Soffar v. Dretke , 391 F.3d 703 ( 2002 )

REVISED AUGUST 15, 2002
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 98-20385
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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.
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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.
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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.”
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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
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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
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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
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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).
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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.
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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.
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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.”).
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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.
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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.
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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
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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
admissible.
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.
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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
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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?”
Commentary:
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.”
Commentary:
-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.
Commentary:
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
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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
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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
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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
(emphasis added).
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
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“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
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“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.
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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).
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“‘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
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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.
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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.
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(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
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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
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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.
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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
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because of the third statement he signed in this case.
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