368 F.3d 441 (5th Cir. 2004), 98-20385, Soffar v. Dretke

Docket Nº:98-20385.
Citation:368 F.3d 441
Party Name:Max Alexander SOFFAR, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondents-Appellees.
Case Date:April 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 441

368 F.3d 441 (5th Cir. 2004)

Max Alexander SOFFAR, Petitioner-Appellant,


Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondents-Appellees.

No. 98-20385.

United States Court of Appeals, Fifth Circuit

April 21, 2004

Page 442

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.

Before EMILIO M. GARZA, DeMOSS and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

This case returns to us upon reinstatement by the en banc Court, Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) (" Soffar II"), of the original panel's grant of a Certificate of Appealability ("COA"), Soffar v. Johnson, 237 F.3d 411 (5th Cir. 2000) (" Soffar I"), as to Petitioner Max Alexander Soffar's claims that (1) he did not have effective assistance of counsel in the guilt phase proceedings, and (2) his right to counsel was violated by police interrogation regarding an extraneous offense after he had been charged with capital murder and had requested and received appointed counsel, when that interrogation was later used to obtain a death penalty at the penalty phase.

For the reasons stated herein, we reverse the district court's order granting the Director's motion for summary judgment and remand this case to the district court for entry of an order (i) granting Soffar's application for writ of habeas corpus, (ii) setting aside Soffar's conviction and sentence for capital murder, and (iii) ordering Soffar's release unless the State commences a re-trial of Soffar within 120 days. This current opinion will be sometimes referred to herein as Soffar III.

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As a brief overview, this opinion addresses three fundamental aspects of Soffar's first claim before us here, i.e., his ineffective assistance of counsel claim. First, as has been discussed and developed on previous occasions, Soffar's conviction was based indispensably on the statements taken from him by police after three days of interrogation and without an attorney present. Importantly, the single known eyewitness was neither contacted by defense counsel nor called to testify; and except for the facts recited in Soffar's confession, which could have been controverted by that uncalled eyewitness, there was no physical evidence, circumstantial evidence, or other evidence that connected Soffar to the crime. Second, we address the State's argument that Soffar's claim of ineffective assistance of counsel was neither properly exhausted in his state habeas petition nor properly raised in his federal habeas application. As we will detail below, specific and unambiguous language in the court documents submitted by Soffar's habeas counsel reveal that Soffar's ineffective assistance of counsel claim was properly exhausted in the state courts and properly raised before the district court. Finally, as to the merits of Soffar's ineffective assistance of counsel claim, for a litany of reasons bolstered by ample evidence in the record, we conclude that Soffar was denied the constitutional protections afforded by the Sixth Amendment and defined by Supreme Court precedent.


We start with the facts of the case presented in a substantially similar form as in our original opinion in Soffar I. The facts are taken primarily from the facts found by the state and federal habeas courts. However, we also have included additional relevant facts that we have found to be undisputed based on our independent and exhaustive review of the entire record of this case.

A. The Offense

In either the late evening hours of Sunday, July 13, 1980, or the early morning hours of Monday, July 14, 1980, four young people were each shot in the head during the course of a robbery at the Fairlanes-Windfern Bowling Alley, located at 14441 Northwest Freeway, approximately 13.5 miles northwest of downtown Houston, Texas. The victims who were killed were Stephen Allen Sims, a young male who was the assistant manager of the bowling alley; Tommy Temple, a young male employee of the bowling alley; and, Arden Alane Felsher, a young female non-employee. Gregory Garner, another young male employee of the bowling alley, was the only victim who survived.

On the night before the robbery-murders, the Fairlanes-Windfern Bowling Alley had been burglarized. 1 The side door of the bowling alley, which was broken by the burglars to gain entry the night before, had not been fixed by the next evening and could not be locked. As a result, at around 7:30 p.m. on the night of the 13th, Jim Peters, the manager of the bowling alley, asked Garner and Temple, to stay late after closing to keep an eye on

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the premises, at least until the early morning cleaning crew arrived at approximately 4:00 a.m. At approximately 9:30 p.m., Garner moved his car across the street into the parking lot of the Houston First Church of God, which was directly across the Northwest Freeway 2 from the bowling alley, so that after closing it would appear that no one was at the bowling alley. Just as the bowling alley closed, a robber or robbers entered the bowling alley, shot the four individuals, and absconded with approximately $1,000 in cash. Garner was the only victim who survived; the other three victims died at the scene.

Shortly after the robbery ended, at approximately 12:08 a.m., Garner, although seriously wounded, managed to get up from the floor and telephone his mother, Nellie Garner, from the control booth next to where he and the other victims were lying. He relayed to his mother that someone had been at the bowling alley and that he needed help. His mother told him that she was sending his father, Ira Garner, to the bowling alley and she asked her son if he was all right. After Garner responded "yeah, I'm all right," the bowling alley's other phone line rang and Garner told his mother that he was putting her on hold. The other caller was Peters, who was calling to check and make sure that everything was in order at the bowling alley. Peters testified that Garner's speech was garbled but that Garner told Mr. Peters either "we, he, or they" made us lay down. Peters, sensing that something was awry, told Garner that he was going to call the police. After Peters called the police, he started on his own trip to the bowling alley. When Garner returned to the phone line with his mother, he told her again that he was all right and that the robber or robbers had just left. He answered his mother's questions by telling her that he was bleeding from the side of his head and that he was holding his eyeball. Mrs. Garner then hung up the phone and headed towards the bowling alley.

After he hung up the phone with his mother, Garner moved over and lay down next to the female victim Felsher, who was the only other person still alive at the time. When he lay down next to Felsher, he was positioned as the victim closest to the front door of the bowling alley, just inside the doors. Garner's father was the first to arrive at the scene. When he arrived, he parked his car in front of the building with his headlights facing the front door. This illuminated the inside of the bowling alley and he saw four people lying on the floor. When he honked his horn, he could see his son lift his head and it was immediately apparent to him that Garner was injured. He ran inside, comforted his son, and then tried to telephone for help from the bowling alley phone. He was unable to make the call because he could not get an outside line. He then drove across the freeway to the church and asked a woman, who had gathered with several others awaiting the return of their children from a church youth trip, if she would call the police. He then returned to the bowling alley.

As Ira Garner described the scene, his son was closest to the door on his stomach; Felsher was lying on her stomach, still alive, next to his son; Sims was lying dead on his stomach next to Felsher; and Temple was lying dead on his stomach on the other side of Sims. The first three victims were lying closer to the control booth where the cash register was located, and

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Temple was located closer to the concession area. 3 Photographs of the crime scene indicate that, in general terms, Felsher's, Sims's, and Temple's bodies were positioned in a somewhat semi-circular array, with a greater distance separating Temple from Sims. Garner was found aligned next to Felsher, but as discussed below, by his own account, and consistent with a bullet hole found in the carpet between the bodies of Sims and Temple, he was lying between Sims and Temple when he was shot, thus filling the gap in what would have been a fully semi-circular configuration at the time of the shootings.

After Ira Garner had arrived back at the scene, Jim Peters arrived, and he was followed shortly thereafter by Mrs. Garner. Additionally, two men from the church across the street arrived at the scene to assist. Felsher was flipped over onto her back to clear her airway because according to those present, she was gurgling blood. Police and medical personnel arrived at the scene shortly thereafter. Dr. Daniel Bethingcord, a second-year resident from Hermann Hospital, was a member of the life-flight team of medical personnel that arrived later at the scene by helicopter. He directed efforts taken over from the fire department EMS personnel to resuscitate the only two living victims found on arrival, Felsher and Garner. Felsher was given priority of treatment because of her critical condition. All efforts to resuscitate Felsher were unsuccessful and she was pronounced dead at 1:40...

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