1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1999

Hartey v. Vaughn

Precedential or Non-Precedential:

Docket 97-2034

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Recommended Citation

"Hartey v. Vaughn" (1999). 1999 Decisions. Paper 219.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/219
Filed July 30, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-2034 

PATRICK HARTEY, 

 Appellant 

v. 

DONALD VAUGHN, 

THE DISTRICT ATTORNEY OF THE 

COUNTY OF PHILADELPHIA; 

THE ATTORNEY GENERAL OF THE STATE 

OF PENNSYLVANIA 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 96-06812) 

District Judge: Honorable Herbert J. Hutton 

Argued October 8, 1998 

BEFORE: GREENBERG, NYGAARD, and 

NOONAN,* Circuit Judges 

(Filed: July 30, 1999) 

 Norris E. Gelman (argued) 

 6th & Walnut Streets 

 The Curtis Center 

 Philadelphia, Pa. 19106 

 Attorney for Appellant 

_________________________________________________________________ 

*Honorable John T. Noonan, Jr., Senior Judge of the United States Court 

of Appeals for the Ninth Circuit, sitting by designation. 
 Donna G. Zucker (argued) 

 Chief, Federal Litigation 

 Ronald Eisenberg 

 Deputy District Attorney 

 Lynne Abraham 

 District Attorney 

 1421 Arch Street 

 Philadelphia, Pa. 19102 

 Attorneys for Appellee 

OPINION OF THE COURT 

GREENBERG, Circuit Judge: 

I. INTRODUCTION 

Patrick Hartey, the petitioner in this habeas corpus 

proceeding under 28 U.S.C. S 2254, appeals from an order 

of the district court entered on November 14, 1997,

adopting the report and recommendation of a magistrate 

judge dated April 1, 1997, and denying Hartey's petition 

without an evidentiary hearing. Inasmuch as both the 

magistrate judge and the district court wrote 

comprehensive opinions, see Hartey v. Vaughn, 1997 WL 

710946 (E.D. Pa. Nov. 14, 1997) (district court opinion), the 

Superior Court of Pennsylvania wrote a published opinion 

on Hartey's direct appeal, see Commonwealth v. Hartey, 

621 A.2d 1023 (Pa. Super. Ct. 1993), and we recently wrote 

a published opinion in a habeas corpus case brought by 

Thomas McCandless, a codefendant, see McCandless v.

Vaughn, 172 F.3d 255 (3d Cir. 1999), we only need 

summarize the background of the case. 

In August 1982, the Commonwealth of Pennsylvania tried 

Hartey and McCandless together in the Philadelphia 

Common Pleas Court for crimes arising from the murder of 

Theodore Stebelski. Originally, the police arrested John 

Barth for the murder, but in part as a result of information 

Barth supplied, the Commonwealth refocused the 

investigation on Hartey and McCandless. The prosecution's 

theory at the trial was that McCandless and Hartey killed 

 2 
Stebelski so that he could not testify against McCandless at 

a criminal trial. Although the prosecution intended to call 

Barth as a witness to testify about the killing, and expected 

that his testimony would directly link Hartey to the murder 

scene, Barth did not appear at trial. The trial judge ruled, 

however, that Barth's preliminary hearing testimony could 

be read into the record as a substitute for his live testimony 

and the court permitted its use against both defendants. 

The jury convicted both Hartey and McCandless offirst 

degree murder, criminal conspiracy, and possession of an 

instrument of crime. 

Unfortunately, Hartey's original attorneys (not counsel on 

this appeal) did not prosecute his appeal appropriately and 

thus there were substantial delays in his direct appellate 

process. When the appeal finally was prosecuted, Hartey 

presented six issues to the Superior Court, all framed as 

ineffective assistance of counsel claims. The Superior Court 

denied all six claims on the merits in its published opinion. 

See Commonwealth v. Hartey, 621 A.2d 1023. Hartey 

thereafter unsuccessfully sought allocatur from the

Supreme Court of Pennsylvania, Commonwealth v. Hartey, 

656 A.2d 117 (Pa. 1993), advancing only four of the claims. 

Then on October 4, 1996, Hartey filed the proceedings in 

the district court leading to this appeal, raising the 

following four issues which he also had presented to the 

Pennsylvania Superior and Supreme Courts: 

 1. Trial counsel was ineffective for failing to ob ject to 

 the Court's accomplice instruction which permitted the 

 conviction of an accomplice based on his joining the 

 actor in `an illegal act' and failed to focus the attention 

 of the jury on whether or not the accomplice shared or 

 harbored the specific intent to kill that had to be found 

 as to the actor. 

 2. Trial counsel was ineffective for failing to pr eserve 

 his objections to the improper bolstering of the Barth 

 preliminary hearing testimony in his written post trial 

 motions, and was also ineffective for failing to object to 

 the improper bolstering of the Barth testimony by the 

 prosecutor in her opening address. 

 3 
 3. Trial counsel was ineffective for failing to ob ject to 

 the Court's exclusion of defense witnesses who would 

 have testified to the poor reputation for truth and 

 veracity on the part of the most critical Commonwealth 

 witness, John Barth. 

 4. Trial counsel was ineffective for failing to pr operly 

 preserve his objection to the Court's refusal to answer 

 the first jury inquiry in the affirmative. 

On this appeal Hartey raises only the first two issues 

noted above but expands on them as he presents them as 

both ineffective assistance of counsel claims and due 

process claims. Hartey's refocusing of the claims is 

understandable as our order granting the certificate of 

appealability recites as follows: 

 The foregoing request for a certificate of appealability is 

 granted for the purpose of deciding whether Hartey's 

 right to due process was denied by: (1) the prosecutor's 

 opening statement and the testimony of Assistant 

 District Attorney Murray which may have led the jury 

 to believe that the prosecution had independent 

 evidence corroborating witness Barth's testimony that 

 was not presented to the jury. See United States v. 

 Molina- Guevara, 96 F.3d 698, 704-705 (3d Cir. 1996); 

 United States v. DiLoreto, 888 F.2d 996, 999 (3d Cir 

 1989), overruled in part, on other grounds, by United 

 States v. Zehrbach, 47 F.3d 1252 (3d Cir. 1995) (en 

 banc); and (2) the court's instruction regarding the 

 definition of an accomplice. See Smith v. Horn, 120 

 F.3d 400, 411-15 (3d Cir. 1997); Rock v. Zimmerman, 

 959 F.2d 1237, 1246 (3d Cir. 1992). 

Nevertheless, we must consider our order granting the 

certificate of appealability in the context of this case, which 

established that Hartey pursued a writ of habeas corpus in 

the district court solely on ineffective assistance of counsel 

grounds, and the court denied the writ concluding that 

Hartey was not entitled to relief on that theory. Thus, we 

are constrained to assess Hartey's claims under the Sixth 

Amendment and not under the Due Process Clause. See

Smith v. Farley, 25 F.3d 1363, 1365 n.2 (7th Cir. 1994) 

(claims not raised before district court in habeas petition 

are waived on appeal). 

 4 
II. DISCUSSION 

At the outset of our discussion of the merits of Hartey's 

claims we refer to our recent opinion in McCandless v. 

Vaughn, 172 F.3d 255. In that habeas corpus proceeding 

under 28 U.S.C. S 2254, we granted a writ to McCandless, 

Hartey's co-defendant, on the ground "that the prosecution 

did not fulfill its duty to protect McCandless's 

constitutional right to confront the key witness[John 

Barth] against him." See McCandless, 172 F.3d at 258. 

Hartey, however, did not raise this Confrontation Clause 

claim before the Pennsylvania state courts or in the district 

court. In fact, Hartey did not advance this point even in his 

primary briefs to this court; instead, he challenged his 

incarceration based on this confrontation violation only 

after we requested the parties to submit letter briefs 

detailing what effect, if any, McCandless had on this 

appeal. Thus, Hartey cannot raise the confrontation issue 

at this late date, and McCandless cannot control our result 

on this appeal. See Baker v. Barbo, 177 F.3d 149, 156 n.7 

(3d Cir. 1999). 

Hartey seeks to avoid this rather obvious result by relying 

on Finney v. Zant, 709 F.2d 643, 646-47 (11th Cir. 1983), 

for the proposition that "justice" requires that we permit 

him to obtain relief on the basis of McCandless. Certainly, 

we can understand how it might appear to be incongruous 

that only one of two petitioners can obtain relief on the 

basis of a constitutional error apparently applicable to 

both. Nevertheless, habeas corpus law involves the 

application of well-established principles that, among other 

things, recognize the comity between the federal and state 

courts and usually require that a petitioner under 28 

U.S.C. S 2254 present his claims for relief in the first 

instance in the state courts. We are not at liberty to 

disregard these principles because our concept of what 

"justice" might require and thus Hartey's failure to raise the 

Confrontation Clause issue until after argument on this 

appeal bars him from relying on it now. Therefore, we 

confine our discussion to the ineffective assistance of 

counsel claims that are actually before us.1 

_________________________________________________________________ 

1. We delayed our decision on this appeal pending disposition of 

McCandless, which was argued before we heard argument in this case. 

 5 
The thrust of Hartey's claim relating to the prosecutor's 

opening statement and Murray's testimony is that they 

invited the jury to believe that independent evidence not 

presented to it corroborated Barth's preliminary hearing 

testimony. Hartey's challenge to the jury instructions 

centers on their alleged failure to inform the jury that it 

could convict him of first degree murder only if it

determined that he, rather than merely McCandless, had a 

specific intent to kill. 

Inasmuch as Hartey (unlike McCandless) filed his habeas 

corpus petition after the effective date of the Antiterrorism 

and Effective Death Penalty Act of 1996 ("AEDPA") we must 

apply the standard of review as required by that Act in 28 

U.S.C. S 2254(d). The AEDPA greatly circumscribes our 

review of state court decisions. Thus, we recently indicated 

that the AEDPA 

 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. 

Matteo v. Superintendent, 171 F.3d 877, 880 (3d Cir. 1999) 

(en banc). Accordingly, as we explained in Matteo, section 

2254(d) "firmly establishes the state court decision as the 

starting point in habeas review." Id. at 885. Of course, on 

this appeal we exercise plenary review over the order of the 

district court as that court did not conduct an evidentiary 

hearing and nothing in the AEDPA or Matteo requires that 

we do otherwise. See Cabrera v. Barbo, 175 F.3d 307, 312 

(3d Cir. 1999); Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 

n.5 (3d Cir. 1991). 

_________________________________________________________________ 

Moreover, we further delayed our decision in order to give the parties an 

opportunity to file letter briefs commenting on McCandless. As it 

happens, however, McCandless is of limited significance here because 

that case turned on an issue not properly before us on this appeal. 

 6 
A. Improper Vouching 

Hartey's first claim is that his trial counsel was ineffective 

for failing to object to improper vouching for Barth's 

preliminary hearing testimony, which he alleges illegally 

bolstered the statements of the key witness against him. 

Specifically, Hartey complains that there was improper 

vouching when the prosecutor stated in her opening 

argument that the government's agreement with Barth was 

based on "verifying" his statements, and when Assistant 

District Attorney Murray testified that the agreement was 

conditioned on "corroborating" Barth's information. Hartey 

is correct that federal law establishes that reference to 

extra-record evidence by the government constitutes

improper bolstering that, in certain circumstances, may 

justify a reversal of a defendant's conviction. See United 

States v. DiLoreto, 888 F.2d 996, 998-99 (3d Cir. 1989) 

(overruled in part, on other grounds, by United States v. 

Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (en banc)). 

Thus, an attorney's failure to object to the government's 

improper vouching for its witnesses could give rise to an 

ineffective assistance of counsel claim. 

The Pennsylvania Superior Court, however, rejected 

Hartey's ineffective assistance claim because it concluded 

that there had not been improper vouching. See Hartey, 

621 A.2d at 1026-27. The court noted first that, under 

state law, it was the government's obligation to provide full 

disclosure about any favorable agreements reached with its 

witnesses. See id. at 1026. Then, it stated that the 

prosecutor's statements and Murray's testimony had not 

referred to extra-record evidence as the government

presented corroborating evidence during the trial. See id. at 

1027. Specifically, the court pointed to the testimony of the 

medical examiner, who confirmed Barth's account of how 

the murder had occurred, as well as other evidence 

establishing the ill will between McCandless and Stebelski. 

See id. 

Applying the Matteo standard, we cannot conclude that 

the Superior Court's application of law was contrary to 

established Supreme Court precedent or was an 

unreasonable application of clearly established Supreme 

Court jurisprudence. A defendant's ineffective assistance of 

 7 
counsel claim can succeed only if he can show that 

counsel's conduct was professionally unreasonable. See 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 2064 (1984). Thus, if there is no merit to Hartey's 

claims that the prosecution's statements and Murray's 

testimony should not have been permitted at trial, his 

counsel cannot be deemed ineffective for not having

objected to their presentation, as it was not unreasonable 

for him to acquiesce in the presentation of proper 

statements and testimony. 

We have indicated that a determination of whether there 

has been improper vouching and, if so, whether there 

should be a reversal must be determined on a case by case 

basis. See United States v. Zehrbach, 47 F.3d at 1264-67. 

Moreover, much as did the Superior Court, we have looked 

to the extensive trial record to determine whether an 

allegedly improper statement in fact referred to extra-record 

evidence. See DiLoreto, 888 F.2d at 999. 

The Superior Court's conclusion that the government

presented corroborating evidence at Hartey's trial was not 

contrary to clearly established federal law as determined by 

the Supreme Court and was not an unreasonable 

application of Supreme Court jurisprudence. See 28 U.S.C. 

S 2254(d)(2) (stating that district court can grant writ for 

petitioner in state custody if state court decision was based 

on unreasonable determination of the facts). For instance, 

the prosecution presented the medical examiner's opinion 

that the victim, Stebelski, first had been hit with a blunt 

object on the head and then shot in the back. This 

testimony confirmed Barth's statements that McCandless 

had pistol-whipped Stebelski and then shot him as he was 

running away. Other evidence that generally supported 

Barth's statements included testimony that McCandless 

had a motive to kill Stebelski, who had brought various 

criminal complaints against McCandless and shot at 

McCandless' wife's car, that Stebelski came to McCandless' 

garage that day at McCandless' urging, and that the garage, 

which McCandless owned, contained the type of bullets 

used in the shooting. 

Hartey argues, however, that this corroborating evidence 

did not verify his involvement in the murder but only that 

 8 
of McCandless. We find this argument unconvincing. The 

prosecutor and Murray spoke merely of corroborating

Barth's account of how the murder occurred; the evidence 

presented at trial supplied this corroboration. The jury was 

thus free to infer, although it need not have done so, that 

given the accuracy of Barth's account in many respects, his 

statements implicating Hartey were also accurate. 

Therefore, we conclude that the Superior Court did not 

act unreasonably in finding that there had not been

improper vouching because the prosecution had in fact 

presented evidence corroborating Barth's statements at 

trial. Like the Superior Court, we have reversed convictions 

based on improper vouching only where we have concluded 

that evidence in the record could not have supported the 

prosecution's statements. See DiLoreto, 888 F.2d at 999 

(reversing on direct appeal where prosecutor in closing 

argument stated that its witnesses were not liars because 

government does not "take liars" but there was no evidence 

presented at trial of how government ascertains the honesty 

of its witnesses); United States v. Molina-Guevara, 96 F.3d 

698, 704-05 (3d Cir. 1996) (reversing on direct appeal 

where prosecutor stated in closing that had an absent 

witness testified, he would have confirmed the testimony of 

other government witnesses). For us to grant a writ in this 

case would require us to hold that the government never 

may reveal that its agreement with a witness included a 

corroboration requirement, even when it presents 

corroborating evidence at trial. Neither Supreme Court 

jurisprudence nor our own case law requires such a ruling, 

and therefore, applying the Matteo standard, we must reject 

Hartey's ineffective assistance of counsel claim based on his 

attorney's failure to object to and preserve objections to 

improper vouching.2 

_________________________________________________________________ 

2. We also note that this is not a case where the government emphasized 

the corroboration required by its agreement throughout the trial. The 

prosecutor mentioned the verification requirement briefly in her opening, 

and Murray, who testified early in this ten-day trial, referred to it at 

only 

one point in his testimony, within the context of describing Barth's 

agreement with the government. The prosecutor did not discuss the 

issue in her closing statement. 

 9 
B. The Jury Charge 

We now consider Hartey's claims that his counsel was 

ineffective for failing to object and preserve his objection to 

the accomplice liability charge read to the jury. The 

Superior Court explained this issue as follows: 

 Appellant next contends that trial counsel was 

 ineffective for failing to object to the trial court's jury 

 charge. Specifically, appellant argues that the court's 

 charge directed the attention of the jury to the state of 

 mind of the co-defendant and permitted appellant's 

 conviction based on the state of mind of the co- 

 defendant. Appellant asserts that the court never 

 informed the jury that in order to convict appellant of 

 first degree murder it had to find, beyond a reasonable 

 doubt, that appellant had the specific intent to kill. 

Commonwealth v. Hartey, 621 A.2d at 1028. Once again, 

the Superior Court disposed of the issue by looking at the 

underlying merit of Hartey's claim; it found that counsel 

was not ineffective because the jury instructions were 

correct. 

We need not evaluate the accomplice liability instruction 

itself because we conclude that the record establishes that 

Hartey's counsel was effective on this issue by making and 

preserving his objections. In any event, the Superior Court 

considered Hartey's challenge to the accomplice liability 

instruction, and thus Hartey suffered no prejudice from 

counsel's alleged failure to preserve his objections to the 

instruction. See Strickland, 466 U.S. at 694, 104 S.Ct. at 

2068 (defendant must show prejudice caused by counsel's 

conduct to succeed on ineffective assistance of counsel 

claim). 

As we have indicated, the trial transcript shows that 

Hartey's counsel did object to the accomplice liability 

charge. As the district court discussed in its decision, the 

transcript reveals that Hartey's counsel sought changes to 

the accomplice liability instruction that the trial judge 

rejected. For instance, counsel asked for the accomplice 

charge to include an instruction that the jury should 

consider the evidence against each defendant separately. 

The judge rejected this instruction and counsel noted his 

 10 
objections for the record. Finally, when the jury showed its 

confusion about the nature of accomplice liability by asking 

during its deliberations whether two individuals tried for 

the same charge could be innocent or guilty of different 

degrees of murder, Hartey's counsel vigorously argued that 

the trial court should simply answer this question yes. 

Such an answer implicitly would have told the jury that it 

had to consider the intent of each defendant separately. 

The judge disagreed with Hartey's counsel, stating his view 

that, legally, the answer to the question should be no. 

Ultimately, over counsel's objection, the court asked the 

jurors to rephrase their question and then re-read to them 

the charge it previously had given on accomplice liability. 

Based on these facts, and particularly in light of the 

Superior Court's consideration of Hartey's challenge to the 

instruction on the merits, we find that Hartey's counsel was 

not ineffective under Strickland. 

III. CONCLUSION 

For the foregoing reasons the order of November 14,

1997, will be affirmed. 

 11 
NOONAN, Circuit Judge, dissenting: 

Before the Pennsylvania Superior and Supreme Courts, 

Hartey's first point on appeal was this: "Trial counsel was 

ineffective for failing to object to the Court's accomplice 

instruction which permitted the conviction of an accomplice 

based on his joining the actor in `an illegal act' and failed 

to focus the attention of the jury on whether or not the 

accomplice shared or harbored the specific intent to kill 

that had to be found as to the actor." 

Hartey made ineffective assistance of counsel in regard to 

this instruction his first claim in his habeas petition to the 

district court. As the majority observes, it is this claim that 

is before us now. 

Hartey was tried for a murder committed by McCandless, 

as to which the state's theory was that Hartey was an 

accomplice. The trial court instructed the jury: "A

defendant is guilty of a crime if he is an accomplice of 

another person who commits a crime. He is an accomplice 

if with the intent of promoting or facilitating the

commission of the crime, he solicits, commands, 

encourages, requests the other person to commit it, or aids, 

agrees to aid or attempts to aid the other person in 

planning or committing it. . . . You may find the defendant 

guilty of a crime on the theory that he was an accomplice 

as long as you are satisfied beyond a reasonable doubt that 

the crime was committed and that the defendant was an 

accomplice of the person who committed it." 

The trial court went on to define murder in thefirst 

degree. It instructed the jury that first degree murder was 

an intentional killing. Intentional killing, the court said, 

was "by means of poison, or by lying in wait, or by any 

other kind of wilful, deliberate, and premeditated killing. 

Therefore, in order to find the defendants guilty of murder 

in the first degree, you must find that the killing was a 

wilful, deliberate, and premeditated act. You must ask 

yourself the question, Did the defendants have the wilful, 

deliberate and premeditated specific intent to kill at the 

time of the killing?" 

Defense counsel did not competently object to these

instructions. The instructions, however, permitted the jury 

 12 
to convict Hartey of first degree murder if it found that he 

had the intent of promoting McCandless's crime of murder. 

Under Pennsylvania law, specific intent to kill is an 

ingredient of first degree murder. See Smith v. Horn, 120 

F.3d 400, 411 (3rd Cir. 1997). The trial court omitted this 

factual requirement and so instructed the jury in a way 

contrary to Sandstrom v. Montana, 442 U.S. 510, 521

(1979). Defense counsel's failure to object to Sandstrom 

error constituted ineffective assistance. It fell below 

professional standards of competence and there is a

reasonable probability that, but for counsel's error, the 

result of the proceedings would have been different. See 

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). 

The commonwealth contends that the jury instructions 

were correct as the decision of the Superior Court so holds, 

Commonwealth v. Hartey, 621 A.2d 1023, 1028 (Pa. Super. 

Ct. 1993), and that this decision of state law binds this 

court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 

U.S.C. S 2254(d)(1). But the omission in a jury instruction 

of an element of the crime is contrary to Sandstrom; the 

Superior Court's endorsement of the error does not supply 

the omission or correct the error. 

The majority in this court states: "We need not evaluate 

the accomplice liability instruction itself because we 

conclude that the record establishes that Hartey's counsel 

was effective on this issue by making and preserving his 

objections." But in no way did counsel point out the 

Sandstrom error. No one looking at the vague and halting 

remonstrance of counsel could imagine that he was calling 

the attention of the trial judge to a problem of 

constitutional dimensions and citing to Supreme Court 

authority already five years old and already employed to 

vacate a number of state criminal convictions. See e.g., 

Arroyo v. Jones, 685 F.2d 35, 39-41 (2d Cir. 1982); Guthrie 

v. Warden, Maryland Penitentiary, 683 F.2d 820, 826 (4th 

Cir. 1982). 

The majority opinion goes on to say, "In any event, the 

Superior Court considered Hartey's challenge to the

accomplice liability instruction and thus Hartey suffered no 

prejudice from counsel's alleged failure to preserve his 

objections to the instructions." But the Superior Court 

 13 
reached the unconstitutional conclusion that the 

accomplice instructions were correct; and therefore the 

Superior Court did not adequately address Hartey's 

contention that his counsel failed to object to them. 

The Superior Court contented itself with noting that the 

trial court's charge on accomplice liability had "mirrored 

the relevant statutory definitions" and that the trial court 

had told the jurors to ask themselves if "the defendants" 

had the "premeditated specific intent to kill at the time of 

killing." Commonwealth v. Hartey, 621 A.2d at 1028. The 

reference to "the defendants" in the plural did not save a 

charge that had unequivocally told the jury they could find 

Hartey to be guilty as an accomplice to murder if he had 

had the intent of promoting the killing. The single reference 

to "defendants" was cloudy; it was not specified that each 

of the defendants must independently have the specific 

intent to kill; a juror could reasonably have understood 

that the intent of one defendant should be attributed to the 

other as the instruction on accomplice suggested. At the 

very least, the instruction, if taken to require the specific 

intent to kill on the part of the accomplice, was 

contradicted by the instruction on accomplice liability. 

Contradictory instructions cancel each other out, leaving no 

instruction. They do not cure the Sandstrom error. The 

error was of constitutional dimension. See Smith v. Horn, 

120 F.3d at 415. So was counsel's failure to object to it. 

The commonwealth has a fallback position: the error was 

harmless because the jury convicted Hartey of conspiracy 

to murder, and conspiracy to murder is an agreement

intentionally to kill. The commonwealth relies on the trial 

court's instruction that first degree murder consists in 

intentional killing. But the trial court's instruction on 

conspiracy to murder blunted the focus on intentional 

killing by stating that the jurors would have tofind that in 

planning or committing murder "the defendants do so with 

the intent of promoting or facilitating the commission of the 

crime of murder." Specific intent to kill was not noted. That 

the jury was in fact at sea because of the erroneous 

instruction is confirmed by their note during deliberations 

asking the court "to explain what an accomplice is 

according to law" in response to which the court magnified 

 14 
its error by repeating its accomplice instructions without 

objection. In any event, the commonwealth's point has no 

relevance now. Hartey was sentenced to no less thanfive, 

and no more than ten, years on the conspiracy count, the 

term to run concurrently with his life imprisonment for 

murder. Long ago he finished his sentence for conspiracy. 

Hartey's claim of ineffective assistance of counsel in his 

prosecution for murder suffices for him to be accorded 

habeas. Two further considerations make grant of the great 

writ not only legally appropriate but morally fair. First, 

review of Hartey's case is narrowly circumscribed by the 

AEDPA because no less than three members of the bar

undertook to represent him in the 1980's and defaulted his 

state appeal by failing to file an appellate brief. The 

Superior Court cured these defaults as best it could by 

reinstating the appeal. No federal remedy exists for the 

harm that they inflicted on Hartey. But no one familiar with 

the AEDPA can doubt that Hartey's position today has 

suffered because of these lapses by his lawyers. 

Second, Thomas McCandless, the co-defendant, the 

already-convicted murderer, has been held by this court to 

deserve a new trial. See McCandless v. Vaughn, 172 F.3d 

255, 270 (3d Cir. 1999). It is possible, indeed it is likely, 

that he will walk. The opinion of this court throws out the 

principal testimony offered against him by John Barth 

seventeen years ago, "the only substantial evidence

implicating McCandless in the murder." Id. at 266. Barth, 

the missing witness whose preliminary hearing testimony 

the state then relied on, is now deceased, apparently having 

committed suicide after being arrested in a drug bust. As 

our opinion in McCandless observes, the state "did not 

expend the minimal effort necessary" to get a warrant for 

telephone records by which they could track Barth and 

have him on hand for the trial. Id. at 268. The prosecutor's 

efforts to locate their star witness were "casual." Id. The 

prosecutor "did not satisfy its Sixth Amendment duty to 

make reasonable good faith efforts to obtain Barth's 

presence at trial." Id. at 270. 

Hartey was as deeply injured by the prosecutor's 

procedure as McCandless. This court finds that a 

procedural bar, enacted in the interest of state-federal 

 15 
comity, forbids us to consider this injury now. This court 

concedes that the disparate results "might appear to be 

incongruous." Not incongruous, I should say, but unjust. It 

is good that there be a way, not procedurally barred, by 

which the injustice may be avoided. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16