# Anthony N. Matteo v. Superintendent, Sci Albion the District Attorney of the County of Chester the Attorney General of the State of Pennsylvania

> Court of Appeals for the Third Circuit · March 24, 1999 · 171 F.3d 877

URL: https://www.frixlaw.com/law-library/cases/9492009

## Case

- **Full name:** Anthony N. MATTEO, Appellant v. SUPERINTENDENT, SCI ALBION; The District Attorney of the County of Chester; The Attorney General of the State of Pennsylvania
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** March 24, 1999
- **Citations:** 171 F.3d 877; 1999 U.S. App. LEXIS 5163; 1999 WL 164152
- **Precedential status:** Published
- **Opinion:** Concurrence by Rendell
- **Judges:** Becker, Sloviter, Stapleton, Greenberg, Scirica, Nygaard, Alito, Roth, Lewis, McKee, Rendell, Cowen
- **Cited by:** 299 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with in part by State of Tennessee v. Howard Hawk Willis, 2016 Tenn. LEXIS 405 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492009

## How later opinions describe it (automated extraction)

- 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 agen…
- 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
- holding that the "unreasonable application" inquiry requires that "the state court decision ... resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent” (emphasis added)

## Opinion text

RENDELL, Circuit Judge,
Concurring.
I concur in the result we reach in this case, because the somewhat different analysis I propose, and the variation on the test I advocate, would nonetheless lead to the same result in this case — affirmance of the District Court’s denial of habeas relief.
I caution, however, that our analysis of the standard, as applied to the facts of the case, may well consider too casually the entire AEDPA test and, in dealing with the issues, lose the necessary focus. I also part ways with the need to define “unreasonable application” as we do in the majority court’s opinion.
*910 I suggest we adhere closely to the statutory dictate that the threshold through which review must pass is clearly established Supreme Court precedent. Only if the Supreme Court has ventured into a pertinent area of the law that formed the basis for the state court’s decision or reasoning do we have the power of review. As a practical matter, using this as a starting point, we can, as here, eliminate many of an appellant’s contentions at the outset. I note that while I hesitate to critique a colleague’s thoughtful analysis, I think we need to endorse an approach that is clear and easy to apply, so as to give guidance to the lower courts in this area.
As we indicate at the outset of the majority opinion, we must determine whether “the adjudication of the claim (by the state court) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” The inquiry, therefore, should begin by identifying what the state court decided and what, if any, clearly established federal law, as determined by the Supreme Court of the United States, has a bearing on the decision rendered by the state court. We may act only if the state court’s decision is either contrary to or involved an unreasonable application of clearly established Supreme Court precedent.
In the instant case, clearly Massiah and its progeny have a bearing on the outcome. What clearly established principles that are set forth in the Massiah line of eases bear on the decision reached by the state court? I suggest that even though the state court determined that Lubking was not an agent because he was a volunteer and there was no agreement or “quid pro quo” for the information he gave, we needn’t dwell on the issue of agency. Although the majority opinion discusses the agency relationship involved in the Henry opinion, the Supreme Court has made no pronouncement, in Henry or in any other decision, as to when an individual is or is not an “agent” under this line of cases. Its statement in Henry that the combination of circumstances — namely, a paid informant pretending to be a fellow inmate — was “sufficient to support” the court of appeals’ determination that the individual was an agent for the government hardly equates to clearly established Supreme Court precedent on this issue. 1 See United States v. Henry, 447 U.S. 264, 270-71 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980). The majority opinion correctly notes that the concept of “clearly established federal law, as determined by the Supreme Court of the United States” requires that we not entertain habeas corpus relief based on the state court’s “failure to adhere to the precedent of a lower federal court on an issue that the Supreme Court has not addressed.” If we lose sight of this requirement in our analysis, we stray from the dictates of the statutory language, and I submit that the resulting inquiry into “contrary to” and “unreasonable application” can easily lead to a form of plenary review. Therefore, since the Supreme Court has not addressed the issue of the parameters of agency for purposes of Massiah, there is no federal law as determined by the Supreme Court on this issue, let alone any “clearly established” law. Even if a determination of the state court as to agency were pivotal in its adjudication and its decision, we need not examine this aspect, because the Supreme Court jurisprudence on the issue is nonexistent.
Clearly, the issue in Massiah and its progeny that has bearing on this ease is the question of what constitutes “deliberate elicitation.” We must, therefore, ask, first, what is the federal law as determined by the Supreme Court regarding this is *911 sue, and, assuming the Supreme Court has addressed it, determine whether the law is “clearly established.” The Supreme Court has in fact “erected” the necessary “framework” in the case law. We then position the state court’s decision alongside the Supreme Court precedent, to determine if the decision itself is “contrary to” the dictates of that precedent, and, if not, whether the adjudication of the claim involved an “unreasonable application” of the precedent. 2 I reach the same result as the majority opinion by proceeding in this fashion in this case because the Supreme Court has established the framework, and the state court’s decision was neither contrary to it, nor an unreasonable application of it. I suggest that the focus on Supreme Court precedent and the pointed inquiries is the essence of the narrower review envisioned by the statute, and will prevent us from venturing into the forbidden area of whether we agree with the state court decision — which the majority opinion seems to do as it works through the elements, and, indeed, at the conclusion of its analysis.
In addition, unlike the majority, I would embrace the statutory language regarding “unreasonable application” as the standard and decline, as we and most other circuits have done, to dwell on interpreting it, for as we redefine it, it loses its meaning. I read the statute as permitting us to examine whether the state court, as it applied the Supreme Court precedent to the case at hand, applied the law in an unreasonable manner. This may well be different from asking whether the outcome reached by state court “cannot reasonably be justified,” or the outcome is not “objectively reasonable.” (In fact, I even view these two standards employed in the majority opinion as somewhat different from each other.) If it is not different, why the need to interpret it further?
The statutory test is whether the adjudication that resulted in the decision “involved an unreasonable application,” and I suggest that this says it all. 3 The majority opinion has, as have other circuits, imposed a negative spin, namely, that no jurist would disagree, or debate, or that an outcome cannot reasonably be justified, whereas the language does not require or *912 compel this. If anything, “objectively unreasonable” — as used at the end of the majority’s analysis- — comes closer to the mark than does “cannot reasonably be justified.” However, we have adopted the latter as the standard. I would leave the door open for the federal courts to do exactly what the statute dictates, namely, to determine whether the adjudication involved an unreasonable application. I think any attempt to define the phrase in more absolute terms impermissibly rewrites the statutory language. 4 I would suggest further that by the use of the word “application,” the statute invites us to look at the reasoning process, rather than merely answering yes or no as to whether the result can be reasonably justified. 5 I would, therefore, adopt an approach to “unreasonable application” whereby the federal courts examine the footing or basis in reason of the state court ruling as an extension of Supreme Court law. Only if it is unreasonable, is it disturbed. 6 I see this as different from determining whether the outcome reached by the state court cannot reasonably be justified. Rather, “unreasonable application” conjures up a different inquiry that tests whether the state court’s reasoning is or is not sound.
To those who would argue that our ability to correct flawed state court reasoning violates the deference intended to be given to state court rulings, I would answer that the statutory standard is extremely deferential, even as I propose to constitute it. Congress has said that we can grant relief only if the Supreme Court has addressed a specific area, and then only if the law is clearly established, and then, only if the state court has disregarded the law or has engaged in flawed reasoning in applying it. This is, in fact, deferential. 7
. Even in O’Brien the court noted that the Supreme Court pronouncement should set a "governing rule” or "erect a framework specifically intended for application to variant factual situations." O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir.1998). The Supreme Court has not done this in the agency context.
. I submit that a more focused look at whether the precise issues have been addressed by the Supreme Court, and, if so, a comparison of the Supreme Court dictates in order to answer the "contrary to” question, might well reduce the concerns expressed by Chief Judge Becker as to the potential for expansive, plenary review at this stage. While I agree with our preference for the standard wherein we ask what does the Supreme Court’s pronouncement require or dictate, as opposed to the standard requiring near identicality, if we zero in on particular pronouncements by the Supreme Court that are clearly established, I wonder whether the result of the exercise we engage in will be all that different under one or the other.
. We could debate at length whether and to what extent the discussions of Teague in recent Supreme Court cases should influence our view of the statutory language. See Wright v. West, 505 U.S. 277, 290-94 , 112 S.Ct. 2482 , 120 L.Ed.2d 225 (1992); 505 U.S. at 303-05 , 112 S.Ct. 2482 (O’Connor, J., concurring); 505 U.S. at 306-09 , 112 S.Ct. 2482 (Kennedy, J., concurring); 505 U.S. at 311-13 , 112 S.Ct. 2482 (Souter, J., concurring); Butler v. McKellar, 494 U.S. 407, 412-16 , 110 S.Ct. 1212 , 108 L.Ed.2d 347 (1990); 494 U.S. at 417-22 , 110 S.Ct. 1212 (Brennan, J., dissenting); see also Teague v. Lane, 489 U.S. 288, 308-14 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). I only note that Congress, presumably aware of the numerous ways in which to describe the confined nature of the inquiry as set forth in Butler v. McKellar and Wright v. West, nevertheless employs the term "unreasonable application,” not "patently” or "clearly” unreasonable, with no reference to good faith or debate by reasonable jurists. Cf. 141 Cong. Rec. S7803-01, S7836, S7844 (daily ed. June 7, 1995) (remarks of Sen. Biden regarding significance of Wright v. West); 141 Cong. Rec. S7803-01, S7878-79 (daily ed. June 7, 1995) (remarks of Emergency Committee to Save Habeas Corpus, reproduced in the Congressional Record). In a departure from the more convoluted route taken by other courts of appeals, the Ninth Circuit Court of Appeals has taken a straightforward reading of the terms included in section 2254(d)(1). See Davis v. Kramer, 167 F.3d 494, 500 (9th Cir.1999).
. In fact, it is curious that the other courts of appeals concentrate on other jurists' agreeing, or not agreeing, and we talk in terms of “objective reasonableness” and "justification," yet the statute uses the word "unreasonable,” the dictionary definition of which is, "not governed by reason” or "going beyond reasonable limits.” Websters II New Riverside University Dictionary 1265 (1988). These are very different concepts.
. Nor should we lose sight of the fact that the AEDPA standard requires that we examine whether the state court decision was "contrary to," or whether the adjudication that resulted in a decision involved an "unreasonable application” of Supreme Court precedent.
. It is at this point — when we examine the reasoning process — that we consider the views of lower federal courts.
.Interestingly, the floor debates do not support a narrow reading of the concept of "unreasonable application." Both sides of the aisle appear to have viewed it as meaning that unless the state "improperly appl[ied]” clearly established Supreme Court law, the state decision would stand. Senator Hatch, one of the bill’s sponsors, incorporated these very words in his explication of the law. See 141 Cong. Rec. S7803-01, S7848 (daily ed. June 7, 1995). Another reading of the language was set forth by Senator Biden, who read the proposed provision as requiring deference if the "court decision could be described by a lawyer as being reasonable,” and claimed that "unreasonable application” was so limiting as to deprive the federal courts of their power. See Cong. Rec. S7803-01, S7841 (daily ed. June 7, 1995). At the least, these views do not support a need for further definition or restriction of the statutory language.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492009. Public record. Not legal advice.