Schmitt v. True (387 F. Supp. 2d 622, 2005)

Citations

387 F. Supp. 2d 622

Full opinion text

MEMORANDUM OPINION

PAYNE, District Judge.

Pursuant to 28 U.S.C. § 2254, John Yan-cey Schmitt, a Virginia state prisoner who has been sentenced to death, filed a petition for a writ of habeas corpus challenging his conviction in the Circuit Court for the County of Chesterfield for capital murder and the ensuing death sentence. In a Memorandum Opinion (Docket No. 80) issued on January 21, 2005, all of Schmitt’s claims for habeas relief were rejected except for the following claims:

XIV. Trial counsel was ineffective when he failed to object in a timely manner to the admission of the tape recording of a jailhouse telephone call between Schmitt and Clifford Sauer.

XV. Defense counsel was ineffective when he failed to move for a mistrial based on prosecutorial misconduct at the proper time.

XVI. Defense counsel’s performance was prejudicial.

XX. The admission of the taped jailhouse phone call between Schmitt and Sauer, acting as a government agent, during the penalty phase violated Schmitt’s Fifth and Sixth Amendment rights.

XXI. Prosecutorial misconduct during the penalty summation deprived Schmitt of due process and a fair trial and the trial court erred when denying curative instructions and a mistrial.

Nor has the Court ruled on Schmitt’s March 3, 2004 motion to amend his petition to include the following Claim:

XXIV. The prosecutor withheld impeachment materials in violation of Brady v. Maryland, and Schmitt’s rights to due process of law under the Fifth and Fourteenth Amendments.

In one way or another and to varying degrees, the resolution of Claims XIV and XX affect the resolution of Claims XV, XVI, XXI as well as the proffered amendment. After discovery, an evidentiary hearing was held on Claims XIV and XX. For the reasons stated below, Schmitt is not entitled to relief on Claims XIV and XX and the motion to amend to add Claim XXIV is denied.

I. THE APPLICABLE SUBSTANTIVE AND PROCEDURAL CONSTRAINTS UPON FEDERAL HA-BEAS CORPUS REVIEW

This Court’s warrant to grant relief by way of a writ of habeas corpus is circumscribed by 28 U.S.C. §§ 2254(d) and 2254(e)(1). Under Section 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Schmitt bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. Under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that this standard places an additional hurdle before federal habeas petitioners who now must demonstrate not only that the state court’s decision was erroneous or incorrect, but also that it was unreasonable. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Claims for federal habeas relief that have not been adjudicated in the state courts do not fall within the compass of 28 U.S.C. § 2254(d) and are not subject to the restrictions of that statute. See Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir.2003). Schmitt suggests that 28 U.S.C. § 2254(d) does not apply to Claim XIV because the claim “was not fully developed in state court.” Schmitt’s Reply to Mot. for Summ. J. at 4 (citing Williams v. Taylor, 529 U.S. 420, 442-43, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). Neither the decision in Williams nor the language of Section 2254(d) indicate that the strictures of the statute are inapplicable simply because the record was not fully developed in state court. ' Quite to the contrary, where the claim has been adjudicated on the merits by the state courts, the restrictions of 28 U.S.C. § 2254(d)(1) continue to apply even when a federal habeas court conducts a full evidentiary hearing on the claim. See Reid v. True, 349 F.3d 788, 799 (4th Cir.), cert. denied, 540 U.S. 1097, 124 S.Ct. 979, 157 L.Ed.2d 810 (2003); Cf. Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir.2000) (en banc) (overruling the holding of Cardwell v. Greene, 152 F.3d 331 (4th Cir.1998) that the level of review turns on the depth of the state court’s analysis). Accordingly, the additional evidence that the parties have submitted is relevant to the reasonableness of the state court’s adjudication, but it does not alter the standard of federal review. See Matheney v. Anderson, 377 F.3d 740, 747 (7th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 2252, 161 L.Ed.2d 1063 (2005); Valdez v. Cockrell, 274 F.3d 941, 954 (5th Cir.2001).

The Supreme Court has explained that “[a] state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Supreme Court also has made clear that a federal habeas court “may grant relief under the ‘unreasonable application’ clause [of Section 2254(d) ] if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Furthermore, the jurisprudence of the Supreme Court of the United States is the sole source for judging the reasonableness of a particular decision. See Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir.2000) (en banc). With these parameters in mind, Schmitt’s claims will be examined.

II. FINDINGS OF FACT FOR CLAIMS XIV AND XX

1. On January 19, 1999, Schmitt and an associate, while armed with a shotgun, robbed the NationsBank in Bo-nAir, Virginia (hereinafter “the Bank”).

2. Clifford Sauer, a roofer, previously had employed Schmitt and they had become social friends as well. EH at 14-15. After the January 19, 1999 bank robbery, Schmitt contacted Sauer for his assistance in purchasing a car. EH at 18-19. Sauer brokered the deal for the car and received a fee from Schmitt for his assistance. EH at 51-52. At the time of the transaction, Sauer did not know that Schmitt had robbed a bank. EH 51-52.

3. However, later Sauer became suspicious of Schmitt’s spending habits. JA at 1344. After some prodding, Schmitt told Sauer that he had robbed a bank. JA at 1344. Schmitt tried to purchase a gun from Sauer. JA at 1345. Sauer refused. JA at 1346. Schmitt asked Sauer if he wanted to drive for another bank robbery. JA at 1345. Sauer declined. JA at 1345. Schmitt told Sauer that if, “you breathe one word of this to anyone ... I’m going to have to kill you or my Mends will have to kill you.” Resp. Ex. 4 at 28.

4. On January 30, 1999, Schmitt was arrested for obstruction of justice. JA at 1234. Schmitt told the police that his name was James Comer. JA at 1234. A few hours later, Sauer received a telephone call from an employee of the Henrico County Jail. JA at 1347. The employee asked Sauer whether he knew James Comer. JA at 1347. Sauer responded in the affirmative. JA at 1347. The next voice Sauer heard was that of Schmitt, who told Sauer to contact Kenny Lockner, collect some money, and take it to the Hen-rico County Jail to bail out James Comer. JA at 1347. After the bail was provided, Schmitt was released from custody. Sauer did not realize that he was actually posting bail for Schmitt instead of Comer until he saw Schmitt walk out of the jail after the bail had been paid.

5. On Friday, February 5, 1999, several officers, including Detective William George, arrived at Sauer’s residence in the City of Richmond. While George and another officer went to the front door, other officers surrounded the house. EH at 99, 134. George told Sauer that they were looking for Schmitt in connection with a bank robbery. EH at 18, 100. Sauer gave the officers permission to search his home and readily answered their questions. EH at 17, 48^49. The search lasted only about fifteen minutes. EH at 101, 129. Before leaving, George left Sauer with his card and requested permission to interview Sauer at a later date. EH at 101-102. At the time of the search, Sauer was neither threatened nor coerced. Nevertheless, Sauer was apprehensive about the repercussions of having brokered the sale of the car which Schmitt had purchased from money from the first bank robbery. EH at 18-20.

6. Sauer did not act with any criminally culpable intent in his prior dealings with Schmitt. EH Sauer Testimony. Neither the Chesterfield Police nor the Chesterfield Commonwealth’s Attorney’s office ever contemplated charging Sauer with a crime for his prior dealings with Schmitt.

7. On February 7, 1999, George and Detective Easton conducted an hour long interview with Sauer in Sauer’s home. EH at 103. A large portion of the interview was taped and transcribed. EH at 103; Resp. Ex. 3. From the outset of the meeting, Sauer determined to cooperate fully and voluntarily. Resp. Ex. 3 at 9. Sauer’s cooperation was not attributable to any threats or intimidation by the police. George and Easton expressly assured Sauer that he was not a target of the police investigation. EH at 103, Resp. Ex. 3 at 9. Sauer volunteered information regarding: Schmitt’s purchase of the ear; Schmitt’s efforts to recruit Sauer as a driver; Schmitt’s attempt to purchase Sauer’s gun; Schmitt’s plans to kill Joanna Murphy, one of Schmitt’s friends; and individuals who might lead the police to Schmitt. Resp. Ex. 3. at 9-21.

8. Between February 7 and February 17, 1999, George and Sauer were in almost daily contact by telephone. EH at 25,108.

9. After the January robbery, the Bank hired a security guard, Shelton Dunning. On February 17, 1999, Schmitt walked into the Bank armed with a concealed 45 caliber pistol. Thereafter, Dunning came inside the Bank and stood near the end of the teller line, Schmitt left his place in that line and walked directly to the location where Dunning was standing. Without saying anything, Schmitt fired two shots, one of which hit Dunning in the chest. After the shooting, Schmitt shouted, “get down,” and threatened to “kill everybody” if he did not get some money. Schmitt took the money from the tellers and fled the bank. Dunning died shortly after the shooting. The bank surveillance cameras recorded Schmitt robbing the bank, but did not capture the actual shooting. JA Vol. II and III.

10. Shortly after the murder, Sauer paged George. EH at 141. Sauer told George that he had seen the news of the murder and that he believed that Schmitt was the perpetrator. EH at 141. George went to Sauer’s house to seek Sauer’s assistance in locating Schmitt. Sauer provided the police with information that led to Schmitt’s girlfriend and eventually led to locating Schmitt in Williams-burg on February 20, 1999. EH at 39.

11. On February 20, 1999, the police surrounded Schmitt in his hotel room in Williamsburg. Diane Clareq, a crisis negotiator with the Williamsburg police, attempted to persuade Schmitt to surrender peaceably. During the course of their discussions, Schmitt told Clareq that he had struggled with the security guard and had not intended to kill him. Schmitt eventually surrendered peaceably. JA at 1405-15.

12. Shortly after the arrest, Craig Cooley and Chris Collins were appointed to represent Schmitt on the February 19, 1999 bank robbery and capital murder of Dunning. Both Cooley and Collins are experienced, highly regarded, and very capable capital defense counsel.

13. After Schmitt’s arrest, Sauer continued to call George on a regular basis. EH at 140-43. The topics of conversations ranged from the preparation of the Schmitt case for trial to Sauer’s personal life. From these conversations, Sauer formed the opinion that the police knew most of the relevant facts pertaining to the robberies except where Schmitt had obtained the handgun used in the murder of Mr. Dunning. EH at 152.

14. Sometime shortly before March 12, 1999, Sauer called George. During that conversation, George asked Sauer whether he had heard from Schmitt. EH at 28-29. Sauer told George that Schmitt had been calling him from jail. EH at 28-30. George asked Sauer to tape any future telephone calls from Schmitt. Sauer agreed to do as George requested. EH at 29, 41, 68.

15. Immediately after the telephone call with Sauer, George talked with Chief Deputy Commonwealth Attorney, Warren Von Schuch. EH at 110. Von Schuch told George that Sauer could record the calls and instructed George that Sauer could not ask questions. EH at 111, 256. Von Schuch instructed George to provide Sauer with a tape recorder for Sauer’s phone. EH at 256.

16. Later that day, George delivered the recording device to Sauer and explained how to use it. EH at 29. Sauer was eager to assist George in obtaining information from Schmitt. EH at 111-12, 151. George told Sauer that the prosecution was interested in obtaining incriminating information from Schmitt about the robbery. EH at 30, 35, 40; Pet.’s Ex. 3 ¶ 8. Sauer asked George what questions the police wanted answered. EH at 151. George responded that the only question left unanswered was the origin of the handgun used in the second robbery. EH at 150-51. Thereafter, George told Sauer that we cannot tell you to ask questions and to basically let Schmitt do the talking. EH at 30, 112. Sauer replied that, “I know what to ask. I watch Court TV.” EH at 112. George knew that Sauer intended to take affirmative steps to secure incriminating information from Schmitt. In fact, there was no other reason for George to have asked Sauer to record conversations with Schmitt or to have supplied a tape recorder to Sauer.

17. George and Sauer provided different versions of Sauer’s enlistment. The Court credits, to the extent recited above, Sauer’s account of those events and does not believe George’s divergent version of the same events.

18. On March 12, 1999, Schmitt called Sauer from jail. During their conversation, Sauer elicited from Schmitt information about the gun, the robbery, and the killing of Mr. Dunning. See e.g., JA 1371-72, 1374-86.

19. George retrieved the tape from Sauer and turned it over to Von Schuch.

20. On March 25, 1999, Sauer testified about his dealings with Schmitt before the multijurisdictional grand jury for the City of Richmond, County of Chesterfield, County of Henrico, and County of Hanover. Pet’s Ex. 4. Sauer received use immunity for his testimony. Von Schuch was present at the grand jury proceeding and was aware that Sauer had received immunity. EH at 288. Schmitt was indicted for capital murder by a Chesterfield County grand jury, not by the mulit-jurisdictional grand jury.

21. At the end of July 1999, the Circuit Court for the County of Chesterfield granted the defense counsel’s motion for discovery and directed the Commonwealth to turn over to the defense any material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pet’s Ex. 18, 21; EH at 175, 270.

22. On August 13, 1999, Von Schuch disclosed to defense counsel Schmitt’s statements to Lieutenant Clarcq, which included copies of Clarcq’s notes. EH 177.

23. Schmitt’s trial originally was scheduled to start on October 22, 1999. On September 30, 1999, the Circuit Court granted Schmitt’s motion and continued the trial until February 11, 2000. JA 309-18.

24. Throughout the fall of 1999, Sauer continued to contact George to discuss his personal difficulties and his anxiety about testifying at the Schmitt trial. EH at 72-73, 81-82, 142-43. As a result of these conversations, George became concerned that Sauer might harm himself and might become an unstable witness. EH at 144.

25. For those reasons, George contacted the Chesterfield County Community Services Board (“CSB”) to obtain mental health services for Sauer. EH at 115. George initiated this action out of his concern for Sauer and because he wished to preserve Sauer as an effective witness for Schmitt’s trial. EH at 116, 160. Because Sauer was not a resident of Chesterfield County, George had to “jump through some hoops” to secure CSB services for Sauer. EH at 116. The CSB agreed to provide free services to Sauer as a favor to the police department. EH at 223-24.

26. On November 12, 1999, George accompanied Sauer to the initial interview at CSB with Dr. Sproul. EH at 214. Sauer told Dr. Sproul that he was stressed about his relationship with his girlfriend and was afraid of being called as a witness at Schmitt’s trial. EH at 231-33. Nevertheless, Sauer was ambivalent about receiving any mental health treatment, cancelled his subsequent appointment, and never received any services from CSB. EH at 211, 219-20, 235.

27. At a discovery conference in late November 1999, Von Schuch informed defense counsel that the prosecution had a tape and a surprise witness. EH at 271-73, 357-59. Von Schuch told defense counsel he would provide them more information “after the holidays.” EH at 358. Von Schuch testified that he delayed turning the tape over because Sauer had expressed concern that he would be in danger from Schmitt’s friends if they learned that he had agreed to be a witness for the police. EH at 274, 295.

28. Around Christmas of 1999, perhaps as late as January 1, 2000, Von Schuch provided defense counsel with a transcript of the March 12, 1999 Schmitt/Sauer tape-recorded conversation. EH. at 275.

29. The Schmitt/Sauer tape provided evidence that would have been beneficial to Schmitt during the guilt phase. Although, in that conversation, Schmitt admits to robbing the bank and shooting Dunning, Schmitt’s account of those events indicates that he lacked premeditation and thus was probative of the issue of his guilt of capital murder. Specifically, Schmitt insisted that his gun discharged accidentally during the course of a struggle with Dunning. JA at 1374-86.

30. However, as to the sentencing phase of a capital murder trial, large portions of the tape provide a very negative picture of Schmitt who used profanity throughout the tape and bragged about why he was not worried about the pending capital murder charge. Schmitt expressed concern for his personal relationships and living conditions, and he also appeared to be oblivious to the harm that he had wrought upon the victims of his crimes. Indeed, when reciting his version of how the shooting occurred, Schmitt chuckles under his breath when he explains how Mr. Dunning’s “eyes got real big” when Schmitt pointed the gun at him. JA at 1379. The chuckle does not appear in the transcript, but can be heard on the audio tape.

31. The Commonwealth possessed overwhelming physical and testimonial evidence that Schmitt entered the bank armed with a gun, that he shot Dunning, and that he robbed the tellers at gunpoint. Defense counsel determined that the only defense available to Schmitt was the version of events supplied by Schmitt: that the shooting was not premeditated and that the gun had discharged accidentally during the course of a struggle. EH at 201, 367-68. In addition to the Sauer/ Schmitt tape, Schmitt’s statements to Clarcq and the forensic evidence tended to supported that defense.

32. Cooley and Collins wanted the Schmitt/Sauer tape introduced during the guilt phase of the trial to support the accidental discharge defense. EH at 190; 364. However, Cooley and Collins were aware that Virginia law on hearsay ordinarily excluded a defendant’s own out-of-court statements. EH at 178-79, 357. Cooley and Collins also recognized that, because Schmitt’s statements on the tape were largely inculpatory, the Commonwealth would be able to introduce them as admissions against Schmitt’s penal interest. EH at 364. Thus, counsel perceived that their best chance for having the tape admitted during the guilt phase was to have the Commonwealth introduce the tape.

33. Before trial, defense counsel could not discover at which phase the prosecution would attempt to introduce the Schmitt/Sauer tape. EH at 291, 329. In anticipation that the Commonwealth would decline to introduce the Schmitt/Sauer tape during the guilt phase, Cooley prepared an argument grounded in Virginia case law to persuade the trial court to introduce the tape at the guilt phase of the trial. EH at 196.

34. If they were not able to introduce the tape during the guilt phase, Cooley and Collins did not wish the tape to be admitted during the sentencing phase. Before trial, Cooley and Collins believed that Sauer’s conduct in taping his conversation with Schmitt at the behest of the police violated Schmitt’s Sixth Amendment right to counsel. EH at 185-86, 201, 366, 371. Cooley and Collins had sufficient information to make a pretrial motion to suppress the Sauer tape on Sixth Amendment grounds. EH at 201, 359-66; JA at 1030-31. Both Cooley and Collins knew that, under Va.Code § 19.2-266.2, motions to suppress on constitutional grounds had to be filed before trial. EH at 186, 386.

35. Collins recognized that, under Virginia procedure, it was conceptually possible to move before trial for a ruling on the defense argument that the tape was admissible during the guilt phase as an admission against Schmitt’s penal interest and that, if the motion failed, it was possible simultaneously to pursue a pretrial motion to suppress the motion at the sentencing phase. EH at 383. Counsel declined to pursue any pretrial motion to suppress because of his overriding concern was to have the tape introduced into evidence during the guilt phase and he did not wish to take any action that would discourage the prosecution from introducing the tape during that phase. EH at 364-66, 370, 383. If counsel had possessed the additional information regarding Sauer’s contacts with the police that was revealed during the federal habeas proceedings, it would not have changed Collins’s decision not to pursue a pretrial motion to suppress. EH at 382.

36. In declining to file a pretrial motion, counsel weighed the aggregate harm and benefit of the tape. See FF 29-31. In this regard, Collins and Cooley did not view the Schmitt/Sauer tape as entirely negative with respect to sentencing. EH at 191, 365, 373. First, counsel believed that, even during sentencing, the tape could foment residual doubt on the issue of premeditation that could be helpful in avoiding a death sentence. EH at 384. Second, the tape could humanize Schmitt in the eyes of the jury because it showed Schmitt demonstrating concern for protecting people he had involved in his crimes. EH at 384. This admittedly weak evidence was considered helpful because .there was virtually no other significant mitigating evidence available to the defense. EH at 384.

37. The prosecution team initially planned to include Schmitt’s statements to Sauer as part of the Commonwealth’s guilt phase case. EH at 276, 291, 297. Upon further reflection of the benefits of the tape to the defense during the guilt phase, the prosecution decided to wait until the sentencing phase to introduce the tape. EH at 297.

38. When the prosecution failed to introduce the tape during the guilt phase, counsel attempted to introduce the tape as part of the Schmitt’s guilt phase defense. JA at 1031. The trial court sustained the prosecution’s objection that the statement was inadmissible hearsay. JA at 1035.

39. In order to impose the death penalty in Virginia, the jury must “find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society” (the future dangerousness aggravator) or that the defendant’s “conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim” (the vileness aggravator). Va.Code Ann. § 19.2-264.2. At sentencing, the Commonwealth contended that both the vileness predicate and the future dangerousness predicate were present.

40. When the prosecution sought to introduce the Schmitt/Sauer tape during the sentencing phase, counsel objected that the tape constituted a violation of Schmitt’s Fifth and Sixth Amendment rights because, “Sauer is clearly acting at the behest of ... and as an agent of the police.” JA at 1338. The prosecution responded that the motion was untimely and also argued that Schmitt’s constitutional rights had not been violated. JA at 1338-39. The trial court overruled Schmitt’s motion without explaining the basis for its ruling. JA at 1341. The tape was played to the jury and Sauer testified on behalf of the prosecution.

41. On February 18, 2000, the jury rejected the prosecutor’s assertion of the “vileness” aggravating factor, found the presence of the future dangerousness aggravator, and sentenced Schmitt to death.

42. Around midnight on February 20, 2000, the Richmond police called George for assistance with Sauer who was upset about some housing that was proposed for his neighborhood and he was hinting that he would hurt himself. EH at 122-23. George took Sauer to the Chesterfield Police Department where Jennifer Erisman conducted an emergency evaluation and determined that Sauer was not a danger to himself or others. EH 126-27. Sauer was released.

43. When Sauer received a reckless driving ticket in 2003, he went to Von Schuch for help. EH at 279. Von Schuch arranged for Sauer to keep his license provided that Sauer pay a hefty fíne. EH at 279.

III. CONCLUSIONS OF LAW

A. CLAIM XX IS DEFAULTED

When the Commonwealth sought to introduce the Sauer tape at sentencing, Schmitt objected that it violated his rights under the Fifth and Sixth Amendments. The Commonwealth countered that Schmitt had waived any such objection because he had failed to file a timely pretrial motion seeking the exclusion of the evidence as required by Va.Code § 19.2-266.2. Additionally, the Commonwealth asserted that the underlying argument lacked merit. The trial court examined the transcript of the Sauer tape and then denied Schmitt’s motion to exclude the evidence, without stating the reasons for so doing. On appeal, the Supreme Court of Virginia found that Claim XX was barred under Va.Code § 19.2-266.2. Schmitt v. Commonwealth, 262 Va. 127, 547 S.E.2d 186, 199 (2001).

Schmitt suggests that Claim XX is not defaulted because the trial court decided this issue on its merits, not because the motion was untimely, as the Supreme Court of Virginia held. That argument is not without some force because the trial court decided the issue only after examining a transcript of the tape and listening to argument on the merits. However, the argument ignores the principle that the decision of the Supreme Court of Virginia, if unambiguous, is dispositive of the question whether a claim is procedurally defaulted. See Skipper v. French, 130 F.3d 603, 611-13 (4th Cir.1997). Only if that decision is ambiguous does this Court look to the decision of the trial court. See Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Here, the Supreme Court of Virginia unambiguously determined that Claim XX had been defaulted under Va.Code § 19.2-266.2.

Alternatively, Schmitt contends that this is an, “exceptional case in which the exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). In Lee, the Supreme Court of the United States held that, under the exceptional circumstances of that case, “the Missouri Rules, as injected into this case by the state appellate court, did not constitute a state ground adequate to bar federal habeas review.” Id. at 366, 122 S.Ct. 877. The Supreme Court found that four special circumstances supported that conclusion: (1) at trial, neither the trial court nor the prose-eutor referred to the procedural rules relied on by the state appellate court; (2) there was no indication that formal compliance with the rules would have changed the trial court’s decision; (3) no published state decision required precise compliance with the rules in the urgent situation presented in Lee’s case; and (4) the purpose of the rules was served by Lee’s submissions immediately before and at the short trial. Id. at 387, 122 S.Ct. 877. Schmitt’s reliance on Lee is misplaced.

The combination of special circumstances noted in Lee are not present here. First, at trial, the prosecutor relied upon Schmitt’s failure to comply with Va.Code § 19.2-266.2 as the primary objection to Schmitt’s attempt to exclude the tape on constitutional grounds. Although it is unclear whether compliance with § 19.2-266.2 would have changed the trial court’s determination to allow the Commonwealth to introduce the evidence, the third and fourth special circumstances identified in Lee are clearly absent. Specifically, well over a year before the Supreme Court of Virginia rendered its decision in Schmitt’s case, the Court of Appeals of Virginia had applied the default rule of Va.Code § 19.2-266.2 in Upchurch v. Commonwealth, 31 Va.App. 48, 521 S.E.2d 290 (1999). Thus, the third special circumstance noted in Lee, that the rule had not been applied under similar circumstances in a published decision, is not present. As to the fourth Lee factor, the purpose behind Va.Code § 19.2-266.2 was not satisfied by Schmitt’s belated objection. The Virginia legislature required that such motions be made before trial so that the Commonwealth would have an opportunity to pursue an interlocutory appeal to an adverse ruling. Id. at 292. Schmitt’s belated objection to the Sauer tape came too late for the Commonwealth to pursue an interlocutory appeal from any adverse ruling. Accordingly, Claim XX is defaulted and barred from review here absent a showing of cause and prejudice. Schmitt’s assertion of cause is the ineffective assistance of counsel which is the basis for Claim XIV which is considered next.

B. CLAIM XIV: THE FAILURE OF COUNSEL TO FILE A PRETRIAL MOTION TO SUPPRESS THE SAUER TAPE

In Claim XIV, Schmitt faults trial counsel for failing to file a pretrial motion to suppress the Sauer tape as a violation of Schmitt’s rights under the Fifth and Sixth Amendments. Of course, Fifth Amendment concerns against coercive self-incrimination are not implicated when, unprompted by any threat or promise, a defendant provides information to individuals whom the defendant does not believe are connected to law enforcement. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Illinois v. Perkins, 496 U.S. 292, 296-97, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). Accordingly, counsel was not deficient for failing to pursue a challenge to the admission of the tape on Fifth Amendment grounds and that aspect of Claim XIV will be dismissed.

Schmitt’s Sixth Amendment challenge to the tape is far more substantial. To prevail on the Sixth Amendment challenge, Schmitt must demonstrate that: (1) his right to counsel had attached; (2) the informant was acting on behalf of the state; and (3) the informant deliberately elicited incriminating statements from him. Massiah v. United States, 377 U.S. 201, 204-6, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

On habeas review, the Supreme Court of Virginia found that counsel was not deficient and that Schmitt was not prejudiced by the failure to make a timely motion to suppress the Sauer tape. The Supreme Court of Virginia based its ruling on the determination that Schmitt could not satisfy the second and third elements of a Massiah claim. Schmitt v. Warden, No. 020585, at 11 (Va. Sep. 23, 2002). Specifically, the Supreme Court of Virginia held that:

Sauer was not an agent of the Commonwealth. His role was limited to the passive receipt of information from the petitioner. Sauer did not initiate conversations for the police nor did he receive anything of benefit from the police.

Id.

Schmitt is required to establish that the Supreme Court of Virginia’s rejection of Claim XIV constituted an unreasonable application of the progeny of Massiah and Strickland. See Humphries v. Ozmint, 397 F.3d 206, 228 (4th Cir.2005) (en banc) (Luttig, J., concurring). This requires Schmitt to demonstrate all of the following propositions: (1) it was contrary to, or an unreasonable application of, Massiah to conclude that the state did not deliberately elicit information from Schmitt; (2) it was contrary to, or an unreasonable application of, Massiah to conclude that Sauer was not a government agent; (3) the failure of counsel to pursue a pretrial motion to suppress was constitutionally deficient performance; and (4) there is a reasonable probability that Schmitt would have been sentenced to life in prison had the tape been excluded. Id. at 228-29. As explained below, Schmitt clears the first two hurdles, but not the third and hence the fourth issue — prejudice—will not be addressed.

1. Deliberate Elicitation

To satisfy the so-called “deliberate elicitation” aspect of a Massiah claim, the defendant must “demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Even when the state harvests information in a situation that was likely to lead to the defendant making incriminatory statements in the absence of counsel, there is no violation of a defendant’s Sixth Amendment rights where the informant did no more than listen. Id. at 460, 106 S.Ct. 2616. Here, the Supreme Court of Virginia concluded that Sauer’s role was limited to the passive receipt of information. However, the tape of the telephone call provides clear and convincing evidence that Sauer actively was attempting to secure information from Schmitt.

Initially, Sauer allowed Schmitt to control the conversation and simply responded to Schmitt’s questions. However, as encouraged by George, Sauer soon began to steer Schmitt into talking about the bank robbery.

MR. SAUER: They sure tell a whole different — that paper and all sure tells a whole different story then what you told on what happened on that second thing, man.

JA at 1362. Schmitt responds by saying that he really is not worried about the murder charge and then drifts into discussing an old girlfriend and life in the jail. JA at 1362-72.

Shortly thereafter, Sauer brings Schmitt back to the robbery by discussing the gun that was used.

MR. SAUER: I bet you do. Damn, manjinaudible).

MR. SCHMITT: (Inaudible.) Wasn’t it?

MR. SAUER: Colt nine eleven — nineteen eleven, wasn’t it?

MR. SCHMITT: It was a copy of it. Yeah. I don’t know. I don’t — you know, I can’t say nothing. You know this shit is tapped. You know what I mean?

MR. SAUER: Well, yeah, but—

MR. SCHMITT: You know your shit. You know what I mean? It said nineteen eleven on it, you know, but it was a copy, but, yeah (inaudible).

MR. SAUER: Not the nine, huh?

MR. SCHMITT: No.

MR. SAUER: The one I had a long time ago was just a nine rim.

JA at 1371-72.

Subsequently, Sauer sought to probe why Schmitt believed that he would be “all right” on the murder charge. JA at 1374-75. As the conversation about the Schmitt’s defense drifted off, Sauer sought to return Schmitt to the topic and thereby to obtain further information from Schmitt by challenging Schmitt’s version of the robbery.

MR. SAUER: They had witnesses that were in the bank and all. I heard in the paper—

MR. SCHMITT: Oh, yeah.

MR. SAUER: And shit that said-

MR. SCHMITT: Oh, yea.

MR. SAUER: That that ain’t how -

MR. SCHMITT: I know.

MR. SAUER: It said that you stood in the line and then just turned-

MR. SCHMITT: And just blew him away.

MR. SAUER: And when it was your turn, just pow.

MR. SCHMITT: Them mother fuckers. That’s how fucked up that — that’s how traumatic it was, and that’s how their brains — you know what’s I’m saying? You know how you can see something, but it really did not happen like that? You know what I’m saying?

JA at 1376-77.

Thereafter, Schmitt explained his version of the events in the Bank including his pleasure at scaring the security guard, Shelton Dunning.

MR. SCHMITT: [Mr. Dunning] comes, and he stands right behind me, like he knew. You know what I’m saying. And he turns around this big gung-ho Marine. You know what I’m saying? Fucking 20-year veteran and all this shit, the first to volunteer for the dangerous mission. You know what I mean.

MR. SAUER: Right.

MR. SCHMITT:.... Then [Mr. Dunning] got to like my left shoulder, stood right there.

MR. SAUER: Uh-huh.

MR. SCHMITT: And I was like, man, what happened (inaudible) you know, and all of a sudden he walked by. He walked by on me and went over there and stood by the damn tellers. Right? When he turned around, I was pointing my gun at him, and his eyes got real big. Right?

JA at 1378-79. At this point on the tape, Schmitt is heard to chuckle.

After Schmitt finished his story, Sauer continued to solicit information about the robbery by asking Schmitt why he did not leave the bank when he saw there was a guard.

MR. SAUER: Didn’t you see him when you first went in there?

MR. SCHMITT: He come around the corner, man. He was slipping around the back or something the whole time.

MR. SAUER: And you did not even have the gun out yet; right?

MR. SCHMITT: Hell, no.

MR. SAUER: Man, why in the fuck didn’t you just leave?

MR. SCHMITT: I don’t know what—

MR. SAUER: God damn, man.

MR. SCHMITT: I was committed, man, because I was on the run. You know what I mean? Once I get in there, I mean, who knows, man. You know?

JA at 1383. Finally, when Schmitt expressed his belief that he is going to be acquitted on the capital murder charge, Sauer attempted to elicit what Schmitt’s counsel had told him about the capital murder charge.

MR. SCHMITT: So fuck that murder charge.

MR. SAUER: Well, what did you lawyer say about that?

MR. SCHMITT: That Chesterfield don’t want to let it go. I said, fuck Chesterfield. You know what I mean?

JA at 1386.

During closing argument in the sentencing phase of the trial, the prosecution relied heavily on the tape to demonstrate that Schmitt lacked remorse and that his crime warranted a sentence of death.

He’s not remorseful, and I can tell you how you can tell he isn’t remorseful. You can tell it by the tape 21 days after he’s locked up ... you hear him talk to Duke Sauer. That’s the real Yancey Schmitt.

* í¡5 $ * ❖ *

.... We have Yancey Schmitt telling you about the killing of Shelton Dunning in his own words, in his own element from his heart of hearts. Do you remember when it got to the point where he turned the corner, and listen to the tape, he laughed. He got satisfaction. He found it humorous that Shelton Dunning’s eyes got real big with that 45 pointed right in his face at an instant before he killed him, took his life from him. Ladies and gentleman, what I told you earlier about a little bit you can see or hear a person in a small situation it’ll speak volumes about who and what they are. That tells you volumes about who and what Yancey Schmitt is. Do you remember when Duke Sauer said why didn’t you just leave? Do you remember what the defendant said? I was committed man. He was committed. That goes to vileness. That shows you what is in his mind. That shows you what he thinks is funny.

JA at 1557-59. In its rebuttal case, the prosecution relied on the tape to respond to the defense assertion that Schmitt basically was a good person who because of his addiction to drugs had made some bad mistakes.

But drugs make him different.... You had occasion to listen to the tape .... and you would think if he’s the type of person [defense counsel] says when he’s off drugs and been at jail for three weeks, he should be overwhelmed with remorse for what he has done. I mean, wouldn’t that be the good Yancey Schmitt? We would know then; right?

He’s on the phone saying I’ve got the two badest lawyers for capital murder in Virginia.... I’m all right on the murder charge. If they can get that damn bank robbery charge transferred to the Feds, man, I’ll be home in 15 or 20 years. Does that sound like remorse? Does that sound like the good Yancey Schmitt.

JA at 1579-80; see JA at 1581.

The taped conversation provides clear and convincing evidence that Sauer’s role was not limited merely to the passive receipt of information. Sauer’s numerous questions to Schmitt about the crime fall squarely within the parameters of deliberate elicitation as defined by the Supreme Court. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 271-75, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) Maine v. Moulton, 474 U.S. 159, 165-66, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). In Massiah, the defendant made the incriminating statements in a conversation with one of his confederates who secretly had agreed to permit Government agents to listen to the conversation over a radio transmitter. The deliberate elicitation element was satisfied when the confederate followed the law enforcement officer’s instructions and engaged Massiah in conversation relating to the alleged crimes. See Kuhlmann v. Wilson, 477 U.S. 436, 457-59, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (reciting the facts from Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and United States v. Massiah, 307 F.2d 62, 72-73 (1962)) (Hays, J., dissenting in part). Similarly, in Moulton, the Supreme Court concluded that the informant, a codefendant, had “deliberately elicited” incriminating statements from the defendant by professing to have a poor memory and asking the defendant to remind him of the circumstances of the crimes and by “reminiscing” about events surrounding the various thefts. 474 U.S. at 165-66, 106 S.Ct. 477.

Moulton and Henry also illustrate that the historical circumstances that led to the incriminating statements are pertinent to evaluating whether the statements are the product of deliberate elicitation. In Henry, the Court concluded that the government was charged with deliberately eliciting testimony when it put a commissioned informant on Henry’s scent and the informant then “stimulated conversation” with Henry. Henry, 447 U.S. at 271-75, 100 S.Ct. 2183. The Court noted that, even if one credited the government’s assertion that it did not intend for the informant to take affirmative steps to secure incriminating information, the government “must have known that such propinquity would lead to that result.” Id. at 271, 100 S.Ct. 2183. Here, the circumstances leading to the March 12, 1999 taping reflect that George knew that Sauer did not intend to be a passive listener. Rather, Sauer stated that he intended to guide and encourage Schmitt into making incriminating statements. Thus, George, and hence the Commonwealth, knew that Sauer intended to elicit incriminating information from Schmitt. In light of the foregoing facts and law, the Supreme Court of Virginia unreasonably applied then extant Supreme Court jurisprudence when it concluded that Sauer’s conduct did not constitute deliberate elicitation.

2. The Decision That Sauer Was Not Acting On Behalf Of The Commonwealth

As mentioned previously, the Supreme Court of Virginia also held that:

Schmitt v. Warden, No. 02-0585 at 11 (Va.Sup.23, 2002). For the reasons set forth in the preceding section, two of the three reasons for holding that Schmitt was not an agent of the Commonwealth (that his role was “limited to the passive receipt of information” and that “he did not initiate conversations for the police”) do not stand up under either Section 2254(d)(1) or (2). Thus, those findings cannot support a legal conclusion that Sauer was not an agent of the Commonwealth. The only remaining ground given for the decision that “Sauer was not an agent of the Commonwealth” was that Sauer did not “receive anything of benefit from the police.”

The record is clear that Sauer did not receive consideration in exchange for taping his conversations with Schmitt. See infra Sec. III.B.2.a. However, for the reasons set forth below, that finding is legally insufficient to foreclose the Massiah claim because the controlling decisions of the Supreme Court do not require receipt of consideration as a prerequisite to finding that an informant was acting on behalf the state. See infra Sec. III.B.2.b. Therefore, a decision made on that basis is an unreasonable application of the controlling decisions of the Supreme Court of the United States.

a. Sauer Did Not Receive Consideration in Exchange for Taping and Engaging Schmitt in Conversation on March 12,1999

Before addressing the legal issue of whether consideration is a prerequisite to a determination of agency, it is appropriate to assess Schmitt’s contention that, as a matter of fact, Sauer actually received a benefit from the Commonwealth in exchange for satisfying the request that he talk with Schmitt, elicit information from Schmitt, and record the conversations. Although, in Henry, the Supreme Court described the informant as a “paid informant” (because he was), courts have interpreted the consideration element broadly. See Thomas v. Cox, 708 F.2d 132, 135 (4th Cir.1983). As explained by the Third Circuit, “the Court meant that any informant who is offered money, benefits, preferential treatment, or some future consideration, including, but not limited to, a reduction in sentence, in exchange for eliciting information is a paid informant.” See United States v. Brink, 39 F.3d 419, 423 n. 5 (3d Cir.1994). Of course, when an informant acts on “unencouraged hope to curry favor, ... he could not properly be characterized as ... ‘a Government agent expressly commissioned to secure evidence.’ ” Thomas, 708 F.2d at 136 (quoting United States v. Henry, 447 U.S. 264, 273, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980)). That kind of motivation, like conscience and curiosity, are not evidence useful to evaluation of the existence of agency because the animating force for securing information is not attributable to the government. Id.; see also United States v. Love, 134 F.3d 595, 604 (4th Cir.1998). The foregoing principles inform the assessment of Schmitt’s contention that the Commonwealth provided the following as consideration to Sauer in exchange for taping his conversation with Schmitt: (1) Sauer was not charged with any offense in connection with either of Schmitt’s robberies even though he could have been charged as an accessory after the fact; (2) Sauer was given immunity when he testified before multi-district grand jury; (3) Sauer was aided by George in obtaining free mental health counseling from the County of Chesterfield before Schmitt’s trial although Sauer was not a resident of the County of Chesterfield and thus was not entitled to free treatment; and (4) after the trial, Yon Schuch secured favorable treatment for Sauer in resolving a traffic ticket citation.

(i) Failure to Pursue Criminal Charges

Schmitt argues that there was an implicit agreement between Sauer and the Commonwealth that, in exchange for Sauer’s continued cooperation, Sauer would not be charged as an accessory after the fact to the January 19 bank robbery. To convict a defendant as an accessory after the fact in Virginia, the Commonwealth must prove that: (1) the felony is completed; (2) the defendant knew that the felon committed the crime; (3) the defendant must “receive, relieve, comfort or assist” the felon. Manley v. Commonwealth, 222 Va. 642, 283 S.E.2d 207, 208 (1981).

Under Virginia law, “merely suffering the principal to escape” or failing to report a known felon to the authorities are omissions which are not sufficient to make a party an accessory after the fact. Wren v. Commonwealth, 67 Va. 952 (1875). Rather, “the true test of whether one is an accessory after the fact is to consider whether what he did was done by way of personal help to his principal, with the view to enabling his principal to elude punishment, the kind of help being unimportant.” Buck v. Commonwealth, 116 Va. 1031, 83 S.E. 390, 393 (1914). The only active role that Sauer took after he formed the opinion that Schmitt had robbed the bank on January 19 was to respond to Schmitt’s request to bail James Comer out of the Henrico Jail. Although Sauer participated in securing Schmitt’s release from the Henrico County Jail, the undisputed record reflects that he mistakenly thought he was aiding “James Comer,” a friend of Schmitt’s. Thus, there is no evidence that Sauer had the requisite mens rea to have been charged, or convicted, as an accessory after the fact to the January bank robbery. Moreover, the record demonstrates that the Commonwealth never contemplated charging Sauer in connection with Schmitt’s crimes and communicated that fact to Sauer well before Sauer taped his conversation with Schmitt on March 12, 1999. In sum, there is no evidence that Sauer’s cooperation is traceable to any explicit or implicit threat of criminal sanction.

The failure to pursue criminal charges does not qualify as consideration where, as here, there is no evidence that pursuit of such charges were contemplated. See Creel v. Johnson, 162 F.3d 385, 394-95 (5th Cir.1998). Schmitt has failed to produce any evidence that the Commonwealth foreswore criminal charges against Sauer in exchange for Sauer’s agreement to tape his conversations with Schmitt. Viewed most favorably to Schmitt, the record shows that Sauer harbored the belief that cooperating would place him in the good graces of the police and would evince that he had a clean conscience when he dealt with Schmitt after the first robbery. Motivation of that ilk is insufficient to establish consideration. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 894-95 (3d Cir.1999) (en banc); Thomas, 708 F.2d at 136.

(ii) Benefits Conferred Upon Sauer After the Taping of the March 12, 1999 Telephone Call

Approximately two weeks after Sauer taped the conversations at issue, he testified before the so-called multijurisdictional grand jury. Sauer was granted use immunity as to the testimony that he gave.

The record shows that the multijurisdic-tional grand jury was not the one that returned the capital murder indictment. That indictment was returned later by a grand jury convened in Chesterfield County. The purpose for having Sauer (and other witnesses) testify before the multiju-risdictional grand jury was to fix their testimony while events were fresh in their minds. Schmitt contends that the grant of use immunity supports a finding that Sauer received consideration in exchange for agreeing to tape his conversations with Schmitt (or, at least, that the grant of immunity was evidence probative of that issue). Schmitt also contends that the offer of free mental health treatment provided to Sauer in November 1999, and a post-trial assist with a traffic citation by Von Schuch demonstrate that Sauer was a government agent.

The relevant inquiry is whether the informant was acting on behalf of the state at the time he elicited the statement. See Thomas, 708 F.2d at 135 n. 4 (citing United States v. Malik, 680 F.2d 1162, 1164-65 (7th Cir.1982)). Thus, the fact that subsequently Sauer was given access to free mental health counseling from the County of Chesterfield, that Sauer was given immunity when he testified before the grand jury on March 25, 1999, and that, after the trial, Von Schuch secured favorable treatment for Sauer in the resolution of a traffic ticket do not constitute consideration with respect to Sauer’s conduct at the time of taping the conversation that was admitted into evidence. Id. For the foregoing reasons, it cannot be held that Sauer received consideration (a benefit from the Commonwealth) as part of the agreement between him and the Commonwealth to obtain information from Schmitt. That finding, says the Commonwealth, disposes of Sauer’s Massiah claim. As explained below, it does not.

b. Does the Controlling Law Make the Conferring of a Benefit or Consideration an Essential Component of a Massiah Claim?

The starting point for analyzing this issue is the decision in Massiah. There, the petitioner was free on bail when a federal law enforcement officer “succeeded by surreptitious means in listening to incriminating statements made by him [to the informant].” Massiah v. United States, 377 U.S. 201, 202, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). At the time that the communications were intercepted, Massiah had been arraigned and then indicted for possession of narcotics, and counsel had been appointed for him. Not long after Massiah was released on bail, his co-defendant decided to cooperate with the government and permitted a law enforcement officer to install a radio transmitter in his car. Later, when the co-defendant and Massiah were discussing the case between themselves, the law enforcement officer listened in at a distance. The issue framed by the Supreme Court was whether the admission of the statements obtained in that conversation offended Massiah’s Sixth Amendment right to counsel. Using its decision in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) as the point of analytical departure, the Court cited with approval, and as reflective of the applicable principles of the Sixth Amendment, a rule that had been followed, as a result of Spano, in the New York courts, to-wit:

Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.

Massiah, 377 U.S. at 205, 84 S.Ct. 1199 (quoting People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, 448 (1961)). According to the Court in Massi-ah, “this view no more than reflects a constitutional principle established as long ago as Powell v. Alabama,” (quoting text articulating the importance of the Sixth Amendment right to counsel as outlined in Powell v. Alabama). Id. Having laid that constitutional groundwork, the Supreme Court announced that:

We hold that the petitioner was denied the basic protections of that guarantee [the Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.

Massiah, 377 U.S. at 206, 84 S.Ct. 1199 (emphasis added).

It is apparent from the text of Massiah that the “federal agents” referred to in that quotation were federal law enforcement agents and the inquiry did not focus on whether the co-defendant who had allowed the placement of the listening device in his vehicle and who had talked with Massiah was an agent of the United States. On the other hand, it is equally clear that a critical aspect of the decision in Massiah was that the evidence used against the defendant was information that had been deliberately elicited by a person who was cooperating with the government. See Massiah, 377 U.S. at 210-211, 84 S.Ct. 1199 (White, J. dissenting). Whatever else may be said of Massiah, the decision does not recite that the cooperating co-defendant received either consideration or benefit from the government in exchange for allowing the placement of the listening device in his car and engaging Massiah in conversation. Nor does the decision in Massiah condition the rule that it announced on a finding that the informant has received consideration or a benefit from the government. The principal emphasis of Massiah is that the law enforcement officers deliberately had elicited information from Massiah without the knowledge, or the presence, of his counsel, and it was that conduct, not consideration or benefit received, which was the predicate for the finding that the Sixth Amendment had been violated. In sum, considering the actual holding of Massiah in context of the facts of the case and the arguments addressed by the Court, it is rather clear that the Court did not make the presence or absence of consideration or benefit to the informer a factor in assessing whether Massiah’s Sixth Amendment rights had been infringed.

The Supreme Court next addressed the “constitutional principle” on which it had based the Massiah decision in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In Henry, federal law enforcement agents learned that one of their long-term paid confidential informants had been incarcerated in jail with the defendant, Henry. The federal law enforcement agent told the informant “to be alert to any statements made by the federal prisoners [including Henry], but not to initiate any conversation with or question Henry regarding the bank robbery.” Id. at 266, 100 S.Ct. 2183. While incarcerated with Henry, the informant engaged in conversation with Henry during which Henry told the informant about the robbery. At trial, the informant testified about the statements made by Henry. The Supreme Court held that those statements were the product of conversations between Henry and the informant who, at the time, was acting under instructions of the government. Id. at 271, 100 S.Ct. 2183.

The record in Henry disclosed that the informant had been a paid government informant for more than a year before his encounter with Henry and that the arrangement between him and the law enforcement agents of the United States was of a contingent-fee nature, pursuant to which the informant was paid only if he produced useful information. Id. Thus, unlike in Massiah, the informant in Henry had received consideration for acting on behalf of the government.

However, as in Massiah, the Supreme Court in Henry, did not impose a requirement that the rule of Massiah necessitated a showing that the informant had received a benefit or consideration from the government. And, significantly, in examining Henry’s arguments, the Supreme Court identified the legal principle at issue as: “whether the Government has interfered with the right to counsel of the accused by ‘deliberately eliciting’ incriminating statements.” Id. at 272. In other words, the inquiry to be made in assessing a Massiah claim is whether there was interference by the government with the defendant’s right to counsel in a particular way: e.g. by deliberating eliciting information from the represented defendant using a government informant.

In framing the answer to the critical question, the Supreme Court focused on several factors. First, it identified the fact that Henry was unaware of the government’s informant’s role. That is an important inquiry in the Sixth Amendment context because, as the Court explained, when a defendant is speaking with a known government agent, he is aware that the confrontation is adversarial and is to be conducted at arm’s length. However, “[w]hen the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said [because] [c]onversations stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents.” Id. at 273, 100 S.Ct.