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. e du/thir dc ir c uit_1999/219Filed 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 design ation.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 corpu s 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 magistr ate judge dated April 1, 1997, and denying Hartey's pet ition without an evidentiary hearing. Inasmuch as both th e magistrate judge and the district court wrote comprehensive opinions, see Hartey v. Vaughn, 1997 WL 710946 (E.D. Pa. Nov. 14, 1997) (district court opi nion), the Superior Court of Pennsylvania wrote a published op inion on Hartey's direct appeal, see Commonwealth v. Hart ey, 621 A.2d 1023 (Pa. Super. Ct. 1993), and we recentl y 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 tr ied Hartey and McCandless together in the Philadelphia Common Pleas Court for crimes arising from the murd er of Theodore Stebelski. Originally, the police arrested John Barth for the murder, but in part as a result of in formation Barth supplied, the Commonwealth refocused the investigation on Hartey and McCandless. The prosecu tion's theory at the trial was that McCandless and Hartey killed

2Stebelski so that he could not testify against McCa ndless at

a criminal trial. Although the prosecution intended to call Barth as a witness to testify about the killing, an d expected that his testimony would directly link Hartey to th e murder scene, Barth did not appear at trial. The trial jud ge ruled, however, that Barth's preliminary hearing testimony could

be read into the record as a substitute for his liv e testimony and the court permitted its use against both defend ants. The jury convicted both Hartey and McCandless offir st degree murder, criminal conspiracy, and possession of an

instrument of crime.

Unfortunately, Hartey's original attorneys (not cou nsel on this appeal) did not prosecute his appeal appropria tely and thus there were substantial delays in his direct ap pellate process. When the appeal finally was prosecuted, Ha rtey presented six issues to the Superior Court, all fra med as ineffective assistance of counsel claims. The Super ior Court denied all six claims on the merits in its publishe d opinion. See Commonwealth v. Hartey, 621 A.2d 1023. Hartey thereafter unsuccessfully sought allocatur from the Supreme Court of Pennsylvania, Commonwealth v. Hart ey, 656 A.2d 117 (Pa. 1993), advancing only four of the claims.

Then on October 4, 1996, Hartey filed the proceedin gs in the district court leading to this appeal, raising the following four issues which he also had presented t o the Pennsylvania Superior and Supreme Courts:

1. Trial counsel was ineffective for failing to ob ject to the Court's accomplice instruction which per mitted the conviction of an accomplice based on his joi ning the actor in `an illegal act' and failed to focu s the attention of the jury on whether or not the accomplice shared or harbored the specific intent to kill that ha d 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 failin g to object to the improper bolstering of the Barth testimo ny by the prosecutor in her opening address.

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

the Court's exclusion of defense witnesses w ho would have testified to the poor reputation for tr uth and veracity on the part of the most critical Co mmonwealth witness, John Barth.

4. Trial counsel was ineffective for failing to pr operly preserve his objection to the Court's refusa l to answer the first jury inquiry in the affirmative.

On this appeal Hartey raises only the first two iss ues noted above but expands on them as he presents them as both ineffective assistance of counsel claims and d ue process claims. Hartey's refocusing of the claims i s understandable as our order granting the certificat e of appealability recites as follows:

The foregoing request for a certificate of a ppealability 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 Assis tant District Attorney Murray which may have led the jury to believe that the prosecution had independ ent evidence corroborating witness Barth's testi mony that was not presented to the jury. See United St ates v. Molina- Guevara, 96 F.3d 698, 704-705 (3d Ci r. 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. 19 95) (en banc); and (2) the court's instruction regar ding the definition of an accomplice. See Smith v. Ho rn, 120 F.3d 400, 411-15 (3d Cir. 1997); Rock v. Zim merman, 959 F.2d 1237, 1246 (3d Cir. 1992).

Nevertheless, we must consider our order granting t he certificate of appealability in the context of this case, which established that Hartey pursued a writ of habeas co rpus in the district court solely on ineffective assistance of counsel grounds, and the court denied the writ concluding t hat Hartey was not entitled to relief on that theory. T hus, 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. 1 994) (claims not raised before district court in habeas petition are waived on appeal).

4II. DISCUSSION

At the outset of our discussion of the merits of Ha rtey's claims we refer to our recent opinion in McCandless v. Vaughn, 172 F.3d 255. In that habeas corpus proceed ing under 28 U.S.C. S 2254, we granted a writ to McCand less, Hartey's co-defendant, on the ground "that the pros ecution did not fulfill its duty to protect McCandless's constitutional right to confront the key witness[Jo hn Barth] against him." See McCandless, 172 F.3d at 25 8. Hartey, however, did not raise this Confrontation C lause claim before the Pennsylvania state courts or in th e district court. In fact, Hartey did not advance this point e ven in his primary briefs to this court; instead, he challenge d his

incarceration based on this confrontation violation only after we requested the parties to submit letter bri efs detailing what effect, if any, McCandless had on th is appeal. Thus, Hartey cannot raise the confrontation issue at this late date, and McCandless cannot control ou r result on this appeal. See Baker v. Barbo, 177 F.3d 149, 1 56 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. Ce rtainly, we can understand how it might appear to be incongr uous that only one of two petitioners can obtain relief on the basis of a constitutional error apparently applicab le to both. Nevertheless, habeas corpus law involves the application of well-established principles that, am ong other things, recognize the comity between the federal an d 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 w hat "justice" might require and thus Hartey's failure t o 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 assistanc e of counsel claims that are actually before us.1

___________________________________________________ ______________

1. We delayed our decision on this appeal pending d isposition of McCandless, which was argued before we heard argume nt in this case.

5The thrust of Hartey's claim relating to the prosec utor's

opening statement and Murray's testimony is that th ey invited the jury to believe that independent eviden ce not presented to it corroborated Barth's preliminary he aring testimony. Hartey's challenge to the jury instructi ons 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 ha beas corpus petition after the effective date of the Ant iterrorism and Effective Death Penalty Act of 1996 ("AEDPA") w e must apply the standard of review as required by that Ac t in 28 U.S.C. S 2254(d). The AEDPA greatly circumscribes o ur review of state court decisions. Thus, we recently indicated

that the AEDPA

mandates a two-part inquiry; first, the fede ral court must inquire whether the state court decisio n was `contrary to' clearly established federal la w, as determined by the Supreme Court of the Unite d States; second, if it was not, the federal court mus t evaluate whether the state court judgment rests upon an objectively unreasonable application of clea rly 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 decisio n as the starting point in habeas review." Id. at 885. Of co urse, on this appeal we exercise plenary review over the ord er of the

district court as that court did not conduct an evi dentiary 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 2 84, 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 McC andless. As it happens, however, McCandless is of limited signific ance here because that case turned on an issue not properly before us on this appeal.

6A. Improper Vouching

Hartey's first claim is that his trial counsel was ineffective for failing to object to improper vouching for Bart h's preliminary hearing testimony, which he alleges ill egally bolstered the statements of the key witness against him. Specifically, Hartey complains that there was impro per vouching when the prosecutor stated in her opening argument that the government's agreement with Barth was based on "verifying" his statements, and when Assis tant District Attorney Murray testified that the agreeme nt was conditioned on "corroborating" Barth's information. Hartey
is correct that federal law establishes that refere nce 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. 1 989) (overruled in part, on other grounds, by United Sta tes v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (en ban c)). Thus, an attorney's failure to object to the govern ment'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 co ncluded that there had not been improper vouching. See Hart ey, 621 A.2d at 1026-27. The court noted first that, un der state law, it was the government's obligation to pr ovide full disclosure about any favorable agreements reached w ith its witnesses. See id. at 1026. Then, it stated that th e 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 testim ony 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 St ebelski.

See id.

Applying the Matteo standard, we cannot conclude th at the Superior Court's application of law was contrar y to established Supreme Court precedent or was an unreasonable application of clearly established Sup reme Court jurisprudence. A defendant's ineffective assi stance of

7counsel 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 Ha rtey'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 unrea sonable for him to acquiesce in the presentation of proper statements and testimony.

We have indicated that a determination of whether t here has been improper vouching and, if so, whether ther e should be a reversal must be determined on a case b y case basis. See United States v. Zehrbach, 47 F.3d at 12 64-67. Moreover, much as did the Superior Court, we have l ooked

to the extensive trial record to determine whether an allegedly improper statement in fact referred to ex tra-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 dete rmined 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 in stance, the prosecution presented the medical examiner's op inion 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 McCandl ess had pistol-whipped Stebelski and then shot him as h e was running away. Other evidence that generally support ed Barth's statements included testimony that McCandle ss had a motive to kill Stebelski, who had brought var ious criminal complaints against McCandless and shot at McCandless' wife's car, that Stebelski came to McCa ndless' garage that day at McCandless' urging, and that the garage, which McCandless owned, contained the type of bulle ts used in the shooting.

Hartey argues, however, that this corroborating evi dence did not verify his involvement in the murder but on ly that

8of McCandless. We find this argument unconvincing. The

prosecutor and Murray spoke merely of corroborating Barth's account of how the murder occurred; the evi dence 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 respe cts, 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 fa ct presented evidence corroborating Barth's statements at trial. Like the Superior Court, we have reversed co nvictions based on improper vouching only where we have concl uded that evidence in the record could not have supporte d the prosecution's statements. See DiLoreto, 888 F.2d at 999 (reversing on direct appeal where prosecutor in clo sing argument stated that its witnesses were not liars b ecause government does not "take liars" but there was no e vidence 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 app eal where prosecutor stated in closing that had an abse nt witness testified, he would have confirmed the test imony of other government witnesses). For us to grant a writ in this case would require us to hold that the government n ever may reveal that its agreement with a witness includ ed a corroboration requirement, even when it presents corroborating evidence at trial. Neither Supreme Co urt jurisprudence nor our own case law requires such a ruling, and therefore, applying the Matteo standard, we mus t reject Hartey's ineffective assistance of counsel claim ba sed on his attorney's failure to object to and preserve object ions to improper vouching.2

___________________________________________________ ______________

2. We also note that this is not a case where the g overnment emphasized the corroboration required by its agreement through out the trial. The prosecutor mentioned the verification requirement b riefly in her opening, and Murray, who testified early in this ten-day tri al, referred to it at only one point in his testimony, within the context of d escribing Barth's agreement with the government. The prosecutor did n ot discuss the issue in her closing statement.

9B. The Jury Charge

We now consider Hartey's claims that his counsel wa s ineffective for failing to object and preserve his objection to the accomplice liability charge read to the jury. T he Superior Court explained this issue as follows:

Appellant next contends that trial counsel was ineffective for failing to object to the tri al 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 appel lant'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 a ppellant of first degree murder it had to find, beyond a reasonable doubt, that appellant had the specific inten t to kill.

Commonwealth v. Hartey, 621 A.2d at 1028. Once agai n, the Superior Court disposed of the issue by looking at the underlying merit of Hartey's claim; it found that c ounsel was not ineffective because the jury instructions w ere

correct.

We need not evaluate the accomplice liability instr uction

itself because we conclude that the record establis hes that Hartey's counsel was effective on this issue by mak ing and preserving his objections. In any event, the Superi or Court considered Hartey's challenge to the accomplice lia bility instruction, and thus Hartey suffered no prejudice from counsel's alleged failure to preserve his objection s to the instruction. See Strickland, 466 U.S. at 694, 104 S .Ct. at 2068 (defendant must show prejudice caused by couns el's

conduct to succeed on ineffective assistance of cou nsel claim).

As we have indicated, the trial transcript shows th at Hartey's counsel did object to the accomplice liabi lity charge. As the district court discussed in its deci sion, the transcript reveals that Hartey's counsel sought cha nges to the accomplice liability instruction that the trial judge rejected. For instance, counsel asked for the accom plice charge to include an instruction that the jury shou ld consider the evidence against each defendant separa tely. The judge rejected this instruction and counsel not ed his

10objections for the record. Finally, when the jury s howed its

confusion about the nature of accomplice liability by asking during its deliberations whether two individuals tr ied for the same charge could be innocent or guilty of diff erent degrees of murder, Hartey's counsel vigorously argu ed 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 separa tely. 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 ask ed the jurors to rephrase their question and then re-read to them the charge it previously had given on accomplice li ability. Based on these facts, and particularly in light of the Superior Court's consideration of Hartey's challeng e to the instruction on the merits, we find that Hartey's co unsel was

not ineffective under Strickland.

III. CONCLUSION

For the foregoing reasons the order of November 14, 1997, will be affirmed.

11NOONAN, Circuit Judge, dissenting:

Before the Pennsylvania Superior and Supreme Courts
, Hartey's first point on appeal was this: "Trial cou nsel was ineffective for failing to object to the Court's ac complice instruction which permitted the conviction of an ac complice based on his joining the actor in `an illegal act' and failed to focus the attention of the jury on whether or no t the accomplice shared or harbored the specific intent t o kill

that had to be found as to the actor."

Hartey made ineffective assistance of counsel in re gard to this instruction his first claim in his habeas peti tion to the district court. As the majority observes, it is thi s claim that

is before us now.

Hartey was tried for a murder committed by McCandle ss, 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 accompli ce of another person who commits a crime. He is an accomp lice 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 i n planning or committing it. . . . You may find the d efendant guilty of a crime on the theory that he was an acco mplice as long as you are satisfied beyond a reasonable do ubt 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 thefirs t degree. It instructed the jury that first degree mu rder was an intentional killing. Intentional killing, the co urt 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 o f 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

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

had the intent of promoting McCandless's crime of m urder. Under Pennsylvania law, specific intent to kill is an ingredient of first degree murder. See Smith v. Hor n, 120 F.3d 400, 411 (3rd Cir. 1997). The trial court omit ted 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 Sand strom
error constituted ineffective assistance. It fell b elow professional standards of competence and there is a reasonable probability that, but for counsel's erro r, the result of the proceedings would have been different . See Strickland v. Washington, 466 U.S. 668, 687, 694 (1 984).

The commonwealth contends that the jury instruction s were correct as the decision of the Superior Court so holds, Commonwealth v. Hartey, 621 A.2d 1023, 1028 (Pa. Su per. Ct. 1993), and that this decision of state law bind s 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 ins truction 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 eva luate the accomplice liability instruction itself because we conclude that the record establishes that Hartey's counsel was effective on this issue by making and preservin g his objections." But in no way did counsel point out th e Sandstrom error. No one looking at the vague and ha lting remonstrance of counsel could imagine that he was c alling the attention of the trial judge to a problem of constitutional dimensions and citing to Supreme Cou rt authority already five years old and already employ ed 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 su ffered no prejudice from counsel's alleged failure to preserv e his objections to the instructions." But the Superior C ourt

13reached 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 the m.

The Superior Court contented itself with noting tha t the trial court's charge on accomplice liability had "m irrored the relevant statutory definitions" and that the tr ial court had told the jurors to ask themselves if "the defen dants" had the "premeditated specific intent to kill at th e 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 co uld find Hartey to be guilty as an accomplice to murder if h e had had the intent of promoting the killing. The single reference to "defendants" was cloudy; it was not specified th at each of the defendants must independently have the speci fic intent to kill; a juror could reasonably have under stood

that the intent of one defendant should be attribut ed to the other as the instruction on accomplice suggested. A t the very least, the instruction, if taken to require th e specific intent to kill on the part of the accomplice, was contradicted by the instruction on accomplice liabi lity. Contradictory instructions cancel each other out, l eaving 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 consp iracy to murder, and conspiracy to murder is an agreement intentionally to kill. The commonwealth relies on t he trial court's instruction that first degree murder consis ts in intentional killing. But the trial court's instruct ion on conspiracy to murder blunted the focus on intention al killing by stating that the jurors would have tofin d that in planning or committing murder "the defendants do so with the intent of promoting or facilitating the commiss ion of the crime of murder." Specific intent to kill was not n oted. That the jury was in fact at sea because of the erroneou s instruction is confirmed by their note during delib erations asking the court "to explain what an accomplice is according to law" in response to which the court ma gnified

14its error by repeating its accomplice instructions without

objection. In any event, the commonwealth's point h as no relevance now. Hartey was sentenced to no less than five, 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 consp iracy.

Hartey's claim of ineffective assistance of counsel in his prosecution for murder suffices for him to be accor ded habeas. Two further considerations make grant of th e great writ not only legally appropriate but morally fair. First, review of Hartey's case is narrowly circumscribed b y the

AEDPA because no less than three members of the bar undertook to represent him in the 1980's and defaul ted his state appeal by failing to file an appellate brief. The Superior Court cured these defaults as best it coul d by reinstating the appeal. No federal remedy exists fo r the harm that they inflicted on Hartey. But no one fami liar with the AEDPA can doubt that Hartey's position today ha s suffered because of these lapses by his lawyers.

Second, Thomas McCandless, the co-defendant, the already-convicted murderer, has been held by this c ourt 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 Bar th seventeen years ago, "the only substantial evidence implicating McCandless in the murder." Id. at 266. Barth, the missing witness whose preliminary hearing testi mony the state then relied on, is now deceased, apparent ly having committed suicide after being arrested in a drug bu st. As our opinion in McCandless observes, the state "did not expend the minimal effort necessary" to get a warra nt for telephone records by which they could track Barth a nd have him on hand for the trial. Id. at 268. The pro secutor's

efforts to locate their star witness were "casual." Id. The prosecutor "did not satisfy its Sixth Amendment dut y 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-fe deral

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

concedes that the disparate results "might appear t o be incongruous." Not incongruous, I should say, but un just. It is good that there be a way, not procedurally barre d, by which the injustice may be avoided.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16