*1 MOORE, Before FRIENDLY FEIN- BERG, Judges. Circuit FEINBERG, Judge: Circuit appeals judgment William Walker from of the United States District Court for York, P. District of New Charles Eastern J., Sifton, denying petition for writ of pleaded corpus. York felony murder New guilty State Court, Kings County, after Supreme suppress his his motion to state court denied years to 15 He was sentenced confession. judgment of conviction was life. The Division, Appellate Second affirmed Department, and the New York State Court appeal. The Appeals denied leave to us argument made to chief failing to hold that Walker’s erred in of his was obtained violation confession rights. also contends constitutional that, deciding question, into testi- judge should have taken account *2 mony given they pres- Walker district court had conversation in Walker’s solely rather than on relying the record concerning ence between themselves developed suppression hearing. Walker, at the state charges against which included We hold court erred surprised Apparently homicide. at following the latter course and we remand homicide, asked mention Walker what he petition further consideration of the with, going charged to be and Wein- opinion. consistent with this man him Walker replied, told homicide. you I mean homicide? didn’t “[W]hat

I anyone.” shoot Then either Weinman or 4,1973, m. p. September At about 4:00 Lasky responded to the effect appellant co-defendants, Roy and his A. knew didn’t shoot because anyone he Sand- Doby, Sanders and Lee Seth were arrested already ers to shooting, had confessed shooting in connection with the fatal of a implicated but Walker had been before, storekeeper while a short and taken requested Sanders, Walker to see Sanders. m., p. a station house. Around 5:15 who confirmed this statement. Immediate- Detective Lasky began questioning Arthur Sanders, ly talking agreed after Walker Doby, who confessed within 15 minutes. give a statement to Weinman. Lasky Sanders, spoke then with who also leading up Walker’s version of the events quickly approximately At confessed. 7:15 substantially to his confession is different. p. Lasky m. began questioning appellant. testimony The district took Walker’s Lasky appellant advised of his Miranda on the circumstances of his confession in rights asked, and “Now that I have advised of a hearing the course on whether Walk- you your are rights you willing to answer suppres- er’s failure to at his attorney present?” without sion was due to a reason other than Appellant responded negatively to this Although neglect. (cid:127)his inexcusable Walker question Lasky and terminated inter- was cross-examined on his relat- view. confession, Attorney Assistant District William evidentiary provide not a full Weinman at arrived the station house at question. testified Walker before p. interrogated about 5:30 or m. 6:00 and prior talking Wein- first, Doby obtaining and Sanders confes- room, man he had been held in a locker sions began from both them. Weinman him, hands handcuffed behind p. of Walker at 8:20 around punched had slapped been the face m. having after he been informed that had roughed up by a burly police officer for refused speak Lasky. to officer Wein- refusing to talk to Lasky. stated man rights advised of his Miranda treatment this had continued intermit- dialogue place: and the following then took tently about hour until half an before Q. I’ve you rights told all these had Weinman started him. you you have told me Are understand. just Walker also testified that after he had you now willing my questions answer again to talk without an declined having lawyer present? after being present, A. No. left, above, indicated reporter Q. You want to have an conversation, following initiated La- present? sky, occurred: A. Yes. “Okay, [Lasky] said . smart Q. you, Thank the interview is con- aleck, guy. going wise to be here You’re cluded. night.” figured going he back into At I meant point reporter was excused So room; said, right? “Hey, and the next He I ten minutes are off the record. locker According why talking, you because you’re know suppression hearing, Weinman at man.” I said didn’t shoot shot charge.” it is and still want to know the looking at Mr. Weinman. nobody. I was point, me, “At looking right? he Weinman answered So He’s and homicide.” said, “Well, shot the you said Sanders said, you.” “I He man.” don’t believe confession, gave Walk- At time here,” said, right? “Bring him Wein- So prior years er was 17 He had no con- old. Sanders, “Yeah, get go Detec- man victions he testified that he had never *3 Lasky.” tive subjected to previously custodial inter- been said, Lasky they brung Sanders So indication that he rogation. There no “Well, Sanders, you every- tell me during didn’t eat the four- given anything was to happened?” custody prior to thing period he was held hour confessing. said, “you telling I him that I shot the said, Lasky enough, “That’s man?” that’s pretrial A in the state hearing was held out. enough,” and he took Sanders Denno, pursuant to 378 Jackson “See, see, you. 368, 1774, said, He I told You shot 12 L.Ed.2d 908 84 S.Ct. said, 72, (1964) People Huntley, I “I didn’t shoot no- N.Y.2d man.” 15 838, (1965), Weinman, I “I 204 N.E.2d 179 body.” say, I asked Mr. 255 N.Y.S.2d regard Walker’s statement with to whether being charged want to know what I’m At suppressed. Huntley this with, you know?” Because this made me presented con- hearing, the state evidence getting think that I’m into trouble not cerning con- the circumstances Walker’s said, nothing, “I saying right? So I want fession, testify not but Walker himself did said, charge He to know what the is.” any Before or evidence. Sif- you to see going speak? “Are We’ll what court, in the Walker testified ton you going to going it’s to be. Are given not his version of the speak?” “Man" —I told —I So during the preceding events his confession time, right? going this I’m to waited all Huntley hearing he had not been because him, know, right you invoking my tell at that time. aware night; right? remain all all silent Although Judge permitted Walker Q. what said them to you That’s or testify concerning leading up the events yourself? confession, ruled that later saying myself, right? A. I was This he would not consider asking me, they you Because “Are were rights had determining whether Walker’s going to I said it didn't make speak?” So Walker had been violated. He found that told no difference no more. them received full and fair ques- didn’t want to talk and still court, present his that Walker’s failure to me, might right? tioned I said I So Huntley at the state version the events anyway, right? tell that’s well them So neglect was due inexcusable Iwhat did. court should deter- thus that returned, reporter After the court Walk- solely claim mine the merits Walker’s gave implicating statement himself made basis of the factual record at the in which the store- Judge Sifton then deter- Huntley keeper warnings was killed. The Miranda introduced at that mined that the evidence repeated, were but determi- hearing supported the state court’s reopened a series of given that Walker’s confession nation concerning Walker had been whether procured in viola- voluntarily and was threatened, promised anything safeguards. beaten or procedural tion of Miranda’s probable during the Walker judge granted off record interval. a certificate inquiries. cause, appeal followed. negatively answered anyone anything When asked whether II. him to talk to permit him other than Sanders, you argues erred responded Appellant “I asked was, alone estab- you’ll see state court record what said what because the you 353, (9th lishes that and Weinman 1976), violated F.2d 365-68 Cir. cert. denied appellant’s rights by exerting constitutional States, sub nom. Inciso v. United 429 U.S. pressures improper interrogatory in- an (1977), 97 S.Ct. experienced 17-year youth old elicit- Davis, and United States v. 527 F.2d 1110 obtaining his confession without ex- (9th 1975), denied, Cir. cert. 425 U.S. plicit repudiation of his two assertions (1976). 48 L.Ed.2d Ka See to remain silent and to have coun- misar, Williams, Massiah, Brewer v. Appellant sel present. argues also that the “Interrogation”? Miranda: What is When district court should have considered appel- Does It Matter? 67 Geo.L.J. 1 support lant’s before it in of his Appellant’s constitutional claim. first con- faced with ques When such difficult presents tention difficult issues. Miran- tions, it would seem essential to have Arizona, da v. possible fullest information as to what actu (1966), 16 L.Ed.2d the Court *4 ally Certainly occurred. if Walker’s testi said that the states individual that he “[i]f mony in the district court were in credited interrogation wants an attorney, the must part, pic substantial a completely different attorney cease until an is present.” emerge, ture would and the constitutional Michigan 96, Mosley, 104, v. 423 U.S. 96 question would be easier far to resolve. It 321, (1975), S.Ct. the Court thus becomes critical to determine whether suspect that right held a who asserts his of Judge Sifton was correct in confining his silence, but who an request does not attor- scrutiny to the record state ney, may questioned thereafter be about a judge The relied on the rule in announced long different as suspect’s incident as the Sain, 293, 312-13, Townsend v. 83 right to “scrupulously cut off is (1963), S.Ct. 9 770 L.Ed.2d the subjected honored” and he is not re- federal district in a court peated questioning designed rounds of proceeding normally accept should the facts his concurring undermine will. In opin- as found the state court if the ion Mosley, expressed in Justice White the evidentiary hearing received a full and fair view that while Miranda did not establish a in the state court. The Court enumerated per against interrogation se rule further of exceptions Judge various this rule and suspect silence, a who the asserts of a of exception Sifton considered the effect request questioned not to be in the absence ,(5) “[i]f, any reason not attributable attorney of any an did bar further interro- neglect petitioner, the inexcusable . . . gation until an present. is 423 adequate evidence crucial to the considera- at 109-110 U.S. & n. 96 321. S.Ct. See tion the constitutional claim was not Williams, also Brewer v. 430 n. 405 developed hearing,” at the id. at 51 424 L.Ed.2d judge 83 S.Ct. at 759. The concluded that cf. Lewis, But United F.Supp. States 425 Walker’s failure to at the state hear- (D.Conn.1977). 1177-79 Wheth- neglect.” judge The “inexcusable er informing appellant of the serious nature exception paragraph refer the charge against the him and whether con- (6), catego- final where the Court “Our fronting him with damaging evidence con- ry intentionally is open-ended stituted because we appellant under anticipate Miranda are difficult cannot here the situations strong issues on which arguments way.1 can be made either wherein a is demanded. . Com- pare Wingo, (6th Combs v. duty try F.2d The facts Cir. the anew exists 1972), Pheaster, every United States case in which the state court has charge por only might dropped. 1. We note that claims not homicide be The surprised charge exchange quoted Weinman him with the tion of the the record homicide, above, hedged charges but that Weinman on what where Weinman describes be, implying would if that Walker as and homicide “[a]t give point,” gives support reconsidered his decision not state some to this contention. present, being ment remand for Sifton to We therefore hearing reliably found rele- after a full Walker’s whether 317-18, 83 at reconsider at vant facts.” Id. into account in decision should be taken when, especially is relevant This statement petition corpus. writ of habeas on the for a here, explicit made no the state testi- judge concludes Walker’s If the statute, findings at The 28 U.S.C. all. considered, give be he should mony should 2254(d), provides that a state court deter- § present any- opportunity to the state an issue is on the merits of a factual mination by way it wish rebut- thing may further “(3) appears not conclusive if testimony, then decide to Walker’s tal adequately were not devel- material facts of all the evidence the case on the basis “(6) or oped hearing” State court If he adheres to view before him. full, applicant did not receive further was not entitled fair, adequate evidence, evidence, credit such or does not . .” proceeding judgment enter a fresh taken, can appeal from which an accepting judge’s The reason panel, practicable. if shall be heard without further state court’s determination re- judgment and the case vacated on a based state evidence manded. judge, made in ment forming lawyers for defendants that (dissenting): MOORE, Circuit proof to offer each defendant I dissent. was ad testimony. The statement *5 disregards the lawyers, although my opinion majority the entirely to the dressed in holding Supreme of the Court Stone noted that Walker acknowl Judge Sifton Powell, edged that that he remembered majority (1976). As I read the L.Ed.2d 1067 do judge addressed defense counsel. We Judge court opinion, the holds that Sifton the enough not think this was in case that scrutiny incorrectly his to the rec- confined previous with no young a defendant However, if hearing. even ord state in experience. criminal Walker testified petitioner’s in district court testimony the did not the district court that he know the facts part, were credited in substantial the he judge’s personal statement meant could felony ensuing the murder and the custo- ly lawyer the that take stand and his petitioner justify Judge deni- dy of Sifton’s It not discuss it with him. is true that al of the habeas writ. attorney Walker’s testified in the district majority influ- is that the was likely It that court that he did advise Walker Walk enced, state, peti- by the fact that behalf, evidence on own could offer his “young with no tioner was a defendant say although attorney the did not that prior convic- experience,” and “no criminal that advised Walker he could do with previously . was “never tions” who testimony against out in being used him interrogation” and subjected to custodial Moreover, on criminal trial the merits. “given anything to who was although attorney Walker had claimed during period he was held the four-hour eat his nothing suggest told him that own confessing”. find custody prior in testimony important, would be Walker’s itself or in nothing in the Constitution out attorney brought state gives which interpretations Court thereof had in attorney cross-examined significance light overriding in these factors way suggesting knowledge of Walker’s case, totality of in this includ- of the facts version. We that unless Walker believe it is ing the seriousness of the offense. Nor specifically fully himself was advised hunger were the pangs that the claimed his counsel or the state confession. motivating cause of the so-called testify consequences adverse so, majority’s not to failure not bar to the exception chose do his should I also take facts substituting its version of the federal Thus, suited to found court. Petitioner’s his interests. he is not Judge before entitled testified to a new in federal court. [petitioner] [petitioner] “he Judge did advise on to Sifton went examine factu- own could offer evidence on his behalf”. al produced record the state court and However, states, as a majority matter justifiably that Miranda concluded warn- hindsight, “that the did not say ings given, scrupulously observed, were testimony he could do without the that, particular, petitioner’s right being against used him in the criminal trial cut off times at all “scru- on the merits”. pulously Michigan Mosley, honored”. agree I also majority’s do not with the conception duty attorney’s or that of judge. majority opin- hearings; had Petitioner has two at both ion states: represented by he was able counsel. An [petitioner]

“We believe unless him- grocer innocent was murdered in the course fully self specially advised of an robbery petitioner armed counsel or the to participated. petitioner we know All from consequences without adverse robbery about is laugh- that he “was so, chose not to his failure should not ing”. A change further cannot hearing”. bar a federal facts; change Judge nor Sifton’s obviously sound conclusions. exactly But a hearing what has unwilling and in extenso. am would affirm on Sifton’s able impute majority possible sugges- analysis of the facts and law in petitioner’s only tion that should opinions. contrary be believed and

disregarded.

Reviewing proceedings briefly, petitioner’s first opinion issued his corpus application May

Therein that “petitioner he found

has raised sufficient as to the

conduct of the custodial hearing warrant a on the circumstances of America, Appellee, UNITED STATES petitioner’s 10). (p. confession” Accord- ingly Judge appointed two mature Belle, Sam FORD Barbara attorneys Legal and skilled Aid Soci- Defendants-Appellants. ety “to certain make this Court appraised of all the relevant facts concern- 78-1355, 872-3, No. Dockets 78-1416. petitioner’s Fifth Amendment Appeals, United Court of States (p. 10). claims. . .” . Second Circuit. hearing A second was held on October April Argued 1979. at which testified. On De- opinion cember a 25-page July Decided petition- filed. saw and heard credibility. appraise could petitioner’s Sifton found that failure to tes-

tify “Huntley” neglect”.

“was due own to his inexcusable “full, fair, adequate Petitioner had ” proceeding.

(28 2254(d)), U.S.C. at which he had coun- §

sel to strategy advise him as to the best