Soffar v. Stephens

Decision Date18 December 2014
Docket NumberCIVIL ACTION NO. H-12-3783
PartiesMAX ALEXANDER SOFFAR, Petitioner, v. WILLIAM STEPHENS, Respondent.
CourtU.S. District Court — Southern District of Texas

On July 13, 1980, a gunman shot four people in a bowling alley during a robbery. One of the victims survived. A few weeks later, Max Alexander Soffar gave the police various statements admitting to different degrees of involvement in the crime. In the past thirty-four years Soffar has twice been convicted of capital murder, has twice been sentenced to death, and has availed himself of state and federal review. Soffar has now filed a federal petition for a writ of habeas corpus.

Both parties seek summary judgment. (Docket Entry Nos. 34, 47) Other motions are pending, including Soffar's motion to expedite federal proceedings because of a terminal illness. Having reviewed the extensive record, lengthy pleadings, and the applicable law -- giving special consideration to the Anti-Terrorism and Effective Death Penalty Act's (AEDPA) deferential standards -- the court will grant Respondent's summary judgment motion.

I. Factual Background

Throughout the past three decades various courts have discussed the facts surrounding the bowling alley murders, which have remained remarkably consistent throughout the two separate prosecutions. On direct appeal from Soffar's second conviction the Texas Court of Criminal Appeals outlined the underlying crime for which he stands convicted:

Soffar was convicted of capital murder and sentenced to death for participating in the robbery and execution-style killing of three people at the Fairlanes Bowling Alley in Houston on the night of July 13, 1980. The Fairlanes Bowling Alley was located near the intersection of Windfern Road and Northwest Freeway (U.S. Highway 290). Tommy Temple, Steve Sims, and Greg Garner, employees at the bowling alley, and Arden Alane Felsher, Temple's girlfriend, were shot by Soffar and Latt Bloomfield. Garner survived, despite being shot in the head.
Two unidentified individuals broke into the bowling alley on July 13th shortly after it closed. They gained entry by breaking a glass door on the side of the building and stole several items from the vending machines. Because the door could not be repaired on the 13th, Jim Peters, the general manager, asked Temple, Sims, and Garner to stay at the bowling alley until the cleaning crew was scheduled to arrive at 4:00 a.m. the next morning.
Garner called his mother, Nellie, at 12:08 a.m. on July 14th. He told her, "[S]omeone is here and I need help." She asked him what was wrong, and he said, "[T]hey just left." He said something in a "garbled" voice that sounded like, "[S]omebody hit me with a fish." Nellie heard a phone ringing in the background, and Garner put her on hold. When Garner got back on the line, Nellie asked him if he was bleeding. He responded, "[Y]es mom the side of my face and I'm holding my eyeball." Nellie then sent her husband, Ira, to the bowling alley, and she followed shortly thereafter.
Peters called the bowling alley at approximately 12:15 a.m. Garner answered the phone after a few rings.
According to Peters, Garner's voice was garbled, and it was hard to understand him. Peters asked Garner if everything was all right, and Garner said, "either, "'[H]e" or "'[T]hey made me lay down' or 'made us lay down.'" Peters called the police and immediately drove to the bowling alley.
Ira arrived at the bowling alley first. He parked directly in front of the entrance doors and brightened his headlights. He saw Garner raise his head, and he observed someone else lying on the floor next to him. Ira went inside and saw Garner, a female, and two males lying on their stomachs. They were positioned parallel to the front door, with their heads toward the snack bar, and their feet toward the control booth. Garner was closest to the door, followed by Felsher, Sims, and Temple. All had been shot in the head. Felsher was "gasping for breath," and Sims and Temple were dead. Ira tried to use the phone at the bowling alley but he "couldn't get an outside line," so he went to a church across the street and asked someone there to call the police. He went back to the bowling alley and asked Garner if the people that shot him were white or black. Garner replied, "White."
Nellie and Peters arrived at the bowling alley, followed by the police and the paramedics. The paramedics unsuccessfully tried to save Felsher's life and sent Garner to Hermann Hospital via Life Flight. A police officer found Sims's wallet in the parking lot. Felsher's purse was on the counter of the control booth, along with a white plastic jug. Peters discovered that approximately $1,000 in cash had been taken from the control center register. He observed that the "folding bills" were taken, but not the coins. He further observed that the cash drawers for the snack bar and the alcohol bar were in the office, and the office door was closed and locked.
None of the latent fingerprints lifted from the front door and counter area led to a suspect. Latent-print examiner Leonard Cooper testified that he did not dust the white plastic jug for prints because it had a rough surface, and he "didn't feel that it would develop a print." Peters testified that, by 3:00 or 3:30 a.m., the police had left and the victims had been removed from the scene. The cleaning crew arrived at 4:00 a.m. and cleaned the entire bowling alley. When police askedPeters about the white plastic jug, he told thern that he did not know what had happened to it. Detective M.F. Kardatzke testified that he determined that the white plastic jug had been emptied and washed.
Each of the victims suffered one gunshot wound to the head. Felsher had an entry wound on her right cheek and an exit wound on the back of her head. Sims had an entry wound on the back left portion of his head and an exit wound on his left cheek. Sims also had several shallow abrasions on his chest, and a small bullet fragment was recovered just beneath his skin in that area. Temple was shot in his left temple, and the bullet lodged in his right ear canal. Felsher, Sims, and Temple died from their gunshot wounds. Garner had an entry wound above his left ear and an exit wound below his left eye. He lost his eye and suffered severe brain trauma.
When crime-scene investigator D.M. Rushing processed the scene on July 14th, he found one fired bullet under Felsher, a second fired bullet under Sims or close to him, and several bullet fragments under or around Sims. When Officer Ted Thomas later went to the bowling alley on July 23rd, he discovered four bullet holes in the carpet, a third fired bullet in the padding of the carpeting, and a "divot" in the concrete floor beneath the carpet pad. Thomas also found a bullet fragment in the "divot" and another bullet fragment "right at the same location . . . on the back of the carpet, as the carpet was rolled back." Firearms examiner Charlie Anderson determined that the bullets were lead and that they were .38 or .357 caliber, but he was unable to determine "the exact manufacturer and exact configuration of them."
On July 15th, truck driver Andrew Davis found two wallets on the inbound side of Northwest Freeway near the bowling alley. He gave them to Houston police officer R.O. Olive and showed him the location where he found them, Olive searched the area and found two credit cards that belonged to Ira Garner.

Soffar v. State, 2009 WL 3839012, at *1-3 (Tex. Crim. App. 2009).

The police had little information that would suggest who committed the murders. No eyewitnesses saw men enter the bowling alley around the time of the crime. The police could not findfingerprints or other conclusive forensic evidence pointing them toward a suspect. Only the people who had been inside the bowling alley could provide information about the crime and the identity of the assailants. Three of those people were dead. While his injuries at least initially impaired his memory, Mr. Garner would eventually provide the police with detailed, but differing, descriptions of the crime and his assailant. Eventually, Soffar identified himself as a suspect in the case.

A. Mr. Garner's Recollection

The assailant's bullet left Mr. Garner with "sustained severe trauma to his brain from the gunshot wound." State Habeas Record at 8907. Mr. Garner "lost his eye and suffered mental damage, including large gaps or deficits in his memory[.]" State Habeas Record at 8907. Mr. Garner remained hospitalized for several weeks following the crime, enduring "three initial surgeries and a total of twenty-five surgeries to rebuild his facial structure." State Habeas Record at 8908. During that time, he was "still having problems with thinking and with memory[.]" Soffar, 2009 WL 3839012, at *3.

The police repeatedly spoke with Mr. Garner. Mr. Garner provided the police with four statements and later submitted to an interview while under hypnosis. Three days after the crime, Mr. Garner told the police that his assailant was a "20 foot" tall black man. Soffar, 2009 WL 3839012, at *3. He described how thekiller knocked on the door of the closed bowling alley while carrying a white milk jug. After saying he needed water, the man left but soon returned with a gun. He said he wanted money, forced the victims to the floor, and shot them.

Over time, Mr. Garner recalled new details, some of which conflicted with other accounts. As time progressed and he healed, Mr. Garner gave the police varying descriptions of the shooter, the last of which served as the basis for a composite sketch that they released to the public with the offer of a reward.1 Importantly, Mr. Garner's police interviews also resulted in a fuller explanation of the circumstances surrounding the murder.

B. Soffar Identifies Himself as a Suspect

On August 5, 1980, a police officer stopped Soffar for speeding on a motorcycle in League City, Texas. Soffar initially gave the police...

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