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. e du/thir dc ir c uit_1999/86Filed March 30, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-1585

THOMAS MCCANDLESS, Appellant

v.

DONALD T. VAUGHN; THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA; DISTRICT ATTORNEY FOR

PHILADELPHIA COUNTY

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 96-cv-02310) District Judge: Hon. Herbert J. Hutton

Argued September 18, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and HOEVELER,* District Judge

(Opinion Filed March 30, 1999)

Peter Goldberger (Argued)
Pamela A. Wilk Law Office of Peter Goldberger
50 Rittenhouse Place Ardmore, PA 19003-2276 Attorneys for Appellant

___________________________________________________ ______________

*Honorable William M. Hoeveler, Senior United State s District Judge for the Southern District of Florida, sitting by design ation.Donna G. Zucker (Argued)

Chief, Federal Litigation Ronald Eisenberg Deputy District Attorney,
Law Division

Arnold H. Gordon 1st Assistant District Attorney Lynne Abraham District Attorney

1421 Arch Street Philadelphia, PA 19102-1582 Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Thomas McCandless appeals the District Court's deni al of his habeas corpus application under 28 U.S.C. S 2254, alleging that his conviction for murder and related charges in a Pennsylvania Court of Common Pleas violated hi s federal constitutional and statutory rights. McCand less's appeal presents four claims for habeas relief. Firs t, he contends that admission of a prosecution witness' d ouble hearsay testimony violated his Sixth Amendment righ t to confrontation. Second, he argues that a District At torney's Office official's testimony regarding the "corrobor ation" condition of the cooperation agreement between that office and the prosecution's key witness amounted to impro per prosecutorial vouching and deprived him of due proc ess. Third, McCandless contends that the trial court lac ked jurisdiction to try him because Pennsylvania extrad ited him from New Jersey in violation of the Interstate Agre ement on Detainers Act. Fourth, McCandless claims that admis sion of the prosecution's key witness' preliminary heari ng testimony violated his Sixth Amendment right to
confrontation.

We conclude that McCandless's first two claims are procedurally defaulted and that his third is withou t merit. However, because we conclude that the prosecution d id not

2fulfill its duty to protect McCandless's constituti onal right

to confront the key witness against him, we will re verse.

I.

On August 11, 1980, Philadelphia police arrived at a crime scene where Theodore Stebelski had been shot to death. An eyewitness at the scene, William Hopkins, told police that he had heard gunshots coming from a gar age rented by McCandless located at 2206 East Fletcher Street in Philadelphia. According to Hopkins, after the gu nshots, Stebelski crashed through the garage door, collapse d on the sidewalk, picked himself up, and ran around the cor ner finding refuge against a blue Buick parked nearby. Hopkins then observed another man, later identified as John Barth, running from the garage. Barth quickly returned to the garage to assist another man in removing the collap sed garage door from a blue Chevrolet. The other man sp ed away in the Chevrolet once it was freed. McCandless owned a 1955 Chevrolet similar to the one Hopkins observe d. Barth then ran to the blue Buick where the bleeding Stebelski lay, grabbed Stebelski by the neck and sh ook him. After Hopkins intervened, Barth sped away in t he
Buick. Police and a medical rescue unit soon arrive d. Despite the rescue unit's efforts, however, Stebels ki died of two gunshot wounds to the shoulder and trunk of his body.

Police arrested Barth for the Stebelski murder. Aft er negotiations with the District Attorney's office, B arth agreed to serve as a cooperating witness and gave a statem ent implicating McCandless and Patrick Hartey in the mu rder. In return, prosecutors promised that, if Barth's in formation was corroborated by investigators, they would (i) f acilitate his release on bail, and (ii) at the successful con clusion of the case, drop the charges against him.

On September 15, 1981, the Commonwealth filed criminal complaints charging McCandless and Hartey with
Stebelski's murder and issued warrants for their ar rest. At the time, however, McCandless and Hartey were both incarcerated in New Jersey on unrelated offenses. Accordingly, Pennsylvania began extradition proceed ings under the Interstate Agreement on Detainers Act ("I AD").

3See 42 Pa. Cons. Stat. Ann. S 19101. McCandless's

extradition was sought on the basis of theft and dr ug offenses unrelated to the Stebelski murder. Despite McCandless's resistance, he was extradited on Febru ary 17,
1982.

The Commonwealth prosecuted McCandless and Hartey jointly for the Stebelski murder. At a preliminary hearing, Barth, the only eyewitness to the shooting inside t he garage, testified about the murder. Barth stated th at McCandless had "pistol whipped" and shot Stebelski in the back as he fled. After the hearing, Barth disappear ed and did not testify at McCandless's trial. Barth's prel iminary hearing testimony, however, was admitted at trial.

The trial judge made three significant evidentiary
decisions which form the basis of three of McCandle ss's four claims for habeas relief. First, the court det ermined
that Barth was "unavailable" and allowed Barth's preliminary hearing testimony to be read to the jur y. Second, the court allowed Joseph Murray, chief of t he Homicide Unit of the District Attorney's Office, to testify regarding the terms of Barth's cooperation agreemen t, including two statements regarding the agreement's "corroboration" condition. Third, the court admitte d alleged double hearsay testimony by Stebelski's friend, Dav id Antovich, who had driven Stebelski to McCandless's garage on the day of the crime. Antovich testified that, w hile he was waiting for Stebelski, an unidentified man told him that "Tommy said to take a ride and come back infiv e minutes." McCandless's first name is Thomas.

On August 20, 1982, the jury found McCandless guilt y of first degree murder, criminal conspiracy and posses sion of
an instrument of crime. The court sentenced McCandl ess to mandatory life imprisonment on the murder count and an aggregate consecutive prison term of seven and one half to fifteen years on the other charges.

McCandless appealed his conviction to the Pennsylva nia Superior Court raising approximately thirty claims of error. The Superior Court affirmed the murder and conspira cy convictions, but vacated the possession conviction. Commonwealth v. McCandless, 512 A.2d 52 (Pa. Super. Ct.

41986)(table). McCandless then filed an application for

permission to appeal to the Pennsylvania Supreme Co urt. The application abandoned the majority of McCandles s's Superior Court claims and listed only four grounds for relief. The Pennsylvania Supreme Court denied the application for discretionary review. See Commonwea lth v. McCandless, 522 A.2d 557 (Pa. 1987)(table).

Nine years later, on March 21, 1996, McCandlessfile d a petition for habeas corpus relief in the District C ourt. The District Court rejected all thirteen claims present ed in his petition. As we have noted, McCandless appeals the District Court's resolution of only four of these claims. Th is court granted McCandless's application for a certificate of probable cause and we have jurisdiction under 28 U. S.C. S 2253. AEDPA's habeas corpus amendments do not app ly to this case because McCandless's application was f iled prior to, and was pending on, AEDPA's effective dat e. See Lindh v. Murphy, 117 S.Ct. 2059 (1997); United Stat es v. Skandier, 125 F.3d 178 (3d Cir. 1997).

"Because the District Court relied entirely upon th e state court record and did not hold an evidentiary hearin g, our review [of the District Court's decision] is plenar y." Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998)(citi ng Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 19 97). Like the District Court, we must presume all state court factual findings to be correct, 28 U.S.C. S 2254(d) , but we "exercise plenary review over state court conclusio ns on mixed questions of law and fact and pure issues of law." Hassine, 160 F.3d at 947; see Miller v. Fenton, 474 U.S. 104, 105 (1985)(holding that while "subsidiary fact ual questions" are subject to S 2254(d)'s presumption, the ultimate legal question of confession's constitutio nal voluntariness "is a matter for independent federal determination"); Sumner v. Mata, 455 U.S. 591, 597 (1982)(ultimate question of pretrial identification procedure's constitutionality presented "mixed ques tion of law and fact that is not governed by S 2254(d)"); D aniel v. Warden, State Correction Inst. at Huntingdon, Pa., 794 F.2d 880, 883 (3d Cir. 1986) (S 2254(d) factual presumpt ion does not apply to ultimate legal question of whether constitutional right against double jeopardy was vi olated).

5II.

Federal courts have the power to entertain habeas c orpus applications by persons in state custody claiming t hat they "[are] in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. S 2254(a) . As a general rule, federal courts may exercise the power to consider habeas applications only where "it appears that the applicant has exhausted the remedies available in the courts of the State." Walker v. Vaughn, 53 F.3d 609 , 614 (3d Cir. 1995)(quoting 28 U.S.C. S 2254(b)). The ex haustion rule requires applicants to "fairly present" federa l claims to state courts before bringing them in federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v

. Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackw ell, 134 F.3d 506, 513 (3d Cir. 1998). When a claim is n ot exhausted because it has not been "fairly presented " to the state courts, but state procedural rules bar the ap plicant from seeking further relief in state courts, the ex haustion requirement is satisfied because there is "an absen ce of available State corrective process." 28 U.S.C.S 225 4(b). In such cases, however, applicants are considered to h ave procedurally defaulted their claims and federal cou rts may
not consider the merits of such claims unless the a pplicant establishes "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his or her defaul t. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The parties agree that McCandless is procedurally b arred from asserting his claims in the Pennsylvania state courts. Thus, any claim not already fairly presented to Pennsylvania's courts would be procedurally default ed. Accordingly, we may only consider the merits of
McCandless's habeas claims in either of two circums tances. First, we may consider any exhausted claim that McCandless "fairly presented" to Pennsylvania's cou rts. Second, even if we conclude that McCandless did not "fairly present" a particular claim, we may still consider its merits if McCandless excuses his procedural default by demonstrating "cause and prejudice" or a "miscarria ge of justice."

The District Court determined that McCandless had n ot

6fairly presented his double hearsay and prosecutori al

vouching claims to the state courts.1 We agree.

To "fairly present" a claim, a petitioner must pres ent a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted. See Anderson v. Harless, 4 59 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).
It is not sufficient that a "somewhat similar state -law claim was made." Harless, 459 U.S. at 6. Yet, the petitio ner need
not have cited "book and verse" of the federal cons titution. Picard, 404 U.S. at 277.

The Supreme Court most recently applied these principles in Duncan v. Henry, 513 U.S. 364 (1995). There, the habeas applicant had been convicted in state co urt for
sexual molestation. The trial court admitted testim ony by the parent of a child who claimed to have been mole sted by the applicant 20 years earlier. The applicant's sta te appeal claimed that the trial court erred in admitting the parent's testimony without making any reference to federal l aw. The state courts analyzed and rejected the claim under California constitutional and evidence law. The app licant then filed a federal habeas corpus application clai ming the evidentiary error deprived him of his constitutiona l due process rights. The Ninth Circuit held that the app licant had "fairly presented" his federal claim to the sta te courts because "it is not necessary to invoke `the talisma nic phrase "due process of law' " or cite the `book and verse on the federal constitution' " to notify state courts of federal claims. Id. at 366 (citing Henry v. Estelle, 33 F.3 d 1037 (9th Cir. 1994)). The Supreme Court reversed, holding th at the federal claim had not been fairly presented to the state

courts.

We read Duncan as reaffirming the teaching of Harle ss and Picard that the absence of explicit reference t o federal
law does not resolve the issue of whether a federal claim

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1. The District Court determined that McCandless ha d "fairly presented" his IAD claim and his claim that admitting Barth's preliminary hearing testimony violated the Confrontation Clause. Our re view of the record confirms the District Court's conclusion. According ly, we consider the
merits of these claims infra in section III of this opinion.

7was fairly presented. It also reaffirms, however, t hat

petitioners must have communicated to the state cou rts in some way that they were asserting a claim predicate d on federal law. As the Court explained:

[E]xhaustion of state remedies requires that petitioners `fairly presen[t]' federal claims to the sta te courts in order to give the State the opportunity to p ass upon and correct alleged violations of its prison ers' federal rights. If state courts are to be given the opportunity to correct alleged violations of prisoners' fed eral rights, they must surely be alerted to the fact that the prisoners are asserting claims under the Uni ted States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not on ly in federal court, but in state court.

Id. at 365-66 (citations and quotations omitted).

In Evans v. Court of Common Pleas, De. County, Pa., 959 F.2d 1227 (3d Cir 1992), we noted some of the ways in which petitioners may communicate that they are ass erting a federal claim without explicitly referencing spec ific portions of the federal constitution or statutes. Q uoting from Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), we observed that the requ ired message can be conveyed through "(a) reliance on pe rtinent federal cases employing constitutional analysis, (b ) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by th e Constitution, and (d) allegation of a pattern of fa cts that is well within the mainstream of constitutional litiga tion." Evans, 959 F.2d at 1232. As in Duncan, however, the petitioner here did not, by these means or any othe r, serve fair notice that he was asserting either of his due process claims.

McCandless's "double hearsay" claim in state court made no reference to a constitutional or federal right a nd cited only state cases considering state evidence law wit hout employing any constitutional analysis.2 McCandless 's

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2. The Court of Common Pleas opinion cited one case , Commonwealth v. Darden, 457 A.2d 549 (Pa. 1983), involving a pure m atter of state

8Pennsylvania Superior and Supreme Court briefs do n ot

assert this claim in "terms so particular as to bri ng to mind" a constitutional right, nor do they "allege a pattern
of facts well within the mainstream of constitution al litigation." To the contrary, this "double hearsay" claim brings to mind a classic evidence issue which is pr ecisely how it was understood by the state courts.

Similarly, McCandless presented his "prosecutorial vouching" claim to Pennsylvania's courts as an evid entiary law challenge and not as a violation of a federal o r constitutional right. He did not assert this claim in terms that bring to mind a constitutional right. On the c ontrary, his Superior and Pennsylvania Supreme Court briefs
articulated this claim in terms similar to a Rule 4 03 objection, contending that the cooperation agreemen t testimony was "irrelevant" and "prejudicial" and th erefore improperly admitted. Nowhere are the terms "constit ution", "due process" or even "fair trial" mentioned. The c ases cited were predominantly state cases that considered stat e evidence law issues and did not employ constitution al analysis.3 Finally, we note that there is no simila rity in the

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evidence law. The Superior Court affirmed without c iting authority. McCandless's Superior Court brief confined its argu ment to state evidence law and cited Commonwealth v. Floyd, 476 A .2d 414 (Pa. Super. Ct. 1984), Commonwealth v. Cruz, 414 A.2d 10 32 (Pa. 1980), Commonwealth v. Scott, 470 A.2d 91 (Pa. 1983), Comm onwealth v. Little, 364 A.2d 915 (Pa. 1976), Commonwealth v. Cimorose, 478 A.2d 1318 (Pa. Super. Ct. 1984), all state cases involving ev idence law issues. McCandless's Pennsylvania Supreme Court brief did n ot cite any additional authority.

3. The Court of Common Pleas opinion cited Commonwe alth v. Reed, 446 A.2d 311 (Pa. Super.Ct. 1982), which dealt with sta te evidence law and a prosecutor's state law ethical duty to present th eir case "fairly." It

held that improper vouching was a violation of this duty . Reed did not consider a constitutional claim. McCandless's Super ior Court brief also cited Reed and additionally Commonwealth v. Cygan, 243 A.2d 476 (Pa. Super. Ct. 1968), which dealt with state evidence l aw. The Superior
Court affirmed without discussion. McCandless's Pen nsylvania Supreme Court brief cited Floyd, Cygan, Cruz, and Reed and additionally Commonwealth v. Tann, 459 A.2d 322, (Pa. 1983); non e employed

9analysis applicable to these two claims. In state c ourt,

resolution required a determination of relevancy an d a balancing of possible prejudicial effect. McCandles s's claim that the same facts amounted to prosecutorial vouch ing in violation of due process involves an inquiry as to whether the prosecutorial misconduct undermined the fundame ntal
fairness of the entire trial. See Darden v. Wainwri ght, 477 U.S. 168, 183 (1986); Ramseur v. Beyer, 983 F.2d 12 15, 1239 (3d Cir. 1992)(en banc). Accordingly, here, as in Duncan, the state courts "analyzed the evidentiary error by asking whether its prejudicial effect outweighed it s probative value, not whether it was so inflammatory as to prevent a fair trial." Duncan, 513 U.S. at 366.

Thus, we conclude that McCandless did not fairly pr esent his double hearsay and prosecutorial vouching claim s to Pennsylvania's courts. Because McCandless is proced urally barred from asserting these claims in state court, his claims are considered exhausted due to procedural d efault. We may only consider these claims if McCandless exc uses his default by showing "cause and prejudice" or a "miscarriage of justice." See Coleman, 501 U.S. at 750. McCandless, however, makes no attempt to show eithe r. Accordingly, we are not free to consider them on th eir
merits.

III.

McCandless fairly presented Pennsylvania's courts w ith
his IAD claim and his claim that admission of Barth 's preliminary hearing testimony violated the Confront ation
Clause. We now consider the merits of these claims.

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constitutional analysis. In Tann, the Pennsylvania Supreme Court granted a new trial based upon ineffectiveness of d efense counsel for failing to object to highly prejudicial and irrelev ant prosecutorial bolstering. While McCandless's state court briefs c ited two federal cases considering claims of prosecutorial vouching, these cases did not reach constitutional issues for the propositions for whic h they are cited. See United States v. Winter, 663 F.2d 1120 (1st Cir. 19 81) and United States v. Roberts, 618 F.2d 530 (9th Cir. 1980).

10A.

The IAD "is a compact which has been adopted by 48 states, the District of Columbia, and the United St ates, to encourage expeditious and orderly disposition of outstanding criminal charges filed against a person incarcerated in a different jurisdiction." Cooney v . Fulcomer, 886 F.2d 41, 43 (3d Cir. 1989). IAD violations are cognizable in federal habeas corpus because the IAD is a "law of the United States" for purposes of 28 U.S.C . S 2254. See Reed v. Farley, 512 U.S. 339, 347 (1994)("While the IAD is indeed state law, it is a law of the United States as well."); Cooney, 886 F.2d at 43 n.1 ("The IAD [was]

. . . approved by Congress pursuant to the Compact Clause [and] . . . is a federal law . . . . Thus, the fede ral courts have habeas corpus jurisdiction . . .").

The IAD establishes procedures for the transfer of prisoners to face criminal prosecution in another s tate. Article V(d) provides:

The temporary custody referred to in this ag reement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or compla ints which
form the basis of the detainer or detainers or prosecution on any other charge or charges a rising out
of the same transaction. . . .

42 Pa. Cons. Stat. Ann. S 9101.

The parties agree that (i) McCandless was incarcera ted in New Jersey when Pennsylvania filed murder charges against him; (ii) Pennsylvania filed its IAD reques t based upon charges wholly unrelated to the Stebelski murd er; and (iii) Pennsylvania prosecuted McCandless on the murder charge when they gained custody under their IAD request. The parties also agree that this clearly v iolated Article V(d). They disagree, however, on whether th is IAD
violation warrants habeas relief. We conclude that our decision in Cooney v. Fulcomer, 886 F.2d 41 (3d Cir . 1989), is controlling here and that habeas relief must be denied.

In Cooney, Pennsylvania obtained custody of the hab eas applicant from New Jersey through an IAD request ba sed

11upon burglary charges. The state then (i) dismissed the

burglary charges, (ii) filed new robbery charges ba sed upon wholly unrelated events, and (iii) convicted the ap plicant on the robbery charges. See id. at 42. The applicant t hen sought federal habeas corpus relief based upon Pennsylvania's violation of IAD Article V(d). See i d. at 43. We concluded that Pennsylvania had blatantly violat ed Article V(d), but nonetheless held that the applica nt was
not entitled to habeas relief because violation of Article V(d)
"was not so fundamental as to warrant habeas relief ." Id. at
42.4

McCandless attempts to distinguish Cooney by arguin g that there the applicant alleged that Pennsylvania' s violation of Article V(d) deprived him of his "proc edural" right to contest his transfer before the sending st ate's Governor by knowing the charges upon which his tran sfer was based. By contrast, McCandless contends that he is asserting a "substantive" claim that Article V(d) d eprived the Court of Common Pleas of jurisdiction--both per sonal and subject matter--to try him for the crimes. He a rgues this is "fundamental" rather than merely procedural . We find this argument unavailing.

The Court of Common Pleas did not depend upon the I AD for personal or subject matter jurisdiction. Both a re independently provided by other Pennsylvania statut es. Under 42 Pa. Cons. Stat. Ann. S 931, the Court of C ommon Pleas has "unlimited original jurisdiction of all a ctions and proceedings . . . cognizable by law" except where o riginal jurisdiction has been delegated to another court in Pennsylvania's unified court system. The murder and related charges fall within this category. See Comm onwealth

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4. We have found violations of other IAD provisions insufficiently "fundamental" to warrant habeas relief. See Casper v. Ryan, 822 F.2d 1283 (3d Cir. 1987) (violation of article III's req uirement of trial
within 180 days of request by detainee not "fundamental de fect" warranting habeas relief); Shack v. Attorney Gen. of Pa., 776 F.2d 1170, 1173-74 (3d Cir. 1985)(violation of article IV(a)'s pre-transfe r hearing provision not sufficient to allow "the extraordinary sanction of a collateral attack on

an otherwise valid criminal conviction"); but see Unit ed States v. Williams, 615 F.2d 585 (3d Cir. 1980)(violation of article IV (e)'s antishuttling provision "fundamental" enough to warrant habeas re lief).

12v. Matlock, 393 A.2d 26, 28 (Pa. 1978)("The court o f

common pleas has jurisdiction to hear murder cases. "). The Court of Common Pleas' personal jurisdiction is pro vided by 42 Pa. Cons. Stat. Ann. S 5301(a)(1), which inter a lia provides personal jurisdiction over individuals who are present or domiciled in the Commonwealth when proce ss is served. McCandless was present in Pennsylvania when he was arrested for the murder charges. Personal juris diction does not depend upon how McCandless came to be pres ent in Pennsylvania. Indeed, as the District Court note d, under Supreme Court precedent the Court of Common Pleas might even have had jurisdiction if McCandless had been brought into Pennsylvania by forcible abduction. Fr isbee v. Collins, 342 U.S. 519, 522 (1952).5 In short, we c onclude that we are bound by our holding in Cooney that vio lations of IAD Article V(d) are not fundamental enough to w arrant
habeas relief.

B.

We now turn to McCandless's claim that admission of Barth's preliminary hearing testimony violated his rights
under the Confrontation Clause. The Sixth Amendment guarantees criminal defendants "the right to be con fronted with the witnesses against [them]." U.S. Const. ame nd. 6. Read literally, this clause "would require, on obje ction, the exclusion of any statement made by a declarant not present at trial." Ohio v. Roberts, 448 U.S. 56, 62 (1980). The

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5. McCandless also argues that the Supreme Court's decisions in United States v. Rauscher, 119 U.S. 407 (1886) and Johnson v. Browne, 205 U.S. 309 (1907), regarding the "rule of specialty" in international extradition law, apply to this case. We find this a rgument unpersuasive. In Rauscher, the Court interpreted an extradition t reaty between the United States and Great Britain as impliedly requir ing that individuals extradited under the treaty are tried only for the specific offenses upon which extradition was sought. 119 U.S. 407. The Bro wne Court
reaffirmed this rule of international law in a habe as corpus proceeding.
205 U.S. 309. These cases did not arise under a dom estic statute with its own controlling jurisprudence. Moreover, the Su preme Court has specifically held that the international law "rule of speciality" does not apply to domestic extraditions under the Extraditio n Clause. Lascelles v. Georgia, 148 U.S. 537, 542-43 (1893).

13Supreme Court, however, has interpreted the clause to

allow admission of non-testifying declarants' out o f court statements where the prosecution establishes that ( i) the declarant is "unavailable" and (ii) the statement b ears adequate "indicia of reliability." Id. at 65-6.

When prosecutors seek to admit a non-testifying wit ness' preliminary hearing testimony the Confrontation Cla use requires two things. First, the prosecution must es tablish that the declarant is "unavailable" by showing that "prosecutorial authorities have made a good-faith e ffort to obtain [the declarant's] presence at trial." Id. at 74; see also United States v. Steele, 685 F.2d 793, 808 (3d Cir. 1982)("The Confrontation Clause of the sixth amendm ent permits [admission of depositions in criminal trial s] when the witness is unavailable despite good-faith effor ts undertaken prior to trial to locate and present tha t witness."). Judging whether a "good faith" effort h as been made is "a question of reasonableness," and"the prosecution bears the burden of establishing this predicate." Roberts, 448 U.S. at 74-5 (quoting Cali fornia v. Green, 399 U.S. 149, 189 n.22 (1970)). Second, to s atisfy the "indicia of reliability" requirement, the prose cution must demonstrate that the defendant had an adequate opportunity to cross-examine the declarant at the preliminary hearing. See id. at 73.

McCandless claims that neither of these constitutio nal prerequisites were satisfied for the admission of B arth's preliminary hearing testimony. We find it necessary to address only the issue of whether Barth was constitutionally unavailable.6

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6. Because we find a Confrontation Clause violation based upon the prosecution's failure to establish Barth's unavaila bility, we find it unnecessary to address McCandless's additional clai m that admission of Barth's testimony violated the Confrontation Clause because he did not have an adequate opportunity to cross-examine Barth at the preliminary hearing. In his brief, McCandless conceded that he did not present this claim to the Pennsylvania Supreme Court and that it is procedurally defaulted. He attempted, however, to excuse this de fault on the ground that his counsel had been ineffective in failing to raise this claim in
his allocatur petition to the Pennsylvania Supreme Cour t. Because the same

14As noted, we must presume all state court factual

findings to be correct in our analysis of McCandles s's Confrontation Clause claim. 28 U.S.C. S 2254(d). "[ W]hile the presumption of correctness applies to the basic
, primary or historical facts, the ultimate issue of unavailability for purposes of the Confrontation Cl ause is a mixed question of fact and law, reviewable de novo. " Martinez v. Sullivan, 881 F.2d 921, 926 (10th Cir. 1989); see Burns v. Clusen, 798 F.2d 931, 941-42 (7th Cir. 1986); Dres v. Campoy, 784 F.2d 996, 998 (9th Cir. 1986)(" [W]e review de novo the question of whether the Supreme Court's standards for unavailability have been sati sfied in this case."); see also Thomas v. Gunter, 962 F.2d 1 477, 1483 (10th Cir. 1992)(whether hearsay statements me t Confrontation Clause's indicia of reliability requi rement presents "a mixed question of law and fact we revie w de novo").

The prosecution's Sixth Amendment duty requires it to undertake reasonable "good faith" efforts to locate witnesses before a court will admit a non-testifyin g witness' preliminary hearing testimony. See Roberts, 448 U.S . at 74- 75. The Supreme Court has noted that in fulfilling this duty:

The law does not require the doing of a futi le act. Thus, if no possibility of procuring the witness e xists (as for

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counsel had included this argument in McCandless's Superior Court brief, the District Court concluded that the failur e to reassert it was a strategic decision and not ineffective assistance o f counsel.

In rebuttal at oral argument, McCandless alternativ ely argued that he had indeed "fairly presented" this claim because he had included it in his only state appeal as a matter of right to the S uperior Court. McCandless requested this Court to consider whether "exhaustion" requires an applicant to present claims in state di scretionary appeals. We are not free to do so. This Court's precedents i ndicate that habeas petitioners must present their federal claims to th e state's highest

court. See Evans, 959 F.2d at 1230 ("A claim must be prese nted not only to the
trial court but also to the state's intermediate co urt as well as to its supreme court."); Caswell v. Ryan, 953 F.2d 853, 86 1 (3d Cir. 1992); Beaty v. Patton, 700 F.2d 110, 111 (3d Cir. 1983). But see Boerckel v. O'Sullivan, 135 F.3d 1194 (7th Cir.) cert. granted, 119 S. Ct. 508 (1998).

15example the witness' intervening death), "go od faith"

demands nothing of the prosecution. But if t here is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths t o which the prosecution must go to produce a witness . . . is a question of reasonableness.

Id. at 74 (emphasis added).

The reasonableness of the prosecution's efforts mus t be evaluated with a sensitivity to the surrounding
circumstances and the defendant's interest in confr onting
the absent witness. Confrontation Clause concerns a re heightened and courts insist on more diligent effor ts by the prosecution where a "key" or "crucial" witness' tes timony is involved. See United States v. Foster, 986 F.2d 541 , 543 (D.C. Cir. 1993) ("The more important the witness t o the government's case, the more important the defendant 's right, derived from the Confrontation Clause of the Sixth Amendment"); United States v. Lynch, 499 F.2d 1011, 1022 (D.C. Cir. 1974) ("Confrontation Clause considerati ons `are especially cogent when the testimony of a witness i s critical to the prosecution's case against the defendant.' " ); United States v. A&S Council Oil Co., 947 F.2d 1128, 1133 (4th Cir. 1991) ("Where [a case] involves the government 's most crucial witness, the [Confrontation Clause] concern s are especially heightened."); United States v. Quinn, 9 01 F.2d 522, 529 (6th Cir. 1990) (same); Dorsey v. Parke, 8 72 F.2d 163, 166 (6th Cir. 1989) ("Where the trial court ha s curtailed a defendant's cross-examination of a `sta r' government witness--as it has done in this case--it s ruling must be more carefully scrutinized."); cf. Davis v. Alaska,415 U.S. 308 (1974) (repeatedly emphasizing crossexamination of "key" and "crucial" witness as signi ficant factor for determining that defendant's confrontati on rights outweighed key witness' privacy interest in non-dis closure of juvenile record under state law).

The defendant's interest in confrontation is, of co urse, further heightened where the absent witness has spe cial reason to give testimony favorable to the prosecuti on. Confrontation Clause protections are " `especially important with respect to accomplices or other witnesses who may

16have substantial reason to cooperate with the

government.' " United States v. Mayans, 17 F.3d 117 4, 1184 (9th Cir. 1994) (quoting United States v. Onori , 5 35 F.2d 938, 945 (5th Cir.1976)); see United States v. Gree nberg, 423 F.2d 1106 (5th Cir. 1970) (curtailing cross-exa mination of cooperating co-defendant witness regarding witne ss' plea arrangement with prosecution violated Confrontation
Clause).

Finally, special sensitivity to Confrontation Claus e concerns is appropriate where the consequences of a conviction based on the absent witness' testimony a re grave. In a capital case, for example, it is fair t o ask more of the prosecution than in a situation involving si gnificantly less serious consequences.

In this case, McCandless's interest in confrontatio n with Barth could not have been higher. He was charged wi th an offense which carried a mandatory life sentence, an d the prosecution was seeking the death penalty. Barth wa s the prosecution's only eye witness to the alleged shoot ing, and his testimony was the only substantial evidence imp licating
McCandless in the murder. These factors would have made full cross examination before the jury of crucial i mportance to McCandless even if Barth had been a wholly impar tial witness. But he was not. He had been charged with a nd
arrested for the same homicide and had reached an agreement with the prosecution that he would go fre e if he testified against McCandless and Hartey and they we re convicted. With McCandless's acute Sixth Amendment interest in confronting Barth in mind, we turn to t he evidence pertaining to the government's efforts to secure Barth's presence at trial.

Barth was arrested and charged with Stebelski's dea th in March of 1981. He agreed to cooperate with the gove rnment and gave a written statement implicating McCandless in September of 1981, a little over a year after the a lleged crime. The prosecution agreed to support a reductio n of Barth's bail as part of the cooperation agreement. Barth was released on bail and his father, Edward Barth, became the surety on his bond. Barth was required to repor t every other week to a designated room in the courthouse w here he was to sign a subpoena. In February, 1982, Barth failed

17to report to the designated room and failed to appe ar at a

preliminary hearing regarding an unrelated weapons charge, which resulted in the issuance of a bench w arrant
for his arrest. Barth was arrested and released. In April, 1982, Barth again failed to appear in court, this t ime at a preliminary hearing in McCandless's case. Another b ench warrant was issued and police arrested Barth at his home. Barth was temporarily incarcerated at Holmsberg pri son, but was released on the same bail conditions after testifying at McCandless's preliminary hearing. Approximately one month later, in early May, 1982, Barth again failed to report and yet another bench warrant was issued for his arrest on May 14th. This time, however, police were unable
to find Barth before the McCandless trial commenced on August 9, 1982.

Four witnesses testified regarding the Commonwealth 's efforts to locate and secure Barth's presence at tr ial after he disappeared in early May, 1982. First, Detective Fr ank O'Brien, the detective assigned to the Stebelski mu rder, testified that he told other police officers to kee p an eye out for Barth and that he personally looked for him whe n he was in Barth's neighborhood "on other business." O' Brien admitted, however, that he made no effort to locate Barth during the two months prior to McCandless's trial. During the month preceding trial, he was on vacation.

Second, Detective Joseph Guerrera, a detective assi gned by the District Attorney's office to locate and ser ve Barth with a subpoena, testified that he attempted to ser ve Barth with a subpoena on two occasions in July. First, in early July, he (i) checked police and prison records, (ii ) visited the Barth house and slipped a subpoena under the door, and (iii) questioned a grocer and neighborhood youth re garding Barth's whereabouts. Guerrera repeated these effort s on July 27, 1982, less than a week before jury selecti on commenced on August 2, 1982. This time, he spoke wi th a neighbor who told him that Mrs. Barth was at the sh ore and that Barth had been in the neighborhood in June

. Guerrera never attempted to contact Barth's father, mother or siblings because he was "more or less used on a one day basis" and his assigned task was to serve Barth and five other witnesses in the case with subpoenas. He assu med

18that the detective assigned to the murder case, Det ective

O'Brien, was investigating Barth's whereabouts.

Third, Detective Tyres, a detective assigned to loc ate Barth one week before trial, testified that he (i) checked police, prison and Department of Public Assistance records, and (ii) went to the Barth residence where he spoke to Mrs.
Barth and a man he assumed to be Barth's brother on August 4, 1982. Both claimed to have no knowledge o f

Barth's whereabouts.

Finally, Joan Burren, a representative from Pretria l Services ("ROR"), read the notations from Barth's R OR file detailing that department's efforts to locate Barth . ROR's activities centered around three dates. First, afte r the bench warrant was issued in May, the ROR made a ser ies of unsuccessful phone calls to the Barth home to sc hedule
a "walk in" surrender. Mrs. Barth advised that Bart h no longer lived there. Second, on July 1, 1982, ROR of ficers visited the Barth house, found the door open, and s earched the home, but found the residence empty. Third, on August 6, 1982, an ROR officer called Mrs. Barth, who repo rted that she had met Barth two weeks earlier in Dover, Delaware. She gave no further information, but the officer's
notation indicated that he believed that she knew B arth's location because the meeting was pre-arranged. Foll owing this conversation, the officer sought to obtain the Barth residence phone records of all calls to and from De laware. The telephone company representative, however, refu sed to
surrender the information without a warrant. No war rant was sought. An ROR officer also called the Dover po lice department, which returned the call forty minutes l ater indicating that they had no record of Barth in Dela ware. Finally, a call was made to the Pennsylvania Depart ment of
Motor Vehicles.

Burren also testified that ROR knew Barth's parents ' identity and address, and that they knew that Barth 's father was the surety for Barth's bond. Nonetheless , no effort was made to contact Barth's parents or sibli ngs. No federal warrant was sought.

Thus, the record shows the following. The governmen t supported a bail reduction that allowed Barth to ga in his

19freedom. After two failures to appear, two bench wa rrants

and two rearrests, it sought no alteration in condi tions of his bail. In early May of 1982, three months before trial, Barth failed to appear for the third time and a ben ch warrant was issued. Follow-up calls by Barth's pre- trial
services officers established that Barth could not be expected to voluntarily cooperate. As of mid-May, t wo and a half months prior to trial, it is fair to say tha t Barth's presence at trial would not be assured unless the prosecution took affirmative action to secure it. I ts response to this situation over the next ten weeks can only be
described as casual.

These efforts focused around two dates. First, approximately one month before trial in early July, prosecutorial authorities checked Pennsylvania poli ce and prison records and twice unsuccessfully visited the Barth household, once slipping a subpoena under the door. Second, in the week immediately preceding jury sele ction and trial in early August, authorities repeated the se efforts. In the month between these dates prosecutorial auth orities were idle. This was perhaps attributable to the fac t that the detective assigned to the case was on vacation, and the Assistant District Attorney who tried the case did not receive her assignment until one week before trial. Neither explanation, however, can excuse the consequent infringement of constitutional rights.

Nothing in the record suggests that Mrs. Barth was avoiding authorities, yet officials delayed serious efforts to question her about Barth's whereabouts until August 4th, two days after jury selection commenced. When an RO R officer talked to Mrs. Barth two days later, he lea rned that she had met Barth in Dover, Delaware just two weeks earlier. Drawing the reasonable inference that the meeting might have been prearranged by telephone, and that other telephone contacts might have taken place, the offi cer attempted to get the telephone company to voluntari ly provide the McCandless residence phone records, but did not expend the minimal effort necessary to follow u p with a warrant. Moreover, despite the officer's notation that this meeting had been prearranged, no follow up was made to further press Mrs. Barth regarding her husband's lo cation.

20With regard to Barth's possible presence in Delawar e,

authorities simply accepted the quick assurance of the Dover police that they had no record of Barth.

Finally, we note that prosecutorial authorities did not contact Barth's parents or siblings. Indeed, they d id not even call Barth's father whom they knew to have bot h a financial and familial incentive to keep track of B arth.7

Given Barth's crucial role in the prosecution's cas e, we are left with the firm conviction that the prosecut ion's efforts to assure Barth's presence would have been far less

casual had the shoe been on the other foot. If the prosecution had not had Barth's preliminary hearing testimony and had needed Barth's presence at trial, we are confident that the resources and effort devoted tof inding him prior to trial would have been greater than the y in fact were. To countenance such a disparity would ill ser ve the interests protected by the Confrontation Clause. Se e United States v. Mann, 590 F.2d 361, 367 (1st Cir. 1978) ( noting that "[t]he government did not make as vigorous an attempt to secure the presence of the witness as it would h ave made if it did not have the prior recorded testimony."); Lynch, 499 F.2d at 1024 ("It is difficult to believe that if t he preliminary hearing testimony of this critical witness were not available,

___________________________________________________ ______________

7. The four witnesses who testified about the effor ts of the state to

secure Barth's presence did so during the week before tria l. After hearing their testimony, the trial judge was sufficiently concern ed about the situation
that he directed the ROR officer to contact Barth's family over the weekend preceding trial. On August 9, the day trial commenced, the prosecutor informed the trial judge that ROR office rs had unsuccessfully attempted to contact Barth's brother, but had spoke n with Barth's parents who told them that they had not seen Barth in months. Defense counsel refused to stipulate to the prosecutor's su mmary of ROR efforts and instead demanded the opportunity to cross-exami ne the officer. The trial judge then announced his ruling that Barth wa s unavailable, and requested the prosecution to continue its efforts t o locate Barth. We have
reviewed the record and have found no other discuss ion of the ROR's efforts to locate Barth before his testimony was re ad to the jury. This information does change our analysis. In light of d efense counsel's refusal to stipulate to this information, the trial judge's decision was based upon the prior information received in court. Accordingly, we
believe that our focus must be on the record of the prosecutorial efforts established in the trial court's evidentiary hearin g discussed above.

21the prosecution would have abandoned its efforts at this

point to locate [the witness]."). Accordingly, we h old that Barth was not constitutionally unavailable and that the prosecution's use of Barth's preliminary hearing te stimony violated McCandless's rights under the Sixth Amendm ent.

Given the facts we have recounted, we believe the D istrict Court's reliance on Roberts v. Ohio, 448 U.S. 56 (1 980), was misplaced. There, the defendant was indicted and co nvicted of forgery and receiving stolen property. An acquai ntance of the defendant, Anita, testified at the defendant's preliminary hearing but did not appear at trial. Th e prosecution sought to introduce Anita's preliminary hearing testimony at trial, and offered the following evide nce to establish Anita's "unavailability":

Anita, according to her mother, left home fo r Tucson, Ariz., soon after the preliminary hearing. A bout a year before the trial, a San Francisco social wor ker was in communication with [her parents] about a wel fare application Anita had filed there. Through t he social worker, the [parents] reached their daughter once by telephone. Since then, however, Anita had ca lled her parents only one other time and had not been in touch with her two sisters. When Anita called, som e seven or eight months before trial, she told her pare nts that she `was traveling' outside Ohio, but did not re veal the place from which she called. . . . [Her moth er] knew of no way to reach Anita in case of an emergenc y. Nor did she `know of anybody who knows where she is. '

Id. 59-60. The Supreme Court concluded that Anita w as "unavailabl[e] in the constitutional sense." Id. at 75. The court noted that prosecutors had taken affirmative steps to locate Anita by contacting her parents at Anita's l ast known address, but that the prosecutors had "no clear ind ication, if any at all, of Anita's whereabouts." Id. at 75-6 . The Court
further found no constitutional violation in the prosecution's failure to contact the San Francisco social worker because "the great improbability that such e fforts would have resulted in locating the witness, and wo uld have led to her production at trial, neutralize[d] any intimation that a concept of reasonableness require d their
execution." Id. at 76.

22We find McCandless's case materially different. Fir st, the

Roberts prosecutors had no current reliable lead re garding Anita's location; they knew nothing more about Anit a's whereabouts than that she was "traveling" outside t he state and had stopped in San Francisco a year earlier. He re, however, authorities had a fresh lead from Mrs. Bar th. Their failure to adequately investigate this fresh lead is not comparable to a failure to follow up on the year-ol d tip that Anita had been in San Francisco. Second, the facts of Roberts did not trigger heightened Sixth Amendment concerns because (i) Anita's testimony was not as c rucial to the prosecution's case as Barth's was in the instan t case, and (ii) the Roberts defendant was charged with the relatively minor crimes of forgery and possession o f stolen property, not capital murder. Finally, the prosecut ion in Roberts had no connection or relationship with Anit a comparable to the cooperation agreement in this cas e.

IV.

We conclude that McCandless failed to fairly presen t his double hearsay and prosecutorial vouching claims to Pennsylvania's courts, and that his unexcused proce dural default of those claims precludes their review in f ederal habeas corpus. We will also reject McCandless's cla im for habeas relief based upon Pennsylvania's violation o f Article V(d) of the IAD because, under our circuit jurispru dence, violations of Article V(d) do not justify habeas re lief.

We conclude, however, that the prosecution did not satisfy its Sixth Amendment duty to make reasonable good faith efforts to obtain Barth's presence at trial. Accordingly, we will reverse the judgment of the District Court and
remand with instructions that it order McCandless's release
from confinement unless he is retried and convicted within
a reasonable time.

A True Copy:

Teste:

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

23