concluding that there were three basic requirements for finding a Sixth Amendment violation in so-called "secret interrogations”: "(1) the right to counsel must have attached at the time of the alleged infringement; (2) the informant must have been acting as a 'government agent'; and (3) the informant must have engaged in ‘deliberate elicitation’ of incriminating information from the defendant”
How later courts described this case
- concluding that there were three basic requirements for finding a Sixth Amendment violation in so-called "secret interrogations”: "(1) the right to counsel must have attached at the time of the alleged infringement; (2) the informant must have been acting as a 'government agent'; and (3) the informant must have engaged in ‘deliberate elicitation’ of incriminating information from the defendant”
- stating that a state court adjudication is an “unreasonable application” of federal law if it “resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent” when “evaluated objectively and on the merits”
- holding that defendant’s right to counsel had attached prior to formal proceedings but ultimately finding no constitutional violation
- finding that the informant asking clarifying questions in direct response to the defendant’s voluntary statements did not alter the fundamental nature of the conversation, and thus was not a Sixth Amendment violation
Written by the judges who cited it.
Later courts went against this
Disagreed with in part by State of Tennessee v. Howard Hawk Willis, 2016 Tenn. LEXIS 405 (2016)
Willis, 2015 WL 1207859, at *65 (citing Matteo, 171 F.3d at 894-95), We disagree with this portion of Matteo's analysis, as Matteo also incorrectly cited Henry for the proposition that these facts were pertinent to the question of agency, rather than the question of interrogation or deliberate elicitation.
The opinion
BECKER, Chief Judge,
concurring.
I agree that the order of the District Court denying Matteo’s application for writ of habeas corpus should be affirmed, because, whether the interpretation of AEDPA applied by the majority or the one that I would apply is correct, the decision of the state court that Lubking was not a government agent at the time of the telephone calls and that the incriminating statements were not deliberately elicited by the police cannot be set aside. I also agree that any error was harmless. I therefore join in Parts III and IV of the majority opinion.
I disagree with the majority, however, as to the correct legal standard for reviewing state court decisions under § 2254(d)(1). I believe that the majority’s approach, which I see as expanding the availability of plenary review under § 2254(d)(1), fails to ensure that federal habeas courts grant state court decisions the deference § 2254(d)(1) requires. In addition to explaining why I believe that the O’Brien standard adopted by the majority is incorrect, I also set forth my reasons for believing that we should adopt instead a modified version of the standard announced by the United States Court of Appeals for the Fourth Circuit in Green v. French, 143 F.3d 865 (4th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 844 , 142 L.Ed.2d 698 (1999). 1
I.
The signal difference between the two approaches is the amount of deference they afford to state court decisions. In Green, the court set out an elaborate categorization of cases in which the two parts of § 2254(d)(1) apply. It specified when plenary review under the “contrary to” clause should apply, and when deferential “unreasonable application of’ review should apply:
[A] decision is “contrary to” precedent only when, either through a decision of pure law or the application of law to facts indistinguishable in any material *899 way from those on the basis of which the precedent was decided, that decision reaches a legal conclusion or a result opposite to and irreconcilable with that reached in the precedent that addresses the identical issue. In contrast, a decision represents an “unreasonable application of’ precedent only when that decision applies a precedent in a context different from the one in which the precedent was decided and one to which extension of the legal principle of the precedent is not reasonable, when that decision fails to apply the principle of a precedent in a context where such failure is unreasonable, or when that decision recognizes the correct principle from the higher court’s precedent, but unreasonably applies that principle to the facts before it (assuming the facts are insufficiently different from those that gave rise to the precedent as to constitute a new context for consideration of the principle’s applicability).
Green, 143 F.3d at 870 ; accord Davis v. Kramer, 167 F.3d 494 , 500 n. 8 (9th Cir.1999) (defining cases in which § 2254(d)(1) would require a grant of habeas relief) (citing Green), petition for cert. filed, 65 U.S.L.W. 3570 (Mar. 8, 1999) (No. 98-1427). Thus, under Green , where the Supreme Court has established a rule but not specified how it should apply in the specific factual circumstances at issue, a federal habeas court would review a state court decision under a deferential reasonableness standard.
The majority adopts the O’Brien standard, under which “[t]he critical question is ‘whether a Supreme Court rule — by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations — can fairly be said to require a particular result in a particular case.’ ” Op. at 889 (quoting O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.1998)). But query what would happen if a Supreme Court case provided a not dictate how that rule should apply in particular factual situations? I cannot find an answer to this question in the majority’s decision, but as I read O’Brien , from which the majority draws its overall approach, the First Circuit would apply plenary review under the “contrary to” standard even where Supreme Court precedent dictates a controlling general rule without applying it to particular facts. See O’Brien, 145 F.3d at 24 (“First, the habeas court asks whether the Supreme Court has prescribed a rule that governs the petitioner’s claim. If so, the habeas court gauges whether the state court decision is ‘contrary to’ the governing rule.”). Thus, once a court following O’Brien finds that Supreme Court precedent dictated the applicable legal rule in a case, the court would engage in plenary review to determine whether, in its opinion, the state court decision correctly applied the precedent, even if the Supreme Court had not indicated how the rule should be applied in similar contexts. This result is facilitated by O’Brien’s elastic formulation of the “contrary to” standard.
Of course, where the Supreme Court has indicated how the law should be applied to the facts, a state court decision ignoring the Court’s directions is ipso facto unreasonable and “contrary to” clearly established precedent. But by proposing to apply plenary review beyond the scope of direct Supreme Court precedent, and leaving the concept of reasonableness out of the first stage of its inquiry, O’Brien un-deremphasizes the deference § 2254(d)(1) requires federal habeas courts to give to state court decisions. This approach gives greater flexibility for the application of plenary review than is available under Green , as Green would require the habeas court to consider only whether the state court’s application of the precedent was reasonable.
A good example of this is an ineffective assistance of counsel claim under Strickland. See Stevens v. Maloney, 32 *900 F.Supp.2d 478 (D.Mass.1998). In Stevens, the defendant’s attorney faded to file a written motion challenging the pre trial use of a photographic array with an eyewitness. In considering the habeas petition claiming ineffective assistance of counsel, the district court, applying O’Bnen, first concluded that Strickland v. Washington, 466 U.S. 668, 687, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), sets forth a rule directly applicable to the case. See Stevens, 32 F.Supp.2d at 481 . The court therefore applied “contrary to” review under O’Bnen and inquired whether the state court decision was correct, not whether it was a reasonable application of Strickland. See Stevens, 32 F.Supp.2d at 481-82 . Under Green , by contrast, the district court would have been limited to considering only whether the state court’s application of Strickland was reasonable, since the Supreme Court has not specified how Strickland should be applied to such claims. 2
This expanded role for plenary review under § 2254(d)(1) in O’Brien is inconsistent with the text and legislative history of AEDPA. First, I do not think that it is consistent with a common sense understanding of when a state court decision is “contrary to” clearly established Supreme Court precedent. Under O’Brien , a federal habeas court would be able to grant relief under § 2254(d)(1) solely because it disagreed with the state court’s application of the appropriate Supreme Court precedent, even though it was a reasonable interpretation of how the Supreme Court would have applied the precedent. I do not think such a reasonable interpretation could fairly be denominated “contrary to” clearly established Supreme Court precedent. As the majority itself recognizes in the context of the “unreasonable application of’ clause, § 2254(d)(1) “does not empower a habeas court to grant the writ merely because it disagrees with the state court’s decision, or because, left to its own devices, it would have reached a different result.” Op. at 889 (quoting O’Bnen, 145 F.3d at 25 ).
Furthermore, Congress’s express intent in enacting AEDPA demonstrates that the reduced deference O’Brien permits is inappropriate. That § 2254(d)(1) requires a habeas court to give deference to reasonable state court decisions where the Supreme Court has not spoken directly to an issue is evident from Senator Hatch’s explication of the provision:
What does this mean? It means that if the State court reasonably applied Federal law, its decision must be upheld. Why is that a problematic standard? After all, Federal habeas review exists to correct fundamental defects in the law. If the State court decision has reasonably applied Federal law it is hard to say that a fundamental defect exists.
141 Cong. Rec. S7848 (daily ed. June 7, 1995). Similarly, Senator Specter recognized that “under the bill deference will be owed to State courts’ decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court’s decision applying the law to the facts should be upheld.” 142 Cong. Rec. S3742 (daily ed. April 17, 1996). Given these statements, I do not think it is appropriate to apply plenary review to state court decisions applying clearly established legal principles in contexts that the Supreme Court has not directly addressed.
*901 While distancing itself from O’Brien’s treatment of the “unreasonable application of’ facet of § 2254(d)(1), 3 the majority appears to adopt explicitly O’Brien’s treatment of the “contrary to” clause. If the majority is not adopting this aspect of O’Brien , it would, I assume, inquire into whether the state court reasonably determined the manner in which the rule should be applied to the particular facts, if it found a Supreme Court rule on point but the Supreme Court had not applied that rule to particular facts. But even so, the fact of this ambiguity, along with the language of the majority, suggests a lower level of deference to state court decisions than is properly required by Green .
II.
In addition to the decreased deference O’Brien permits federal habeas courts to give to state court decisions, I think the Green approach provides a more useful framework for future federal habeas courts engaged in review of state court decisions under § 2254(d)(1). More specifically, it focuses the habeas court’s attention on the precise nature of the issue the state court decided and its relation to clearly established Supreme Court precedent. For example, by focusing on the inquiry whether “through a decision of pure law ... [the state court] decision reaches a legal conclusion or a result opposite to and irreconcilable with that reached in the precedent that addresses the identical issue,” 143 F.3d at 870 , the Green approach focuses the habeas court’s attention on whether the state court decision of a legal issue is properly reconcilable with precedent. Similarly, by focusing on whether a state court “decision recognizes the correct principle from the higher court’s precedent, but unreasonably applies that principle to the facts before it (assuming the facts are insufficiently different from those that gave rise to the precedent as to constitute a new context for consideration of the principle’s applicability),” 143 F.3d at 870 , the rule properly focuses the habeas court’s attention on whether the state court reasonably distinguished or failed to distinguish the facts of the case under review from the precedent.
The majority criticizes the Green approach for setting out different frameworks for addressing different sorts of questions, contending that this may lead to confusion on the part of federal habeas courts. “Although we find th[eGreen court’s] analysis insightful, we decline to adopt it as the basis for scrutinizing state court judgments under AEDPA. We believe that, in practice, it will be difficult for a court to determine which, if any, of the foregoing scenarios is implicated in the case before it.” Op. at 888. Without further explication of this ipse dixit, however, I am unsure why the majority thinks the Green approach would be difficult to apply. I prefer the Green approach precisely because it attempts to provide at least some analytical structure beyond simply restating § 2254(d)(1), as O’Brien and the majority do. The rare cases in which it is difficult to determine which of the Green categories is relevant are hardly reason for abandoning such a useful framework.
III.
Although I would apply Green , I agree with the majority’s application of § 2254(d)(1) to this case, for under either *902 Green or O'Brien the state court’s decision was not “contrary to, [nor did it] involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254 (d)(1). Therefore, I concur in the judgment of the Court. Judge Nygaard joins in this concurring opinion.
. The majority rightly rejects the other approach adopted by various courts, exemplified by Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996), revd. on other grounds, 521 U.S. 320 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). See also Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir.1996), cert. denied, 520 U.S. 1107 , 117 S.Ct. 1114 , 137 L.Ed.2d 315 (1997). Under Lindh, a habeas court would apply plenary "contrary to” review to purely legal questions and deferential "unreasonable application of" review to mixed questions of law and fact. The Lindh bifurcated standard of review represents an improper reading of § 2254(d)(1), because it is inconsistent with the text and legislative history of § 2254(d)(1). See O’Brien v. Dubois, 145 F.3d 16, 22 (1st Cir.1998) (discussing this problem with the Lindh approach).
. Judge Stapleton's concurrence also provides an example of the problem with the majority’s approach. Judge Stapleton, contra the majority, would apply plenary "contrary to” review to the state court's decision that Lubking did not deliberately elicit statements from Matteo. Although he reaches the correct result, he does so only because he concludes that, reviewed d& novo, the state court’s con-elusion was correct. I agree with the majority, however, that the proper framework for analysis in this case is deferential review under the “unreasonable application of” test. Judge Stapleton's concurrence simply demonstrates the ambiguities inherent in the majority's approach, which lead to the lack of deference that I think is inappropriate.
. I agree with the majority that, in the context of the ‘‘unreasonable application of” inquiry, the federal habeas court must apply an objective standard, and examine the reasonableness simpliciter of the state court decision. See Op. at 889. The definitions of reasonableness that other courts, including Green, 143 F.3d at 870 , have announced, see, e.g., Nevers v. Killinger, 169 F.3d 352, 361-62 (6th Cir.1999) (relying on O’Brien, Green and Drinkard), which the majority terms "subjective,” require too much deference to state court decisions and therefore are inconsistent with Congress's intent and the case law out of which § 2254(d)(1) arose. Just as the majority rejects this aspect of O'Brien, I would decline to adopt this aspect of Green .