decision, or because, left t o 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 st ate court does not render that state court's decision `unreas onable'; certainly two courts can differ over the proper res olution of a close question without either viewpoint being unreasonable."); Hennon v. Cooper, 109 F.3d 330, 33 4 (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 constitu tes an

20"unreasonable application" of clearly established f ederal

law. As noted, O'Brien holds that a state court's a pplication of law is unreasonable only if it is "so offensive to existing precedent, so devoid of record support, or so arbit rary, as to indicate that it is outside the universe of plau sible,

credible outcomes." 145 F.3d at 25. This definition seemingly would exclude all but the most implausibl e of holdings. As a practical matter, we believe its eff ect 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 d ecision of the state's highest court -- was so far off the mar k as to suggest judicial incompetence.

We find the same flaw in the standard espoused by t he Fourth and Fifth Circuits. As noted, their approach inquires whether a reasonable jurist could reach th e 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 p recedent in a manner that reasonable jurists would all agree is unreasonable."); Drinkard, 97 F.3d at 769 ("[A]n ap plication of law to facts is unreasonable only when it can be said that reasonable jurists considering the question wo uld be of one view that the state court ruling was correct. I n other words, we can grant habeas relief only if a state c ourt decision is so clearly incorrect that it would not be debatable among reasonable jurists.") We believe a "no reasonable jurist" definition unduly discourages th e granting of relief insofar as it requires the feder al 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 merit s of the decision itself. For example, in Drinkard one membe r of the panel dissented from the majority's interpretation of the petitioner's constitutional claim; the court expres sly relied on this disagreement as the basis for concluding th at the state court's application of the law was not unreas onable.

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

21whether the jurists responsible for the state court decision

are reasonable: such an approach, like that of O'Br ien, 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 preceden t was objectively unreasonable. The federal habeas court should not grant the petition unless the state court decis ion, evaluated objectively and on the merits, resulted i n an outcome that cannot reasonably be justified under e xisting Supreme Court precedent. In making this determinati on, mere disagreement with the state court's conclusion s is not enough to warrant habeas relief. Furthermore, altho ugh AEDPA refers to "clearly established Federal law, ` as determined by the Supreme Court of the United State s,' " 28 U.S.C. S 2254(d)(1) (West Supp. 1998), we do not believe federal habeas courts are precluded from considerin g the

decisions of the inferior federal courts when evalu ating whether the state court's application of the law wa s reasonable. See O'Brien, 145 F.3d at 25 ("To the ex tent that inferior federal courts have decided factually simi lar cases, reference to those decisions is appropriate in asse ssing the

reasonableness vel non of the state court's treatme nt of the contested issue."). Instead, the primary significan ce of the phrase "as determined by the Supreme Court of the U nited 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 c ases 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 AEDP A's legislative history, which indicates Congress sough t to preserve independent review of federal constitution al claims, but to curtail its scope by mandating defer ence 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 S tate court reasonably applied Federal law, its decisio n must be upheld. Why is that a problematic standard? After all,

22Federal habeas review exists to correct fun damental

defects in the law. If the State court deci sion has reasonably applied Federal law it is hard t o say that a

fundamental defect exists.

141 Cong. Rec. S7848 (daily ed. June 7, 1995) (stat ement of Sen. Hatch). Another of the bill's sponsors, Sen ator Specter, observed that "under the bill deference wi ll be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a Stat e court's decision applying the law to the facts will be uphe ld." 142 Cong. Rec. S3472 (daily ed. Apr. 17, 1996) (stateme nt of Sen. Specter). These and other statements from the legislative history persuade us that Congress inten ded to

restrict habeas relief to cases in which the state court judgment rested upon an objectively flawed interpre tation of Supreme Court precedent. See also H.R. Conf. Rep . No. 104-518, at 111 (1996) (stating that AEDPA "require s deference to the determinations of state courts tha t are neither `contrary to,' nor an `unreasonable applica tion of,' clearly established federal law"). As one commentat or accurately recounts, in both houses of Congress sec tion 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 are a, which was governed primarily by Teague v. Lane, 489 U.S. 288 (1989). There, the Supreme Court held that a fe deral court cannot grant habeas relief to a petitioner ba sed on a

rule announced after his conviction and sentence be came final. See id. at 311. The Supreme Court has repeat edly recognized that "the Teague doctrine`validates reas onable, good-faith interpretations of existing precedents m ade by state courts . . . .' " O'Dell v. Netherland, 521 U .S. 151, 156 (1997) (quoting Butler v. McKellar, 494 U.S. 407, 4 14 (1990)).2

___________________________________________________ ______________

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

23The test of reasonableness in this context is objec tive, not

subjective: "Reasonableness, in this as in many oth er 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 obvi ous result in many cases. But we believe the same would be tru e under any faithful reading of the statute. Notions of

reasonableness abound in the law and are not ordina rily 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 defi nition or mechanical application"), quoted in Graham v. Conno r, 490 U.S. 386, 396 (1989). As the Seventh Circuit recent ly observed, the "unreasonable application of " standa rd

admits of no a fortiori definition: "None of this a nswers the question when a departure is so great as to be `unreasonable,' for that questions lacks an abstrac t answer . . . . Questions of degree -- like questions about the proper use of `discretion' -- lack answers to which the la bels `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, w e believe it is the intended result of the statutory language.

To summarize, we adopt the First Circuit's view tha t section 2254(d)(1) requires a two-step analysis. Fi rst, the

federal habeas court must determine whether the sta te court decision was "contrary to" Supreme Court prec edent that governs the petitioner's claim. Relief is appr opriate only if the petitioner shows that "Supreme Court pr ecedent 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 precede nt: that is, whether the state court decision, evaluate d objectively and on the merits, resulted in an outco me that cannot reasonably be justified. If so, then the pet ition should be granted.

24With 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 ta ping, and subsequent use in evidence, of his two telephon e conversations with Lubking deprived him of his righ t to counsel as secured by the Sixth and Fourteenth

Amendments to the United States Constitution. The S ixth 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. Co nst. amend. VI. Relying on Massiah v. United States , 37 7 U.S. 201 (1964) and its progeny, Matteo claims the Penns ylvania Superior Court's rejection of his Sixth Amendment argument was both "contrary to" and an "unreasonabl e application of " relevant Supreme Court precedent.

In Massiah, the Supreme Court held that deliberate elicitation of incriminating statements by a govern ment agent, outside the presence of a charged defendant' s attorney, violates the Sixth Amendment. Federal age nts 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 bet ween Massiah and the informant, in which Massiah made se veral incriminating remarks about his drug importation activities. At trial, the agent was permitted to te stify as to what he overheard on the radio transmitter, and Mas siah 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 o wn incriminating words, which federal agents had delib erately

elicited from him after he had been indicted and in the

absence of his counsel." 377 U.S. at 206. In a subs equent line of cases, the Court developed the Massiah doc trine governing the constitutionality of these so-called" secret interrogations." The cases establish three basic requirements for finding a Sixth Amendment violatio n: (1) the right to counsel must have attached at the time of the alleged infringement; (2) the informant must have b een

25acting as a "government agent"; and (3) the informa nt must

have engaged in "deliberate elicitation" of incrimi nating 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 separ ately to

determine whether the state court's conclusion with stands 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 attac hed at the time in question. It did, however, analyze whet her Lubking acted as a government agent and deliberatel y elicited information from Matteo. Because such an a nalysis would be unnecessary if Matteo's right to counsel h ad not attached, we believe the state court implicitly con cluded

that it had.

Generally, the Sixth Amendment right to counsel attaches "only at or after the initiation of advers ary 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. Illino is 434 U.S. 220, 226 (1977); Brewer v. Williams, 430 U.S. 387, 398 (1977); Kirby v. Illinois, 406 U.S. 682, 688 (1 972). Such proceedings include "formal charge, preliminary hea ring, indictment, information, or arraignment." Kirby, 40 6 U.S. at 689. The right also may attach at earlier stages, w hen "the accused is confronted, just as at trial, by the pro cedural system, or by his expert adversary, or by both, in a situation where the results of the confrontation mi ght well

settle the accused's fate and reduce the trial itse lf to a mere formality." Gouveia, 467 U.S. at 189 (citations omi tted). The crucial point is that the defendant is guaranteed t he protection of counsel from the moment he "finds him self faced with the prosecutorial forces of organized so ciety, and immersed in the intricacies of substantive and proc edural 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 r etained a lawyer, who ultimately represented him through th e trial.

26Matteo'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 recommende d denial of Matteo's petition on the grounds that his right to counsel had not yet attached. The District Court he ld otherwise, ruling that the right to counsel had att ached 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 ti me 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, i n 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 wel l aware of his legal representation. Under these circumstan ces, we believe Matteo's right to counsel had attached and he was entitled to the full protection of the Sixth Amendm ent.

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 analy sis, 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. Se e Depree v. Thomas, 946 F.2d 784, 793-94 (11th Cir. 1 991) ("There is, by necessity, no brightline rule for de termining whether an individual is a government agent for pur poses of the Sixth Amendment right to counsel."). In its sole case focusing on a determination of government agency, t he Supreme Court found the informant was an agent beca use he was paid and "acting under instructions" from th e government. See Henry, 447 U.S. at 270. The Court a lso cited facts that the informant was ostensibly a mer e fellow

inmate rather than a trusted friend of the defendan t and that the defendant was in custody and under indictm ent at the time of the alleged elicitation. The Court did not

27attempt to generalize these factors into a rule def ining

government agency for future cases, nor has it revi sited them in subsequent cases. Consequently, although ou r analysis is informed by the facts emphasized in Hen ry, we do not believe the Supreme Court has announced a ru le of sufficient specificity to merit "contrary to" revie w. Cf. O'Brien, 145 F.3d at 24 ("[T]he chief question is h ow 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 w as based upon an objectively unreasonable application of existing law. The lower federal courts have explica ted the holding of Henry in some detail: in particular, sev eral have held that the existence of an express or implied ag reement

between the state and the informant is an additiona l 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 of ficial existed at the time the elicitation takes place." D epree, 946 F.2d at 794; see also United States v. Taylor , 800 F.2d 1012, 1016 (10th Cir. 1986); Thomas v. Cox, 708 F.2 d 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 p rior arrangement between Lubking and the District Attorn ey or the police; Lubking did not receive any compensatio n for the information he provided; he had no history of a cting as a paid informant; and Lubking went to the police of his own volition after he had initially been contacted by t he Defendant on January 28, 1988.' " Commonwealth v. Matteo, No. 01158, mem. op. at 10 (Pa. Super. Ct. F eb. 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 rece ived no monetary compensation, Matteo argues Lubking's deci sion to cooperate with authorities was motivated by his desire not to become a suspect in the investigation of

28Calandriello's murder. As such, Matteo claims, the

arrangement between Lubking and the police amounted to a "quid pro quo" exchange in which the police agree d not to investigate Lubking in return for his cooperation. Such a quid pro quo -- in which the informant receives som e type of benefit, even if nonpecuniary, in exchange for a ssisting the authorities -- may constitute evidence of an ag ency relationship. See United States v. Brink, 39 F.3d 4 19, 423 n.5 (3d Cir. 1994) ("[W]e believe the Court meant t hat any informant who is offered money, benefits, preferent ial treatment, or some future consideration, including, but not limited to, a reduction in sentence, in exchange fo r eliciting information is a paid informant."). As noted, Matte o contends that Lubking cooperated in order to preven t himself from becoming a suspect in the investigatio n. Whatever Lubking's motivation, the record amply sup ports

the state court's determination that no deal was st ruck between Lubking and the police. Lubking himself tes tified

as follows:

Q. Now, prior to these calls, did the polic e 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 p olice?

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. Furthermor e, Detective Lampman, also of the Chester County Detec tive's Office, testified that Lubking was not scheduled to be interviewed as part of the investigation, thus bely ing

29Matteo's argument that Lubking cooperated to deflec t

suspicion from himself. Nor was there any evidence suggesting that Lubking believed he was a suspect i n Calandriello's killing. We will not speculate or in fer the existence of a quid pro quo agreement simply becaus e the informant's motives may not have been entirely altr uistic. 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 no r received any benefit for his cooperation with the p olice.

Matteo next argues that Lubking was acting under instructions from the police, a factor identified i n Henry, see 447 U.S. at 270, but not relied upon by the sta te court.

Matteo cites the fact that authorities showed Lubki ng how to use the recording equipment on the phone and dir ected him not to ask questions or otherwise elicit inform ation

from Matteo. We do not believe these instructions a re the kind contemplated by Henry. The instruction on how to operate the recording device was trivial and does n ot 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 p olice from notifying potential informants of this fact. In man y 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 argu ment that Lubking was acting under police instructions.

On the other hand, there is some evidence of an age ncy relationship in this case. Lubking was not a jailho use 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 statem ents to Lubking. In addition, Matteo was in custody at the time of the elicitation. See id. (examining whether defenda nt was in custody with formal charges pending when the incriminating statements were elicited). As the Sup reme Court has held, "the mere fact of custody imposes pressures on the accused; confinement may bring int o play

30subtle influences that will make him particularly

susceptible to the ploys of undercover Government a gents."

Id. at 274. The use of an informant in these circum stances "intentionally creat[es] a situation likely to indu ce [the accused] to make incriminating statements without t he assistance of counsel," and therefore is significan t to a finding of agency. Id. At the time of his conversat ions with Lubking, Matteo had been arrested for murder, preliminarily arraigned, and incarcerated. Certainl y, 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 cl ose one, AEDPA directs us to defer to the state court decisi on. 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 st rongly 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 Su preme Court precedent.

C. Deliberate Elicitation

Under Massiah and its progeny, the petitioner also must show "deliberate elicitation" of incriminating stat ements 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 delibera tely elicited information about the location of the gun by falsely telling Matteo he was not working for the police. T his falsehood allegedly induced Matteo to tell Lubking where the gun was hidden. Regarding the second conversati on, Matteo bases his claim on the fact that Lubking ask ed several questions about the precise location of the gun: for example, "So it's not in the grass?"; "So it's almo st underneath the bridge?"; "Was it frozen?"; and "Was the water frozen when you dropped it?" We must determin e whether the state court's decision that these state ments did not qualify as "deliberate elicitation" was contrar y to, or an unreasonable application of, the relevant Supreme C ourt precedent.

31The 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." Kuhlman n v. Wilson, 477 U.S. 436, 459 (1986). Accordingly, a de fendant does not prove a Sixth Amendment violation "simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminat ing statements to the police. Rather, the defendant mus t demonstrate that the police and their informant too k 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 ma n who had previously agreed to act as an informant in the same jail cell as the suspect, who then spontaneously ma de incriminating remarks to the informant. The lesson of Kuhlmann, we believe, is that the use of an informa nt -- even surreptitiously and through prior arrangement- - does not violate the Sixth Amendment so long as the info rmant merely listens to and reports the incriminating sta tements, rather than affirmatively seeking to induce them. S ee Brink, 39 F.3d at 422 (noting that the Sixth Amendment req uires an informant to be no more than a passive "listenin g post"). In this sense, the limitations on police conduct ar e analogous to those imposed by the entrapment defens e, where police may use undercover agents to afford opportunities to break the law but may not affirmat ively "originate a criminal design" or "implant in an inn ocent 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 exploitat ion by the State of an opportunity to confront the accused without counsel being present." Id. at 176; accord Henry, 4 47 U.S. at 274 (holding that the Sixth Amendment forbids th e state from "intentionally creating a situation likely to induce [defendant] to make incriminating statements withou t the assistance of counsel"). In Moulton, however, the i nformant actively induced the defendant to make incriminatin g

32statements 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 de tails of what had happened, and this technique caused Mou lton 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 va rious 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 thi s level of deliberate elicitation in either phone cal l. Lubking did not prompt Matteo to disclose the gun's locatio n; rather, Matteo voluntarily called Lubking on Januar y 27 and asked Lubking to retrieve the gun for him, obvi ously in an attempt to prevent the police from finding the m urder weapon. Plainly, it was necessary for Matteo to tel l Lubking where the gun was hidden. In fact, the entire purpo se 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. Althoug h we recognize that it is unimportant whether Matteo ini tiated 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 t hat after being notified of Matteo's initial request, the pol ice merely "listened in" as Matteo provided the information th at 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 w as "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 respo nded almost exclusively with monosyllabic rejoinders suc h as "okay," "yeah," "uh-huh," and the like.3 The fact t hat near

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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 approximat ely 5 minutes. Regardless of the precise number of such responses, appellee is correct that both conversations consisted almost entirely o f detailed statements by Matteo followed by one-word answers from Lubking

.

33the end of the second call Lubking asked a few clar ifying

questions, which were directly responsive to statem ents Matteo had just made, does not alter the fundamenta l nature of the exchange between the two men: namely, Matteo enlisted Lubking's help to track down the mu rder weapon and voluntarily provided him with the inform ation necessary to do so.4

We are also not convinced by Matteo's argument that deliberate elicitation is proved by Lubking's state ments in the first conversation that he was not acting at th e behest of police. Although the statements were false, we a re aware of no rule suggesting that deliberate elicitation o ccurs whenever an informant misrepresents that he is not cooperating with authorities. Matteo claims such a principle is established by the following statement in Moulto n: "By concealing the fact that [the informant] was an age nt of the State, the police denied [defendant] the opportunit y to

consult with counsel and thus denied him the assist ance 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 incri minating statements made to them are excluded by the Sixth Amendment. If that were the case, criminal suspects could easily circumvent all undercover investigative tech niques. Rather, "[w]hen an accused voluntarily chooses to m ake an incriminatory remark in these circumstances, he kno wingly assumes the risk that his confidant may be untrustw orthy." Henry, 447 U.S. at 297-98 (Rehnquist, J., dissentin g).

We agree with the Pennsylvania Superior Court's determination that Lubking did not deliberately eli cit incriminating information from Matteo in either pho ne call. Certainly, we do not believe the state court decisi on contravened established Supreme Court precedent to the

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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 com municated 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.

34extent 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 te chniques that are the equivalent of direct police interrogat ion." Kuhlmann, 477 U.S. at 459; Moulton, 474 U.S. at 177 n.13 (finding Sixth Amendment violation because the elic itation 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 reas onable 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 ca ses.

IV. Harmless Error

We also note that even if a Sixth Amendment violati on had occurred, we would still affirm on the grounds that the

state court's failure to exclude the recorded conve rsations and the gun was harmless. The other evidence agains t Matteo, although circumstantial, was very strong. T he jury still would have been presented evidence that Lubki ng loaned Matteo a .22 caliber rifle that was never re turned and that this rifle was consistent with the type of gun that killed Calandriello. Additionally, the following fa cts still would have been presented to the jury: Matteo and Calandriello had scheduled a meeting for noon on Ja nuary 13, 1998; Calandriello left for this meeting and ne ver returned; Calandriello's car and apartment keys wer e found in Matteo's apartment along with a wad of $100 bill s similar to the bills Calandriello told friends he w ould 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 Matte o'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

35conversations and the gun had no " `substantial and

injurious effect or influence in determining the ju ry'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 tha t the police inevitably would have discovered the gun.

V. Conclusion

The state court decision was neither contrary to, n or an unreasonable application of, clearly established fe deral law as determined by the Supreme Court of the United St ates. Accordingly, the District Court correctly dismissed Matteo's habeas petition.

We will affirm the judgment of the District Court.

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