Max Alexander Soffar v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division

300 F.3d 588, 2002 U.S. App. LEXIS 15133, 2002 WL 1750857

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 29, 2002
• Docket: 98-20385
• Status: Published

Opinions

EMILIO M. GARZA, Circuit Judge:

Petitioner Max Alexander Soffar (“Sof-far”), a Texas state prisoner convicted of capital murder, seeks a certificate of probable cause (“CPC”) to appeal the district court’s dismissal of his application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A panel of this court, construing Soffar’s petition as a request for a certificate of appealability (“COA”) under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. 104-132, 110 Stat. 1269, granted him a COA on three of his claims. See Soffar v. Johnson, 237 F.3d 411 (5th Cir.2000), reh’g en banc granted, 253 F.3d 227 (5th Cir.2001). The panel resolved one of Soffar’s claims on the merits, concluding that he had made a substantial showing of the denial of his Fifth Amendment rights. The panel granted Soffar habeas relief on this issue, holding that Soffar had invoked his right to counsel during his interrogation, and that the interrogating officer’s misleading statements about appointed counsel invalidated any waiver of Soffar’s rights. We granted rehearing en banc, thereby vacating the panel opinion. See Fifth Cir. R. 41.3. We reinstate the rulings of the panel concerning the grant or denial of COA as to all issues raised by Soffar.¹ In this opinion, we only address the merits of Soffar’s Fifth Amendment claim.

I

Four young employees at a bowling alley were each shot in the head during a late-night burglary in Houston in 1980. A few weeks later, police stopped Soffar for speeding, and arrested him after learning that the vehicle was stolen. On the ride to the police station, Soffar spontaneously told the arresting officer that “he wasn’t going to jail for some little motorcycle theft,” and hinted that he was involved in the bowling alley killings in Houston. At the police station, Officer Clawson (“Claw-son”) was summoned to help interrogate Soffar. Soffar had previously worked as an informant for Clawson and considered him to be a friend. Before he began questioning Soffar about the bowling alley killings, Clawson gave him his third Miranda warning of the day. Soffar had received two warnings prior to his arrival at the police station, one from the arresting officer and another from a magistrate judge.

After briefly talking to Clawson, Soffar was questioned by Detective Gil Schultz (“Schultz”), who gave Soffar another set of Miranda warnings before beginning his interrogation. Schultz later testified that Soffar told him certain details of the crime that only the perpetrator would know. About thirty minutes later, Schultz came out of the interrogation room and told Clawson that he had “hit a brick wall” with Soffar.² Clawson entered the room alone to speak with Soffar.

According to Clawson, the following dialogue occurred during his second interview with Soffar. Soffar asked whether he should talk to the police or obtain an attorney; Clawson responded that “if he was involved in the crime he should tell the detective he was in it; otherwise he should get a lawyer.” Soffar then asked how he could get a lawyer, and Clawson asked him if he could afford a lawyer, knowing that he could not. Soffar laughed, and asked how he could get a court-appointed attorney, and when he could get one. Clawson responded that he did not know Harris County procedures, and guessed that it could take as little as one day or as long as a month. Clawson knew that Houston had a 72-hour rule — which states that a suspect must be charged or released within that time period — but did not tell Soffar about it. Soffar then spat into a trash can, and said “so you’re telling me I’m on my own.” Clawson remained silent.³ After-wards, over the course of three days, Sof-far signed three written statements confessing to the murders. The confessions were crucial to his conviction, because there was no physical evidence linking Sof-far to the crime.

Based on this conversation, the panel majority granted Soffar habeas relief. On rehearing en banc, we must decide: (1) whether Soffar knowingly and voluntarily waived his Miranda rights; (2) whether Soffar invoked his right to remain silent; (3) whether Soffar invoked his right to counsel; and (4) whether Clawson’s misleading statements about the availability of counsel invalidated Soffar’s prior waiver of his rights.

II

In this pre-AEDPA case, we review the district court’s legal conclusions de novo, and the state court’s findings of fact for clear error. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.1999). We must accord a presumption of correctness to all findings of fact if they are supported by the record. See 28 U.S.C. § 2254(d) (1994) (repealed 1996); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir.1994). We review mixed questions of law and fact de novo. Crane, 178 F.3d at 312. The ultimate voluntariness of statements elicited during a confession is such a mixed question. See Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir.1998); Lord v. Duckworth, 29 F.3d 1216, 1221-22 (7th Cir.1994). Whether a suspect invoked his right to counsel is also a mixed question of law and fact. See United States v. de la Jara, 973 F.2d 746, 750 (9th Cir.1992). However, we must apply substantial deference to the findings of fact made by the state court in the course of deciding such claims. Armstead, 37 F.3d at 206; Duckworth, 29 F.3d at 1222 (discussing presumption of correctness afforded to subsidiary questions informing the state court’s legal conclusions).

Ill

Soffar received multiple Miranda warnings informing him of his rights during the course of his arrest and interrogation. If Soffar validly waived these rights, his subsequent statements are admissible. In order for a criminal suspect to validly waive his Miranda rights, two elements are necessary: (1) the relinquishment of the right must be “voluntary in the sense that it was the product of a free and deliberate choice”; and (2) the waiver must be made with “full awareness of the right being abandoned” and the consequences of doing so. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Despite receiving multiple Miranda warnings, Soffar continued to talk to the police, waiving his right to remain silent and his right to have an attorney present. First, shortly after Officer Raymond Wil-loughby arrested Soffar and read him his Miranda rights from a card, Soffar waived his Miranda rights by spontaneously volunteering incriminating statements about his involvement in the bowling alley murders. Next, after receiving Miranda warnings first from a magistrate and then from Clawson at the police station, Soffar stated that he understood his rights and waived them again by voluntarily telling the police about a potential accomplice, Latt Bloomfield. Finally, before Schultz began his interrogation of Soffar, he read Soffar his Miranda rights for the fourth time, and also warned Soffar that he could face the death penalty if convicted. Nonetheless, Soffar waived his rights and described the crime scene at the bowling alley to the police.

It is clear that Soffar made these statements with full knowledge of the consequences. As described above, during the course of his interrogation, he was warned that he might face the death penalty if convicted, was given at least four Miranda warnings, including one set administered by a magistrate, and waived his Miranda rights at least three times. See Moran, 475 U.S. at 422-23, 106 S.Ct. 1135 (“Once it is determined that [the suspect] ... at all times knew he could stand mute and request a lawyer, and that he was aware of the state’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.”).

In addition, there is no evidence indicating that Soffar’s waivers were not fully voluntary. Soffar himself instigated the discussion about the bowling alley murders following his arrest for an unrelated crime. He was not threatened or coerced by the police, and continuously volunteered information about the crime during his interrogation. Id. at 421-22, 106 S.Ct. 1135 (holding statement voluntary in absence of psychological or physical pressure, and noting that it was suspect who spontaneously initiated first conversation). It is “self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled.” Colorado v. Spring, 479 U.S. 564, 576, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (holding that suspect need not “know and understand every consequence of a waiver”).

Once a suspect has waived his rights, the police are free to continue to question him. There is no requirement that a suspect be continually reminded of his Miranda rights following a valid waiver. United States v. Anthony, 474 F.2d 770, 774 (5th Cir.1973); United States v. Taylor, 461 F.Supp. 210, 214 (S.D.N.Y.1978); see also United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997) (holding that “re-warning is not required simply because time has elapsed”); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.1986) (ruling that a suspect who was given two Miranda warnings was not entitled to another one three hours later). Therefore, we conclude that Soffar knowingly and voluntarily waived his rights, and any statements following such waiver were admissible.

IV

Soffar argues that he invoked his right to remain silent at some point during the interview with Schultz. To support this claim, he relies on Schultz’s statement to Clawson that he had “hit a brick wall” with Soffar. See Kelly v. Lynaugh, 862 F.2d 1126, 1130 (5th Cir.1988) (holding suspect invoked right to remain silent by declining to talk). Once warnings are given, if a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If Soffar had invoked this right, his subsequent statements would be inadmissible unless the police “scrupulously honored” his right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (holding admissibility of statements obtained after person in custody has decided to remain silent is case-by-case inquiry depending on whether police respected suspect’s request). We do not agree, based on the record before us, that Soffar invoked his right to remain silent.

Schultz’s statement, standing alone, does not support an inference that Soffar had invoked his right to remain silent.⁴ At the outset, based on Soffar’s prior conduct and the fact that he continued the interrogation with Clawson after Schultz left the room, it does not appear that he wanted to stop talking. See, e.g., Barnes, 160 F.3d at 224 (finding no invocation of right to silence when viewed in light of suspect’s prior statements and fact that suspect initiated discussion); West v. Johnson, 92 F.3d 1385, 1403 (5th Cir.1996) (holding detective’s testimony that suspect said he “didn’t want to tell us anything about it,” was not an invocation of the suspect’s right to remain silent, but rather a denial of involvement in the crime).

Moreover, courts have adopted fairly strict standards when evaluating claims of invocation of silence.⁵ A third-party statement expressing frustration over the suspect’s unwillingness to talk does not meet this standard. See Barnes, 160 F.3d at 224-25 (holding that when suspect answered “no” to question of whether he waived his right, this was not invocation because it was evident he misunderstood the question and continued to talk); Burket v. Angelone, 208 F.3d 172, 200 (4th Cir.2000) (holding statements such as “I just don’t think I should say anything,” are not clear assertions); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996) (“Ramirez’s silence in the wake of two questions, while answering others, did not constitute even an equivocal invocation of his right to remain silent.”).

In light of these facts and the relevant case law, we conclude that Soffar did not invoke his right to remain silent, and therefore, the police were free to continue questioning him.

V

Soffar argues that he invoked his right to counsel during his conversation with Clawson, and that his subsequent statements were therefore inadmissible.⁶ In Davis v. United States, the Supreme Court held that law enforcement officers are not required to cease questioning when a suspect makes an ambiguous or equivocal request for counsel. 512 U.S. 452, 114 5.Ct. 2350, 129 L.Ed.2d 362 (1994). An unambiguous statement “that can reasonably be construed to be an expression of a desire for the assistance of an attorney” is required under this stringent standard. Id. at 459, 114 S.Ct. 2350. Davis established a bright-line rule, under which “a statement either is such an assertion of the right to counsel or it is not.” Id.

Soffar’s statements to Officer Clawson can be categorized as follows: he asked whether he should get an attorney; how he could get one; and how long it would take to have an attorney appointed. Courts have rejected each and every one of these questions as procedural, and too equivocal to constitute a clear invocation of the right to counsel. First, courts have rejected as ambiguous statements asking for advice on whether or not to obtain an attorney. See United States v. Posada-Rios, 158 F.3d 832, 867 (5th Cir.1998) (holding that a suspect’s statement that she “might have to get a lawyer then, huh?” was not a clear request); United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir.1984) (“Why should I not get an attorney?” was not a clear request); see also Davis, 512 U.S. at 462, 114 S.Ct. 2350 (“Maybe I should talk to a lawyer” was not a clear invocation).

Second, a suspect’s question about how to obtain an attorney does not constitute an unambiguous assertion of his right. See United States v. Cruz, 22 F.3d 96, 98 (5th Cir.1994) (holding that a suspect’s statement that he was a “working man” who “couldn’t afford an attorney” was not a clear request); see also Duckworth, 29 F.3d at 1220-21 (the statement, “I can’t afford a lawyer but is there anyway I can get one?” was not a clear request).

Third, a suspect’s inquiry into how long it would take to get an attorney is not a clear invocation. See United States v. Lux, 905 F.2d 1379, 1382 (10th Cir.1990) (finding question about how long it would take to get a lawyer, and whether suspect would wait in jail during the interim, was not a clear request); United States v. Doe, 170 F.3d 1162, 1166 (9th Cir.1999) (holding “what time will I see a lawyer” was not a clear request).

While a suspect need not “speak with the discrimination of an Oxford don,” he must nevertheless clearly articulate his desire to have an attorney present. Davis, 512 U.S. at 459, 114 S.Ct. 2350. Soffar’s questions did not rise to the level of an unambiguous invocation of his right to counsel under Davis.7

VI

Soffar validly waived his rights, and did not subsequently invoke his right to remain silent or his right to counsel. The- only remaining question, then, is whether Clawson’s misleading statements invalidated the multiple waivers Soffar had given prior to the interview. We conclude they do not.

Soffar relies on language from the Supreme Court’s decision in Miranda v. Arizona to argue that any misleading statement, trickery or deceit by an interrogating officer invalidates a suspect’s waiver. See 384 U.S. at 476, 86 S.Ct. 1602 (“Any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”).⁸ We disagree with his interpretation. Subsequent cases interpreting Miranda’s language show that trickery or deceit is only prohibited to the extent it deprives the suspect “of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran, 475 U.S. at 424, 106 S.Ct. 1135. In this case, Soffar was well aware of his rights because he had been given numerous Miranda warnings and had waived his rights multiple times prior to his interview with Clawson. Furthermore, courts have found waivers to be voluntary even in cases where officers employed deceitful tactics. See Spring, 479 U.S. at 575, 107 S.Ct. 851 (holding waiver voluntary despite failure to inform suspect of potential subjects of interrogation); United States v. Tapp, 812 F.2d 177, 179 (5th Cir.1987) (holding waiver voluntary even though officers failed to tell defendant he was target of investigation). Cf. Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (upholding use of undercover agents in jails to elicit incriminating statements).

We have previously rejected, in a case involving very similar facts, an argument of retroactive waiver based on misleading statements. See De La Rosa v. Texas, 743 F.2d 299 (5th Cir.1984). In De La Rosa, a suspect was arrested and subsequently questioned by an officer he knew. Several sets of Miranda warnings were given before the interview, but during the interview the officer told him that “it [would] take some time” before a lawyer could be appointed. Id. at 302. We held the suspect’s waiver was still valid, stating:

We cannot accept the position that would have us ignore the repeated full and accurate warnings to focus only on the remark that appointing an attorney would take some time. The cumulative effect of the repeated incantations of Miranda and explanations in simpler language was such that De La Rosa was fully informed of his constitutional rights.

Id. at 302.

The Fourth Circuit has also held that misleading statements do not invalidate a prior waiver. In Mueller v. Angelone,9 a suspect waived his Miranda rights and asked the police officer during the subsequent interrogation, “Do you think I need an attorney here?” 181 F.3d 557, 573 (4th Cir.1999). The officer responded by “shaking his head slightly from side to side, moving his arms and hands in a .‘shrug-like manner,’ and stating, ‘You’re just talking to us.’ ” Id at 573-74. The court rejected the suspect’s argument that this exchange invalidated his prior waiver, stating that “[i]t is clear from the record that [the suspect], with his extensive experience in such matters, understood both his rights and the consequences of their abandonment. [The officer’s] expression of his opinion on the advisability of [the suspect’s] consulting with counsel could not change that understanding.” Id at 575.

The panel opinion concluded that Fifth Circuit precedent, as set forth in the Nash line of cases, compels the conclusion that deceptive clarifying questions can invalidate a suspect’s prior waiver. See Soffar, 237 F.3d at 458. We disagree. The primary holding of these cases, that all ques-. tioning following an ambiguous invocation should be limited to clarifying questions, was overruled by the Supreme Court’s holding in Davis. See Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc); Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979); United States v. Cherry, 733 F.2d 1124 (5th Cir.1984). In dicta, our opinion in Nash stated that an officer could not “utilize the guise of clarification as a subterfuge for coercion or intimidation,” but the case itself did not involve any clarifying statements used to mislead a suspect. Nash, 597 F.2d at 517 (holding that clarifying questions are permissible after an ambiguous invocation, and ultimately holding that suspect did not invoke right to counsel). Likewise, Cherry noted in dicta that clarifying questions “cannot be used as a means of eliciting any incriminating statements.” Cherry, 733 F.2d at 1130 (holding that when an equivocal request for counsel is made, the scope of interrogation must be limited to clarification). And in Wainwright, the court held that an officer’s question was not limited to clarification and was therefore impermissible, but noted only that “the limited inquiry permissible after an equivocal request for legal counsel may not take the form of an argument between interrogators and suspect about whether having counsel would be in the suspect’s best interests.” Wainwright, 601 F.2d at 772.

VII

Moreover, even if the Nash line of cases is applicable to the facts of this case, Soffar would be barred from relying on them by the non-retroactivity principle set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Supreme Court held that a new rule of law will not be applied on collateral review to cases that became final prior to the announcement of the new rule. Id. at 310, 109 S.Ct. 1060. In determining whether a rule is “new,” we must “survey the legal landscape as it then existed and determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution.” Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.1999) (citations omitted) (emphasis added).

In order to qualify as existing, a rule must be dictated by Supreme Court precedent, not circuit court precedent. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring) (discussing fact that “neither federal supremacy nor any other principle of federal law requires a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation”); Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir.2001) (en banc) (describing relevant inquiry under Teague as “whether a state court in 1987 would have felt compelled by Supreme Court precedent”); Glock v. Singletary, 65 F.3d 878, 885 (11th Cir.1995) (holding that federal courts of appeals “do not ‘dictate’ a particular rule to state courts”). But see, e.g., Williams v. Taylor, 529 U.S. 362, 380-82, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J. for four Justices) (discussing how AEDPA codifies Teague, yet extends the principle of Teague by limiting source of doctrine on which courts may rely in addressing habeas applications to Supreme Court precedent); Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir.1999) (holding that state courts can be compelled to follow federal circuit case law if “foreordained” by Supreme Court precedent). Because the rules in Nash, Cherry and Waiwwright prohibiting deceptive clarifying questions have never been dictated by the Supreme Court, we do not believe a state court, at the time Soffar’s conviction became final, would have felt compelled to follow the holdings of these cases. Soffar has failed to show his prior waivers were invalidated by Clawson’s misleading statements; thus, his valid waivers were still in effect and his subsequent statements were admissible.

VIII

Based on the foregoing reasons, we AFFIRM the district court’s denial of Soffar’s Fifth Amendment claims raised in his ha-beas petition. We also REINSTATE the panel’s rulings granting or denying a COA as to each claim raised by Soffar. We REMAND to the panel for consideration on the merits of the outstanding issues for' which a COA has been granted. See footnote 1.

1 . The panel granted Soffar a COA on two other claims: (1) whether the use of evidence relating to an extraneous offense during the penalty phase was tainted by a violation of Soffar's Sixth Amendment rights; and (2) whether Soffar was denied the effective assistance of counsel when his trial counsel failed to develop and present certain evidence during the guilt phase. We do not consider the merits of either of these claims. Because the panel opinion did not discuss these claims in any detail, we remand them to the panel for consideration on the merits. Soffar, 237 F.3d at 446 ("By virtue of the fact that our grant of relief with respect to Soffar’s Fifth Amendment challenge would render discussion of the merits of these additional issues unnecessary, we likewise need not belabor the justifications for granting a COA on those issues.”). The panel denied Soffar a COA on all other claims presented, and these denials are also reinstated.

2 . This statement is the subject of some dispute. At the state habeas hearing, Schultz denied ever "hitting a brick wall” with Soffar, and testified that Soffar spoke freely with him throughout the interview.

3 . At the state habeas hearing, Clawson testified that he affirmatively replied, "yes, you are.”

4 . We note that the state habeas court rejected the argument that such a statement would constitute an invocation. In its findings of fact, the state court found that "the applicant’s refusal to talk to certain officers or in the presence of certain officers was not an invocation of the applicant’s right to remain silent.” See State Habeas Findings of Fact and Conclusions of Law at 78, ¶ 9. We have previously found the question of whether a suspect invoked his right to silence to be a factual determination made by the state court. West v. Johnson, 92 F.3d 1385, 1403 (5th Cir.1996) ("The record fairly supports the underlying factual determination of the Texas courts that West did not invoke his right to silence.”). Thus, we must defer to such finding. See Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990) (discussing requirement of federal courts to grant presumption of correctness to state court’s explicit and implicit findings of fact). The ultimate admissibility of the statements, however, is a legal conclusion we must review de novo. West, 92 F.3d at 1402-3 ("[Tjhere is independent federal determination of the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution.”).

5 . We decline to address whether the Davis standard should be applied to invocations of the right to remain silent. In Davis v. United States, discussed in Part V of this opinion, the Supreme Court held that a suspect must unequivocally assert his right to request counsel. 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We have previously held that application of such a rule to tire invocation of silence is not contrary to clear Supreme Court law under AEDPA. See Barnes, 160 F.3d at 225. We note that other circuits that have addressed this issue — including the Sixth, Seventh, Eighth, and Eleventh — have held that the Davis rule applies equally to the right to remain silent. See United States v. Banks, 78 F.3d 1190, 1197 (7th Cir.1996) (holding that the response "I don’t got nothing to say” was ambiguous in the context of suspect’s other comments because it could be construed as an angry response), rev’d on other grounds, Mills v. United States, 519 U.S. 990, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (determining whether the suspect’s statements “indicate an unequivocal decision to invoke the right to remain silent” (emphasis added)); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir.1995) ("Law enforcement officers are not required to terminate an interrogation unless the invocation of the right to remain silent is unambiguous.” (citing Davis))-, see also United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir.2000) (citing Davis in implicitly holding that a suspect must assert "his right to remain silent sufficiently clearly”); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996) (assuming, ar-guendo, that Davis applies to invocations of the right to remain silent, but not holding that it definitely does).

6 . The panel opinion, applying a totality of the circumstances analysis, concluded that Soffar had unambiguously requested counsel. Soffar, 237 F.3d at 457.

7 . We decline to place undue emphasis on a portion of Clawson's testimony at the state habeas hearing where he stated that he believed Soffar wanted an attorney. See Soffar, 237 F.3d at 431-32. Soffar has relied on this statement to support his argument that a reasonable officer would interpret Soffar's questions as an unambiguous request for counsel. We are not persuaded by this argument. First, it is contrary to the factual findings of the state court, which found that Clawson interpreted Soffar's questions as procedural. This particular statement is one among many made by Clawson at the hearing, and he repeatedly testified that he did not consider Soffar’s questions to be a request for counsel. Second, the inquiry under Davis is an objective one, and Clawson's perception of Soffar's intent is irrelevant. Davis, 512 U.S. at 459, 114 S.Ct. 2350; see also Diaz v. Senkowski, 76 F.3d 61, 64 (2d Cir.1996) (holding suspect’s intent is not a controlling factor, because officers cannot be guided by speculation as to suspect’s intent).

8 . It is arguable whether Clawson’s statements even rose to tire level of misleading or deceitful. Clawson's statement about whether Sof-far should speak to an attorney was clearly advice, and did not affect Soffar’s knowledge of the fact that an attorney was available to him. Similarly, Clawson’s statement about the length of time it would take to get an attorney does not change the fact that Soffar knew he could ultimately get one. Clawson's knowledge of the “72 hour” rule is irrelevant, as this relates to the period of time a suspect can be held without being charged. See Davis, 512 U.S. at 460, 114 S.Ct. 2350 ("The primary protection afforded suspects to custodial interrogation is the Miranda warnings themselves.”).

9 . Mueller applies AEDPA's deferential standard of review. However, the court does not suggest in its opinion that this was a close or difficult question to adjudicate, as it clearly states that the officer’s conduct "did not serve to render Mueller's waiver involuntary, unknowing, or unintelligent." Mueller, 181 F.3d at 575.