Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-1999

McCandless v. Vaughn
Precedential or Non-Precedential:

Docket 97-1585




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Filed 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 States District Judge for
the Southern District of Florida, sitting by designation.
       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 denial
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 his
federal constitutional and statutory rights. McCandless's
appeal presents four claims for habeas relief. First, he
contends that admission of a prosecution witness' double
hearsay testimony violated his Sixth Amendment right to
confrontation. Second, he argues that a District Attorney's
Office official's testimony regarding the "corroboration"
condition of the cooperation agreement between that office
and the prosecution's key witness amounted to improper
prosecutorial vouching and deprived him of due process.
Third, McCandless contends that the trial court lacked
jurisdiction to try him because Pennsylvania extradited him
from New Jersey in violation of the Interstate Agreement on
Detainers Act. Fourth, McCandless claims that admission
of the prosecution's key witness' preliminary hearing
testimony violated his Sixth Amendment right to
confrontation.

We conclude that McCandless's first two claims are
procedurally defaulted and that his third is without merit.
However, because we conclude that the prosecution did not

                               2
fulfill its duty to protect McCandless's constitutional right
to confront the key witness against him, we will reverse.

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 garage
rented by McCandless located at 2206 East Fletcher Street
in Philadelphia. According to Hopkins, after the gunshots,
Stebelski crashed through the garage door, collapsed on the
sidewalk, picked himself up, and ran around the corner
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 collapsed
garage door from a blue Chevrolet. The other man sped
away in the Chevrolet once it was freed. McCandless owned
a 1955 Chevrolet similar to the one Hopkins observed.
Barth then ran to the blue Buick where the bleeding
Stebelski lay, grabbed Stebelski by the neck and shook
him. After Hopkins intervened, Barth sped away in the
Buick. Police and a medical rescue unit soon arrived.
Despite the rescue unit's efforts, however, Stebelski died of
two gunshot wounds to the shoulder and trunk of his body.

Police arrested Barth for the Stebelski murder. After
negotiations with the District Attorney's office, Barth agreed
to serve as a cooperating witness and gave a statement
implicating McCandless and Patrick Hartey in the murder.
In return, prosecutors promised that, if Barth's information
was corroborated by investigators, they would (i) facilitate
his release on bail, and (ii) at the successful conclusion 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 arrest. At
the time, however, McCandless and Hartey were both
incarcerated in New Jersey on unrelated offenses.
Accordingly, Pennsylvania began extradition proceedings
under the Interstate Agreement on Detainers Act ("IAD").

                               3
See 42 Pa. Cons. Stat. Ann. S 19101. McCandless's
extradition was sought on the basis of theft and drug
offenses unrelated to the Stebelski murder. Despite
McCandless's resistance, he was extradited on February 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 the
garage, testified about the murder. Barth stated that
McCandless had "pistol whipped" and shot Stebelski in the
back as he fled. After the hearing, Barth disappeared and
did not testify at McCandless's trial. Barth's preliminary
hearing testimony, however, was admitted at trial.

The trial judge made three significant evidentiary
decisions which form the basis of three of McCandless's
four claims for habeas relief. First, the court determined
that Barth was "unavailable" and allowed Barth's
preliminary hearing testimony to be read to the jury.
Second, the court allowed Joseph Murray, chief of the
Homicide Unit of the District Attorney's Office, to testify
regarding the terms of Barth's cooperation agreement,
including two statements regarding the agreement's
"corroboration" condition. Third, the court admitted alleged
double hearsay testimony by Stebelski's friend, David
Antovich, who had driven Stebelski to McCandless's garage
on the day of the crime. Antovich testified that, while he
was waiting for Stebelski, an unidentified man told him
that "Tommy said to take a ride and come back infive
minutes." McCandless's first name is Thomas.

On August 20, 1982, the jury found McCandless guilty of
first degree murder, criminal conspiracy and possession of
an instrument of crime. The court sentenced McCandless 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 Pennsylvania
Superior Court raising approximately thirty claims of error.
The Superior Court affirmed the murder and conspiracy
convictions, but vacated the possession conviction.
Commonwealth v. McCandless, 

(Pa. Super. Ct.

                                4
1986)(table). McCandless then filed an application for
permission to appeal to the Pennsylvania Supreme Court.
The application abandoned the majority of McCandless's
Superior Court claims and listed only four grounds for
relief. The Pennsylvania Supreme Court denied the
application for discretionary review. See Commonwealth v.
McCandless, 

(Pa. 1987)(table).

Nine years later, on March 21, 1996, McCandlessfiled a
petition for habeas corpus relief in the District Court. The
District Court rejected all thirteen claims presented in his
petition. As we have noted, McCandless appeals the District
Court's resolution of only four of these claims. This 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 apply
to this case because McCandless's application was filed
prior to, and was pending on, AEDPA's effective date. See
Lindh v. Murphy, 

(1997); United States v.
Skandier, 

(3d Cir. 1997).

"Because the District Court relied entirely upon the state
court record and did not hold an evidentiary hearing, our
review [of the District Court's decision] is plenary." Hassine
v. Zimmerman, 

, 947 (3d Cir. 1998)(citing
Johnson v. Rosemeyer, 

, 109 (3d Cir. 1997).
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 conclusions on
mixed questions of law and fact and pure issues of law."

; see Miller v. Fenton, 

, 105 (1985)(holding that while "subsidiary factual
questions" are subject to S 2254(d)'s presumption, the
ultimate legal question of confession's constitutional
voluntariness "is a matter for independent federal
determination"); Sumner v. Mata, 

, 597
(1982)(ultimate question of pretrial identification
procedure's constitutionality presented "mixed question of
law and fact that is not governed by S 2254(d)"); Daniel v.
Warden, State Correction Inst. at Huntingdon, Pa., 

, 883 (3d Cir. 1986) (S 2254(d) factual presumption does
not apply to ultimate legal question of whether
constitutional right against double jeopardy was violated).

                               5
II.

Federal courts have the power to entertain habeas corpus
applications by persons in state custody claiming that 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, 

, 614
(3d Cir. 1995)(quoting 28 U.S.C. S 2254(b)). The exhaustion
rule requires applicants to "fairly present" federal claims to
state courts before bringing them in federal court. See
Duncan v. Henry, 

, 365 (1995); Picard v.
Connor, 

, 275 (1971); Lambert v. Blackwell,

, 513 (3d Cir. 1998). When a claim is not
exhausted because it has not been "fairly presented" to the
state courts, but state procedural rules bar the applicant
from seeking further relief in state courts, the exhaustion
requirement is satisfied because there is "an absence of
available State corrective process." 28 U.S.C.S 2254(b). In
such cases, however, applicants are considered to have
procedurally defaulted their claims and federal courts may
not consider the merits of such claims unless the applicant
establishes "cause and prejudice" or a "fundamental
miscarriage of justice" to excuse his or her default. See
Coleman v. Thompson, 

, 750 (1991).

The parties agree that McCandless is procedurally barred
from asserting his claims in the Pennsylvania state courts.
Thus, any claim not already fairly presented to
Pennsylvania's courts would be procedurally defaulted.
Accordingly, we may only consider the merits of
McCandless's habeas claims in either of two circumstances.
First, we may consider any exhausted claim that
McCandless "fairly presented" to Pennsylvania's courts.
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 "miscarriage of
justice."

The District Court determined that McCandless had not

                               6
fairly presented his double hearsay and prosecutorial
vouching claims to the state courts.1 We agree.

To "fairly present" a claim, a petitioner must present 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, 

, 6 (1982); Picard v. Connor, 

, 277-78 (1971).
It is not sufficient that a "somewhat similar state-law claim
was made." 

. Yet, the petitioner need
not have cited "book and verse" of the federal constitution.

.

The Supreme Court most recently applied these
principles in Duncan v. Henry, 

(1995). There,
the habeas applicant had been convicted in state court for
sexual molestation. The trial court admitted testimony by
the parent of a child who claimed to have been molested by
the applicant 20 years earlier. The applicant's state appeal
claimed that the trial court erred in admitting the parent's
testimony without making any reference to federal law. The
state courts analyzed and rejected the claim under
California constitutional and evidence law. The applicant
then filed a federal habeas corpus application claiming the
evidentiary error deprived him of his constitutional due
process rights. The Ninth Circuit held that the applicant
had "fairly presented" his federal claim to the state courts
because "it is not necessary to invoke `the talismanic
phrase "due process of law' " or cite the `book and verse on
the federal constitution' " to notify state courts of federal
claims. 

(citing Henry v. Estelle, 

(9th
Cir. 1994)). The Supreme Court reversed, holding that the
federal claim had not been fairly presented to the state
courts.

We read Duncan as reaffirming the teaching of Harless
and Picard that the absence of explicit reference to federal
law does not resolve the issue of whether a federal claim
_________________________________________________________________

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

                               7
was fairly presented. It also reaffirms, however, that
petitioners must have communicated to the state courts in
some way that they were asserting a claim predicated on
federal law. As the Court explained:

       [E]xhaustion of state remedies requires that petitioners
       `fairly presen[t]' federal claims to the state courts in
       order to give the State the opportunity to pass upon
       and correct alleged violations of its prisoners' federal
       rights. If state courts are to be given the opportunity to
       correct alleged violations of prisoners' federal rights,
       they must surely be alerted to the fact that the
       prisoners are asserting claims under the United 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 only in
       federal court, but in state court.

(citations and quotations omitted).

In Evans v. Court of Common Pleas, De. County, Pa., 

(3d Cir 1992), we noted some of the ways in
which petitioners may communicate that they are asserting
a federal claim without explicitly referencing specific
portions of the federal constitution or statutes. Quoting
from Daye v. Attorney General of New York, 

(2d Cir. 1982) (en banc), we observed that the required
message can be conveyed through "(a) reliance on pertinent
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 the
Constitution, and (d) allegation of a pattern of facts that is
well within the mainstream of constitutional litigation."

. As in Duncan, however, the
petitioner here did not, by these means or any other, 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 and cited
only state cases considering state evidence law without
employing any constitutional analysis.2 McCandless's
_________________________________________________________________

2. The Court of Common Pleas opinion cited one case, Commonwealth v.
Darden, 

(Pa. 1983), involving a pure matter of state

                               8
Pennsylvania Superior and Supreme Court briefs do not
assert this claim in "terms so particular as to bring to
mind" a constitutional right, nor do they "allege a pattern
of facts well within the mainstream of constitutional
litigation." To the contrary, this "double hearsay" claim
brings to mind a classic evidence issue which is precisely
how it was understood by the state courts.

Similarly, McCandless presented his "prosecutorial
vouching" claim to Pennsylvania's courts as an evidentiary
law challenge and not as a violation of a federal or
constitutional right. He did not assert this claim in terms
that bring to mind a constitutional right. On the contrary,
his Superior and Pennsylvania Supreme Court briefs
articulated this claim in terms similar to a Rule 403
objection, contending that the cooperation agreement
testimony was "irrelevant" and "prejudicial" and therefore
improperly admitted. Nowhere are the terms "constitution",
"due process" or even "fair trial" mentioned. The cases cited
were predominantly state cases that considered state
evidence law issues and did not employ constitutional
analysis.3 Finally, we note that there is no similarity in the
_________________________________________________________________

evidence law. The Superior Court affirmed without citing authority.
McCandless's Superior Court brief confined its argument to state
evidence law and cited Commonwealth v. Floyd, 

(Pa.
Super. Ct. 1984), Commonwealth v. Cruz, 

(Pa. 1980),
Commonwealth v. Scott, 

(Pa. 1983), Commonwealth v. Little,

(Pa. 1976), Commonwealth v. Cimorose, 

(Pa. Super. Ct. 1984), all state cases involving evidence law issues.
McCandless's Pennsylvania Supreme Court brief did not cite any
additional authority.

3. The Court of Common Pleas opinion cited Commonwealth v. Reed, 

(Pa. Super.Ct. 1982), which dealt with state evidence law and
a prosecutor's state law ethical duty to present their case "fairly." It
held
that improper vouching was a violation of this duty. Reed did not
consider a constitutional claim. McCandless's Superior Court brief also
cited Reed and additionally Commonwealth v. Cygan, 

(Pa.
Super. Ct. 1968), which dealt with state evidence law. The Superior
Court affirmed without discussion. McCandless's Pennsylvania Supreme
Court brief cited Floyd, Cygan, Cruz, and Reed and additionally
Commonwealth v. Tann, 

, (Pa. 1983); none employed

                               9
analysis applicable to these two claims. In state court,
resolution required a determination of relevancy and a
balancing of possible prejudicial effect. McCandless's claim
that the same facts amounted to prosecutorial vouching in
violation of due process involves an inquiry as to whether
the prosecutorial misconduct undermined the fundamental
fairness of the entire trial. See Darden v. Wainwright, 

, 183 (1986); Ramseur v. Beyer, 

,
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 its
probative value, not whether it was so inflammatory as to
prevent a fair trial." 

.

Thus, we conclude that McCandless did not fairly present
his double hearsay and prosecutorial vouching claims to
Pennsylvania's courts. Because McCandless is procedurally
barred from asserting these claims in state court, his
claims are considered exhausted due to procedural default.
We may only consider these claims if McCandless excuses
his default by showing "cause and prejudice" or a
"miscarriage of justice." See 

.
McCandless, however, makes no attempt to show either.
Accordingly, we are not free to consider them on their
merits.

III.

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

constitutional analysis. In Tann, the Pennsylvania Supreme Court
granted a new trial based upon ineffectiveness of defense counsel for
failing to object to highly prejudicial and irrelevant prosecutorial
bolstering. While McCandless's state court briefs cited two federal cases
considering claims of prosecutorial vouching, these cases did not reach
constitutional issues for the propositions for which they are cited. See
United States v. Winter, 

(1st Cir. 1981) and United States
v. Roberts, 

(9th Cir. 1980).

                                10
A.

The IAD "is a compact which has been adopted by 48
states, the District of Columbia, and the United States, to
encourage expeditious and orderly disposition of
outstanding criminal charges filed against a person
incarcerated in a different jurisdiction." Cooney v. Fulcomer,

, 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, 

, 347 (1994)("While the
IAD is indeed state law, it is a law of the United States as
well."); 

n.1 ("The IAD [was] . . .
approved by Congress pursuant to the Compact Clause
[and] . . . is a federal law . . . . Thus, the federal courts
have habeas corpus jurisdiction . . .").

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

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

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

The parties agree that (i) McCandless was incarcerated in
New Jersey when Pennsylvania filed murder charges
against him; (ii) Pennsylvania filed its IAD request based
upon charges wholly unrelated to the Stebelski murder;
and (iii) Pennsylvania prosecuted McCandless on the
murder charge when they gained custody under their IAD
request. The parties also agree that this clearly violated
Article V(d). They disagree, however, on whether this IAD
violation warrants habeas relief. We conclude that our
decision in Cooney v. Fulcomer, 

(3d Cir. 1989),
is controlling here and that habeas relief must be denied.

In Cooney, Pennsylvania obtained custody of the habeas
applicant from New Jersey through an IAD request based

                                  11
upon burglary charges. The state then (i) dismissed the
burglary charges, (ii) filed new robbery charges based upon
wholly unrelated events, and (iii) convicted the applicant on
the robbery charges. See 

The applicant then
sought federal habeas corpus relief based upon
Pennsylvania's violation of IAD Article V(d). See 

We concluded that Pennsylvania had blatantly violated
Article V(d), but nonetheless held that the applicant was
not entitled to habeas relief because violation of Article V(d)
"was not so fundamental as to warrant habeas relief." 

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

The Court of Common Pleas did not depend upon the IAD
for personal or subject matter jurisdiction. Both are
independently provided by other Pennsylvania statutes.
Under 42 Pa. Cons. Stat. Ann. S 931, the Court of Common
Pleas has "unlimited original jurisdiction of all actions and
proceedings . . . cognizable by law" except where original
jurisdiction has been delegated to another court in
Pennsylvania's unified court system. The murder and
related charges fall within this category. See Commonwealth
_________________________________________________________________

4. We have found violations of other IAD provisions insufficiently
"fundamental" to warrant habeas relief. See Casper v. Ryan, 

(3d Cir. 1987) (violation of article III's requirement of trial
within
180 days of request by detainee not "fundamental defect" warranting
habeas relief); Shack v. Attorney Gen. of Pa., 

, 1173-74 (3d
Cir. 1985)(violation of article IV(a)'s pre-transfer hearing provision not
sufficient to allow "the extraordinary sanction of a collateral attack on
an
otherwise valid criminal conviction"); but see United States v. Williams,

(3d Cir. 1980)(violation of article IV(e)'s antishuttling
provision "fundamental" enough to warrant habeas relief).

                                12
v. Matlock, 

, 28 (Pa. 1978)("The court of
common pleas has jurisdiction to hear murder cases."). The
Court of Common Pleas' personal jurisdiction is provided by
42 Pa. Cons. Stat. Ann. S 5301(a)(1), which inter alia
provides personal jurisdiction over individuals who are
present or domiciled in the Commonwealth when process is
served. McCandless was present in Pennsylvania when he
was arrested for the murder charges. Personal jurisdiction
does not depend upon how McCandless came to be present
in Pennsylvania. Indeed, as the District Court noted, under
Supreme Court precedent the Court of Common Pleas
might even have had jurisdiction if McCandless had been
brought into Pennsylvania by forcible abduction. Frisbee v.
Collins, 

, 522 (1952).5 In short, we conclude
that we are bound by our holding in Cooney that violations
of IAD Article V(d) are not fundamental enough to warrant
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 confronted
with the witnesses against [them]." U.S. Const. amend. 6.
Read literally, this clause "would require, on objection, the
exclusion of any statement made by a declarant not present
at trial." Ohio v. Roberts, 

, 62 (1980). The
_________________________________________________________________

5. McCandless also argues that the Supreme Court's decisions in United
States v. Rauscher, 

(1886) and Johnson v. Browne, 

(1907), regarding the "rule of specialty" in international
extradition law, apply to this case. We find this argument unpersuasive.
In Rauscher, the Court interpreted an extradition treaty between the
United States and Great Britain as impliedly requiring that individuals
extradited under the treaty are tried only for the specific offenses upon
which extradition was sought. 

. The Browne Court
reaffirmed this rule of international law in a habeas corpus proceeding.

. These cases did not arise under a domestic statute with
its own controlling jurisprudence. Moreover, the Supreme Court has
specifically held that the international law "rule of speciality" does not
apply to domestic extraditions under the Extradition Clause. Lascelles v.
Georgia, 

, 542-43 (1893).

                               13
Supreme Court, however, has interpreted the clause to
allow admission of non-testifying declarants' out of court
statements where the prosecution establishes that (i) the
declarant is "unavailable" and (ii) the statement bears
adequate "indicia of reliability." 

When prosecutors seek to admit a non-testifying witness'
preliminary hearing testimony the Confrontation Clause
requires two things. First, the prosecution must establish
that the declarant is "unavailable" by showing that
"prosecutorial authorities have made a good-faith effort to
obtain [the declarant's] presence at trial." 

see also
United States v. Steele, 

, 808 (3d Cir.
1982)("The Confrontation Clause of the sixth amendment
permits [admission of depositions in criminal trials] when
the witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that
witness."). Judging whether a "good faith" effort has been
made is "a question of reasonableness," and"the
prosecution bears the burden of establishing this
predicate." 

(quoting California v.
Green, 

, 189 n.22 (1970)). Second, to satisfy
the "indicia of reliability" requirement, the prosecution
must demonstrate that the defendant had an adequate
opportunity to cross-examine the declarant at the
preliminary hearing. See 

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

6. Because we find a Confrontation Clause violation based upon the
prosecution's failure to establish Barth's unavailability, we find it
unnecessary to address McCandless's additional claim 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 default on the ground
that his counsel had been ineffective in failing to raise this claim in
his
allocatur petition to the Pennsylvania Supreme Court. Because the same

                                14
As noted, we must presume all state court factual
findings to be correct in our analysis of McCandless'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 Clause is a
mixed question of fact and law, reviewable de novo."
Martinez v. Sullivan, 

, 926 (10th Cir. 1989);
see Burns v. Clusen, 

, 941-42 (7th Cir. 1986);
Dres v. Campoy, 

, 998 (9th Cir. 1986)("[W]e
review de novo the question of whether the Supreme
Court's standards for unavailability have been satisfied in
this case."); see also Thomas v. Gunter, 

,
1483 (10th Cir. 1992)(whether hearsay statements met
Confrontation Clause's indicia of reliability requirement
presents "a mixed question of law and fact we review 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-testifying witness'
preliminary hearing testimony. See 

-
75. The Supreme Court has noted that in fulfilling this
duty:

       The law does not require the doing of a futile act. Thus,
       if no possibility of procuring the witness exists (as for
_________________________________________________________________

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

In rebuttal at oral argument, McCandless alternatively 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 Superior Court.
McCandless requested this Court to consider whether"exhaustion"
requires an applicant to present claims in state discretionary appeals.
We are not free to do so. This Court's precedents indicate that habeas
petitioners must present their federal claims to the state's highest
court.
See 

("A claim must be presented not only to the
trial court but also to the state's intermediate court as well as to its
supreme court."); Caswell v. Ryan, 

, 861 (3d Cir. 1992);
Beaty v. Patton, 

, 111 (3d Cir. 1983). But see Boerckel v.
O'Sullivan, 

(7th Cir.) cert. granted, 

(1998).

                               15
       example the witness' intervening death), "good faith"
       demands nothing of the prosecution. But if there is a
       possibility, albeit remote, that affirmative measures
       might produce the declarant, the obligation of good faith
       may demand their effectuation. The lengths to which the
       prosecution must go to produce a witness . . . is a
       question of reasonableness.

(emphasis added).

The reasonableness of the prosecution's efforts must be
evaluated with a sensitivity to the surrounding
circumstances and the defendant's interest in confronting
the absent witness. Confrontation Clause concerns are
heightened and courts insist on more diligent efforts by the
prosecution where a "key" or "crucial" witness' testimony is
involved. See United States v. Foster, 

, 543
(D.C. Cir. 1993) ("The more important the witness to the
government's case, the more important the defendant's
right, derived from the Confrontation Clause of the Sixth
Amendment"); United States v. Lynch, 

, 1022
(D.C. Cir. 1974) ("Confrontation Clause considerations `are
especially cogent when the testimony of a witness is critical
to the prosecution's case against the defendant.' "); United
States v. A&S Council Oil Co., 

, 1133 (4th
Cir. 1991) ("Where [a case] involves the government's most
crucial witness, the [Confrontation Clause] concerns are
especially heightened."); United States v. Quinn, 

, 529 (6th Cir. 1990) (same); Dorsey v. Parke, 

, 166 (6th Cir. 1989) ("Where the trial court has
curtailed a defendant's cross-examination of a `star'
government witness--as it has done in this case--its ruling
must be more carefully scrutinized."); cf. Davis v. Alaska,

(1974) (repeatedly emphasizing cross-
examination of "key" and "crucial" witness as significant
factor for determining that defendant's confrontation rights
outweighed key witness' privacy interest in non-disclosure
of juvenile record under state law).

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

                               16
have substantial reason to cooperate with the
government.' " United States v. Mayans, 

, 1184
(9th Cir. 1994) (quoting United States v. Onori , 

, 945 (5th Cir.1976)); see United States v. Greenberg,

(5th Cir. 1970) (curtailing cross-examination
of cooperating co-defendant witness regarding witness' plea
arrangement with prosecution violated Confrontation
Clause).

Finally, special sensitivity to Confrontation Clause
concerns is appropriate where the consequences of a
conviction based on the absent witness' testimony are
grave. In a capital case, for example, it is fair to ask more
of the prosecution than in a situation involving significantly
less serious consequences.

In this case, McCandless's interest in confrontation with
Barth could not have been higher. He was charged with an
offense which carried a mandatory life sentence, and the
prosecution was seeking the death penalty. Barth was the
prosecution's only eye witness to the alleged shooting, and
his testimony was the only substantial evidence implicating
McCandless in the murder. These factors would have made
full cross examination before the jury of crucial importance
to McCandless even if Barth had been a wholly impartial
witness. But he was not. He had been charged with and
arrested for the same homicide and had reached an
agreement with the prosecution that he would go free if he
testified against McCandless and Hartey and they were
convicted. With McCandless's acute Sixth Amendment
interest in confronting Barth in mind, we turn to the
evidence pertaining to the government's efforts to secure
Barth's presence at trial.

Barth was arrested and charged with Stebelski's death in
March of 1981. He agreed to cooperate with the government
and gave a written statement implicating McCandless in
September of 1981, a little over a year after the alleged
crime. The prosecution agreed to support a reduction 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 report every
other week to a designated room in the courthouse where
he was to sign a subpoena. In February, 1982, Barth failed

                                17
to report to the designated room and failed to appear at a
preliminary hearing regarding an unrelated weapons
charge, which resulted in the issuance of a bench warrant
for his arrest. Barth was arrested and released. In April,
1982, Barth again failed to appear in court, this time at a
preliminary hearing in McCandless's case. Another bench
warrant was issued and police arrested Barth at his home.
Barth was temporarily incarcerated at Holmsberg prison,
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 trial after he
disappeared in early May, 1982. First, Detective Frank
O'Brien, the detective assigned to the Stebelski murder,
testified that he told other police officers to keep an eye out
for Barth and that he personally looked for him when 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 assigned
by the District Attorney's office to locate and serve Barth
with a subpoena, testified that he attempted to serve 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 regarding
Barth's whereabouts. Guerrera repeated these efforts on
July 27, 1982, less than a week before jury selection
commenced on August 2, 1982. This time, he spoke with a
neighbor who told him that Mrs. Barth was at the shore
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 assumed

                               18
that the detective assigned to the murder case, Detective
O'Brien, was investigating Barth's whereabouts.

Third, Detective Tyres, a detective assigned to locate
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 of
Barth's whereabouts.

Finally, Joan Burren, a representative from Pretrial
Services ("ROR"), read the notations from Barth's ROR file
detailing that department's efforts to locate Barth. ROR's
activities centered around three dates. First, after the
bench warrant was issued in May, the ROR made a series
of unsuccessful phone calls to the Barth home to schedule
a "walk in" surrender. Mrs. Barth advised that Barth no
longer lived there. Second, on July 1, 1982, ROR officers
visited the Barth house, found the door open, and searched
the home, but found the residence empty. Third, on August
6, 1982, an ROR officer called Mrs. Barth, who reported
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 Barth's
location because the meeting was pre-arranged. Following
this conversation, the officer sought to obtain the Barth
residence phone records of all calls to and from Delaware.
The telephone company representative, however, refused to
surrender the information without a warrant. No warrant
was sought. An ROR officer also called the Dover police
department, which returned the call forty minutes later
indicating that they had no record of Barth in Delaware.
Finally, a call was made to the Pennsylvania Department 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 siblings. No
federal warrant was sought.

Thus, the record shows the following. The government
supported a bail reduction that allowed Barth to gain his

                                19
freedom. After two failures to appear, two bench warrants
and two rearrests, it sought no alteration in conditions of
his bail. In early May of 1982, three months before trial,
Barth failed to appear for the third time and a bench
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, two and
a half months prior to trial, it is fair to say that Barth's
presence at trial would not be assured unless the
prosecution took affirmative action to secure it. Its 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 police and
prison records and twice unsuccessfully visited the Barth
household, once slipping a subpoena under the door.
Second, in the week immediately preceding jury selection
and trial in early August, authorities repeated these efforts.
In the month between these dates prosecutorial authorities
were idle. This was perhaps attributable to the fact 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 ROR
officer talked to Mrs. Barth two days later, he learned 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 officer
attempted to get the telephone company to voluntarily
provide the McCandless residence phone records, but did
not expend the minimal effort necessary to follow up 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 location.

                               20
With regard to Barth's possible presence in Delaware,
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 did not
even call Barth's father whom they knew to have both a
financial and familial incentive to keep track of Barth.7

Given Barth's crucial role in the prosecution's case, we
are left with the firm conviction that the prosecution'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 tofinding
him prior to trial would have been greater than they in fact
were. To countenance such a disparity would ill serve the
interests protected by the Confrontation Clause. See United
States v. Mann, 

, 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 have made
if it did not have the prior recorded testimony."); 

("It is difficult to believe that if the preliminary
hearing testimony of this critical witness were not available,
_________________________________________________________________

7. The four witnesses who testified about the efforts of the state to
secure
Barth's presence did so during the week before trial. After hearing their
testimony, the trial judge was sufficiently concerned 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 officers had unsuccessfully
attempted to contact Barth's brother, but had spoken with Barth's
parents who told them that they had not seen Barth in months. Defense
counsel refused to stipulate to the prosecutor's summary of ROR efforts
and instead demanded the opportunity to cross-examine the officer. The
trial judge then announced his ruling that Barth was unavailable, and
requested the prosecution to continue its efforts to locate Barth. We have
reviewed the record and have found no other discussion of the ROR's
efforts to locate Barth before his testimony was read to the jury. This
information does change our analysis. In light of defense 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 hearing discussed above.

                               21
the prosecution would have abandoned its efforts at this
point to locate [the witness]."). Accordingly, we hold that
Barth was not constitutionally unavailable and that the
prosecution's use of Barth's preliminary hearing testimony
violated McCandless's rights under the Sixth Amendment.

Given the facts we have recounted, we believe the District
Court's reliance on Roberts v. Ohio, 

(1980), was
misplaced. There, the defendant was indicted and convicted
of forgery and receiving stolen property. An acquaintance of
the defendant, Anita, testified at the defendant's
preliminary hearing but did not appear at trial. The
prosecution sought to introduce Anita's preliminary hearing
testimony at trial, and offered the following evidence to
establish Anita's "unavailability":

       Anita, according to her mother, left home for Tucson,
       Ariz., soon after the preliminary hearing. About a year
       before the trial, a San Francisco social worker was in
       communication with [her parents] about a welfare
       application Anita had filed there. Through the social
       worker, the [parents] reached their daughter once by
       telephone. Since then, however, Anita had called her
       parents only one other time and had not been in touch
       with her two sisters. When Anita called, some seven or
       eight months before trial, she told her parents that she
       `was traveling' outside Ohio, but did not reveal the
       place from which she called. . . . [Her mother] knew of
       no way to reach Anita in case of an emergency. Nor did
       she `know of anybody who knows where she is.'

Supreme Court concluded that Anita was
"unavailabl[e] in the constitutional sense." 

The
court noted that prosecutors had taken affirmative steps to
locate Anita by contacting her parents at Anita's last known
address, but that the prosecutors had "no clear indication,
if any at all, of Anita's whereabouts." 

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 efforts
would have resulted in locating the witness, and would
have led to her production at trial, neutralize[d] any
intimation that a concept of reasonableness required their
execution." 

                               22
We find McCandless's case materially different. First, the
Roberts prosecutors had no current reliable lead regarding
Anita's location; they knew nothing more about Anita's
whereabouts than that she was "traveling" outside the state
and had stopped in San Francisco a year earlier. Here,
however, authorities had a fresh lead from Mrs. Barth.
Their failure to adequately investigate this fresh lead is not
comparable to a failure to follow up on the year-old 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 crucial to
the prosecution's case as Barth's was in the instant case,
and (ii) the Roberts defendant was charged with the
relatively minor crimes of forgery and possession of stolen
property, not capital murder. Finally, the prosecution in
Roberts had no connection or relationship with Anita
comparable to the cooperation agreement in this case.

IV.

We conclude that McCandless failed to fairly present his
double hearsay and prosecutorial vouching claims to
Pennsylvania's courts, and that his unexcused procedural
default of those claims precludes their review in federal
habeas corpus. We will also reject McCandless's claim for
habeas relief based upon Pennsylvania's violation of Article
V(d) of the IAD because, under our circuit jurisprudence,
violations of Article V(d) do not justify habeas relief.

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