*2
GARZA,
M.
Before EMILIO
DeMOSS
DENNIS,
Judges.
Circuit
DeMOSS,
Judge:
Circuit
upon
This case returns to us
reinstate
Court,
ment
the erebanc
v. Cock
(5th Cir.2002)
rell,
(“Soffar
For the reasons stated we re- granting order verse the district court’s summary judg- the Director’s motion for ment and remand this case to the district (i) entry granting court for order application for writ of habeas cor- (ii) pus, setting aside Soffar’s conviction (iii) murder, capital and sentence for ordering release unless the State a re-trial of Soffar within 120 commences days. opinion be some- This current will Sojfar to herein as III. times referred I. overview, original opinion ad- our The facts opinion As a brief aspects of Sof- fundamental three primarily dresses from the facts found are taken ie., here, before us far’s first claim and federal habeas courts. by the state claim. of counsel assistance ineffective However, have included additional we also *3 developed First, discussed as has been found to be relevant facts that we have occasions, conviction previous on undisputed independent based on our on the statements indispensably was based review of the entire record of exhaustive days after three by police him taken from this case. attorney and without an interrogation single known the present. Importantly, A. The by de- contacted was neither
eyewitness Offense testify; nor called to fense counsel evening In either the late hours of Sun- con- in Soffar’s for the facts recited except July early morning or the day, fession, controvert- could have been which 14,1980, July young four Monday, hours of was eyewitness, there by that uncalled ed were each shot the head people evidence, evi- circumstantial physical no robbery of a at the Fairlanes- the course dence, that connected or other evidence Alley, located at 14441 Second, Bowling address Windfern crime. we claim of argument Freeway, 13.5 approximately the State’s Northwest was nei- assistance of counsel ineffective Houston, miles northwest of downtown habe- in his state properly ther exhausted The victims who were killed were Texas. feder- properly raised petition nor Sims, young a male who Stephen Allen As we will detail application. al habeas bowling of the manager was the assistant below, language specific unambiguous Tommy young a male em- alley; Temple, by submitted Sof- in the court documents and, bowling alley; Arden ployee of the reveal that Soffar’s far’s habeas counsel Felsher, non-em- young female Alane claim was assistance of counsel ineffective Garner, young another ployee. Gregory courts and the state properly exhausted alley, bowling of the was employee male court. the district properly raised before victim who survived. ineffec- to the merits of Soffar’s Finally, as claim, litany for a assistance of counsel tive robbery-mur- night On the before by ample evidence of reasons bolstered ders, Al- Bowling the Fairlanes-Windfern record, we conclude door burglarized.1 The side ley had been af- protections denied the constitutional was broken bowling alley, which of the Amendment and de- forded the Sixth gain entry night be- burglars precedent. by Supreme Court fined fore, by the next eve- had not been fixed result, not be locked. As ning and could I. AND BACKGROUND night of the p.m. PROCEDURAL at around 7:30 on HISTORY 13th, Peters, manager of the bowl- Jim Temple, ing alley, asked Garner pre- of the case start with the facts We keep eye stay closing late after substantially form as in a similar sented burglary. youths who The four robbery-murders in this rested for 1. At the time of case, previ- night suspects burglary from the before two of the four involved in the were of, bowling alley night’s burglary were any knowledge ous or subsequently disavowed large, though they apprehended at still alleged or his accom- with Soffar association robbery-murders. day within a or two plice Latt Bloomfield. already suspects been ar- other two just early at least until the morn- that the robber or robbers had left. premises, approximately questions He answered his mother’s ing cleaning crew arrived p.m., telling bleeding 9:30 her that he was from the approximately 4:00 a.m. At holding car across the street side of his head and he was Garner moved his eyeball. hung up the Houston First Mrs. Garner then parking into the lot of God, directly phone bowling across and headed towards the Church of bowling alley. from the Freeway2 the Northwest alley, closing appear it would so that after hung up phone After he with his bowling alley.
that no one was at the Just mother, lay Garner moved over and down closed, alley as the robber Felsher, next to the female victim who was bowling alley, shot the robbers entered *4 only person at other still alive individuals, ap- four and absconded with Felsher, lay time. When he down next to $1,000 in proximately cash. Garner was positioned he was as the victim to closest survived; only victim who the other just bowling alley, the front door of the three victims died at the scene. inside the doors. Garner’s father was at first to arrive the scene. When he ended, robbery at
Shortly ap- after the arrived, parked he his car front of the a.m., Garner, proximately although 12:08 facing building headlights with his wounded, managed get seriously up front door. This illuminated the inside of mother, telephone from the floor his and bowling alley and four people he saw Garner, Nellie from the control booth next lying on the floor. When he honked his to where he and the other victims were horn, he could see his son lift his head and relayed lying. He to his mother that immediately it him apparent was that bowling alley at the someone had been inside, injured. was He ran Garner com- help. him he needed His mother told son, telephone forted his and then tried to father, Ira sending she was Gar- help bowling alley phone. from the He ner, bowling alley to the and she asked her call was unable to make the because he if right. son he was all After Garner get could not an outside line. He then “yeah, responded right,” I’m all the bowl- freeway drove across the to the church ing alley’s phone rang other line and Gar- woman, gathered asked who had putting ner told his mother that he was awaiting with several others the return of Peters, her on hold. The other caller was youth trip, their children from a church if calling who was check and make sure call police. she would He then re- everything at was order the bowl- bowling alley. turned to the ing alley. Peters testified Garner’s speech garbled scene, was but that Garner told As Ira Garner described the “we, he, stomach; they” Mr. Peters either made to the door on his son was closest Peters, lay stomach, sensing lying us down. that some- Felsher was on her still alive, son; thing awry, lying was told Garner that he was next to his was Sims dead Felsher; going police. to call the After Peters on his stomach next to and Tem- police, called trip ple lying started on his own was dead on his stomach on the bowling alley. re- When Garner other side Sims. first three victims mother, phone lying turned to the line with his closer to the control booth were located, again right register he told her that he was all and where the cash time, Freeway separated by grassy 2. At that the Northwest was a median from the two four-lane, (which highway one-way one-way divided lanes with two inbound fronted). (which fronted), alley outbound lanes the church that arrived later at the scene to the conces- sonnel closer Temple was located taken over helicopter. He directed efforts of the crime Photographs area.3 sion terms, personnel that, department from the fire EMS general indicate scene living two victims Sims’s, bodies to resuscitate the Felsher’s, Temple’s arrival, Felsher and Garner. found on in a somewhat semi-circu- positioned were given priority of treatment separat- Felsher array, greater distance lar with All of her critical condition. ef- was found because Temple from Sims. Garner ing Felsher, to resuscitate Felsher unsuc- but as discussed forts aligned next account, pronounced and she was dead below, and consistent cessful by his own carpet 1:40 a.m. hole found a bullet Temple, of Sims and between the bodies Bethingcord Dr. then turned his efforts Temple lying between Sims he was Garner, treating previously who had shot, filling gap thus he was when to be in more stable con- been determined fully have been a semi-circular would what Bethingcord thought Dr. dition. shootings. at the time of the configuration gunshot had suffered from two wounds head, it to tell at the but was “difficult had arrived back After Ira Garner arrived, and which was the exit.” scene, and he was was the entrance Jim Peters *5 fact, by Dr. it was later determined by Mrs. Gar- shortly thereafter followed neurosurgeon Phillip Gildonburg, the who men from the Additionally, two ner. surgery hospi- at the performed at the Garner the street arrived church across tal, hit en- that the bullet which Garner flipped over to assist. Felsher scene ear, just and in front of his left airway tered above to clear her because onto her back eye. The just and exited below his left gur- she was according present, to those fragmenta- skull also caused some personnel and medical bullet gling blood. Police fragments in resulting tion embedded bone shortly thereafter. at the scene arrived As portion in of Garner’s brain. second-year res- a small Bethingcord, a Dr. Daniel injuries, ultimately of his Hospital, was a mem- result ident from Hermann eye.4 Once Garner been per- lost his left life-flight team of medical ber of the to, perpendicular to the area of the bowling alley up next Physically, was set as swinging providing glass doors control booth As one entered the two sets follows. doors, register, torso was the cash but his bar was access to front concession area/snack left, While Tem- angled towards the front doors. and the main control booth/cash roughly equidi- right, ap- register ple's was located on the and Sims's bodies were area doors, doors. 8 feet proximately 8 feet from the front front more than stance from the right approximately along Temple's body separated bodies the left was found their doors, alley. beyond bowling Just the left set of front double feet from dimension body pointed Temple’s the snack area seats with his head towards the feet of body just bowling was found lanes. to the left. Garner's front of the individual right front double doors with inside the set of Gildonburg at trial dur- testified the front 4. Dr. pointed towards his head somewhat regarding Gar- ing the State's case-in-chief just at corner was located the front doors —he that, injuries. testified in his roughly He also feet ner’s the control booth with his "possible" Gar- opinion, Beyond it was him was medical perpendicular to the booth. Felsher, injuries caused him to suffer lying approxi- could have body ner’s who doors, retrogressed am- known mately right from condition feet inside the set condition, according to the doc- to, nesia. This perpendicular to the control next tor, portion booth, of the brain results when pointed the direction with her head Felsher, memory and stores recent which classifies beyond Sims’s the snack bar. Just When from a concussion. suffers trauma body approximately 14 feet inside was found occurs, memory doors, of events positioned such a concussion right with his feet set of hospital, police began personnel airlifted to the ed” the sense that medical investigation their of the crime scene attempting to resuscitate Felsher and Gar- earnest. positioning ner disturbed the of their bod- throughout ies and left debris scattered
Autopsies later revealed that the victims injuries. following Temple surrounding suffered the the area the bodies. Addi- gunshot suffered a wound the head tionally, parents, Garner’s al- the back of his head on the which entered ley manager, and two men from the church lodged left and the remained side bullet scene, across the street entered the crime ear, exiting body. right never Sims moving touching items around and crucial gunshot wound to suffered the head areas of the crime scene. The forensic back of his head on the left entered the technicians testified that had a diffi- cheek; side and which exited his left recovering very many cult time fin- usable wounds also suffered surface on the front fact, gerprints. Despite this several fin- of his chest resulted from bullet gerprints palm print and one were lifted fragmentation. gun- Felsher suffered a surrounding regis- from the area the cash shot wound to the head which entered the ter. It was later determined none of just right front of her face under her finger- these matched the fingerprints cheek and which exited near the rear cen- Bloomfield, prints of either Soffar or Latt top ter of the of her head. As stated above, alleged accomplice.5 gunshot Garner suffered a wound the head that entered the side his head Investigating questioned officers who just in front of and above his left ear and present those the crime scene deter- cheek, just which exited his left below his eyewitness mined that there was no eye. left Gunshot wounds were ruled the However, shootings, except for Garner. *6 Sims’s, Temple’s, causes of and Felsher’s one individual the name of Frank Kari- deaths. detective, bus told a Houston homicide B. Investigation The Novak, vantage point G.J. that from his across the street at the church several aptly
The crime scene itself was most yards away, described at Soffar’s trial as “contaminat- hundred he had seen someone witness, immediately preceding the trauma can be Garner as a as will be discussed cases, temporarily, permanently and in severe infra, is the fact that Garner's account of the trauma, "wiped out.” The more severe the robbery shootings details of the and differs preceding the time farther back in the trauma radically put from the account of events forth might memory be. the loss The doctor con- in Soffar's confessions. If Garner had testi- possible memory ceded that it is that all fied at trial consistent with the state- various would and that none return would be lost. police, testimony made-to the ments he his Gildonburg Dr. also testified that Garner’s significantly would have undermined the ability speak injury. to was not affected his credibility accuracy of Soffar's confes- Gildonburg's testimony, Aside from Dr. no sions. explanation other for Garner’s absence as a witness, defense, either the State or the Bloomfield, police 5. Latt the son of a Houston presented. was As the Texas Court of Crimi- detective, was an associate of Soffar. Bloom- Appeals nal noted on direct review of this field was detained for these murders based on case, "[ajmazingly, presented the State no statements, but, according to the au- testimony direct or evidence at trial [Soffar’s] thorities, shortly he was released thereafter that would have accounted for Garner’s ab- of the lack of because evidence. He has nev- State, at sence 371, trial.” S.W.2d charged any relating er been offense to (en banc). (Tex.Crim.App.1987) 373 n. 1 incident. pause We here to note that what most accu- rately accounts for the State's failure to call in the One of alley a second billfold same area. bowling getting running from the money the wallets contained car, some a Honda. possibly into a small brown papers. both various other contained 5'8" initially the individual as described He information Based on the contained the hair, length 5'9" with blonde shoulder wallets, identification cards the Davis description of the varying a gave later but initially tried to contact but was Karibus was never he saw. individual eventually unsuccessful. He reached Ira identify a State witness Soffar. called as Garner, informed that the wallet who him Neal, pastor at the youth the Melvin son, belonged shot in to his who had been virtually be it would church testified that robbery night learning After before. identify specifically any indi- impossible this, police turned Davis called highway. across the night at from vidual who, over to one three officers wallets from Investigating also learned officers day, accompanied the next him back to the church had been bur- Neal that the pastor location he had the wallets. where found evening of that the late hours glarized Forensic evidence obtained point At night as some same well. murders, night of crime scene the entry into church evening, made was subsequent investigations pried open door and through yielded following crime evidence. scene into main office had been broken church’s carpet- Four in the bullet holes were found investigators scene and ransacked. Crime hole, alley. ing One fin- attempted to lift dispatched and fragment large representing contained a well. from church as gerprints bullet, just located the remainder of a murders, During night area where Felsher’s head was above the citizen, Rich- and curious local interested A bullet originally positioned. second Civitello, to the scene some- ard who came hole, containing large fragment also it on after he about time heard just below the location located at or scanner, parking lot and pulled into third, A hole was elongated Sims’s head. headlights. of his path a billfold in the saw body, Sims’s closer located near picked up, it and turned it stopped, He torso, pad- in the accompanied a dent investigating officers the scene. over A hole located ding carpet. fourth belonged That wallet to Steven Sims. of Sims’s head contained a right *7 very day, a truck driver the name next in of padding the the bullet embedded Davis, bowling the passed of Andrew any- found carpet. No bullet hole was alley on the inbound lanes the North- Temple’s body, because the where near down, Freeway. bogged was west Traffic killed him never exited his bullet which his as Davis looked out of window any- and body. was found And no bullet hole pavement the next lying noticed billfold on Garner was found where near where hole, Rather, grassy separating the median the inbound the bullet either. extra lanes, closely any approximately aligned and outbound with which was not alley. bowling from the The wallet wound as the bodies yards victim’s exit Temple’s found, and what be the driver’s side between Sims’s was on would was shot, body, lying when pulled He so that where Garner was an inbound vehicle. over point of exit plausibly represented and the and retrieve the wallet he could walk back head.6 way spotted seen. back he Garner’s he had On Temple significant, lying between Sims and when particularly he was 6. This fact is because position closest to infra, and that his police that he was shot as noted Gamer stated pursued detectives all avail- with spoke Homicide Garner homicide detectives on extent, occasions, to the fullest but had four separate able leads and each conver- reported tape The news media sation both tran- little success. was recorded and on and re- widely police investigation police.7 the scribed the The essence they became ported pertinent all details as each of Garner’s interviews with the detec- example, police. from the For as tives is as available abstracted follows: early day shootings, the the as after the 17, 1980, July i. Gamer’s Statement reported alley press bowling that the before, burglarized night been the morning July On the head, in execu- four victims were shot the gave taped first interview with Hous- style, being tion with the males shot ton homicide detectives Miland Kardatzke heads, left of their side backs and Gil This first oc- Schultz. interview cheek, the female shot that wallets days three following curred his sur- scene, money near were found gery relatively and was brief. The dia- press from the register. was taken logue transcript contained is direct $10,000 being also on the reported reward did either employ that the detectives by the Company, offered Fairlanes However, leading suggestive questions. later that the reward was increased to interview, in this cut first had to be $15,000by private donor. short, responses Garner’s can at times best garbled, be described but he never- scene, At Garner was unable to relay theless able the detectives the any in the make statement to aid following basic information. investigation. He underwent more than morning hours of surgery seven robbery At the time of the there were July 14th and remained critical condi- present four individuals at the al- However, days. tion for several as his ley. Approximately one hour after 17th, locked, improving by July robber, condition was Gar- doors were the lone a male treating physician ner’s advised homi- individual whom Garner had never seen before, indepen- cide detectives that Garner was into bowling alley came dently remembering details of the offense front through the door and four asked all speak alert enough briefly near lie down the control booth. Gar- period days, detectives. Over a of four gained ner indicated initial robber having the door resulted from his moved from 7. habeas court The state sustained the State’s Temple position between Sims and to a be- objections admission of both the tran- got the front tween doors and Felsher after he scripts diagram of Gamer’s statements and a Also, up called his mother. as noted body positions of the victims' at the time infra, Soffar’s confession recites that vic- Garner, shootings penned by they lay were shot in tims the order in which grounds transcripts diagram and the *8 discovered; is, male, they were when that were not relevant since Gamer called was not female, male, male, female, male, and not view, as a In our witness. the state habeas male, explained repeatedly male as Garner court's to admit failure these matters consti- shootings police. importance the to here Likewise, plain and clear tuted error. the the lies in fact that the ballistics state court's these habeas failure to admit supports body better the Garner’s account of that, materials leads us to conclude under positions shootings at the time of the than it 2254(d)(2), § finding procedure "the fact em- does Soffar's confession. and other These ployed by State adequate the court was not to inconsistencies between Soffar's confession hearing" afford a full and fair on the ineffec- and Garner’s account discussed of events are tive assistance claim. infra, in Part I.D. and are summarized in “Appendix opinion. A" to this later. the two men reentered the alley by convinc- When into the entrance Sims, up walked to see what building, that Garner night manager, Steven the ing that He noticed then plastic going fill container was on. to a white he needed gun by also indi- a his side. Garner for car. Garner robber had water his with robber went out- the robber took over to Sims and the stated that Sims cated that his get money the robber talked out and that together register after to side in, Then, came they that back they in and when all made lie down. way were get money Garner, just directed Sims the robber shot according the robber boom, all four of the register them, “boom, and made out of the boom.” stated Garner floor. After a lie down anything victims or that one screamed said and no so, that the rob- Garner stated minute anyone that didn’t strike before the robber shooting thought just started ber talking on the shooting. He recalled shot third. he was manager phone both his mother and the bowling alley whom he referred to 18, 1980,Statement July ii Gamer’s guy.” as “the head p.m. 4:45 the next eve- approximately At robber initially stated that Garner with Detective ning, Kardatzke returned man, a but later corrected the was black speak Yarberra to Officer Williamson “no, by stating he was white.” detectives room. In this hospital his with Garner approxi- man as Garner also described the interview, taped also was second old, mately no hat or years 25-28 with re- police, Garner’s transcribed robber mask. He also described the articulate, and he add- were more sponses the state- medium addition to build. following information. ed 18th, to the detectives on the given ment at approxi- had at work arrived Garner positions Garner also identified the relative p.m. closing. until mately 5:30 and worked shootings at the of the victims time stay through Temple going andHe made this interview.8 drawing going night and Sims Steve positions the victims’ depicted He relative paperwork his after once he finished leave shooting, in a semi-circular time of how he moved closing. Garner recounted Felsher, configuration ordered as follows: to the church so car across the street Sims, Garner, Temple. like no one was there. that it would look door locked front He stated Sims July Statement in. Gamer’s the door some- closing, but unlocked after in. later to let the robber time 19th, Garner evening July On the Houston interview with arrived, gave his third first Garner the robber When Magan, Novak and detectives 25 and 26. Garner homicide bowling on lanes taped transcribed and which was from the context Sims’s gathered of the in- reiterated most police. and conversation the robber’s actions given to the other previously formation plastic to fill a container the robber needed is, detectives; let the rob- for car. Sims water carrying he was door, that he knocked on the ber in after out front door with the went Sims for water container time robber returned short robber *9 Williamson, drawing being Gamer’s authenticity the drawing Garner’s is initialed time body positions at the July the account of present the 18th inter- who was B," Gamer's “Appendix shootings. See the who at the with and testified view Garner opinion. hearing drawing attached to evidentiary the as to state habeas floor, just minute, his car and that Sims and the robber exit- the robber for a paused “good-bye,” everyone. said and shot ed and returned. again got up Garner recounted how he ap- that first Garner added when he parents, after the robber left and called his robber, proached the robber Sims and the manager and he remembered the of the open him if register, asked he could the bowling alley calling He then him. stated responded which he “I don’t know how.” lay that he went back over and down in a The made him lie on the robber then down position different than where he had been anyone floor. The asked Sims if robber shot. He lying recalled down next Temple else was there. and Felsher were only Felsher because she was the one still up passed called front and the made alive. he the robber Garner surmised that out shortly regained thereafter. He con- floor, them lie the The rob- down on too. sciousness when his father arrived at the ber stayed then front of control the scene. gun counter on everybody with the and go empty directed the and register Sims to 20,1980, July iv. Gamer’s Statement this, money. hand over the After Sims did gave Garner his fourth interview with him
the robber made come out from be- (“Ladd”) Kardatzke and Ladd Detective hind the counter control and lie down on evening of July the 20th was taped just swinging floor outside of the police. transcribed He re- lay doors. Garner told the he officers that peated general the same information he down Sims Temple, between with given previous days had the three but lying Felsher on the other Sims. side of added that the robber a little over 6 floor, that while on stated no tall, hair, feet had no facial light had other, one said to each anything no one pulled brown hair No back. additional screamed, any- and the robber hit didn’t provided information was at this inter- one. Once was back on Sims down view.9 that, police investiga- Tommy
9. We note at staying. here about witness The stated request, tors’ hypnosis Garner underwent p.m. they getting 11:30 ready at were 21, 1980, close, August left, report and a of that session the customers had and at that general Steve, provided confirmed the Tommy, information [sic] time Elaine and himself tape Garner in his recorded interviews persons bowling left in the 17, July and 20. Additional informa- alley. He stated at that he was the bowlers regarding taking tion of wallets and the on lane 25-26 Elaine [sic] stand physical description robber’s was obtained letting guy Steve noticed into the front following this interview. The taken is The door. witness stated that he had never summary hyp- from the report written of the before, hair, guy seen the he had dark notic interview which was memorialized on shoulders, curly parted little bit around the attorney's signed the district letterhead and middle, down the clean shaven face. He by Robert J. Bodisch and B.T. Neff. pay stated that he did not much attention to The that he guy thought witness stated arrived at work because he Steve knew approximately p.m. ap- 4:30 guy him. He stated [A]t that the went outside in[;] proximately p.m. bowling alley 9:30 but came back at this time he finished manager spend called asked him to walking and was to the counter. night bowling alley. at the person The witness told He stated Steve and the other manager it would be O.K. could if he were next to the counter. The witness stat- get another to do it up man with him. The ed as he walked to the counter the guy witness stated that he then car to get money moved his him if he asked could out register. guy church across street. He stated he He stated that the nobody moved so gun right his car see it. could hand. witness stated manager He guy get stated that the also talked that he told the he couldn't
451 Draiving Composite The credibility the on of Garner’s statements composite drawings and obtained there- the information Garner In addition to throughout investigation. their Po- how investigators to about provided the press to lice statements the included the occurred, to was able robbery he also the investigators’ they firm that belief were com- developing a police a artist assist unknown looking male “hi- for one white perpetrator. of the lone posite drawing jacker” matching description the Garner July composite on drawing, with the Along way gave, bowling who talked his into the descrip- police released Garner’s alley by feigning car trouble. After initial- a man the as white perpetrator of tion ly receiving regard over 250 calls in to 6'2", years age, 160 30 of between and composite drawing, by publication pounds to with brown to dark brown 4,1980, the August police exhaustive inves- in front and over back ham worn combed alley tigation bowling the murders had ears, collar.10 touching but not the the if any promising few leads. Garner’s de- composite drawing and The widely in the scription publicized 5, 1980, at August approximately On on local television newspaper and the Texas, a.m., City, League 8:00 a news.11 officer, Raymond Willoughby, observed traveling 57 miles approximately Soffar apparent despite alleged the
It is motorcycle per hour a a 45 mile amnesia,” per on which the State “retrogressed speed hour zone on the side of Gar- westbound suggested at Soffar’s trial rendered unreliable, League City, relied Texas.12 Subse- detectives West 518 memory ner’s ap- guy hypnotic was conducted money register. the The then This interview out of and witness if had his wallet the after was proximately asked he two weeks Soffar ar- replied was told no. The witness then charged capital murder of rested and guy Steve lay on floor. The then asked Felsher, was after Garner unable iden- and place he anyone was and if else tify line-up. Soffar in yes. replied described The witness further feet, lbs., hair, guy skin dark production assisted sec- 10. shaven, white, curly was clean hair —shoul- drawing perpetra- composite of the same ond long, average build length pretty der — August day on Soffar was tor wearing sleeve shirt. witness a short The motorcycle initially of a and arrested for theft stated that Steve then went the middle questioned alley regarding the first up Tommy and to come the counter called this, Despite was to iden- he unable murders. Tommy both Elaine [sic] front. and day, August tify line-up in a on next witness. arrived laid down next 6. guy register then went to the Steve and the got money then Steve laid Indeed, sister, Carney, Jackie testi- 11. Soffar's The down the others on floor. beside point July 14th and that at some between fied guy again [sic] then asked for witnesses 5th, her en route to August and while in car out wallet time the witness took it and this doctor, "Jackie, you know that her said it backpocket placed in front news, composite drawing that I seen on the guy stated his head. The witness [Bloomfield], ... of like Latt that looked kind 10 or 15 seconds told them left, get easy way would and that be guy and that the was nervous. $10,000 say that guy He be to Latt shot us. reward would witness stated maybe he one two shots before stated heard did it.” [Bloomfield] shot, was not the last he that he stated, He "I know one to be shot. don't Texas, League City, located in Galveston is shot, why say anything.” The he didn’t Texas, County, approximately 23 and lies witness man who shot him stated Houston, miles southeast downtown man that came in the first same Interstate 45. east side of they closed. time after *11 quent investigation speak disclosed the mo- succeeded in getting Soffar to with Friendswood, torcycle Texas was stolen Houston detectives.13 4, on August Soffar was arrested for 5, i. August First Statem placed jail.
motor theft and 1980—Soffar’s ent14 Interrogation C. The Max Soffar get After efforts to Soffar Clawson’s His Three First Written Statements successful, talking continue were Detective Over a period days following three interrogated Schultz for an Soffar addi- motorcycle charge, arrest on stolen tional two hours.15 At 3:30 on p.m. August custody while without coun- he was signed a Soffar written statement present, sel sign would three writ- Soffar prepared by Detective Schultz. The state- statements, detectives, ten prepared by ment was identified as Exhibit State’s implicated he himself and Latt and while not introduced into evidence alley bowling robbery- Bloomfield in the State, against it was used Soffar dur- murders. ing guilt phase capital of his murder booking motorcycle statement, After trial. Soffar for the first Soffar this stated charge, League City police the following. contacted He and Bloomfield went to alley night Detective Bruce Clawson the Galveston the one in the part first County Unit, Organized July Sheriffs Crime through and Soffar entered a side for whom Soffar been an informant. door and checked the cash drawer. Soffar also knew Clawson from spending Bloomfield him to asked return the next time at Depart- night pistol, the Friendswood Police with his but he told Bloom- ment and did, considered Clawson his friend. field he not going was to do it. He supposed however, Because of friendship, agree this Claw- later to drive Bloomfield to son “friendly was summoned to a bowling alley be face” and wait outside. While hand,” for Soffar door, “hold Soffar’s in he waited in car outside the front an effort him to convince that “he he should saw Bloomfield people move some talk to the Houston detectives.” It around is and he heard shots two when clear, however, although Soffar be- Bloomfield was out of his sight. He then friends, they lieved the feeling were saw people get Bloomfield make some Discussing not mutual. their forward, relation- knees. As he car moved the Soffar, stated, ship with Clawson “Max heard another shot and then two more might have considered me a friend but I shots. He stated that Bloomfield told him him ... my didn’t a pri- gun consider friend pulled They someone on him. mary job get as a officer was to then Max went to Galveston where Bloomfield to talk.” speaking After with Soffar dur- robbed a U-Totem convenience store16 and ing the morning August Clawson bought drugs. some 13. We questioned note that because approxi- Clawson's conversa- Soffar was also mately tape tions with minutes Assistant District Attor- Soffar never recorded or Wilson, ney transcribed, Terry brief inter- we do not know what was said to day. view tape recorded that Neither convince to talk. Soffar tape transcript cassette nor this brief interview Wilson is contained the rec- 14. A description more detailed of the events ord before us. taking involved in the of Soffar's statements I, can be found in I. See confirming 16. There is no that this F.3d at 425-32. robbery occurred. statement, statement, Soffar told the same story basic
After this first written giving *12 statement, adding he had in first his the police Houston transported to was Soffar following night details. The before the an spent he addition- headquarters, where robbery-murders, it was who kicked Soffar officers with Houston al 3 hours in glass bowling alley side door of the jail at transported to the he was before burglary.20 day, to commit next p.m. 7:43 approximately picked him at up p.m. Bloomfield 1:00 and Second August ii they hung out for the afternoon. together 1980—Soffar’s evening they Statement That drove back bowl- ing alley at 9:00 but since there were p.m., a.m. the Beginning shortly after 9:00 there, they just lot people parked a of 6, 1980, Williamson morning August everyone until most car and drank beer interrogated ap- for and Soffar mirandized Again, that he had left. Soffar stated tape-recorded 50 minutes a proximately pulled up the car front the doors relayed during which Soffar conversation an un- while Bloomfield went inside of scenario, of the same basic more details ap- locked front door. Bloomfield was i.e., bowling alley and that he drove to another, by proached people two and then robbery shoot- and that Bloomfield did made lie on and he these three down a.m., approximately At 10:00 ings alone.17 floor in front of door. Bloomfield right line-up arranged a for taken to Soffar was motioned to someone else come over viewing. Gar- surviving witness Garner’s and heard the first shot. He then Soffar identify positively ner failed to Soffar.18 people could the feet of the on the see interroga- then and was mirandized Soffar floor. He then heard another and then Ladd, again ted Williamson came run- several other shots. Bloomfield 15 minutes be- hour and approximately bowling alley gun ning out of the giving his second statement.19 fore he lady’s stocking in one hand and the had August p.m. At 2:44 on Soffar put his face when he entered over pre- written statement signed the second told him other hand. Bloomfield that Ladd. This statement was iden- pared by him he pulled gun a so “did someone 109. As with tified as State’s Exhibit had what he to do.” Soffar added 108, the night Exhibit second statement they buy drugs State’s went “Pops,” into not introduced evidence named and that several was individual State, guilt phase robbery-murders after the Soffar during but was used weeks told about the “deal Pops second capital of his murder trial. pro- tape a tran- executed on Soffar’s residence failed While neither a cassette any script duce Soffar’s involvement. this conversation is contained our record, does reflect that record conversation, virtually all others 19. This like map interrogation, he drew a Williamson’s tape details, recorded nor with Soffar was neither significant including for Soffar Instead, substance of these transcribed. map adopted by Soffar. was then that the interrogation de- sessions was summarized positively presented iden- was also unable to to Soffar in the form 18. Garner tectives Bloomfield, tify signature. who had been arrested written for his statements brought police headquarters to Houston was police obviously knew this line-up. pause We to note 20. The placed here previously arrested the true executed on because also that search warrant burglary perpetrators of yielded youthful evi- four car no Bloomfield's residence and bowling alley claimed that and Bloom- linking rob- which Soffar now dence him to the Similarly, field committed. bery-murders. a search warrant
alley.” Pops “if he heard about Tom interrogated He asked Ladd23and Ted Thomas it and Latt and I [Bloomfield] had Soffar for approximately two and one-half done it.” briefly hours. interroga- also morning by ted that Williamson. That point signing
At some after his second afternoon, felony capital murder com- p.m., statement at 2:44 Soffar was visited by, spoke privately plaint against and he with: his moth- alleging filed er, Soffar; uncle, Lander; Zelda Carl he intentionally caused the death Felsh- *13 aunt, Celia Ms. Nathan.21 Nathan er while in the committing course of family Detective Ladd that the informed attempting to commit the robbery armed was in agreement cooper- Max should of Sims. ate with At police. approximately 4:00 Upset because had learned that
p.m., Detectives Williamson and Ladd Bloomfield had been released because jail checked out of and took him Soffar he thought that he going was to be patrol in a They car to the crime scene. charged alone, with all three murders Sof- pulled lot, parking into the did go but far family contacted a inside of member and asked bowling alley. approxi- At mately them p.m., 5:30 the detectives drove to have Sof- detectives come see him far to an south area jail. Houston where he at approximately At p.m. 7:30 Bryant, “Pops,” identified Lawrence a.k.a. that evening, Detectives Ladd and Wil- person as the from whom he and Bloom- liamson to see again. came Soffar Soffar allegedly field had purchased drugs the inquired why as to had Bloomfield been night robbery-murders. At approxi- released responded and the detectives mately p.m., 7:30 the detectives then took they yet did not have enough evidence on Soffar pointed to Galveston where Soffar Bloomfield to either charge hold or him. out a convenience store Bloomfield had began Ladd actively then interrogating allegedly robbed. Soffar was cheeked Soffar for another 30 minutes before be- jail back at p.m.22 into the 10:55 ginning prepare to take and third During time was riding statement. around with Detectives Williamson and 1980, At p.m. August 7, 9:25 on Ladd, released Bloomfield from signed the third written pre- statement custody, citing any a lack of corroborating pared by statement, Ladd. This identified justify evidence to him charging in the 110, as State’s Exhibit was introduced into robbery-murders. State, against and used in. August Third guilt 1980—Soffar’s Soffar during phases and penalty Statement capital murder trial. The entire text Beginning approximately at 8:42 Soffar’s third statement reads a.m. as fol- August 7, the morning of Detectives lows:24
21. attorney Celia was picked Nathan also an him who that Garner had out him represented had line-up, "might say Soffars when so he [he] as well did it Max get Soffar committed to a Texas state mental a life sentence.” hospital pre-teen years. in Max's 23. Detective Ladd Tom is the brother De- In a letter written ap- to one of Soffar's ("Ladd”). tective J.W. Ladd counsel, Cannon, pointed defense Joe is discussed reproduced Part I.E.iii. Soffar al- exactly 24. This statement is as infra town, leged prepared. this drive around All scrivener’s errors omis- detectives became forceful him and original. told sions are contained in the looking Lat kept I have second dude around so
My name is Max Soffar.
been
for
Tuesday morning
this bowl-
into
jail
warning
since
fired a
shot
the floor. The
alley
gave
previous
I
two
ing
deal.
girl
and then Lat told her to
screamed
statements,
to detective Schultz and
one
kept
shut
and she
Lat
up
screaming.
Ladd. I didn’t tell the
one to detective
in the back
girl
kicked the
and then the
truth in those statements and
whole
kept
second dude who was the one who
that I don’t take this
want to
so
now
looking up
up.
started to raise
He was
thing by myself.
whole
him in
way up
about half
when Lat shot
I didn’t tell the truth
thing
One
just
the back of the head. Then Lat
I did
on
that Lat Bloomfield and
and shot
third dude.
turned around
thing
got
first
the bowl-
when we
This
one Lat
third dude
the first
alley,
being
I said about
ing
not like
grabbed
get
and made
floor. He
Lat
parking
there
lot
awhile.
way
shot him the same
the first one
drove
and were
his brown thun-
we
*14
gun
he shot. Lat threw me the
and
right to the front
pulled
derbird. Lat
told me to shoot the
two.
I hesi-
other
side
next
passenger
door so
the
was
said,
tated and then he
them
“Shoot
I
bowling alley.
think that there
gun
now.” I aimed the
and the other
couple
parking
a
cars in the
lot
was
guy
was still left who
closest to
who
was
pulled
pulled
when Lat
to the door. Lat
the
and fired one
I hit him
door
time.
stocking
his hair so that his hair
over
in
of the head
the ear.
the back
behind
pulled my
I
t-
pulled
up
would be
back.
I walked around the other side of them
and mouth. Lat had
my
shirt over
nose
said,
and
and heasitated
Lat
“Shoot
[sic]
I
his 357
which think is an R-G
revolver
her.”
her face
she
She had
down and
inch
gun
model. This
about
three
just
up at me
I aimed and
looked
and
under
gun
barrel. He had the
his shirt
I
my head and shot her.
I think
turned
asked
guy
when we walked
what we
I
gun
hit
in the cheek.
had the
and
her
doing.
the
and
pulled
were
Lat
revolver
regis-
ran
looked in
around and
the cash
said,
guys
it
face and
“This
stuck
this
you get
I
by
ter
where
the shoes.
over
robbery.”
pulled
guy
is a
Lat
this
got
change
all
and a
the
the bills
little of
get
hair
him
on his
the
and made
down
door
and then went to the office but the
This
up.
knees and xx walked
was two
was
I
to the cash
locked.
went over
girl.
get
dudes and a
Lat told them to
register by the snack bar and took bills
they
if
on the floor and
didn’t do what he
money my
I
put
out of it too.
the
them
shoot
first
told
that he would
and
I
back
the office
pockets. went
guy
already
They
on the floor.
who was
I
open
but
tried to force
door
away
got down on their knees
from the
opened.
looking
get
couldn’t
it
Lat was
them
counter and Lat made
come back
I
money bag
for a
and
under the counter
they
closer to
control counter and
We
got
think he
60 dollars.
They
laying from
door so
did.
were
I
him
by the office and told
walked over
girl
that there
a dude and then a
was
I
headlights.
I
I
thought
saw some
and then
last
and then another dude
so
anyone
I didn’t see
went outside but
trying
was
dude.
second dude
rumageing
in Lat
when I came back
was
him
to be
up
look
and Lat
told
pockets and took the
through their
[sic]
looking
lay
around
fac-
to turn
took
pockets.
of their
He
wallets out
ing
way
all the others were. He
kept
I think that he
money
so that
all
then turned around
make
looked
We
around
facing back towards the snack bar. The
wallets.
nobody
looking
statement,
sure that
was
and we
In addition to his written
Sof-
anybody.
didn’t
I
him if
far
diagram
positions
see
asked
he
drew a
of the
of the
wanted to check in the
victims at the time of
shootings.
back
he said
So,
diagram,
depicted
no.
we
in the
the four vic-
looked
bathrooms
lying parallel
tims
making
body
sure
one another with
no
there.
aligned
their feet
along
edge
Then
I
gun.
we left.
still had the
Lat
control
diagram
booth. This
was not in-
drove and we had the windows down to
troduced into evidence
cap-
his car.
right
high-
He made a
on the
trial,
ital murder
but was admitted into
way and drove
for a little
down
bit and
the state habeas court.
It is
past
then turned around and came back
opinion
attached to this
as “Appendix C”.26
bowling alley.
why
I asked him
shot the dudes and he
he shot
said
D.
Inconsistencies Between Gamer’s and
dude for raising up
playing
hero.
Accounts
He said he made me shoot the other two
guilty
so that I would
him if
be as
we
As a factual
pause
matter we
here brief-
got
I
caught.
put
gun
under
ly
to note that
juxtaposed,
when
Garner’s
front seat
I
after
reloaded it and it
and Soffar’s
robbery-mur-
accounts of the
had one
reloading.
appear dramatically
live bullet
it before
ders
at odds with one
I
gun
don’t know where
another. The
is now. The
numerous fundamental fac-
tual
gun
last time I saw the
I
inconsistencies between these
believe
two ver-
*15
sions of events are both obvious
Saturday night
last
and Lat
and strik-
had it at
ing. The
noteworthy discrepancies
most
pills
time. We went to score some
between
Garner’s recollection
inter-
got
pills
and
over at
dope
the
house.
by
views
detectives and Soffar’s third writ-
preludins.
These were
After
gas
the
ten statement are
summarized
table for-
pills
and
I got 95 dollars out of the deal
in “Appendix
mat
A”
opinion.
to this
This
and I think
got
Lat
a lot more. We
appendix
by
is followed
diagram
Garner’s
my
went to
preludin
house and did some
positions
the victims’
at the time of the
and Lat said he was afraid someone had
(see
shootings
B”),
“Appendix
which also
seen his car so he went and took it
dramatically
differs
from
diagram
Soffar’s
home. He
my
walked back over to
positions
the victims’
at the time of the
house that night and we did the rest of
(see
C”).
shootings
“Appendix
pills.
the
stayed up
day
We
all
went out to
park
day.
the
the next
I
According to
diagram,
Garner’s
the vic-
was scared
is the reason that I
tims at the time of the
shooting were
did not tell the whole truth before and I
position
semi-circular
with Garner located
feel like shit and feel bad about what
Temple. Thus,
between Sims and
or-
the
happened
ought
my punish-
to take
Felsher, Sims,
der of the victims was
Gar-
ment for it.
I think
ner,
Lat and me both
female,
Temple,
male, male,
or
ought
pay
contrast,
for what we did.25
male.
diagram
shows
note,
25. We
as did the Texas Court of Crimi-
ment relates to the offense for which he was
tried, convicted,
Appeals,
nal
given
that neither this third statement
the death sen-
State,
statements,
previous
nor either of the two
tence."
set
holes Appointment E. and Pre-trial Counsel configu- body alley are consistent with Developments is, Garner, him that with recalled ration August day after Soffar On when he Temple Sims and lying between statement, third gave no written physical There is shot. having preliminary appearance initial account of Garner made support Soffar’s *16 charge door and lying felony capital between the front murder before been shot fact, unmatched bul- District Court of Harris Felsher. the 232nd Judicial hole, the final represent could appearance, this County, During let Texas. just be- exiting of the bullet resting point appointed court Frederick Stover the state eye, left is the one between neath Garner’s represent Joseph Cannon respect Temple. Also with Sims attorneys, indigence. of his These because of the body configuration, photographs present in the courtroom to who were aligned, not depict crime scene the bodies appointment, were advised accept their edge of parallel along the to one another already signed three that their client had account, in depicted the counter himself in implicating statements written C”, but in a semi-circular “Appendix see charged offense. nearly to that de-
configuration identical “Ap- in picted diagram, see by Garner Letter i. to Counsel Indeed, show pendix photographs B”. meeting point after first At some space the bodies of large vacant between Cannon, to Cannon where, Soffar wrote a letter according to Gar- Temple Sims story. In a ner, lying explaining when shot. side he would have been it, seeing it and washed it jug and but'removed police water called 27. The overlooked the they thought investiga- it was used fingerprints. The next because dust it for did not up fingerprinting dust. cleaning clean morning, alley crew re- tors to letter, handwritten Soffar wrote:28 like latt. he stole some silver my I going house so was to tell when, police he thing This whole started this de- get reward, did it and get evan. tective in Friendswood go- said She told me not to do it so I didn’t. ing up to lock me cause I awas habitual Then when I got pulled over and I see criminal. name is Palmary. His Mr. palmary standing their I say decided to He’s busted me a few times and he does I knew who did it. Next thing I know not like me. He told me next time I them saying homicide detectives had me you something going bust for bad I’m I did it. the truth is I did not kill put you away your for the rest of life. anyone. There is a lot more to this than anyway, Well he busted me the last time I can write. I you will tell whole imprisonment. girl false Me and a thing you when I you see so can had an check argument and she wanted to my out yourself. side of this to be sure I leave and wouldn’t let her. So some- police Them say had me they what police one called the and he talked her wanted to you hear. Did know I took a rather he therened her. She had polygraph I test? was on acid I when pistol pocket 38 snub nose her when took it. arrested, we were so he told her if she charges
didn’t file some on me for kid- night robbery, before the their was napping imprisonment, or false that he a burgurly at bowling alley. I told would file on her for a wepon. concealed night robbery, before the Then he says got you comes I I alley. broke into the bowling That boy. got now So when I arrested on was what I saw the t.v. so I said in a I up statement, stolen bike look and who drives and lat me bloomfeild did the up, Palmary, Mr. and he’s standing burgurly. When I told them I killed there with them lueague City police say- lie, some girl, which was they another ing, got you I’ve punk. go now So we asked if I really me night broke lueague City Jail and I thinking started before. I They said no. asked me that Ill fix you well smart ass and I told them quiestion about 100 times. I put I wanted to talk to bruce Clawson about statement that I did. But after the bowling alley. I it knew would be kept asking question me that same over hell on if I anything me said no, but at that just and over I said to see what he point I didn’t care. say. would I did not put a statement that I didn’t brake in bowling alley. I was already years probation on a out *17 I said I did. Then he told I galveston co. and I’m me didn’t caught on stolen do burgurly By they bike. cause way that arrested bike had the some kids for it. If I really plate why licence on it from did this another bike I stolen, I say didn’t I didn’t brake in. plus had I had Cause been on bond that was what I from an saw on the I charge auto theft news. from Brazoria thought the brake in County, I was done plus holding am pot and person same jewels. persons that some stolen I did the So told them that robbery. palmary so couldn’t put slimy hands
on me. I my told sister I when saw that 2 Me and homicide went out look- killer, drawing of the I told her it looked ing at bowling alleys. They wanted me reproduced exactly penned This letter is as original. sions are contained in the by Soffar. All scrivener's errors and omis-
459 However, alley appointed we counsel were out robbed. point to Soffar’s drinking. stopped 3 or not did not They were We invited and attend session Gamer; end, cokes mixed for for their drinks! with and in times Garner’s my them for some nerves I asked hypnosis only account of events under they they But were drink- and said no. served to confirm the of events version they getting started ing and that’s when in his initial interviews described with I la- made more statements forceful. and that investigators, version events a day. polygraph I will take ter dramatically giv- differed from the version lying I’m not about the prove test to in his en written statements. They drinking or force used. A”. If “Appendix See Garner had testified greg gardner picked told me that also at trial in a manner consistent with the say I I did it might me out so as well investigators July statements made to on They get a life sentence. also asked and 17, 18, 19, 20, and August such why girl lat face me shot the seriously testimony would have under- I I made the last statements. before against mined the case Soffar. State’s in one of that I did said the statements The not as a State did call Garner wit- after they gave it. In the 3rd statement Indeed, trial, ness at trial. details, her, I get a few I shot to me said Garner, calling instead State called my I went thru more them off back. Gildonburg, neurosurgeon Dr. who op- I Af- thought than I would. quiestions Garner, erated its case-in-chief. my gave I went back to cell after I ter Gildonburg Dr. testified Garner could I so I second statement was tired suffering retrogressed be amnesia just gave to them. and could that Garner have created false drinking officers that was de- Gildonburg Dr. did memory of events. not ladd detective Williamson. tective express medical any opinion galveston took me to la- They suffering was in fact from amnesia. Addi- robberys to check marge, out some tionally, we note that Soffar’s defense They did. I told them me and lat all informed that Garner was a counsel were I I turned out be lies. admit that did offense, “vegetable” memory no girl in I told them I did. rape that Alvin incredibly, upon based this assertion County I I told the Galveston Sheriff going fact that Garner and I did. But I motorcycles stole witness, by the State Sof- be called I girl them this case. told shot attempt far’s counsel did not even defense I I in lots of It’s a lie. knew was trouble Garner themselves. Rather interview things for all other I have anyway, amazingly, defense counsel instead chose done, Im in the Im in why that’s trouble testimony Gildonburg’s Dr. bolster now. asking receiving affirmative re- ii. Gamer’s Final Interview it sponse question, be fair “would person ... that a that suffered statement August all of On after *18 Greg of wounds that Garner suf- type had taken and the State confessions been fered, Garner, one, him- including Greg no enjoined interacting from had been self, ever whether further, would know any the State submitted Soffar giving an accurate account of events questioning hypnosis. under Garner injury?,” implying to that caused his thus Presumably, hypnotic interview indeed, that, had no useful jury an effort to bolster conducted against memory of the offense. strength of State’s case Soffar.
F. The Trial testified that Soffar indicated to him that he and Bloomfield were involved 16, 1981, Judge March Beginning on Cass, bowling alley robbery. Mabel presided capital over Soffar’s Van Stovall Bryant’s girlfriend testified that she did which, nearly trial murder exclusive of in, not participate but witnessed con- jury selection, four weeks of voir dire and Bryant Soffar, versation between and lasted two and a half weeks. confirmed in substance Soffar talked trial, During the and pursuant to Jack- Bryant bowling alley robbery- about the Denno, 368, 1774, son v. 378 U.S. 84 S.Ct. murders. (1964), Judge L.Ed.2d 908 Stovall con- presented Defense counsel Soffar’s case two-day hearing a jury’s ducted out of the mother, theory. based on an alibi presence admissibility on the of Soffar’s Zelda Soffar and other witnesses con- first three written statements. During the firmed that spent Soffar the entire week- hearing, Sergeant Jackson v. Denno Bruce 12-13, July end of helping family Clawson testified that Soffar neither asked member move. Martin Naylor and Donna attorney, for an nor any questions they dropped testified that Soffar off at his rights. about his At the conclusion of the mother’s house in Friendswood sometime admissibility hearing, Judge Stovall en- p.m. 13, after 7:00 evening July on the tered an oral ruling that the three state- 1980. According Naylors, to the all of the freely ments voluntarily made men who were moving family belong- appropriate after warnings. Miranda A Soffar, ings, including were exhausted written order to the same effect was en- working day, all for days straight two May tered on rulings, in the summer heat. Mrs. Soffar testified Judge Stovall held that each of Soffar’s that Max was exhausted when he was first three written signed statements was dropped off and that he watched little bit after “knowingly, intelligently and straight television then went to bed. voluntarily Statutory waived the and Con- She testified he was in the house rights.” stitutional when she awoke the next morning, July Clawson and the other witnesses who 1980.29 testified at the hearing, Jackson v. Denno
repeated the essence of their testimony On March jury returned jury. before the The State offered “guilty verdict of capital offense of testimony of “Pops” Bryant Lawrence Judge to murder.” presided Stovall then Bryant corroborate Soffar’s penalty trial, confession. over the phase of Soffar’s testified that several weeks after the days. bowl- which lasted three The State called ing alley robbery-murders, Soffar asked numerous witnesses to attest to Soffar’s him if he had heard bowling about the criminal history reputation having alley murders and then him stated to “if I a violent temper. Amazingly, Soffar’s de- you told you who did it wouldn’t believe presented fense counsel no testimony or conversation, me.” During this mitigating Soffar told any evidence of kind whatsoev- Bryant that people got Bryant three shot. during penalty er phase. Soffar,
29. Mrs. hearing who had a suggested substantial exterior door. Prosecutor Tobias that, problem though also testified she did not pos- her cross-examination that was it anyone hear Max go else come or left, sible that committed evening, though family dog never alley robbery-murders, and returned before normally barked as it people did when came she awoke. house, Max's bedroom had its own
461 banc). 1987) (en Soffar’s conviction be- submitted special issues The three appeal of this purposes version came “final” for applicable jury pursuant 37.071(b) Supreme States Court of the Texas Criminal when the United of Article for writ of certiora- petition denied Soffar’s were as follows: Code State, 10,1989. v. ri on See October from the evidence be- you Do find A. Soffar 257, 900, 110 S.Ct. 107 L.Ed.2d 493 U.S. that the con- doubt yond a reasonable (1989). 206 that caused the Defendant duct of the was committed of the deceased death 14, 1992, filed a On December Soffar reasonable ex- deliberately and with the corpus for writ of habeas application state of the deceased that the death pectation District Court of Harris in the 232nd result? another would Texas, alleging twenty-four County, be- from the evidence you Do find B. Judge A.D. Azios30 grounds for relief. a that there is doubt yond a reasonable evidentiary hear- thirteen-day conducted would commit the Defendant probability August period the time between ing during con- that would acts of violence criminal 8, 16, 1994. On No- September 1994 and society? threat continuing stitute 1995, Azios entered Judge vember be- from the evidence you Do find C. findings of fact and conclusions written doubt whether a reasonable yond recommending appli- law denial Soffar’s killing the of the Defendant 8, 1996, conduct the Texas Court April cation. On in response was unreasonable deceased two-paragraph, in a Appeals, of Criminal the de- any, by if provocation, to the opinion, curiam followed unpublished per ceased? and denied Judge Azios’s recommendation corpus for re- application habeas 37.071(e) (Ver- Soffar’s §AnN. Proo.Code Tex.CRIm. lief. 1981). non 22, 1996, 3, 1981, jury returned its filed his first April Soffar April On
On
special
corpus
three
of habeas
answering
petition
each of the
writ
federal
verdict
§
Consequently,
2254 the United
pursuant
affirmative.
to 28 U.S.C.
in the
issues
Dis
jury
so
for the Southern
by Texas law when
District Court
required
as
States
twenty-four claims
answered,
alleging
an order
trial court entered
trict of Texas
injec-
partial
motion for
by lethal
filed a
to death
for relief. Soffar
sentencing Soffar
court,
in the district
summary judgment
tion. Id.
for sum
filed a motion
the Director
Proceedings
G. Post-Conviction
claims.
on all
Soffar’s
mary judgment
did not contest
The Director
were
and sentence
conviction
his available
exhausted
sufficiently
Texas Court
automatically appealed
remedies,
respect
except with
which,
state
September
Appeals
of Criminal
21,31
Director waived
to which the
claim
conviction
affirmed Soffar’s
exhaustion,
respect
portion
to a
and with
opinion.
in a
See
written
sentence
claims,
Brady32
State,
(Tex.Crim.App.
463 (6) II, applicant did not receive a that the granted. for which COA .Soffar full, fair, in the adequate hearing at 598.34 F.3d 300 proceeding; court
State
OF REVIEW
II. STANDARD
(7)
applicant
was otherwise de-
in
process
due
of law
the State
ha-
nied
first federal
this is Soffar’s
Because
pur-
proceeding;
court
was filed
corpus
which
petition,
beas
22,
April
§ 2254 on
to 28 U.S.C.
suant
(8)
of the record of
part
or unless
date
1996,
to the effective
days prior
two
proceeding
court
which
the State
AEDPA,
Supreme
we are bound
issue was
of such factual
determination
521
Murphy,
in Lindh v.
decision
Court’s
made,
to a determination
pertinent
2059,
320,
L.Ed.2d 481
138
117 S.Ct.
U.S.
sup-
sufficiency of the evidence
(1997),
provisions
substantive
apply
determination,
pro-
is
port such a factual
prior to the
§ 2254 as
existed
hereinafter,
provided
duced as
AEDPA.
made
Under
changes
court on consideration
the Federal
2254(d),
§of
provisions
pre-AEDPA
a whole con-
part of the record as
such
mer-
review of the
our substantive
govern
factual determination is
cludes that such
considering
petition, when
its of Soffar’s
by the
fairly supported
record[.]
corpus,
pre-
writ of habeas
we
petition for
2254(d) (1994).
§
Notwith
28 U.S.C.
See
of the
the factual determinations
sume
scheme for state
standing this deferential
hearing
to be
court made after
state
determinations,
factual
we review
court
following
more of the
unless one or
correct
findings
factual
district court’s
the federal
cor-
presumption
exceptions to such
error,
issues of law
and we review
for clear
applies:
rectness
Johnson, 178 F.3d
Crane v.
de novo. See
(1)
dispute
factual
that the merits of the
(5th
denied,
Cir.),
309,
528 U.S.
cert.
in the
court
not resolved
State
(1999).
947,
369,
34. The
on the merits
majority opinion
el for consideration
stated:
banc
has
outstanding
which a COA
issues for
rulings
panel's
“We also REINSTATE the
granted.
1.”
See footnote
claim
been
denying a COAas to each
granting or
matter,
drafted,
being
must
III were
we
first
Su
preliminary
As a
(substantial-
preme Court issued its decision Miller-
argument
consider the State’s
Cockrell,
322, 123
El v.
537 U.S.
S.Ct.
Judge
his dissent
ly adopted by
Garza
III)
(2003),
February
L.Ed.2d
that “Soffar did not
here
*22
either,
Miller-El,
In
Supreme
the U.S.
in
allege,
in state courts or
the court
reversed and remanded the deci
Court
below,
attorneys
that his trial
rendered
panel
sions of another
of this Court which
by failing
of counsel
ineffective assistance
appealability
had denied a certificate of
investigate
develop
evidence re-
petitioner
all of the four issues which
Greg
po-
Garner’s statements to
garding
sought from the
District
United States
by failing
or
to obtain a
ex-
lice
ballistics
Court, Northern District of
After
Texas.
The
pert or other ballistics evidence.”
commenting
applied
that our Circuit had
State,
therefore,
argues
now
those
demanding
“too
standard on more than
claims were not exhausted because
Supreme
in
one level”
Court Miller-El
fairly presented to the state
were never
following
issued the
instructions:
turn,
courts.
In
the State concludes that
however,
stage,
ineffective assistance of counsel
At
a court
the COA
by
inquiry
claim
not be
not make a
should
considered
need
definitive
into
said,
Court.
this matter. As we have
a COA
a separate proceeding,
determination is
I,
In
in
Judge
his dissent
Garza
Soffar
underlying
one distinct
merits.
disagreements
panel
sets forth his
with the
McDaniel],
[473,] 481,
Slack
529 U.S.
[v.
majority as to the merits of
Fifth
1595[,
120
After briefs were filed and oral III, appeal Judge ment was held the current his dissent here opinions obviously change the time that the here in Garza decides to (1) been, grant example, pertinent reliance on prior about our part mind issues employing on the merits of these two federal cases relevant constitu- COA’s that the ineffective as- analysis, Lynaugh, and now contends tional see v. Gartrell (5th properly 527, Cir.1987); counsel issue is not sistance of 833 F.2d Williams avoiding (2d procedurally, thereby Lord, Cir.1993); before us 996 F.2d to ad- (2) mandate of our en banc Court claim in assertion terms suffi- issue, for dress the merits of that which ciently particular as to “call to mind” a of an granted. Out abundance COA specific right protected by the Constitu- however, caution, we address State’s tion, Pleas, see Evans v. Court Common (and Garza’s) Judge now contentions (3d Cir.1992); 959 F.2d 1231-33 analysis which is what was following (3) allegations pattern of a of facts that is *23 I panel in to upon relied well within the mainstream of constitution- issue, though on this not ex- grant COA litigation, al see United States ex rel. Sulli- pressly articulated therein. Fairman, 450, van v. 731 F.2d 454 n. 8 (7th Cir.1984). A. Assis- Whether Soffar’s Ineffective has been Ex- tance Counsel Claim proceeding habeas State hausted in the State Courts. find that ineffective as We Soffar’s seeking federal habe Applicants claim this sistance of counsel now before § all as relief under 2254 must exhaust “fairly to the state presented” Court was prior requesting in state court to claims therefore, and, courts that the exhaustion
federal collateral relief. The exhaustion
requirement has been fulfilled for the fol
requirement
is satisfied when the sub
During
lowing reasons.35
the state habeas
stance of the federal habeas claim has
examined
proceeding, Soffar’s counsel
Offi
highest
to the
state
fairly presented
been
Williamson,
along with Detective
cer
who
Henry,
v.
court. See Duncan
U.S.
Kardenski, conducted an interview with
364, 366,
887,
MR. Yes SCHROPP: in the face of the state court’s issue habeas admitted has to do reason we want them ruling that Garner’s statements were not urged the previously we what and, therefore, relevant were inadmissible. that was is that this is material Court example, For Soffar asserted: through through the State file available prior light of his statements report file and the offense identify police, and his failure to *24 [Soffar] all available to the material that was line-up, testimony at a would Garner’s they at the time that defense counsel supported presented not have the case on the case Your Honor. working prosecutors based on the State- Facts, 6,1994, Sept. of at 80-81. Statement and, indeed, ment have contra- would argued admitting Gar- The State then key respects dicted it in the noted during the ner’s statements examination above, any including the absence proper way “not Officer Williams “warning bullet.” shots”/“fifth to ineffective regards to admit them with falsely prosecutor told defense counsel The court then of counsel.” [assistance] was, time, “vegeta- at Garner ruled that statements were not Garner’s this, ble,” accepted and defense counsel relevant to admit them into and refused information, making attempt no to even evidence. prior contact to trial. Joe Can- (8/23). “fairly Testimony no non at 136 Defense
There is
doubt
presented”
steps
develop
ineffective
counsel also took no
assistance
concerning
regarding
claim
his defense coun-
evidence
the substance of
counsel
statements,
investigate
discrepan-
failure to
Garner’s
which could have
sel’s
done,
absence, by
cies between Soffar’s statements
Gar-
been
even Garner’s
police.
questioning
investigating police
made to the
“For
offi-
ner’s statements
‘fairly presented’
a claim have been
to a
cers who took Garner’s statements re-
require-
garding
state court to fulfill the exhaustion
the contents of their offense
ment,
spell
reports, particularly
light
pros-
not
out
applicant
‘need
unavailability
syllable
each
of the claim before the state
ecutor’s claim of Garner’s
” Fisher,
nothing
to indi-
(quoting
court.’
all as if had been raised petition i. Federal habeas pleadings.” Tex.R. Civ. P. 67. petition federal habeas Soffar’s The fact the Texas Court Crimi- ground for April filed his first explicit ruling not make an Appeals nal did alleges relief that: of counsel Soffar’s ineffective assistance The Effective weight on Petitioner Was Denied claim bears no whether In Violation Of claim has been exhausted. Once a federal Assistance Counsel and Fourteenth Amendments claim has been submitted to the state’s The Sixth court, A To The States Constitution As highest requirement the exhaustion United theory that state- their defense Counsels’ Unreason- Result Of Defense Investigate, Develop police proof were not credible To ments able Failure Argument And guilt. And Present Evidence Supporting Their At Phase The Guilt Moreover, alleges that specifically Soffar Theory Defense And Under- Of Chosen counsel: defense Reliability Petitioner’s Of mining unreasonably investigation limited their To The Police. Written Statements involvement the crime of Max’s at 15. Albeit Corpus, Habeas App.
Pet’s charged credibility and of the of Max’s assistance general claim for ineffective examining statements to the counsel, clearly asserting a claim is contained in the file the evidence State’s the Garner state- encompasses both “open pursuant purported to the State’s ments and the ballistics evidence. conducted policy. file” Defense counsel sup- provides additional detail investigation beyond no of these matters relief, ground for habeas port of his first reading those materials made available arguing that: prosecution’s from the file. the defense [h]aving present chosen to ¶ (internal 47, at 17-18 citation omit- Id. that Max’s written statements ted). proof that Max police were not credible Again, allegation specif- sets forth a involved in the Fairlane-Wind- had been relief, ground identifying ic defense ..., trial fern offense Max’s counsel investigate counsel’s failure to the sources duty pretrial to conduct a reasonable file, i.e., of evidence not the State’s investigation supporting for evidence evidence, statements, the ballistics chosen defense. as well as interviews of Garner himself. ¶ 45, at 17. Id. the Garner statements were Whether and the The Garner statements ballistics file, fact included the State’s defense certainly supported evidence would have inability identify counsel’s and utilize theory defense proffered defense counsel’s clearly supports those statements a claim statements to officers did Further, of ineffectiveness of counsel. de- guilty that he was proof constitute credible pursue fense counsel’s failure to and devel- charged and of the crime for which he was *26 op expert testimony relating to the ballis- ultimately previously, convicted. As noted presented tic evidence that would have the statements would have estab- Garner jury conflicting evidence as to the lished numerous contradictions Soffar’s actually during the number of shots fired transpired that account of the events supports commission of the crime likewise addition, bowling alley. presen- In Finally, an ineffective assistance claim. testimony relating to tation of the ballistics in defense counsel were also ineffective certainly would have cast reason- evidence failing doing to contact Garner when so that able on Soffar’s statement five doubt to which would have clarified the extent had been fired rather than four as shots in could have assisted them contra- weight frag- the combined of the bullet dicting the statements attributed to Soffar. recovered and accounted for con- ments ground that In third for habeas relief approximated nection with the crime Soffar’s that petition, alleges Had counsel in his federal only four bullets. defense investiga- Brady by failing violated to disclose pretrial conducted a reasonable State evidence, tion, including evidence indi- particular these two issues would certain only spent that four bullets had necessary support cating provided have recovered from the crime scene. to which [Soffar’s] statements were been not argues that: corroborated pertaining Soffar the offense.” Id. at 97-98. physically exam- defense counsel [h]ad evidence, or ined the ballistics-related Importantly, Soffar inserts a footnote to so, engaged competent experts to do statement, referencing above the dis- (i) they would have been aware that trict Appendix motion, court to B of his bullets, there four recovered thereto, attached in which ex- Soffar (ii) five, pattern the holes pounds major on at discrepancies least ten carpet, and the fact one hole given between his written statements all go way through did not the car- police and the Garner statements. This three, pet pad, as did the other appendix attached to summary theory inconsistent with a judgment provides motion explicit “warning” were caused one shot and detailed elaboration of Soffar’s claim that existing three from victims.... bullets his defense investigate counsel failed to ¶ 128, Id. at 57-58. and utilize both the Garner statements and the appendix ballistics evidence. The Although specific allegation this is found sets out scope and nature of Garner’s ground under Soffar’s third for habeas re- meticulously statements lief, i.e., claim, Brady nothing there is compares them to the third written state- jurisprudence requires our habeas provided by ment investigating Soffar to a party to raise a constitutional issue on officers. Noting discrepan- the numerous appeal particular heading. under a As accounts, cies between the two Soffar ar- such, specific allegation explicitly gues: adequately ground sets forth a for relief on
Soffar’s ineffective assistance of counsel light In prior of his statements to the claim as it relates to defense counsel’s police, identify and his failure to [Soffar] identify develop failure to the ballistics at a line-up, testimony Garner’s would evidence. supported not have presented case prosecutors based on [Soffar’s] summary judgment
ii. motion and, indeed, Statement con- would have in district court filed key respects tradicted it in numerous again relating Accordingly, prosecu- raises issues noted above. investigate falsely his defense counsel’s failure to tor told defense counsel that Gar- the Garner statements and ballistics evi- “vegetable,” ner was a and defense summary judgment information, dence accepted motion counsel this false filed with the making attempt district court. his State- no to even contact Gar- Facts, argues prior ment of ner “[d]e- to trial. None of the numer- *27 fense counsel’s failure to investigate, discrepancies de- ous between [Soffar’s] velop present evidence, and available evidence and and the forth Statement as set herein, pertinent argument during guilt phase trial, the brought were out at and provided strong of the trial ... would have in nothing there is the trial record to support theory for the chosen of the de- indicate that defense counsel were ever fense and would have undermined the even aware of discrepancies these —in- signed by statements cluding key physical, Pet’s fact that the [Soffar].” J., Supp. Specifically, Mem. Summ. at 97. consisted of ballistics-related evidence Soffar identifies defense counsel’s failure bullets and was thus inconsistent four identifying investigating “the in firing extent with the of shots the bowl- five “They facing all back were towards [Soffar’s] set forth State-
ing alley, as the snack bar.” ment, the numerous details well as as “warning-shot” counsel, scenar- pertaining having to the defense Petitioner’s by prosecutor been advised io Statement. [Soffar’s] set forth “vegetable” who was un- Garner was added). ¶ (first It emphasis is Id. at take testify, any available to failed to argument above that clear from Soffar’s critical steps bring contrary out the presented with his court was district position to the relating evidence denied the effective as- claim that he was shot, they victims the time were as as to of counsel both Garner’s sistance by indicated the actual evidence collect- the ballistics evidence. statements and prose- by police, ed or to counter the summary alleges further scenario, and cutor’s false “five-shot” judgment motion that: argument proffered “evidence” bring defense counsel did not Because by support crafted the state in thereof. contradicting the out ¶ 42, at 27. Id. theory, due to the fact that the State’s support argument that Soffar [Garner’s State had withheld statements failed raise these issues before dis evidence, the Tex- ballistics-related] court, to the points trict the dissent fact (as Appeals had the as Court of Criminal did not district court make a jury) accepted misleading version specific ineffective ruling on Soffar’s assis respect to the evidence with the order tance of claim as to Garner’s state counsel put forth the State as the victims ments and evidence.36 the ballistics How for the State- [Soffar’s] “corroboration” ever, this Circuit has determined all ment, and found that evidence: not in a disposed explicitly judg claims that the bodies of the vic- established implicit ment are considered to have been basically in a tims were found line rejected ly by the district court. Sims, Temple, in order of parallel, Bank, 937 Schmueser v. Burkburnett F.2d Garner, with Gamer’s Welsher (5th Cir.1991) (citing 50 C.J.S. door, facing and all body closest 539). Therefore, § the federal district the snack in the direction of bar. explicit ruling court’s failure to make an ly- Appellant’s “They statement: were regarding Soffar’s claims the Garner state ing from the door so there was a ments and evidence is the ballistics girl dispositive properly dude then a and then another whether dude,” Rather, last fact reflects only dude and then the and raised.37 claims, Alternatively, Judge suggests district on these Garza in his court did not rule court did not address dissent that the district "apparently recognizing that it could not con- Soffar's claim as to the Garner statements applica- sider habeas claims not raised in the presented had not been because the claim added). (emphasis tion.” The tentativeness of However, detailed the district court. Judge position point on this is made Garza's above, at least instanc- we have identified five apparent support he cites: more presents es the district in which Soffar (the § general application U.S.C. 2242 habeas general specific both references to court section) court and a 1949 district decision investigate failure to his defense counsel’s Pennsylvania issued the Eastern District of police. statements made Garner (a corpus case in a writ of habeas *28 dismissed the relator was not because con- Judge 37. Garza concedes that Soffar’s While jurisdiction of fined within the territorial ineffective assistance of counsel claims were instituted). court at the the suit was time To appendix raised in the to motion for sum- maintains, however, properly that mary judgment, hold these claims were
471 court, tiny like the state habe- performance that the district of counsel’s must be court, rejected deferential, highly considered and simply indulge and courts must in strong presumption of ineffective assistance of Soffar’s claims that counsel’s con- general reasons or in duct falls within range counsel without the wide of reason- professional 689, terms. able assistance. Id. at prong, S.Ct. Under the second sum, abundantly it clear on a is based prejudice must be demonstrated show- presented review of the record Soffar ing that counsel’s defendant’s errors court to the district his contention were so serious that rendered the 1) investigate defense counsel: failed to proceedings fundamentally unfair or the readily and raise evident stark inconsisten- Fretwell, result unreliable. Lockhart description cies between Garner’s 838, 506 U.S. S.Ct. shootings and the one that the officers (1993). L.Ed.2d 180 2) them; gave testified that Soffar an expert failed to retain to examine and Soffar contends that his defense counsel evidence, develop and that the ballistic were ineffective for failing conduct an supported such inef- deficiencies pretrial adequate investigation for two rea- fective assistance counsel claim. First, argues sons. Soffar that his defense counsel were in not attempting ineffective C. Whether Counsel ivere Defense Inef- Greg to contact Garner or to interview the Due to Guilt Phase fective police officers who took Garner’s state- Adequate Their Failure Conduct an ments, which would have enabled Soffar’s Investigation Pretrial counsel to sig- introduce into evidence the Having discrepancies determined that exhaus nificant between Garner’s tion bar is not a and that the relevant account of the crime and Soffar’s state- issues raised properly were before dis ments. Soffar that had contends his de- court, so, trict turn we to the substance of fense counsel reliability done of his Soffar’s ineffective assistance of counsel confessions would have been undermined. According Soffar, claim. contends that particu- Soffar he received be this would ineffective larly given jury assistance counsel true that the would have guilt phase of his trial counsel because his been made aware that account Garner’s failed to in adequate pretrial conduct ballistics and the substan- consistent, vestigation. two-prong tially Under test whereas Soffar’s version Washington, enunciated Strickland v. with both. further *29 472 Soffar,
result, is then of according warning shot and shot two once, gave gun plausibility of statements attributed victims then police placed have been shot the other two victims him the would Soffar who that, juror. argues a reasonable once. Soffar had his defense substantial doubt properly prepared, counsel would hand, State, contends on the other to present have been able evidence that failure to call Gar- that defense counsel’s fragments weight constituted the state- ner to the stand or introduce his bullets, four State Firearms not harmful to the police ments to alternatively Examiner found. This State, According placing to the defense. Soffar, proof, according to corroborates have an Garner on stand would risked warning account that no Garner’s shot “damn- in-court identification Soffar and was fired. ing by an in-court spurred recollections signifi- the assailant.” The confrontation with Soffar also contends that another State, therefore, argues that “[t]here discrepancy expert cant a ballistics would gained attempt- simply nothing to be highlighted have that the police is discov- ing get the substance [Garner] in a ered Garner location different from fur- jury.” before the Without statements he shot. where he said was Soffar’s state- subsequent investigation ther careful placed to police ment Garner between probable impact consideration of Felsher and the front doors of the statements, testimony Garner’s or howev- Gamer, however, alley. police told that he er, are not persua- the State’s assertions lying was shot while between Sims and sive. Temple; he making stated after lay call phone down Felsher’s side in
Second, his argues counsel her, to aid which attempt is where the failing for to retain a were ineffective police found him. expert ballistics and introduce evidence discrepancies concerning the between bal- i. Whether counsel deficient and Soffar’s state- listics-related evidence We first consider whether Soffar Soffar, According ments. counsel Strickland, i.e., first prong satisfied the troubling have should identified several performance whether counsel’s was defi anomalies, cursory which even a examina- 687, at 104 cient. 466 U.S. S.Ct. To tion of the evidence re- State’s ballistics petition performance, establish deficient Specifically, vealed. Soffar notes that er must that counsel’s argued fragments repre recov- demonstrate State the bullet objective sentation “fell below an standard ered at scene of the crime constituted bullets, which, 688, according five of reasonableness.” Id. 104 S.Ct. interrogators, Supreme is the number bullets 2052. The Court has declined to specific guidelines appropri Soffar said had been fired. The State’s articulate (who theory attorney was that Bloomfield ate conduct and instead has em evidence) proper lack fired phasized “[t]he State released for measure of police, potential finding inquire the reasons for basis for that Soffar's further into coun release, including performance. Bloomfield's whether sel were deficient in their See Scott, (5th Bryant alibi cast doubt on Bloomfield had an F.3d Cir. 1994) reliability (quoting Sargent, confessions. Be Henderson v. of Soffar's F.2d (8th Cir.1991)). investigate duty 'a ... But "[c]ounsel cause has because Soffar allegedly possessed petition, this all witnesses who knowl did not raise issue in habeas guilt edge concerning or in we will it in [the defendant's] not consider connection with the ” nocence,’ yet appears prong. to be another first Strickland
473 trial, simply testify whether attorney performance remains rea- he could the sub- potential stance of his prevailing professional testimony, under sonableness whether it analysis by would be consistent with begin norms.” Id. We our Strickland, taped that, claim and transcribed noting any Soffar’s statements and gave trial other information he police; stems from his counsel’s primarily (3) scope identify decision to limit the of their investi- whether could perpetrator[s], so, gation already favorable to or at- potential into done 672-74, tempted 104 to so. the defendant. Id. at S.Ct. do Defense counsel testi- claim, fied that did rejecting 2052. In Strickland’s not seek to interview Supreme unspecified person Garner because Court defined deference told strategic “vegetable.” them Garner was a judgments owed such terms of adequacy investigations support- Strickland, “Guided have we held judgments: ing those eyewit- counsel’s failure to interview after [Strategic thorough choices made charged nesses to a crime constitutes ” relevant investigation law and facts to ‘constitutionally representation.’ deficient plausible options virtually are unchal- Johnson, Anderson v. F.3d 338 391 choices lengeable; strategic made (5th Cir.2003) Scott, (quoting Bryant v. than complete investigation after less (5th Cir.1994)). F.3d In precisely are reasonable the extent Bryant, did the defense counsel not inter- professional judgments that reasonable eyewitnesses view two pre- and limited his support investigation. the limitations on trial investigation to examination of the words, duty In other has a counsel file, prosecutor’s with the discussions ac- make investigations reasonable cused, and a review of indictment. make a reasonable decision that makes F.3d at 1418. We observed “infor- particular investigations unnecessary. mation might relevant defense [the] case, any particular In ineffectiveness have through pre- been obtained better decision not to must investigate be di- trial investigation eyewitnesses, of the rectly assessed reasonableness all lawyer a reasonable would have made circumstances, applying heavy to investigate eyewit- some effort judg- measure of deference to counsel’s (alteration testimony.” orig- nesses’ Id. ments. inal) (citation omitted). quotations Anderson, held that a trial we counsel’s 690-91,104 Id. at S.Ct. 2052. an eyewitness failure to interview rose to of a scope pretrial defense counsel’s constitutionally per- level of deficient investigation necessarily follows from the formance, given gravity burgla- theory what decision as to of defense ry charge, and the fact that there were will be. At the state proceeding, habeas crime; only eyewitnesses to the two adult both testimony Cannon’s and Stover’s exclusively and that counsel relied on the theory made it that their clear defense State, investigative basing work of the self-incriminating statements pretrial own “investigation” “assump- were false and should not be believed. tions from a divined review of State’s Nevertheless, in spite theory of this files.” Id. defense, defense counsel never at- Garner, tempted coun- to interview We conclude Soffar’s defense (1) justification eyewitness, acceptable known his de- sel have offered no obtain scription perpetrator[s] and his ver- for their failure to take the most elementa- (2) events; ry attempting sion step of the crime determine to interview sin- (7)how the went about perpetrator(s) to the crime with gle eyewitness known *31 emptying register. con- the cash charged. client was We which their sufficiently is defi- clude that this failure however, counsel, to chose not Defense of satisfy prong first Strick- cient to the statements to show rea- utilize Garner’s land. reliability to the of Sof- sonable doubt as provided Garner supra, As we discussed they as far’s and to whether statements a post- and police the four statements with Fur- his own observations. were based the concerning crime. hypnotic interview thermore, attempt- never defense counsel prosecutor’s the Those statements ed Garner to to interview determine trial, and state prior files the habeas any incon- whether there were additional finding that there express court an made that could aid Soffar’s or sistencies defense prose- the Brady no violation because was having whether it would be worth Garner policy kept file open cutor followed testify During at trial. the state habeas file, reports in all which defense proceedings, stat- Soffar’s defense counsel multiple occasions.39 counsel accessed on they they ed that did not do so because corollary of is necessary finding this by had told an unspecified person been that, or gross neglect for except their over- “hopeless vegetable” that a Garner was have sight, counsel must been recognize anyone. talk or who could not of state- aware of the existence Garner’s statements, clearly ments. as Garner’s that counsel’s argues The State defense A”, markedly conflict “Appendix shown in testify call to decision to Garner in a of with Soffar’s statements number strategic as excusable a reasonable ways, including: significant Specifically, argues decision. the State (1) perpetrators; number the of that placed had Soffar’s defense counsel (2) perpetrators) wore a whether stand, Garner on the would have disguise; of risked an in-court identification Soffar (3) perpetra- manner in by potential a series “damn- tor(s) gained access to the ing spurred by recollections an in-court alley; confrontation the assailant.” Howev- (4) any victims whether er, to investigate an actual failure cannot
screamed; hypothetical be a decision not excused (5) number of shots fired its This use unknown results. Court
perpetrator(s); squarely rejected has the State’s rationale (6) a a here —that failure interview witness positions the victims’ at time shot; “strategic is excusable a decision” if the
they were weight” proceed- 39. The district court in habeas culation "four bullets’ ing fragments weight concluded: of bullets and bullet re- undisputed police. light In of the Because Soffar from fact Officer covered knew, report Rushing's was made available de- available sources "either or other counsel, also known, fense Soffar knew should should have of the essential facts police have recovered known that advantage any permitting to take him fragments weighing and bullet less bullets evidence,” exculpatory can con- it be weight According- than the of five bullets. cluded that the ballistics evidence was not ly, already knew or should have meaning Brady. "suppressed” within the pur- of the known of "essential facts” Johnson, 96-1281, Aug. No. ported inconsistency between “five Order, at 56. Memorandum and shots” confession and C.E. Anderson's cal- addition, would not have been credible- witness to crime. Gar- witness holding description ner’s perpetrator that while: drawing police used to create a circu- credibility might support
a lack
lated and the news
media
strategic decision not to call witness
broadcast
public, which
trial,
indicates
be-
testify
explained
we
lieved Garner had sufficient recollection to
support
character flaws cannot
witness’s
identify
suspect
not a
investigate.
so
thus was
a failure
Without
*32
witness,
“hopeless vegetable.”
contacting
as
much less
much
him,
counsel
is “ill-
speaking
Finally,
investigat-
had Soffar’s counsel
credibility
equipped to assess his
or
ed the
of
circumstances
Garner’s state-
as
...
persuasiveness
witness.”
ments, they would have realized the value
“require ...
simply
Strickland
does not
in putting
jury
before
that
the
the fact
are un-
to decisions that
defer[ence]
gunman
Garner
could describe
but
by
adequate investigation
informed
an
identify
could not
or
Bloom-
Soffar
Latt
controlling
law.”
into
facts and
line-ups
po-
field at two
conducted
Anderson,
(alteration
338 F.3d
392
proof
lice.
are
that
We
convinced
such
(citations omitted).
original)
probably would
raised reasonable
have
jurors.
doubt
the minds of the
As we stated
I:
strategy
find counsel’s defense
We
Garner,
Defense counsel knew
regard
inexplicable.
to be
Given
this
only surviving
eyewitness
victim and
to the
powerfully exculpatory nature of
crime,
still
possibly
alive and
available
ac-
inconsistencies between Garner’s
They
them to
knew
interview.
also
confession,
count of events and Soffar’s
that the
of
possession
State
Garner’s
render
which inconsistencies would
Sof-
signifi-
containing
transcribed statements
implausible,
far’s
one would
confession
cant
de-
exculpatory materials. Because
expected
to
have
defense counsel
do ev-
fense
knew
trial that there
counsel
before
erything
power
get
their
to
sub- was no
independent
evidence
of Soffar’s
police
stance Garner’s
interviews be-
him
to connect
confessions
tended
jury
by calling
fore the
either
Garner as
crimes,
with the
that the State would not
by introducing
a witness or
the tran-
witness,
call Garner as a
and that Garner’s
scription of these interviews. Defense
conflicted marked-
statements
counsel should have at least interviewed
ly with Soffar’s confessions and substan-
to
if
could
Garner
determine
Soffar,
tially
to
exculpate
tended
there
testify
would
at Soffar’s trial consistent
an
in-
apparent
possibility
reasonable
(Garner’s) prior
with his
statements.
If
formation and evidence favorable to Sof-
willing
was not able or
to so
Garner
far’s
have been
defense could
obtained
testify,
counsel
have of-
defense
should
through
investigation and inter-
pretrial
statements,
prior
fered
recorded
Garner;
furthermore,
views of
a reason-
police,
transcribed
as record evi-
lawyer
able
would have made efforts
testimony. Simply put,
dence
we
testify
investigate whether
could
Garner
baffled
strate-
are
defense counsel’s
favorably and decide whether Garner’s
thereof,
lack
gy,
complete
regarding
could and
transcribed statements
should
investigators.
Garner’s statements
exculpatory
be
evidence.
introduced
I,
Anderson,
391-92;
n.
See
witness, taped and had access Garner’s probability there a whether is reasonable statements, they did and transcribed that counsel’s errors affected outcome discrepancies whether the be- investigate probability trial. “A reasonable written statements taken tween Soffar’s proof aby preponderance need not be potential testimony and Garner’s different, it have been but result would taped and transcribed accounts showing a must be sufficient undermine Second, aid the crime would defense. Sof- in the confidence outcome.” Williams far’s counsel failed to consult with defense Cir.1997) (5th Cain, 125 F.3d expert although case ballistics State’s Strickland, (citing U.S. testimony on the largely based (internal 2052) omitted). quotations S.Ct. expert to show correlation be- ballistics physical tween the evidence at the scene of opinion are that Soffar’s de- We *35 the crime and Soffar’s written statements. counsel’s failure conduct an ade- fense view, In our Soffar’s defense counsel did quate investigation had clear pretrial that fur- not make a reasonable decision negative impact on the outcome of the necessary investigation ther was with guilt trial. The evidence of Soffar’s in this aspects the regards to these two of case. not so as to render case was extensive fact, during proceed- In the state habeas To the harmless defense counsel’s errors. ing, defense counsel offered no Soffar’s predominately the contrary, State relied explanation they for why reasonable did self-incriminating on statements Soffar’s advantage opportunities. not take of these history confessing of to crimes despite so not be Failing to do can described as particularly he did not commit. This is professional judg- exercise of reasonable important Soffar’s statements con- when “part ment or as of a calculated trial strat- Garner, given by flict the account the likely egy, the result but is of either indo- the the cir- sole witness to crime. Under Anderson, incompetence.” lence or case, therefore, of this we are cumstances (citation and quotations F.3d at 393 omit- against the persuaded that verdict Soffar ted). Therefore, we find that de- likely more than not to have been was investigate fense failure to counsel’s these by counsel’s affected ineffectiveness. key of evidence constitution- avenues deficient, absolutely is not a case there ally thus the This where satisfying first objective of prong of Strickland. was clear evidence eyewitness testimony placed jury ei- the guilt. No Had been confronted with this or at crime ther Soffar Bloomfield the Soffar, considerable evidence favorable fingerprints scene. lifted from No is a probability there reasonable it would fingerprints crime matched the of scene different have reached a In partic- result. Bloomfield. or Nothing either Soffar ular, jury confronted, had the been so later taken from the crime scene and probability is a there reasonable that at of possession found in the either Soffar or juror least one would have refused re- samples No or hair Bloomfield. blood turn a guilty. verdict of The available that were found at the crime scene casting truth doubt or Bloomfield. matched those Soffar veracity of Soffar’s is strong confessions gun used commit this crime was enough present any the failure to of it neither found nor introduced into evidence. jury’s for the consideration undermines nor linked Neither Soffar Bloomfield were Strickland, confidence the outcome. to a of the same caliber as the weapon 694,104 at In light U.S. S.Ct. 2052. bullets from the recovered crime scene. relatively thin consisting State’s case Nothing police Soffar told the his state- confession, of an only uncorroborated any ments led the to discover evi- is a probability there reasonable “but already relating did not have dence (1) for” trial counsel’s failure to: interview alley murders. testify and call Garner to or introduce his contrary, arguably On incorrect statements; (2) transcribed consult a pattern shootings of the deduced expert their ballistics own to reconstruct posi- police from the victims’ ultimate floor crime jury scenario accord fitting tions led to statements statements, testimony with Garner’s pattern. Because ineffective- proceeding result would have been counsel, jury ness of Soffar’s defense different. significantly never heard about the differ- Although Soffar’s burden in this case is happened ent description what at substantial, required he is not to establish crime scene contained in the statements his innocence or even “that demonstrate police. made Because of likely counsel’s deficient conduct more counsel, ineffectiveness Soffar’s defense than not altered the outcome in the case.” jury contrary opinions never heard the Strickland, 693,104 466 U.S. S.Ct. 2052. qualified expert of an available ballistics (not prejudice, order to establish four shots fired five as *36 only that had his defense coun- need show purported say), Soffar’s statements and adequate pretrial sel an investi- arrangement conducted of bullet holes in the above, clearly gation as discussed there is a rea- carpet showed that was jury’s place probability shot in a different from he sonable verdict where (and 694, by police was not have found where Soffar would been different. Id. him). said he shot 2052. has met burden.41 S.Ct. Soffar this constitutionally physical linking This Circuit has found was no defendant to Cockrell, offense); performance preju- deficient counsel to v. of be Beltran F.3d See, 730, Cir.2002) (5th e.g., (finding prejudice dicial on numerous occasions. 733-35 Johnson, 382, Anderson v. 338 F.3d 393-94 where defense counsel decided not to im- (5th Cir.2003) (finding prejudice eyewitnesses' testimony peach in a "rela- defendant tively against only person picked 'weak' case" whom from defendant was prior photographic array where failed to with the counsel interview one of witnesses' party); eyewitnesses two to the crime in which there tentative identifications of another Petitioner Max Alexander Sof- granting Violated D. State Whether Soffar’s (ii) Conducting petition corpus; far’s for writ of habeas Rights Constitutional Indict- and Subsequent setting aside his conviction sentence Interrogations (iii) Right murder; ordering Invocation capital ment and for of Counsel of Max Alexander Soffar release Petitioner custody unless the State commences en- that Soffar is we determine Because days. of the Petitioner within 120 retrial on merits based titled habeas relief hereby All motions are DENIED pending counsel his assistance of ineffective as MOOT. claim, not address the second need we panel for this issue before us and REMANDED. REVERSED previously granted the en Court have banc address do not consider or a COA. We GARZA, Judge, EMILIO M. Circuit vio- additional claim the State Soffar’s dissenting: rights by inter- lated Amendment his Sixth presence of his him outside the rogating jurisdiction do have to consider We an regarding counsel record extraneous Soffar’s ineffective assistance counsel pen- presented during the offense that was he to raise them claims because failed required are alty phase of his trial. We application his federal and because habeas grant relief from both his conviction the district court never ruled on them. because of constitutional- sentence Further, claim that Soffar’s his Sixth counsel. ly assistance ineffective he rights Amendment were violated when Therefore, pronouncement Soffar’s our interrogated regarding unrelated unnec- offense claim would be extraneous charge is without merit. sexual assault merely advisory. essary and Thus, I dissent. respectfully CONCLUSION I we hold that foregoing, Based on requests that we consider wheth- capital for conviction and sentence assistance of er was denied effective constitutionally infirm vir- murder are Washington, counsel under Strickland de- tue of the ineffectiveness 668, 104 80 L.Ed.2d Therefore, 466 U.S. S.Ct. fense counsel. we REVERSE (1984). argues He that his trial coun- granting court order district failing investigate in favor the Di- sels deficient summary judgment rector, bring out inconsistencies between and REMAND case (i) entry Greg of an order confession to the murders Gar- district court Cir.1993) Anderson, (finding prejudice based erro- 230 F.3d 715-17 on an Lockett v. Cir.2000) (5th jury jury could neous instruction where (holding that defendant concerning have had a reasonable doubt prejudiced on coun- under Strickland based *37 kill, to could defendant’s intent and instead investigate mitigating evidence sel’s failure to condition); on to cause have convicted him based intent relating to mental defendant’s harm). Johnson, great bodily (5th Moore F.3d 619-22 Cir.1999) (holding to upon counsel's failure Based a review of the facts in these by interviewing dis- set in this investigate witnesses cases and for reasons forth opinion, counsel's we believe that the circumstances closed to counsel the state and reasonably light underlying in the proceed failure in of that the deficiencies identified to meet, exceed, certainly prejudiced defen- if evidence once disclosed instant case dant); (5th Lynn, prejudicial prong developed Circuit. Gray v. F.3d 269-71 this offense;1 argued extensively were far account of the and about ner’s his counsels’ retain an to failing expert deficient to failure to and investigate develop evidence condition, certain ballistics evidence. examine of his mental its on effect his confession, to willingness give a false and habeas application Soffar’s federal the fundamental flaws his confession. twenty-four grounds for relief. raised however, not argue, He did that his coun- Eight grounds of those raised StHckland investigate failed sels to either Garner’s alleged I trial claims: Ground counsels statements or the ballistics evidence. investigate to medical his- failure Soffar’s II, al- tory personality; and his Ground majority opinion cites language a leged their failure .to raise Fifth Amend- I broadly Ground if construed and confession; challenge ment to Soffar’s read in isolation be to interpreted can have IV, alleged their failure to investi- Ground presently raised StHckland claims be- gate prior an unrelated act of violent mis- fore Court. Other language XIX, conduct; and their alleged Ground I, however, Ground clarifies that Soffar’s object excusing court a failure to to the claim ground in that relief IX, X, XIII, juror. particular Ground that his trial investigate counsels’ failed to solely penalty phase XIV related to his mental condition: trial and not refer Soffar’s did either argued “Defense jury counsel at Garner’s statements or the evi- ballistics trial that police Max’s statements to the dence.2 product were the of his mental condi- of the None StHckland claims raised ¶ 44, tion.” Pet’s App. Corpus, Habeas petition alleged habeas coun- Soffar’s his added). (emphasis at 15 expert, sels’ failure to retain ballistics “[Djefense unreasonably counsel failed evidence, develop develop ballistics or evi- investigate, develop present avail- respect dence with to Garner’s statements. specific able medical evidence that the notes, majority I opinion As the Ground symptoms permanent organic of Max’s closely most resembles the claims present- damage seriously brain undermined the Court, ly inspec- before this a closer but reliability of incriminating his state- incongruence. tion clarifies their I Ground ¶ 51, Id. at (emphasis ment.” add- multiple presented why theories of Soffar’s ed). fully trial investigate counsel failed to “As result of counsels’ unreasonable develop presented defense that Sof- failure to critical avail- investigate, far’s statements to the medical able evidence was devel- never product of his It al- mental condition. oped presented jury supporting leged investigate counsels failure theory counsels’ chosen of defense. 1) develop: evidence contained in the pres- Counsels’ unreasonable failure 2) file; relating State’s to Soffar’s such ent medical evidence constituted 3) police interrogation; per- evidence from ¶ 61, at 24 ineffective assistance.” Id. community relating sons added). (emphasis 4) state; mental evidence of or- 5) and, ganic damage; brain its “Had counsel effect undertaken reasonable making incriminating investigation, statements. Sof- counsel would have Greg in the left 2. Garner was shot head and The district court denied Soffar relief on night for dead on the of the He murders. of these each claims. gave accounting survived and crime *38 police. to the 482 to turnover ballistics perma- prosecution’s failure was born with that Max
learned however, not, damage, and that he He does refer evidence. organic nent brain childhood, testimony additional for from a acquired, either to need had damage.” Id. to expert brain the Garner state- permanent organic ballistics ¶ 63, had these factual at 25. Even if he made ments. references, certainly never articulated neuropsychological and example, “For casually the Strickland or even referenced testing neurological examinations this Court. presently claims before the existence of sub- confirms Max organic brain dam- permanent stantial Brady Maryland, “suppression v. Under ¶ 65, age.” at 25. Id. to of evidence favorable prosecution to them counsel available “Defense upon request pro- violates due accused prepara- for psychiatric assistance cess is material either where evidence of Max’s defense.” presentation tion and guilt Brady, to or to 373 punishment.” ¶ 74, Id. at 33. added). 87, (emphasis 1194 U.S. at S.Ct. majority opinion concludes that The Brady The of a fundamental characteristic a claim for ineffec- “general I was Ground by a prosecutor, claim is misbehavior included tive of counsel” which assistance is right the constitutional asserted due it habeas granted the claims which process under of law Fourteenth cursory Even a review of lan- relief. (A “prosecution id. Amendment. See that, however, I, confirms guage in Ground pros- ... casts the withholds evidence Strickland claims like the seven other of an a ecutor in role architect of it a petition, habeas raised in Soffar’s proceeding comport that does not with to that did not relate coun- specific claim ....”) justice (emphasis add- standards investigate either Gar- sels’ failure ed). The fundamental characteristic of ner or the ballistics evidence. statements attorney per- Strickland claim is deficient formance, right constitutional as- majority finds that opinion further right Amendment serted is Sixth raised these Strickland claims Strickland, 687, counsel. See 466 U.S. at applica III of his federal habeas Ground (“[T]he has recog- Court S.Ct. Brady part tion of his contention under right right that the to counsel is the nized 1194, 10 Maryland, 373 U.S. 83 S.Ct. (in- counsel.” the effective assistance of (1963), prosecution L.Ed.2d omitted)). Considering a quotations ternal turnover “material rele failed to prosecutor fault Brady claim finds trial” guilt phase vant to Petitioner’s under the Fourteenth Amendment and a right process to “due violation finds of Strickland claim fault with one’s own law under the Fourteenth Amendment attorney under the Sixth Amendment United States Constitution.”3 relief, types refer to the two of constitutional chal- ground for Soffar does these withholding of of the United States Constitu- 3. III: "The State's Amendment Ground phase App. Corpus, Habeas at guilt tion.” Pet.’s 53. relevant to the material evidence trial, likely admitted of Petitioner’s if specifically complained: "[T]he suppression of have mandated Petition- would to the defense evidence State failed disclose statements, due to the violation er's written information which was material counsel, right guilt phase Amendment trial the State Fifth Max’s and which jury obligated produce convinced Petitioner's reasonable under trial discovery com- and the federal Con- existed as to whether Petitioner court's order doubt ¶ Corpus, charged, App. Habeas denied Petitioner stitution.” Pet.'s mitted offense process under the Fourteenth due of law
483 easily are con- lenges (holding to a conviction not that until application for writ of unlikely that experienced fused. It is corpus habeas is made “no suit has been instituted”). counsel who drafted Soffar’s federal habe- application as mistook one of claims these majority opinion dismisses the dis- many for the Unlike petitioners other. trict court’s decision to not address these Court, before proceed- this is not claims as irrelevant because “this fact re- ings currently pro repre- se. Rather he is court, flects that the district like the by very competent sented counsel court, state habeas simply considered and country. one of the law firms in top rejected Soffar’s claims of ineffective assis- Presumably these attorneys can distin- ” tance of counsel without reasons.... Al- guish by un- prosecutor between errors a I though do not express opinion as to der the Fourteenth Amendment and er- whether Soffar raised these claims before rors a defense counsel under Sixth court, the state habeas or whether they Amendment. silently body, addressed simply It is not true that “explic- idea that the district court failed to ad- itly grounds and adequately” set forth the particular these dress claims a 127 page request for relief under Strickland opinion5in fully which it addressed each of v. Washington part seeking as of his claim twenty-four “other” claims is noth- Brady relief Maryland. under The ma- ing short of fantastic. I also find it hard. jority opinion’s par- conclusion otherwise’is believe, majority opinion as the sug- ticularly this suspect case because Sof- gests, the state trial and appellate far “explicitly adequately” outlined courts as well as the federal district court in eight separate Strickland claims engaged irresponsible each in the act of grounds for in his petition. relief habeas ignoring these claims despite Soffar having supra. See It him would seem odd for “clearly” raised them each stage of have hidden ninth and tenth claims process. misleading under the heading Brady of a challenge. The district court never ruled on the us, merits of Strickland claims before failure to raise his Strickland thus there is no appeal to consider. See claims as to the ballistics evidence and R.App. 22(a) P. (providing right Fed applica- Garner’s statements his habeas appeal the district denial of court’s habeas tion is highlighted the district court’s relief). The role of this is to Court review Despite decision to not rule on them. us, the decisions of the below courts it is Soffar raising elements of these claims in not to stand as court of first Appendix B instance summary judgment of his brief,4 adjudicating new claims at the will of a court district did not rule claims, petitioner’s fancy. See Zimmerman v. apparently recognizing that it could (5th Cir.1977) Spears, 565 F.2d consider claims not raised the habe- (“[T]he application. Appeals § Courts of are not (pro- See 28 U.S.C. vested viding jurisdiction petition that a for petition corpus habeas be entertain application); made in a as an corpus original habeas United writ habeas cf. matter.”). role, States v. Philadelphia County Warden That to the extent that it (E.D.Pa.1949) Prison, exists, F.Supp. is reserved to district courts. The body opinion There is no mention them in the 5. The trial state habeas court’s is 183 pages. brief. *40 484 the trial. presented func- ton Police were separate has our
majority
confused
argues
testimony
is
Soffar first
tions.6
that is
“extraneous offense” evidence
illegal
fruit of Detective Bockel’s
interro-
II
his
gation of
in violation of
Sixth
Soffar
right
counsel.
Amendment
See Maine
not address
opinion does
majority
The
Moulton,
159, 180,
474
106
v.
U.S.
S.Ct.
it
claim because
Amendment
Soffar’s Sixth
(1985).
477,
then
1)
August
presence
in the
before,
investigation,
during,
in interro-
sexual assault
purpose
Bockel’s
not find that
interrogation
after
of Soffar.
right
circumvent
gating Soffar
charges
murder
to counsel as
however,
is,
suggest-
no evidence
There
could
used
be
gather information
any way
involved in the
ing
he was
charges.
prosecute those
investigation. Bockel was not a
murder
force,
Police
much
member of the Houston
Further,
strongly supports
the record
investigating
team
less member
purpose
that Bockel’s sole
the conclusion
bowling alley.
at the
Nor is
the murders
investigate
was to
interrogating
any
suggest-
record
there
*42
to
sought
Bockel
rape.
the unsolved
asked
to
ing that Houston Police
Bockel
only
he was informed
speak to
after
Soffar
incriminating statements to be used
solicit
rape
already
to a
had
confessed
Soffar
conten-
at Soffar’s murder trial. Soffar’s
ques-
County.
in
Before Bockel
nothing
Harris
is
but
tion otherwise
unsubstanti-
conjecture.
ated
Soffar,
him
Fifth
he
of his
tioned
advised
right to
and took Sof-
Amendment
counsel
record,
Nothing
evidentiary
in
or the
the
only after Soffar
far’s written confession
findings, suggests
habeas
that Detec-
state
right.
taking
explicitly waived that
After
interrogate
intended
Soffar
tive Bockel
to
confession,
his
Bockel continued
purpose
gathering
for the
of
additional
investigation by
the victim down
bringing
investigat-
to a crime he was
evidence
line-up.9
in
identify
to
to Houston
Soffar
Rather,
pur-
ing.
it demonstrates that his
gather
regarding
in the
was
information
deeply engaged
pose
thus
to
Bockel was
counsel,
Office,
right
to
made a written state-
never invoked his
Sheriff's
Soffar
warnings
repeatedly given
and intel-
Miranda
confessing
[the
ment
to
sexual assault of
ligently
them
no coercion or
victim];
waived
under
police
improper
both re-
influence from
2)
alleged interrogation
Au-
prior
any
to
covering
garding interrogations
primary
1980,
8,
19,
August
gust
to
adversarial
case,
covering
interrogations
as well as
against
for
proceedings
Soffar
the offense
sexual
extraneous offense of the
assault
capital
in
case had been
murder
the instant
victim]; and
[the
however,
initiated;
pro-
no such adversarial
5)the
jury
to con-
trial court instructed
ceedings
against
been
Soffar
initiated
sider the evidence of the extraneous sexual
aggravated
the offense of the
sexual assault
purpose
victim]
assault of
for the limited
[the
victim], an
offense introduced
[the
extraneous
aiding
answering any
jury
questions
during
punishment phase of
into evidence
might
punishment
presented
be
trial;
that,
charge,
jury
be-
and also instructed the
3)
hearing
during the
Denno
Jackson v.
testimony
jury
fore the
could consider the
case,
primary
Bockel
trial in the
Detective
offense,
jury
find that
the extraneous
must
19,
that,
gave
August
testified
be-
Soffar committed
extraneous offense
warnings,
Soffar
that Soffar suffi-
Miranda
yond a reasonable doubt.
warnings,
ciently
Soffar
those
understood
attorneys
specified
want
that he did not
Although
was unable to conclu-
the victim
present
to talk Detective
but rather wanted
to
line-up,
sively identify Soffar
the live
only,
con-
Bockel
that the conversation
line-up
supports
further
the conclu-
use of
victim],
[the
cerned the sexual assault
purpose
inter-
sion that Detective Bockel’s
that no coercion
threats were made
investiga-
rogating
was to further the
Soffar
confession;
gather
obtain this
rather
tion of the sexual assault
than
4)
hearing
during
punishment phase
in the
the Jackson v. Denno
of the
evidence for
case,
instant
the trial court found that
murder trial.
in violation of either his
had al-
tend was taken
rape to which Soffar
an unsolved
rights.
Fifth or Sixth Amendment
That the
committing.
ready confessed
did not violate Soffar’s Sixth
during the inter-
Bockel obtained
evidence
right
Amendment
to counsel because he
punishment
used
rogation was
incriminating
“per-
statements
made no
capital
ap-
murder trial
of Soffar’s
phases
taining
pending charges”;
because
[his]
than
nothing
happen-
more
pears to be
interrogation
at the time of his
his Sixth
APPENDIX A ,;. v ;-w- '-> n '.Writte¿:Síatem^ntv/-' terview: (cid:127)Sbffar?is n #: 'u;fi (cid:127) nnn % j I"/1-'August n A (cid:127) lMffÁ'Av bowling alley jnst I There was one robber who Latt and both went inside entered bowling alley. together. disguise head and I had stocking over his robber wore no Latt had I had an my face. unobstructed of his my shirt view face. pulled over up right unlocked the front Latt and I went unlocked front Steve Sims door and let in been knocking robber who had on the door.
door. bowling alley during stayed appeared inside It that the We robber told Steve there. car trouble. He having entire time were was carrying we jug
water that he wanted up, fill robber and Sims went back together. outside in, grabbed the first When Sims the same robber came guy we walked As soon as Lat dude, inside, who (the up back I walked on guy we saw the hair Soffar, lying lanes 25/26 to see up going farthest what on. The according to ended i.e, there, door, Tommy anyone robber Temple) and asked if else was Sims from the front and Sims Temple up his knees. called get The other Felsher made him down front. up walked people saw this three *44 going what was on. see one, screaming. girl, not even the Latt No screamed or said kept and girl The screamed her, anything, hit, kicked, kicked the second and the robber never and he also
kicked looking touched kept up. anyone. he (Sims) because dude shot, four I think warning and there were there were four shots fired a total. The same Latt all, shot the first lone (Latt right that. robber shot us one shots fired after after another. more behind, 4, 1, 2,1 then Felsher was position position and Sims in guys position from two 3, in position Temple he made and gun position to me. me shoot was in he threw 1, and behind, I walked 4. position Gamer me Felsher and he made in front of around cheek, 2)1 position
shoot her door, to the victims’ positions correspond proximity numbered relative 1The the front (i.e,, where found), front door Gamer was being position position with closest Temple’s body door where (i.e., found). being farthest from the A APPENDIX
C Ghrn;er; Statement Soffar’sWriiten Iiit6É:tew '»Y ' ' oh . August17,1980 body at the positions of the The time of the shootings time at the positions victims’ The male, male, female, female, male, got Latt male, were male. I up male. shootings were mymother, a call and then the manager then he shot made position first shot Sims Next, in called me. and laid Gamer I then went back down I shot next 4. Temple position female, assuming position she to the closest when shot Felsher and then I position configuration (thus changing body door position was in male, mail, female, male). shootings, register robber the cash Before asked if I emptied I went around said, register open could and I “I don’t shootings. after how,” so the go know robber made Steve empty behind counter and register around stayed gun he in front of while counter He made back us. then Steve come around shot us lie Then robber all. down. my get their robber me for wallet when I asked first pockets to emptied victims’ Latt and I him I didn’t approached Mm told have it. shootings. wallets after later, lying when we all But on the ground, empty made us all robber our heads, put our wallets above our pockets so this, Right we did shot I did. after us all.2 *45 2TMs information was derived hypnotic Gamer’s 21,1980. interview August B
APPENDIX *46 C APPENDIX Title Insurance First American Co., Appellant, Association, National First Trust *47 Appellee.
No. 03-60348. Appeals, Court United States BILOXI CASINO In The Matter Of: Fifth Circuit. INC., Debtor. BELLE conflicted notes 2052, jury U.S. 104 S.Ct. 80 that would have learned Gar- (1984), L.Ed.2d 674 counsel’s gunman assistance ner had described the as a lone identify must have deficient deficien been and that robber and could not Soffar or cy prejudiced must have the defendant. Latt Bloomfield as the offender at two In evaluating prong, judicial police.38 the first scru- line-ups conducted simply although raised because the district elect- also court 38. We observe here that ed specifically not to address would them named Bloomfield as his leader and accom- questionable plice have alley undesirable effects on murders when he confessed, State, jurisprudence. our according habeas If we were to ac- Bloomfield cept Judge suggestion, any charged Garza’s then was released and with the never ground explicitly adjudi- for habeas relief not crime because of a evidence.” De- "lack of this, being cated spite attempted a district court would risk Soffar's counsel never trial, solely procedurally prior barred on account of that locate and interview Bloomfield any may omission. statements he have made to obtain