300 F.3d 588 (5th Cir. 2002), 98-20385, Soffar v. Cockrell

Docket Nº:98-20385.
Citation:300 F.3d 588
Party Name:Max Alexander SOFFAR, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:July 29, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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300 F.3d 588 (5th Cir. 2002)

Max Alexander SOFFAR, Petitioner-Appellant,


Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 98-20385.

United States Court of Appeals, Fifth Circuit

July 29, 2002

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[Copyrighted Material Omitted]

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James Howard Schropp (argued), Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, for Petitioner-Appellant.

Gena Blount Bunn, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.


EMILIO M. GARZA, Circuit Judge:

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

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the merits of Soffar's Fifth Amendment claim.


Four young employees at a bowling alley were each shot in the head during a late-night burglary in Houston in 1980. A few weeks later, police stopped Soffar for speeding, and arrested him after learning that the vehicle was stolen. On the ride to the police station, Soffar spontaneously told the arresting officer that "he wasn't going to jail for soine 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 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

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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.


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 See 28 U.S.C. § 2254(d) (1994) (repealed 1996); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).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


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

Despite receiving multiple Miranda warnings, Soffar continued to talk to the police, waiving his right to remain silent and his right to have an attorney present. First, shortly after Officer Raymond 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 described above, during the course of his interrogation, he was warned that he might face the death penalty if convicted, was given at least four Miranda warnings, including one set administered by a magistrate, and waived his Miranda rights at least three times. See Moran, 475 U.S. at 422-23, 106 S.Ct. 1135 ("Once

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it is determined that [the suspect] . . . at all times knew he could stand mute and request a lawyer, and that he was aware of the state's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.").

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

Once a suspect has waived his rights, the police are free to continue to question him. There is no requirement that a suspect be continually reminded of his Miranda rights following a valid waiver. United States v. Anthony, 474 F.2d 770, 774 (5th Cir. 1973); United States v. Taylor, 461 F.Supp. 210, 214 (S.D.N.Y. 1978); see also United States v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997) (holding that "re-warning is not...

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