OPINION OF THE COURT
Whilе incarcerated on death row in New Jersey, Marko Bey engaged in numerous “everyday” conversations with Corrections Officer Alexander Pearson. These discussions covered many different topics from sports, to women, to the news. In the course of their discourse, Bey confessed to the murders of two women. When Bey’s death sentence was subsequently vacated and the eon-victions for the murder and sexual assault of one of the victims were reversed, the state introduced Pearson’s testimony at the retrial, and Bey was again found guilty and this time received a sentence of life imprisonment. After Bey’s convictions were affirmed on direct appeal, he sought relief in the district court. Bey now appeals from the district court’s denial of his petition for habeas corpus relief.
We hold that there was no violation of Bey’s Sixth Amendment right to counsel because there was no deliberate elicitation of incriminating information for use in connection with his prosecution. We also hold that there was sufficient evidence at Bey’s second trial to support the jury’s findings of guilt. Thus, we will affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The bruised and battered body of Cheryl Alston was found by a jogger on April 2, 1983, in a vacant lot across the boardwalk from the beach in Ocean Grove, Neptune Township, New Jersey. A police investigation ensued, and Bey was arrested on May 6, 1983. On December 13, 1983, he was convicted for the murder, felony murder, aggravated assault, and aggravated sexual assault of Alston and two days later was sentenced to death. The New Jersey Supreme Court vacated Bey’s death sentence on August 2, 1988, because he had been a juvenile at the time of the offense and was therefore not eligible for the death penalty.
See State v. Bey I,
In a separate prosecution, Bey was also convicted of murdering Carol Peniston in 1983. On the day that the New Jersey Supreme Court vacated Bey’s convictions for the Alston murder, the Court also vacated the death sentence he received for the Peni-ston murder, but affirmed his conviction in
*526
that case,
see State v. Bey II,
In the course of the state’s preparation for Bey’s retrial in 1988, an investigator frоm the Monmouth County Prosecutor’s Office interviewed some 12 or 13 corrections officers regarding Bey. He discovered that, in addition to the earlier confession to the police, Bey had made statements to Pearson while incarcerated in late 1983 and early 1984 at the Capital Sentencing Unit (“CSU”) of the New Jersey State Prison in Trenton. In a statement taken September 19, 1988, Pearson told the investigator that shortly after Bey’s arrival at the CSU he had “talked” with Bey about “why he was here” and “why he did it.” Bey had disclosed to him that he killed two women, one of whom he “raped and beat” “on the bеach,” and that he was “high” while committing the murders.
Bey subsequently challenged the admissibility of Pearson’s proposed testimony on Sixth Amendment grounds and a suppression hearing was held. 1 At the hearing, Bey denied ever discussing the murders with Pearson, but Pearson reiterated the statements he had made to the investigator. Pearson also stated that he had never initiated a conversation about Bey’s murders and had only discussed them when Bey brought up the subject. Pearson did, however, acknowledge asking Bey for clarification “if it was something I didn’t understand.” The only specific example of a question Pearson remembered asking about the murders was “I asked him why would he do that. What kind of mind you was in.” Pearson also indicated that he was aware that Bey had an appeal pending and that he was represented by counsel.
At the close of the suppression hearing, the court found that the structure of the CSU was such that the prisoners, as a practical matter, could not converse with one another. Thus, conversations could be conducted only with the guards. As a corrections officer on the CSU, Pearson was charged with the responsibility of keeping Bey in custody and safe. His respоnsibilities, according to the court, included talking to and observing Bey to detect any suicidal tendencies. The court also observed that the dialogue between Bey and Pearson “touched a whole host of topics,” including sports, women, and “life in jail,” but that on five to seven occasions “there was a discussion” about why Bey was incarcerated. The only question mentioned by the trial court was characterized as Pearson’s having asked, ‘Why did it happen?” The response, according to the court, was “drugs or alcohol.” The trial judge found that Pearson “never set out to gain information from Mr. Bey in the capacity of being a corrections officer; that they were talking, as he described it, man to man,” and that “[i]t was the inmate who initiated the conversations.” Furthermore, the court noted that Pearson made no report of his conversations with Bey prior to being interrogated five years after they occurred. Pearson’s testimony was “found to be extremely credible, although reluctantly given.”
The trial judge concluded that the Miranda rule 2 was not violated, that there was nothing about the setting that was coercive, and that Bey’s statements were entirely voluntary. While the isolation in the unit could fairly bе described as involving pressure to converse with a guard, there was no physical or psychological pressure to converse about incriminating subject matters. The trial judge observed that the conversations between the men “had nothing to do ... with whether or not the Court ultimately was going to overturn the conviction.” The court ultimately ruled that Pearson’s testimony would be allowed into evidence.
At Bey’s second trial, Pearson testified only that Bey told him that “he had beat [sic] and raped a woman on the beach” and that she “died.” The jury did not hear from *527 Pearson any information about drugs, alcohol, or any other motivation for the crime.
The prosecution supplemented Bey’s confession by offering the testimony of investigators from the prosecutor’s offices of two other New Jersey oeeanfront counties. The investigators confirmed that there had been no homicides of females in the vicinity of the beaches in either county between the defendant’s return to New Jersey in March of 1983 3 and his arrest in May of that year; the prosecution used this evidence to link Bey’s statement that he had “beat and raped a woman on the beach” to Cheryl Alston’s death, arguing that Bey’s statement could refer to no other murder. The other evidence included: (1) police testimony and photographs describing the crime scene in which Alston’s naked body had been found in a vacant lot across the boardwalk from the beach along with a “two-by-four,” which had on it blood and hair later determined to match those of the victim; (2) testimony by the medical examiner that Alston died of blunt blows with a “two-by-four” instrument to the head, chest, and abdomen; (3) the testimony of a forensic scientist that a semen stain on the victim’s discarded clothing was consistent with Bey’s enzyme markings, but thаt spermatozoa removed from the victim’s vagina was not; and (4) the testimony of another forensic scientist that the single set of footprints in the sand next to the body were the same “size,” “pattern,” and “make” as a pair of sneakers seized at the time of Bey’s arrest at his mother’s house 1.7 miles from the location of the crime scene.
The jury convicted Bey once again of murder, felony murder, aggravated assault, and aggravated sexual assault. The court sentenced him to life imprisonment with a 30-year parole disqualifier for the murder count and a consecutive term of 20 years with a 10-year parole disqualifier for the aggravated sexual assault count, and imposed a $2,000 Violent Crime Compensation Board penalty. The felony murder and aggravated assault counts were merged.
On appeal, the Appellate Division of New Jersey’s Superior Court disagreed with the trial court’s determination that Pearson was not acting as a “law enforcement agent” during his conversations with Bey.
State v. Bey,
The district court denied Bey’s petition for habeas relief, holding that Pearson’s casual discussions with Bey were not “deliberately designed to elicit statements from the defendant that would settle the outcome of the trial one way or another,” and that the sum of the evidence was sufficient to support Bey’s conviction.
II. STANDARD OF REVIEW
In the briefing before us, Bey argued that we should conduct plenary review of the state court’s conclusion that his Sixth Amendment right was not violated.
See Mil
*528
ler v. Fenton,
When this ease was briefed, the fеderal courts had taken conflicting positions on whether the AEDPA’s amendments were applicable in non-capital habeas corpus proceedings, like Bey’s, that were pending at the time of the AEDPA’s enactment. The Supreme Court has since resolved the debate, holding that the AEDPA’s modifications to § 2254(d) and (e) do not apply in such circumstances.
Lindh v. Murphy,
— U.S. -,
III. RIGHT TO COUNSEL
A.
The Sixth Amendment, which is made applicable to the states through thе Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” U.S. Const. amend. VI;
see Estelle v. Smith,
In a line of cases involving incriminating statements made to police informants, the Supreme Court has held that an individual who stands indicted of a crime is denied his right to counsel when agents of the state circumvent that right by “deliberately eliciting]” inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver.
Michigan v. Harvey,
In
Henry,
the Court determined that the defendant’s pretrial confession to a government informant who had been placed in the defendant’s cell in order to listen to his comments should have been suppressed.
The Court also found a Sixth Amendment violation where the confession was obtained by an informant who agreed to wear a recording device in a meeting with a defendant out on bail. Moulton, 474 U.S. at 180, 106 S.Ct. at 489. The Court invoked Massiah and Henry and articulated the following principle:
[K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.
Moulton, 474
U.S. at 176,
In
Kuhlmann,
on the other hand, the Court did not find a Sixth Amendment violation where an inmate had followed police instructions and had merely listened to the confession of his cellmate.
Since “the Sixth Amendment is not violated whenever — by luck or happenstance— the State obtains incriminating statements from the accused after the right to counsel has attached,” a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police! Rather, the defendant must demonstrate that the police and tbeir informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
Id.
at 459,
In each case, those charged with Sixth Amendment violations were conducting, or working with others who were conducting, an investigation of crimes the defendant had been chаrged with committing. They were thus deliberately seeking to elicit information to be used in connection with the charges pending against the accused, the subject matter of the defendant’s attorney-client relationship. In this line of cases, the Court struggled with the issue of whether there are any circumstances under which the state can deliberately undertake to secure incriminating information from a represented defendant in the absence of counsel and can thereafter use in court the incriminating information it obtains. The answer that has evolved is that it can, only if there is not “elicitation” — only if the government does no more than listen.
See Kuhlmann,
These strict rules are necessary in
Massi-
ah-type situations because the state has deliberately set out to secure information for use in a pending prosecution and because the accused, thinking he is communicating with a fellow inmate rather than a state investigator, is exercising no judgment as to whether counsel’s advice should be sought. Undеr these circumstances, the risk of “dilut[ing] the protection afforded by the right to counsel” is great.
Moulton,
B.
Bey also relies on another line of cases, those involving court-ordered examinations to obtain information relevant to the prosecution of the defendant’s case.
See Powell v. Texas,
In the Estelle line of cases, as in Massiah, those acting on behalf of the state, i.e., the *531 prosecutor, judge, and psychiatrist, were deliberately attempting to secure information from the dеfendant for use in connection with his prosecution. Accordingly, a similar risk of diluting the protection afforded by the Sixth Amendment existed in this line of cases.
C.
The critical distinction between this case and the Massiah and Estelle lines is that Pearson, while a state actor, was not a state actor deliberately engaged in trying to secure information from the defendant for use in connection with the prosecution that was the subject matter of counsel’s representation. While it may be debatable whether any of the information used at trial was given by Bey in response to a question from Pearson, the state court found, based on undisputed facts, that no quеstion asked by Pearson was part of an effort “deliberately designed to elicit incriminating remarks” for use against Bey. While it thus may not be clear whether there was an “elicitation” by Pearson, there certainly was no “deliberate elicitation” within the teachings of the eases Bey relies upon.
Ordinarily, when a state agent converses with an indicted defendant under circumstances in which the agent should expect that incriminating information might be disclosed and such information is disclosed and is subsequently used in the prosecution, it can be presumed that there was a deliberate eliсitation of information for use in connection with the case. The undisputed facts in this case, however, are simply inconsistent with a deliberate plan on the part of Pearson to garner information for use against Bey. 7
Pearson was known by Bey to be an employee of the state, not a fellow inmate or confederate. While the circumstances were such that Pearson should have anticipated that Bey would converse freely with him, given Pearson’s status as a guard and the fact that he did little, if anything, to draw Bey out on the subject of his crimes, we question whether Pearson should have anticipated the confession which Bey volunteered. But even if we assume elicitation on Pearson’s part, the undisputed facts do not support the hypothesis that Pearson intended to elicit information for use against Bey. First, Pearson had no responsibility for eliciting or reporting information for use in the prosecution of Bey’s case and was not working with anyone who had such responsibility. Second, and most importantly, Pearson did not behave like someone who intended to secure incriminating statements from Bey. The record lacks evidence of any questiоns designed to elicit the statement that Bey had raped and beaten a woman to death on the beach, and merely reveals Pearson’s asking “why” Bey had committed the act and seeking clarification “if it was something [he] didn’t understand.” Pearson did not take any notes or compile any reports of his conversations with Bey.
Cf. Kuhlmann,
IV. SUFFICIENCY OF THE EVIDENCE
We also find no merit in Bey’s sufficiency of the evidence challenge. Pearson’s testimony, if credited, established that Bey had “beat[en] and raped a woman on the beach” and that she had “died.” Investigators from the prosecutor’s offices in two New Jersey oceanfront counties confirmed that there were no homicides of females in the vicinity of the beaches in their jurisdiction during the relevant time period; this evidence narrowed the possibility that Bey was confessing to the murder of someone other than Alston when he admitted that he had beaten and raped a woman on a beach. Alston’s naked and battered body was found just across the boardwalk from the beach with her bra wrapped around her neck. She died from severe blunt trauma caused by a two-by-four inch instrument matching the stick found at the scene, bearing her blood and hair. Articles of her clothing loсated at the scene were stained with sperm which was consistent with Bey’s enzyme markers. The single set of footprints matched the “size,” “pattern,” and “make” of a pair of sneakers seized at the time of Bey’s arrest from his mother’s house less than two miles away from the location of the body.
Taking this evidence in the light most favorable to the state, as we must, we hold that Pearson’s testimony and the other evidence that corroborates and supplements it provides a satisfactory basis for the jury’s beyond a reasonable doubt verdict.
See Jackson v. Virginia,
V. CONCLUSION
We will affirm the judgment of the district court.
Notes
. Bey's motion to suppress his confession relied on both the Fifth and Sixth Amendments. Before us, he relies exclusively on the Sixth Amendment.
.
See Miranda v. Arizona,
. In order to prevent the jury from hearing that Bey had been incarcerated and was рaroled on March 19, 1983, the parties stipulated that he “resided” outside of the state of New Jersey prior to that date.
. Section 2254(d) now provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim — ■
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supremе 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 proceedings.
. Of course, the underlying factual findings by the state court are entitled to a presumption of correctness.
See
28 U.S.C. § 2254(d)(1995);
Kuhlmann v. Wilson, 477
U.S. 436, 459-60,
. In
Estelle,
the purpose of the interview was to determine competence to stand trial,
. In an appropriate case, the trial court could preclude the prosecution from admitting a corrections officer’s testimony into evidence. If a corrections officer’s role requires conversations with inmates under circumstances in which in-culpatory statements should be foreseen, the prosecution should expect to forego, at the subsequent trial of the inmate, the use of any statements elicited in those conversations, unless the inmate has been given Miranda warnings.
. In this regard, we think Bey's case is similar to that of the jailhouse informant in
United States v. York,
. Of course, any evidence of an additional legitimate reason for interviewing Bey would be irrelevant were we to determine that Pearson had deliberately acted to secure information for the prosecution.
See Moulton,