Soffar v. Dretke

391 F.3d 703

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 15, 2002
• Docket: 98-20385
• Status: Published

Opinion

REVISED AUGUST 15, 2002

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 98-20385 ____________

MAX ALEXANDER SOFFAR,

Petitioner - Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court For the Southern District of Texas

July 29, 2002

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.*

EMILIO M. GARZA, Circuit Judge:

* Judge Benavides concurs in the judgment and the opinion except for Part VII. Judges Wiener and Stewart concur in the judgment only. Judge Clement did not participate in this decision. Petitioner Max Alexander Soffar (“Soffar”), 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 emplo yees at a bowling alley were each shot in the head during a late-night

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- 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

(“Clawson”) 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

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- 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 Afterwards, over the course of three days,

Soffar signed three written statements confessing to the murders. The confessions were crucial to

his conviction, because there was no physical evidence linking Soffar 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

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

-4- 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).

III

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 (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 Willoughby 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

-5- 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

(“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 no t 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 (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 (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

-6- 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 (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 (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

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

-7- 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

(“[T]here 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 (1994). We have previously held that application of such a rule to the 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 (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, arguendo, that Davis applies to invocations of the right to remain silent, but not holding that it definitely does).

-8- 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 o thers, 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 (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. 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

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

-9- 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 (“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. Soffar’s

questions did not rise to the level of an unambiguous invocation of his right to counsel under Davis.7

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; see also Diaz v. Senkowski, 76 F.3d 61, 64 (2d Cir.

-10- 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 (“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. In t his 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 (holding waiver voluntary despite failure

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 the level of misleading or deceitful. Clawson’s statement about whether Soffar 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 (“The primary protection afforded suspects to custodial interrogation is the Miranda warnings themselves.”).

-11- 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 (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

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.

-12- 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 questioning

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 (ho lding 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.

-13- 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 (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.

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 (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 (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

-14- if “foreordained” by Supreme Court precedent). Because the rules in Nash, Cherry and Wainwright

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

VIII

Based on the foregoing reasons, we AFFIRM the district court’s denial of Soffar’s Fifth

Amendment claims raised in his habeas 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.

-15- DeMOSS, Circuit Judge, with whom PARKER and DENNIS, Circuit Judges,

join, dissenting:

Because I disagree with the en banc majority’s interpretation

of the case law applicable in this case, and because I disagree

with the en banc majority’s application of such law to the facts

which are not disputed in this case, and because the en banc

majority completely fails to address a ground for relief asserted

by Soffar in this case, I respectfully dissent and write to express

my reasons for such dissent.

I. Misinterpretation of Law

I have two serious disagreements with the legal analysis and

reasoning of the en banc majority. First of all, the en banc

majority states as a matter of established law that “in order to

qualify as existing, a rule must be dictated by Supreme Court

precedent, not Circuit Court precedent.” ___ F.3d at ___. In

support of this legal principle, the en banc majority cites

Lockhart v. Fretwell, 506 U.S. 364 (1993), and, specifically, the

concurring opinion of Justice Thomas in that case. I note,

however, that no other Justice on the Supreme Court joined in Justice Thomas’ concurring opinion; and, while Justice Thomas’

soliloquy on the “supremacy clause of the U.S. Constitution” is

academically accurate, the issue that he discusses had absolutely

no applicability to the decision making of the majority opinion in

Fretwell. Furthermore, Justice Thomas’ concurring opinion does not

speak at all to the issue for which the en banc majority cites it,

i.e. that only Supreme Court precedent (and not Circuit Court

precedent) can be used in determining what is “existing precedent”

in applying the Teague v. Lane, 489 U.S. 288 (1989), anti-

retroactivity rule. Even the majority opinion in Lockhart v.

Fretwell does not address the issue for which the en banc majority

cites it. To the contrary, the majority opinion in Fretwell points

out: “The new rule principle, therefore, validates reasonable good

faith interpretations of existing precedents made by state courts

even though they are shown to be contrary to later decisions.”

Fretwell, 506 U.S. at 372-73 (citing Butler v. McKeller, 494 U.S.

407, 414 (1990)). Note that the term “existing precedents” is not

qualified as the en banc majority obviously wishes it were by the

phrase “of the Supreme Court.”

And this quotation from Fretwell brings up the second major

dispute I have with the en banc majority’s legal analysis. Towards

the end of its opinion, the en banc majority states: “Because the

rules in Nash, Cherry, and Wainwright prohibiting deceptive

clarifying questions have never been dictated by the Supreme Court,

-17- we do not believe a state court at the time Soffar’s conviction

became final would have felt compelled to follow the holding of

these cases.”10 Obviously, the en banc majority did not conduct a

very thorough “survey of the legal landscape” at the time Soffar’s

conviction became final in October 1989. The en banc majority

clearly missed the Texas Court of Criminal Appeals’ en banc

decision in Russell v. State of Texas, 727 S.W.2d 573 (Tex. Crim.

App. 1987). In Russell, the Court of Criminal Appeals expressly

reviewed and discussed the Fifth Circuit’s holdings in Nash and

Wainwright and recognized the following rule, which it acknowledged

had been applied by several of the courts of appeals in Texas:

When an accused’s desires are related in an equivocal manner, the interrogating officers are not required to automatically cease the interview. Instead, they are allowed to continue questioning; however, the questions must be specifically aimed at discovering the accused’s true desire. Further, any interrogating officer may not use the guise of clarification in order to coerce or intimidate the accused into making a statement. Nor may it be used to elicit further information about the event in question. (Emphasis added.)

Russell, 727 S.W.2d at 577. Later, in this same opinion, the Texas

Court of Criminal Appeals stated:

In the instant case appellant never vocalized a desire to have counsel present. He merely sought opinions as to the necessity of having counsel present. Given the fact that appellant’s comments were clearly aimed at the necessity of having

10 See Nash v. Estelle, 597 F.2d 583 (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).

-18- counsel present during interrogation, we will give him the benefit of the doubt. Thus, when appellant inquired of the interrogating officers whether they thought it necessary to have counsel present, the officers were under a duty to clarify appellant’s desires if they wanted to continue the interrogation.

Id. at 578 (citations omitted). Consequently, in my view, there is

no need to speculate (as the en banc majority seems want to do)

about whether the Texas Court of Criminal Appeals “would have felt

compelled to follow the holdings of these cases.” Rather, the

Texas courts did in fact adopt the holdings in Nash and Wainwright.

Finally, the en banc majority asserts the proposition that the

holdings of Nash, Wainwright, and Cherry that “all questioning

following an ambiguous invocation of the right to counsel [should]

be limited to clarifying questions” was overruled by the Supreme 11 Court’s decision in Davis v. United States, 512 U.S. 452 (1994).

The Supreme Court in Davis clearly recognized that in granting

certiorari in that case it was doing so in order to decide “how law

enforcement officers should respond when a suspect makes a

reference to counsel that is insufficiently clear to invoke the

Edwards prohibition on further questioning”; and it recognized that

the Court had twice previously noted the varying approaches of the

lower courts and that the Court was granting certiorari in order to

address the issue on the merits. I agree with the en banc majority

11 Davis is a non-capital case heard by the Supreme Court on direct appeal from the Court of Military Appeals some five years after Soffar’s conviction became final.

-19- that from and after the date of the Davis opinion, i.e. June 24,

1994, the Davis opinion would be deemed to have overruled the

portions of Nash, Wainwright, and Cherry which would have required

clarifying questions when the suspect makes an ambiguous reference

to the need for a lawyer. But Davis really does not speak to the

question of what happens if the interrogating officer does get into

a dialogue with the suspect (as occurred here in Soffar) nor

whether the interrogating officer can utilize that dialogue to

persuade, trick, or cajole the suspect into waiving his Miranda

rights (as happened here in Soffar).

II. Application of Law to Facts

I turn now to my disagreements with the en banc majority’s

application of the law to the facts involved here in Soffar. I can

think of no better way to open this discussion than to quote two

pertinent sentences from the majority opinion, as follows:

Afterwards, over the course of three days, Soffar signed three written statements confessing to the murders. The confessions were crucial to his conviction, because there was no physical evidence linking Soffar to the crime.

___ F.3d at ___ (emphasis added.) These two sentences encapsulate

the circumstances that take this case out of the ordinary run of

the mill situation involving a suspect’s confession and put it in

the category of special, unique, peculiar, and unusual. Some brief

-20- elaboration is appropriate.

Note, first of all, that Soffar was held in police custody for

three days without benefit of access to counsel. He signed three

different written statements. There are substantial

inconsistencies between those three statements. The statements

were typewritten by the interrogating officers outside of the

presence of Soffar, and were based on the interrogator's

recollection of the dialogue that occurred between Soffar and the

interrogator. No video tape or audio tape recording was made of

any of these interrogations; and there was, therefore, no verbatim

typewritten transcript of the interrogations preserved in the

records of this case, as required under Texas law.12

In these statements, Soffar implicated his "running buddy"

Latt Bloomfield as a co-participant with Soffar in the

robbery/murder incidents at the bowling alley. According to these

statements, Soffar and Bloomfield went to the bowling alley in

Bloomfield's car and used Bloomfield's gun in the robbery/murders.

Based on these statements, the Houston Police arrested Latt

Bloomfield and placed him in a police line up for viewing by Greg

Garner, the sole surviving victim of the shootings. Garner did not

identify Bloomfield as being present at the bowling alley. In a

similar fashion, the police placed Soffar in a line up for viewing

12 See TEX. CODE CRIM. PROC. ANN. art. 3822 (1977); see also Alfaro v. Texas, 638 SW.2d 891 (Tex. Crim. App. 1982).

-21- by Garner and Garner did not identify Soffar as being at the

bowling alley.

The police searched the apartment where Bloomfield lived and

his car, but did not find a weapon of the caliber used to commit

the shootings at the bowling alley. In fact, the police did not

find any gun. And the police did not find any other object, cash

or document, which could be identified as coming from the bowling

alley. Similarly, while Soffar was in police custody, without

counsel, the police searched his living quarters at home and found

nothing that came from the bowling alley. The police finger

printed both Soffar and Bloomfield, but their prints did not match

any of the finger prints retrieved by the police from the murder

scene at the bowling alley.

As a result of this investigation, the police determined that

they had no basis to hold Bloomfield in connection with the

robbery/murders, and they released him from police custody.

Bloomfield has never been charged at any time with any criminal

conduct of any kind relating to the robbery/murders at the bowling

alley. The determination that there was no basis to hold

Bloomfield obviously undermines the truthfulness of Soffar’s

statements.

Another aspect of this case that makes it unique and

different, is the relationship between Soffar and Officer Bruce

Clawson of the Galveston County Sheriff's Department. Prior to

-22- Soffar's arrest, Clawson had been deploying Soffar as an undercover

drug informant for developing leads and information about drug

activities in Galveston County. This relationship provided

numerous opportunities for Clawson to get to know Soffar's

strengths and weaknesses, his mental limitations and emotional

make-up, and how to manipulate him to get the information Clawson

wanted developed. It is uncontradicted in the record that Clawson

was summoned to the League City Courthouse when Soffar was arrested

for motorcycle theft because the League City Police knew of the

relationship between Soffar and Clawson, and that they expected

Clawson to be of help in getting Soffar to open up to the police.

Clawson did not have any official duty, responsibility, task

or involvement with the investigation of the bowling alley murders,

which occurred in Harris County not Galveston County. The record

also shows that Clawson negotiated with Soffar as to which police

officer would be the interrogator about the bowling alley murders.

Soffar did not want Officer Palmire (his old nemesis from

Friendswood) to be the interrogator, and likewise, Soffar did not

want Assistant District Attorney Wilson to be the interrogator.13

13 In footnote 4 of its opinion, the en banc majority cites a finding by the state habeas judge that Soffar’s refusal to talk to these two officers “was not an invocation of the applicant’s [Soffar’s] right to remain silent.” As to the fact of Soffar’s refusal to talk to these two officers, the state habeas court is factually correct ; but as to whether such refusals constituted an invocation of the right to remain silent, the state habeas court’s determination is a conclusion of law, which does not bind this Court on review. Furthermore, that conclusion is irrelevant and immaterial to the critical determination of whether Soffar exercised his right to remain silent during his interrogation by Detective Schultz.

-23- Clawson did get Soffar to agree to submit to interrogation by

Detective Schultz. The bottom line is that this relationship

produced what Clawson described as a one-way friendship. Soffar

considered Clawson to be his friend, but Clawson did not consider

Soffar to be his friend.

With this background in mind, I turn to consideration of the

facts and law relating to three critical issues in this appeal:

A. Did Soffar exercise his constitutional right to

remain silent; and if so, what are the consequences

thereof?

B. Did Soffar exercise his constitutional right to get

assistance from counsel, and if so, what are the

consequences thereof?

C. Did Soffar make a knowing and informed waiver of

his Miranda rights as a result of his dialogue with

Clawson?

A. Right to Remain Silent

As indicated earlier, Clawson arranged for Detective Schultz

to interrogate Soffar about Soffar's knowledge of the bowling alley

murders. This interrogation began with Soffar, Schultz, and

Clawson in the interrogation room. There is some testimony by

Schultz that he thought a legal stenographer was also in the room

taking notes of the interrogation; but, if such a person were

-24- there, the State was unable to locate any stenographic notes or any

transcriptions as a result thereof, and no such person testified at

the state habeas hearing to serving in that capacity. Likewise, it

is clear that the interrogation by Schultz of Soffar was not

recorded by any video tape recorder or any audio tape recorder.

Clawson testified at the habeas hearing that in the beginning he

remained in the room for about 15 minutes during which time Schultz

was interrogating Soffar as to the physical premises at the bowling

alley. From the difficulty that Soffar had in describing the

premises, Clawson concluded that Soffar really didn't know much

about the facts, and Clawson left the interrogation room, but

remained at the League City Police Office. About 30 minutes later,

Schultz came out of the interrogation room and told Clawson that he

(Schultz) had hit a brick wall and that Clawson needed to go back

into the room and get Soffar talking again.

Discussion

Among the important safeguards established by Miranda is the

"right to cut off questioning," Miranda v. Arizona, 384 U.S. 436,

474 (1966), which serves as an essential check on "the coercive

pressures of the custodial setting" by enabling the suspect to

"control the time at which questioning occurs, the subject

discussed, and the duration of the interrogation." Michigan v.

Mosley, 423 U.S. 96, 103-04 (1975). This right is a "critical

-25- safeguard" of the Fifth Amendment privilege, Mosley, 423 U.S. at

103, and requires the police immediately to cease interrogating a

suspect if he "indicates in any manner, at any time...during

questioning, that he wishes to remain silent." Miranda, 384 U.S.

at 473-74 (emphasis added); Mosley, 423 U.S. at 100-102.14 "[A]ny

statement taken after the person invokes his privilege cannot be

other than the product of compulsion, subtle or otherwise. Without

the right to cut off questioning, the setting of in-custody

interrogation operates on the individual to overcome free

choice...." Miranda, 384 U.S. at 474. Here, by “refusing to talk"

to Detective Schultz, Soffar invoked his constitutional right to

remain silent. Mosley, 423 U.S. at 101-02 (defendant's indication

that he did not want to answer questions invoked his right to cut

off questioning).15

14 The Supreme Court decision in Davis does not address in any way this Miranda right to remain silent. Moreover, Soffar's claim in this case that he invoked his right to remain silent does not depend on any arguably "ambiguous" statement, but on the facts and circumstances set forth in the state habeas findings and conceded by the state ("Detective Schultz came out of the interview room and told Bruce Clawson that he had hit a brick wall," State Court Findings, p.77, ¶8); Clawson's testimony ("...a detective came and told me Max was refusing to talk and asked me to see if I could get Max to talk again," Clawson Aff. ¶19), and his uncontroverted account of his session with Mr. Soffar; and the end result of Clawson's interview, the resumption of interrogation by Schultz, together with Clawson's candid assessment of that result ("All in all, I was used to getting Max to talk." Clawson Aff. ¶16). 15 Accord, Charles v. Smith, 894 F.2d 718, 725-26 (5th Cir. 1990) (defendant's refusal to talk to police invoked his right to cut off questioning); United States v. Hernandez, 574 F.2d 1362, 1368-69 (5th Cir. 1978)(defendant's refusal to answer questions invoked his right to cut off questioning); Nelson v. Falcomer, 911 F.2d 928, 932-34 (3d Cir. 1990) (defendant's refusal to talk to police invoked his right to cut off questioning); United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988) (defendant's silence and refusal to respond to police questioning invoked his right to cut off questioning); Christopher v. Florida, 824 F.2d 836, 840-41 (11th Cir. 1987)(defendant's refusal to talk to police invoked his right to cut off questioning); United States v. Poole, 794 F.2d 462, 465-67 (9th Cir. 1986) (defendant's statement that he had "nothing to

-26- Once Soffar invoked his right to silence by refusing to talk,

the police were under an absolute obligation to "scrupulously

honor" the right to remain silent and to immediately cease all

questioning. Mosley, 423 U.S. at 104. Here, Schultz did break off

the interrogation by leaving the room, but he immediately violated

Soffar's rights by sending in Clawson to override Soffar's exercise

of his right. In doing so, the police failed to honor Soffar's

right to remain silent, rendering inadmissible all statements

subsequently obtained.

The State argues, and to my dismay the majority seems to be on

the verge of adopting, the concept that a person must do something

special to "invoke" his Miranda right to remain silent. This is

sophistry beyond my ability to understand. What in the world must

an individual do to exercise his constitutional right to remain

silent beyond actually, in fact, remaining silent?

In my view, Detective Schultz failed to “scrupulously honor”

Soffar’s right to remain silent and violated Miranda by sending in

another person to try to talk Soffar into resuming the dialogue.

talk about" invoked his right to cut off questioning); Martin v. Wainwright, 770 F.2d 918, 922-24 (11th Cir. 1985) (defendant's statement "can't we wait until tomorrow" invoked his right to cut off questioning), modified in respects not relevant, 781 F.2d 185 (1986); Anderson v. Smith, 751 F.2d 96, 101-05 (2d Cir. 1984) (defendant's refusal to talk to police invoked his right to cut off questioning); Robinson v. Percy, 738 F.2d 214, 220 (7th Cir. 1984) (defendant's statement that he did not want to talk with the police invoked his right to cut off questioning); Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988) (defendant's silence and refusal to answer questions during interrogation invoked his right to cut off questioning); Faulder v. State, 611 S.W. 2d 630,640 (Tex. Crim. App. 1979) (en banc) (defendant's request that he be allowed time to get matters straight in his mind before answering questions invoked his right to cut off questioning); Hearne v. State, 534 S.W. 2d 703, 706-07 (Tex. Crim. App. 1976) (defendant's refusal to talk to the interrogating officer invoked his right to cut off questioning).

-27- This error was compounded by the fact that Clawson was the person

sent in to get Soffar to resume talking -- his prior knowledge,

experience, and contact with Soffar gave him an advantageous

position from which to work on Soffar. Spano v. New York, 360 U.S.

315 (1959). Given the ability of interrogators to needle, tease,

taunt, and repeat again and again, remaining silent in the thrust

of such testing requires a genuine exercise of will power. Actions

speak louder than words, and silence is "forbearance from speech,"

the result of not speaking. To create some sort of magic password

that the majority seems to want to do, and require this password to

be spoken in order to exercise the right to remain silent, will

result, tragically, in the dilution of this most fundamental

constitutional right, i.e. the right to require the government to

prove guilt beyond a reasonable doubt without relying upon any

words from the mouth of the accused.

B. Right to Counsel

The second critical issue in this appeal is whether Soffar

exercised his constitutional right to assistance from counsel

during his dialogue with Clawson and, if so, the consequences

thereof. This issue necessarily involves an evaluation of the

dialogue that occurred between Clawson and Soffar after Clawson

went back into the interrogation room to get Soffar talking again,

as requested by Detective Schultz. The record is clear that there

-28- was no other person in the interrogation room except Soffar and

Clawson; and again there was no video tape recording or audio tape

recording made of this conversation. Clawson testified that his

dialogue with Soffar lasted about 35 or 40 minutes. It is very

troubling to me that the interrogation of Soffar did not include

any form of live real time recording of the conversations. See

TEX. CODE CRIM. PROC. ANN. art. 3822 (1977). Technology was obviously

available to make recordings of these interrogations because the

police investigators made audio tape recordings of each of the four

interviews with Garner, the surviving victim, and then those

recordings were transcribed verbatim in question and answer form

and were in the prosecutors’ files.16 Obviously, if a recording in

some form had been made of the dialogue between Clawson and Soffar,

our tasks on appellate review would have been greatly simplified.17

16 As already noted, a statute of the State of Texas that was in full force and effect at the time of Soffar’s interrogations would have seemed to make the recording of oral interrogation of a suspect in police custody standard operating procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (1977). Why that procedure was followed in the case of Garner and not in the case of Soffar is one of the many puzzling enigmas in this case. 17 The evil that Miranda addresses is the practice of police interrogation of a suspect in custody which occurs in a separate room, preferably without windows, by several police officers, over extended periods of time, the purpose of which is to put pressure on the suspect to talk by isolation, fear, fatigue, intimidation, vigorous cross-examination, and other techniques which have been developed and dissiminated to make such interrogations as effective as possible. Given the low cost and widespread availability of video taping equipment, a significant improvement in the application and enforcement of Miranda rights could be achieved, in my opinion, by a statute or court rule requiring (1) that all interrogations of a capital murder suspect must be video taped in real time with elapsed time shown on the tape; (2) that such tape must be preserved for a period of ten years after the interrogation; and (3) that if such interrogation was conducted without the presence of counsel for the suspect, such tape would be made available for viewing by such counsel immediately upon his employment or his appointment.

-29- We are left, therefore, to evaluate both the factual and the legal

content of this dialogue based on the testimony of Clawson as it

was developed at the state habeas corpus hearing. The words that

were spoken by each of the parties as described by Clawson are not

in dispute, intimations of the majority opinion to the contrary

not-withstanding. Because the specific language used takes on such

critical importance, I turn now to a separate and individual

discussion and evaluation of each of the questions and answers

between Soffar and Clawson:

Question No. 1:

Soffar asked: “Should I get an attorney or talk to the detective?”

Clawson answered: “If [you were] involved in the crime, you should tell the detective [you were] in it; otherwise [you] should get a lawyer.”

Commentary:

There is nothing in Miranda itself, nor in any of its progeny,

which draws any distinction between guilty and innocent suspects as

far as being entitled to the Miranda protections. The only

requirement for the protections contemplated by Miranda is that the

suspect be “in police custody,” which Soffar clearly was in this

case. Clawson’s answer to this question is completely inaccurate,

inappropriate, and inconsistent with his obligations under Miranda.

I would suggest that a reasonable answer by a reasonable police

officer would be:

You have a constitutional right to have a lawyer present

-30- to help you during this interrogation whether you are guilty or innocent. On the other hand, you may talk to the police without a lawyer if you so choose. The choice is up to you and I can’t make that choice for you; but if you want a lawyer, you need to clearly say so as otherwise the police may assume you don’t want a lawyer.

Question No. 2:

Soffar asked: “How do I get a lawyer?”

Clawson answered: “Can you afford to hire a lawyer on your own?”

This answer is directly contrary to the language and spirit of

Miranda. Clawson knew that Soffar didn’t have enough money to hire

his own lawyer when he gave this answer and, in my view, Clawson

gave this answer not to inform Soffar but to put Soffar in a

position of dependency as he had been as an undercover informant

for Clawson. Therefore, Clawson’s answer is totally non-responsive

to the question asked by Soffar. In my view, a reasonable answer

by a reasonable police officer would have been:

You can get a lawyer by hiring one of your own choice and agreeing to pay that lawyer’s fees and expenses yourself. If you don’t have enough money to pay for your own lawyer, you can sign an affidavit which says that; and the court will then appoint a lawyer to help you and the fees and expenses of this appointed lawyer will be paid for by the state.

Question No. 3.

Soffar asked: “When can I get a court-appointed lawyer?”

Clawson answered: “It could take as little as a day or as long as a month.”

-31- The “as long as a month” portion of Clawson’s answer is just

flat wrong and Clawson knew it. Clawson gave this answer because

he knew from his prior experience with Soffar that Soffar could not

think about anything past tomorrow, and Clawson intended to

discourage Soffar by this long time estimate. Under Miranda, the

length of time it may take to get counsel appointed is immaterial

and irrelevant. In my view, a reasonable answer by a reasonable

police officer would have been:

A day or two at the most, but you shouldn’t worry about how long it takes because during that time you have a constitutional right to remain silent and this interrogation will cease until your lawyer is appointed and you’ve had a chance to talk with him in private.

Question No. 4.

Soffar asked: “So you are saying that I have to deal with this on my own?”

Clawson answered “yes” at one point in the state habeas

hearing transcript and “I did not answer at all” at another part in

the state habeas transcript.

Neither of Clawson’s answers are proper under Miranda. The

“yes” answer is just plain wrong and totally inconsistent with the

whole purpose of the Miranda requirements. If Clawson did not

answer this question at all, Soffar would be left to make a

decision based on an incorrect assumption and on a subject as to

which he is not fully informed. I would suggest that a reasonable

officer would make the following reasonable answer to Soffar’s

-32- question:

No, you don’t have to deal with it on your own. As I told you earlier, you have a constitutional right to get a lawyer to help you if that’s what you want.

The majority would like to dispose of this claim by Soffar

under the rubric that mere ambiguous comments by a suspect that

just mention an attorney will not be deemed sufficient to

constitute a request for help from an attorney. I think the

majority errs in applying that rubric to this case for three

reasons.

First, from a pure language and grammar standpoint, there is

nothing “ambiguous” at all about Soffar’s questions. They are each

clear, unequivocable requests for information relevant and material

to Soffar’s making an intelligent and informed decision as to his

desire for counsel. All of the cases upon which the en banc

majority relies to support its conclusion that each of the

questions asked by Soffar did not constitute a sufficiently clear

request for an attorney, were cases where there was one random

unconnected comment by the suspect on the subject of counsel and

not a series of specific questions relating to getting the help of

counsel as we have here in Soffar. In my view, there is a world of

difference between one ambiguous comment and a specific request for

information; and when you have to deal with a series of specific

questions, the difference becomes even more critical.

Second, in each of the cases relied upon by the majority there

-33- was clear, irrefutable, and conclusive evidence connecting the

confessing suspect to the crime under investigation. In such

circumstances, it is understandable that a reviewing court would be

reluctant to invalidate a conviction simply because of some random

comment made by the suspect during his in-custody interrogation.

It is inherent that the Jackson v. Denno review for compliance with

Miranda requirements occurs after the circumstances of the

interrogation itself and frequently after the suspect has already

made inculpatory statements without the presence of counsel. Here,

the assertion as to non-compliance with Miranda was not seriously

raised at the Jackson v. Denno hearing and was only brought to

light as the result of discovering new information developed during

the state habeas corpus hearing. At that point, the fact that

there was “no physical evidence linking Soffar to the crime” (as

the majority characterizes the situation) was self-evident, and

Soffar’s conviction and death penalty hang by the thread of how the

reviewing court interprets the Clawson/Soffar dialogue.

Third, I disagree with the majority’s conclusion that, under

Davis, Soffar did not make a sufficiently clear invocation of his

right to counsel. As stated earlier, I believe the facts presented

here fall outside Davis‘ scope. However, assuming Davis is

applicable I believe an accurate reading of Davis has to be made

now through the lenses of the Supreme Court decision in Dickerson

v. United States, 530 U.S. 428 (2000). While Soffar’s case was on

-34- appeal in our Court, the Supreme Court handed down its decision in

Dickerson. It held “that Miranda announced a constitutional rule

that Congress may not supersede legislatively” and that for reasons

of stare decisis, the Court declined to overrule Miranda itself.

Dickerson, 530 U.S. at 444. The en banc majority opinion here does

not even recognize the existence of Dickerson.

Note that the Supreme Court in Dickerson used the past tense

in stating that Miranda announced a constitutional rule and used

the present tense in applying the rule of stare decisis as the

reason for declining to overrule Miranda. I suggest, therefore,

that the interpretation that should be drawn from Dickerson is that

the rule announced in Miranda was in the beginning, is now today,

and has always been in the interval a constitutional rule. In

evaluating the strengths and applicability of Davis here in Soffar,

we should recognize that the opinion in Davis is the “last of the

Mohicans” of those opinions in which a majority of the Supreme

Court characterized the Miranda rights as not being “required by

the Fifth Amendment’s prohibition on coerced confessions” and

instead characterized Miranda and its progeny as being the product

of the prophylactic rule making power of the Supreme Court. See

Davis, 512 U.S. at 458. The decision of the Supreme Court in

Dickerson has eliminated any meaning to this distinction.

Furthermore, in evaluating the strength and applicability of

-35- Davis, I would point out the substantial differences in the factual

circumstances under which the issue of invocation of the right to

counsel took place in Davis from the circumstances involved here in

Soffar. The following is a direct quote from the majority opinion

in Davis:

About an hour and a half into the interview, petitioner [Davis] said “Maybe I should talk to a lawyer.”

According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:

[We made] it very clear that we were not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren’t going to pursue the matter unless we have it clarified whether he is asking for a lawyer or is just making a comment about a lawyer and he said “no, I’m not asking for a lawyer” and then he continued on and said “no, I don’t want a lawyer.” After a short break the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour until petitioner said “I think I want a lawyer before I say anything else.” At that point, questioning ceased.

Davis, 512 U.S. at 455 (citations omitted). Later on in the Davis

majority opinion, the Court states:

Of course, when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case [Davis].

Id. at 461.

The en banc majority opinion reads the language of Davis very

strictly and literally as requiring a suspect being interrogated by

police to expressly and explicitly say “I want a lawyer” in order

-36- to validly assert his right to have counsel present, regardless of

the dialogue and interchange of comments that might have actually

occurred. In my view, the proper test as articulated by the Court

in Davis is the following:

Although a suspect need not speak with the discrimination of an Oxford don,... (Souter, J. concurring in judgment), he must articulate the desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Id. at 459 (citation omitted). This objective test of what a

reasonable police officer “would understand under the

circumstances” would seem far more appropriate in protecting what

Dickerson now clearly holds is a constitutional right.

Additionally, the Supreme Court has in the past “given a broad,

rather than a narrow interpretation” to requests for counsel, see

Michigan v. Jackson, 475 U.S. 625, 633 (1986); Connecticut v.

Barrett, 479 U.S. 523, 529 (1987); and has instructed that courts

“indulge every reasonable presumption,” Johnson v. Serps, 304 U.S.

458, 464 (1938); that a suspect has not waived his right to counsel

under Miranda, see, e.g., Oregan v. Bradshaw, 462 U.S. 1039, 1051

(1983) (Powell, J. concurring) (“We are unanimous in agreeing that

the [Miranda] right to counsel is a prime example of those rights

requiring the special protection of the knowing and intelligent

waiver standard.”).

The reasonable officer test calls for a conclusion of law on

-37- the part of the reviewing court as to whether the Soffar/Clawson

dialogue constituted a sufficient invocation of Soffar’s rights to

counsel during the interrogation. In my own mind, I doubt that

Officer Clawson could qualify as a reasonable police officer

because he was charged with the mission of getting Soffar to resume

talking to Officer Schultz; and Clawson knew that Soffar would say

“yes” if he ever asked Soffar a clarifying question as to whether

or not he wanted an attorney. So Clawson never followed the track

suggested as good police practice by the Supreme Court in Davis;

but, even so, he admitted in his state habeas testimony that he

understood Soffar’s questions to indicate that Soffar wanted a

lawyer.

The Supreme Court decision in Dickerson did not establish a

“new rule” and is thus fully applicable to this case.

Significantly, it confirmed the continuing vitality of Miranda, and

thus made clear that, because its prescription is a constitutional

requirement, Miranda’s protections cannot be diluted, much less

negated. Dickerson reiterated that Miranda was intended to curb

precisely the kind of oppressive and overbearing interrogation

tactics that produced the statements at issue here. As Chief

Justice Rehnquist declared for the Court: “After discussing the

‘compelling pressures’ inherent in custodial police interrogation,

the Miranda court concluded that, ‘[i]n order to combat these

pressures and to permit a full opportunity to exercise the

-38- privilege against self-incrimination, the accused must be

adequately and effectively appraised of his rights and the exercise

of those rights must be fully honored.’” Dickerson, 530 U.S. 440

The en banc majority relies heavily upon the state habeas

court’s finding that Clawson believed that Soffar had not “invoked

his right” to an attorney as determinative of the legal issue

presented. However, a police officer’s “belief” (even if honestly

held) regarding a relevant legal issue -- whether Soffar invoked

his constitutional right to counsel -- simply cannot be dispositive

of that issue. Under 28 U.S.C. § 2254 (pre-AEDPA), federal courts

“have an independent obligation to say what the law is,” Williams

v. Taylor, 529 U.S. 362, 384 (2000) (opinion of Justice O’Connor

for the Court) (quoting Wright v. West, 505 U.S. 277, 305 (1992)).

Thus, the legal opinion of the interrogating police officer is

subject to de novo federal court review just like that of a state

court. Clawson’s acknowledgment that, at the time in question, he

did understand that Soffar was telling him that he wanted an

attorney is the definitive historical fact, and conclusively shows

that Soffar did invoke his right to counsel. Because Clawson knew

that Soffar wanted an attorney, the police were prohibited from

interrogating him until counsel was present. Miranda, 384 U.S. at

473-74 (1966); Edwards v. Arizona, 451 U.S. 477, 485 (1981);

Arizona v. Roberson, 486 U.S. 675 (1988). Because they failed to

-39- “scrupulously honor” this right, the statements Soffar signed

should be suppressed.

C. Knowing and Informed Waiver

The Miranda decision imposes more than a mere requirement that

warnings be provided at the beginning of an interrogation. The

warnings were intended to secure what the Court made clear was the

basic requirement to “assure a continuous opportunity [to a

suspect] to exercise” his rights at any point during an

interrogation. 384 U.S. at 444 (emphasis added). By elevating

form over substance, the en banc majority has lost sight of the

purpose underlying the Miranda warnings. The police must not only

dispel, at the outset, the coercive atmosphere that is inherent in

the surroundings of custodial interrogation; they must also ensure

that it does not return. 384 U.S. at 445-58.

The en banc majority believes that Officer Clawson’s dubious

statements could not have nullified Soffar’s waiver of his Miranda

rights, because Soffar had already waived them by the time Officer

Clawson started his fateful interrogation and provided his

“misleading answers” to Soffar’s questions about his right to

counsel.18 The Supreme Court specifically rejected this analysis:

18 The fact that confessions made under coercive circumstances are often, as in this case, accompanied by explicit “waivers” of rights or statements that “no threats or promises” were made cannot signify the end of a court’s inquiry. “Common sense dictates ...that if the authorities were successful in compelling the totally incriminating confession of guilt,” the same authorities would have

-40- “Our aim is to assure that the individual’s right to choose between

silence and speech remains unfettered throughout the interrogation

process.” Miranda, 384 U.S. at 469 (emphasis added). The Court

pointed out that a one-time warning, delivered at the outset “by

those who will conduct the interrogation, cannot itself suffice to

that end....” Id.19 To emphasize this point, the Court added,

“there is no room for the contention that the privilege is waived

if the individual answers some questions or gives some information

on his own prior to invoking” his rights. 384 U.S. at 475-76.

Finally, and of direct relevance here, the Court stated that “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 constitutional rights. Id. at 476.

This absolute proscription of threats, trickery, and deceit in

connection with waivers of constitutional rights, at any time

“throughout the interrogation process” was by no means a new

concept introduced in Miranda. Prior to Miranda, the Supreme Court

had made clear that the use of such tactics would result in the

invalidation of any purported waiver of constitutional rights and

a finding that any statement given had been coerced. For example,

“little, if any, trouble” obtaining a written “concession of voluntariness” and waiver of any rights. Haynes v. Washington, 373 U.S. 503, 513 (1963). 19 Thus, the en banc majority’s observation that Soffar was “read his Miranda rights at least four times,” is not dispositive. What matters is what the police did when it counted -- when Soffar inquired as to the content of his rights.

-41- in Spano a police officer who the defendant believed was a friend

overcame his desire not to talk to the police by lying to him,

telling him that “his job was in jeopardy” because of the suspect’s

unwillingness to talk, and that “the loss of his job would be

disastrous to his three children, his wife and his unborn child.”

Spano, 360 U.S. at 323. The Court held that Spano’s “will was

overborne” by “sympathy falsely aroused,” and that, accordingly,

his subsequent statement was involuntary. Id. As the Court has

pointed out, it has held that “affirmative misrepresentations by

the police [are] sufficient to invalidate a suspect’s waiver of the

Fifth Amendment privilege,” Colorado v. Spring, 479 U.S. 564, 576,

n.8 (1987), and has precluded statements given when a “waiver” was

obtained after threats, trickery or deceit were employed.20

The Supreme Court has set a high standard of proof for the

waiver of constitutional rights, pursuant to which courts should

20 Thus, in Smith v. Illinois, 469 U.S. 91, 98 and n.8 (1984), the Court found that a police officer’s statement (“You either have to talk to me this time without a lawyer being present and if you do agree t o talk with me without a lawyer being present you can stop at any time you wantto”) constituted “overreaching” and “badgering,” and it approved the Illinois Supreme Court dissent’s statement that the officer’s statement was “seriously misleading” because it “imparted” to the suspect that “he had to talk to the interrogator.” See also, Edwards, 451 U.S. at 479 (suspect was advised that “he had” to talk to police); Rogers v. Richmond, 365 U.S. 534, 538, 542 (1961) (police overcame refusal to talk by threatening “to take his wife and foster children into custody,” despite lack of probable cause for, or intention to take, such action; the Court rejected the state’s argument that “artifice or deception” in getting a waiver is permitted if it is not likely to affect the “reliability” of a confession); Lynumn v. Illinois, 372 U.S. 528 (1963) (police overcame refusal to talk by telling suspect that, if she did not ‘cooperate,’ her children would be taken from her); Leyra v. Denno, 347 U.S. 556 (1954) (psychiatrist with knowledge of hypnosis, introduced to suspect as “doctor” who would provide relief from painful sinus, overcame refusal to talk and obtained confession).

-42- “‘indulge every reasonable presumption against waiver’ of

fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S.

458, 464 (1938). “The courts must presume that a defendant did not

waive his rights; the prosecution’s burden is great” to demonstrate

a valid waiver. North Carolina v. Butler, 441 U.S. 369, 373

(1979). “Doubts must be resolved in favor of protecting the

constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633

(1986). The mere fact that a suspect spoke to the police is no

evidence at all that he knowingly and intelligently waived his

right against self-incrimination. Tague v. Louisiana, 444 U.S.

469, 470-71 (1980). To the contrary, where “the interrogation

continues without the presence of an attorney and a statement is

taken, a heavy burden rests on the government to demonstrate that

the defendant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed

counsel.” Miranda, 384 U.S. at 475.

III. Due Process Voluntariness

Finally, I want to register my disagreement with the en banc

majority because they ignore completely and fail to address another

theory upon which I believe Soffar has established his right to

habeas corpus relief. That theory is the Supreme Court’s long-

established “due process voluntariness” test. This test is

summarized in the Supreme Court decision in Miller v. Finton, 474

-43- U.S. 104, 109-10 (1985),21 wherein the Court stated:

The Court’s analysis has consistently been animated by the view that tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of fundamental fairness.

In over 30 different decisions, the Supreme Court refined this test

into an inquiry that examines “whether a defendant’s will was

overborne” by the circumstances surrounding the giving of a

confession, Schmitoff v. Bustamonte, 412 U.S. 218, 223 (1973); and

by indicating that the due process test takes into consideration

“the totality of the surrounding circumstances -- both the

characteristics of the accused and the details of the

interrogation,” id.; and by specifying that the due process test is

determined by “a weighing of the circumstances of pressure against

the power of resistance of the person confessing.” Stein v. New

York, 346 U.S. 156, 185 (1953). The continued viability of this

due process test of involuntariness was affirmed again by the

Supreme Court in Dickerson, where the Court stated:

We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily.

530 U.S. at 434. Furthermore, in Dickerson, the Supreme Court

stated:

The requirement that Miranda warnings be given does

21 Obviously this decision was “on the legal landscape” at the time Soffar’s conviction became final in 1989.

-44- not of course, dispense with the voluntariness inquiry but as we said in Berkimer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984), “[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that law enforcement authorities adhered to the dictates of Miranda are rare.” Id. at 433 n.20.

Dickerson, 120 S. Ct. at 2336.

With all due respect, I suggest to my colleagues in the en

banc majority that Soffar’s case is one of “those rare cases” in

which a self-incriminating statement was compelled despite the fact

that the law enforcement authorities attempted to adhere to the

dictates of Miranda; but this is not the first time that our Court

has been called upon to address one of these “rare” cases. In

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980),22 Judge Reynaldo

Garza, writing for the en banc majority, held that after a full

review of all of the facts and circumstances, the second of two

written confessions that Jurek signed was the result of “factors

suggesting an inescapable conclusion that the confession was

involuntary.” Id. at 942. In footnote 7 of his majority opinion,

Judge Garza stated:

The precise holding of this opinion, based on an analysis of the cumulative impact of these factors, is no more or less than the following: Where a (1) mentally deficient accused, who was (2) functionally isolated from all but his interrogators (3) who was not assisted by counsel

22 The opinion in Jurek was issued on August 10, 1980, just three days after Soffar was charged in this case; and would obviously be “on the legal landscape” at the time Soffar’s conviction became final in 1989.

-45- (4) and who had executed a valid confession to murder, essentially solving the crime under investigation was (5) the subject of continuing purposeful and suggestive interrogation directed (6) toward an amendment of his earlier confession to include information so minimally suggested as to amount to a prosecutorial “hunch,” the renewed interrogation producing (7) a confession which is facially suspect and which (8) achieves the precise result sought by the prosecutors, (9) enhancing in a manner unknown to the accused the potential penalty to that of death, a consideration which would cause any person made aware of it to pause and carefully consider the truthfulness of any additional information suggested, the risk of involuntariness is so great that the confession cannot be admitted in consistency with due process guarantees and the privilege against self- incrimination.

623 F.2d 941 n.7.

In concluding his en banc majority opinion in Jurek, Judge

Garza stated:

We are mindful of Justice Frankfurter’s admonition that the conviction is “basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law [and] that, in Hawkin’s words, a prisoner is not to be made the deluded instrument of his own conviction.” Culombe v. Connecticut, 367 U.S. at 581, 81 S. Ct. at 1867. We are also mindful of the necessities and difficulties of effective law enforcement, in which the confession may be an essential and fair device for the protection of the public. We have found that in their efforts to secure such protection by insuring that Jurek was condemned, the law enforcement authorities ran far too high a risk of making him the deluded instrument of his own execution.

623 F.2d at 942.

I am disappointed that the en banc majority here in Soffar was

either unable or unwilling to see the obvious similarities between

-46- Soffar and Jurek. Both Jurek and Soffar were, at the time of

arrest, in their early twenties; neither remained in school past

the seventh grade and both had difficulty holding any kind of job.

The record in Soffar is overflowing with testimony that Soffar was

“mentally deficient” just like Jurek. The record is uncontested

that Soffar was “functionally isolated from all but his

interrogators” for almost three days -- a longer period of time

than Jurek was. The record is explicit that Soffar did not have

the assistance of counsel until after he signed his third

statement. The third statement was the one presented to the jury

at Soffar’s trial, like Jurek’s second statement. Like Jurek’s two

statements, Soffar’s three different statements were factually and

grammatically different. Finally, in Jurek, as in Soffar, there

was controversy about whether or not the suspect in custody

effectively asked for assistance of counsel. In Jurek, however,

there was clear evidence in the record that the interrogators made

further inquiry of Jurek to clarify his wishes and he expressly

declined the assistance of counsel. Even so, the circumstance of

Jurek’s lack of assistance of counsel was a factor considered in

making the judgment on the voluntariness of his confessions.

In addition to these similarities with Jurek, there are

certain special circumstances that occurred in Soffar, which must

be considered in a “due process voluntariness” analysis. First, in

between Soffar’s signing of his first statement and of his second

-47- statement, Soffar was taken to a line-up arranged for viewing by

the surviving witness, Greg Garner. Garner failed to identify

Soffar as the perpetrator of the robbery/murders. Obviously,

Soffar did not have the benefit of any counsel being present at

this line-up and the record does not indicate that the detectives

conducting this line-up advised Soffar that Garner had failed to

identify him. Second, after Soffar signed his second statement but

before he signed the third statement, two other significant events

occurred: (i) the interrogating detectives released Latt Bloomfield

from custody because “they did not have enough evidence to either

hold or charge Bloomfield”; and (ii) the arresting detectives filed

felony capital murder charges against Soffar alleging that he

intentionally caused the death of one of the victims while in the

course of committing or attempting to commit armed robbery. Upon

the filing of these formal charges, surely due process would

mandate that the detectives promptly present Soffar before a

magistrate judge for the purpose of apprising him of these new

formal charges and for the purpose of determining his need for

counsel.23 But instead of presenting Soffar before a magistrate

judge for arraignment on the murder charge, the interrogating

detectives continued their interrogation and, later that same

evening, Soffar signed the third statement. Soffar’s first two

statements respecting the offense indicated that his role was

23 See TEX. CODE CRIM. PROC. ANN. art. 14.06. -48- limited to being the driver of the get-away car. The third

statement was a far more incriminating version of purported

“events” in which Soffar implicated himself in the actual

shootings.

Given all of these circumstances, I come easily to the same

conclusion that Judge Reynaldo Garza reached in Jurek; in their

efforts to secure protection of the public by ensuring that Soffar

was condemned, the law enforcement officers ran too high a risk of

making him the deluded instrument of his own execution.

CONCLUSION

I know the record in this case as well as any other Judge who

has ever addressed it and better than most of the Judges on this

Court. I wrote the panel opinion, see 237 F.3d 411, to provide a

comprehensive overview of the history of this case because I was

convinced that this is one of those special, unique and peculiar

cases which demands a consideration of the totality of the

circumstances in order to reach a just result. I have laid awake

nights agonizing over the enigmas, contradictions, and ambiguities

which are inherent in this record. However, my colleagues in the

en banc majority have shut their eyes to the big picture and have

persuaded themselves that piecemeal justice is sufficient in this

case. That is, of course, their privilege but I am glad I will not

be standing in their shoes, if and when Soffar is executed solely

-49- because of the third statement he signed in this case.

-50-