1 Senior Circuit Judge of the Ninth Circuit, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-2287

_____________________

MICHAEL LLOYD SELF,

Petitioner-Appellee,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

_________________________________________________________________

(September 22, 1992)

Before SNEED, 1 REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

This appeal is bottomed on "our federalism" and turns on the

proper application of the 28 U.S.C. § 2254( d) presumption of

correctness accorded st ate findings of fact. Its genesis is

Michael Lloyd Self's conviction in 1973 for murder. In 1991, the

district court granted his habeas app lication, holding that his

confession , the critical evidence at trial, was obtained in

violation of his Fifth Amen dment privilege against selfincrimination and his Sixth Amendment right to counsel. Based on

our review of the state record, we conclude that the district2 The medical examiner found no damage to the skulls or bones

and was unable to determine the cause of death.

- 2 - court, inter alia

, violated § 2254(d) by di sregarding state

findings which are fairly supported by the record, and so erred, in

part, by making credibility choices contrary to those of the state

judge who observed the witnesses' demeanor. We hold that the

challenged confession was not obtained contrary to the Constitution

and, therefore, REVERSE and REMAND for entry of an order of

dismissal.

I.

Self's problems w ith law enforcement began in 1970, when he

was accused of "window peeping". In exchange for his agreeing to

psychiatric treatment, no charges were filed. Self received such

treatment on three occasions between October 1970 and January 1971.

About seven months later, on August 4, 1971, Sharon Shaw and

her friend, Rhonda Renee Johnson, were last seen, when they left

Webster, Texas, to make a day-trip to Galveston, about 25 miles

away. (Located in Harris County, near Houston, Webster had a

population of around 1,500.) Rhonda Johnson's grandfather was a

member of the city council, which appointed the police chief. J.

C. Norman was the chief then, and he and Self were friends.

Webster polic eman David Coburn took charge of the investigation

into the g irls' disappearance. In early 1972, their skeletal

remains were discovered in a desolate area near Webster. 2

That May, after the city cou ncil elections, the council

replaced chief Norman with Don Morris; Tommy Deal was hired as- 3 -

assistant chief. Both had been troopers with the Texas Department

of Public Safety and had worked in an office in the Webster police

d epartment. Self had several encounters with Morris, before and

after his appointment. While Morris was working as a security

guard at an apartment complex, he accused Self of looking up girls'

dresses as they walked up the stairs. He also talked to Self about

gasoline thefts from city fire trucks, and threatened to jail him

if he did not stop. (Self was a volunteer fireman and was often at

the fire department, which was housed in the same building as the

police department.) And, in early June, about a week before Self's

arrest for Shaw's and Johnson's murders, Morris questioned him

about possession of marijuana.

At around 5:00 a.m. on Friday, June 9, approximately three

weeks after Morris and Deal took charge of the police force, Self

was briefly questioned at his place of work about the murders.

When he left work around 7:00 a.m., he agreed to go to the Webster

police department for further questioning. After three hours of

interrogation, he signed a written confession to the murders.

Self was then taken to nearby Houston, where he received a

magistrate's warning; and Dewey Meado ws, a Houston attorney, was

appointed to represent him. Meadows advised Self not to speak to

the police unless Meadows was present. Self told Meadows he wanted

to take a polygraph examination to prove his innocence; Meadows

advised against it.

That afternoon, S elf was taken to the police department in

nearby LaPorte, where charges were filed against him and nude3 Self was also charged with Johnson's murder in a separate

indictment; it was later dismissed.

4 Although only the June 12 confession was introduced, the

contents of the June 9 confession were before the jury, primarily

as the result of direct examination of Self. Both confessions were

introduced as exhibits in the state post-conviction hearings.

In closing argument, Self's couns el asserted that the state

did not introduce the June 9 confession into evidence "because

there are so many irregularities between the first and second one"

and because it was coerced. The prosecutor responded that Self

could have introduced the June 9 confession, but not the state,

- 4 - photographs made. He then directed police to the location where

the remains had been found. Next, he was examined at a hospital.

Late that afternoon, a Harris County Deputy Sheriff visited Self in

his cell in Webster; Self denied any mistreatment.

The next day, Saturday, June 10, part of an interrogation of

Self was taped. Later that afternoon, he was moved to the county

jail in Houston, where, the next Monday, June 12, he was questioned

by various law enforcement officers about the murders of other

girls in the area and given a polygraph examina tion. After the

examination, he signed a second confession to the murders.

Finally, on June 23, Self directed another Harris County

Deputy Sheriff to the locations described in his June 12

confession, including the area where the remains had been found.

Self moved to suppress the June 9 and 12 confessions prior to

tri al in mid-1973 for Shaw's murder. 3 During trial, after

conducting an extensive hearing outside the presence of the jury,

the state court entered findings of fact that both confessions were

voluntarily given and admissible. After the June 12 confession was

a dmitted in evidence, 4 Self testified that the June 9 confessionbecause the officer who warned Self prior to that confession was

not available to testify.

5 The jury was instructed that the confession would not be

voluntary if

any officer threatened to

... beat [Self] or in any

manner coerced [Self] or used any improper

influence on [Self], and that [Self], through fear

or under duress or under any other improper

influence was t hereby induced to sign such a

statement....

6 It rejected Self's contention that the June 12 confession was

inadmissible because it was made outside the presence of his

counsel, concluding that he had validly waived that right. 513

S.W.2d at 837-38.

- 5 - was coerced and that he would not have signed the second but for

the first. Concomitantly, the jury was instructed that it could

not consider the June 12 confession unless it found, beyond a

reasonable doubt, that Self had been warned of his rights and had

given t h e confession freely and "without compulsion or

persuasion". 5

The jury found Self guilty of murder, and sentenced him to

life imprisonment in May 1973. The conviction was affirmed in

Decembe r 1974 by the Texas Court of Criminal Appeals. S elf v.

State

, 513 S.W.2d 832 (Tex. Crim. App. 1974). 6 That next November,

Self's first state habeas application was denied by that court

without written order. E x parte Self

, Application No. 5383

(November 26, 1975). And, his first federal application was

dismissed in late 1978 for failure to exhaust state remedies. S elf

v. Estelle , No. 75-H-2186 (S.D. Tex., September 21, 1978).

A few months later, in January 1979, Self filed his second

state application. That March, at the state's request, the state7 Two of the hearings were devoted to an April 1980 confession

to the murders by Patrick Heffernan. The record amply supports the

state finding that he did not commit them. As that court noted,

his story was completely unrealistic.

8 Self claimed that "the introduction of the June 9, 1972

statement at trial was in violation of the Fifth Amen dment". As

stated, that confessio n was not admitted into evidence; and the

state and district courts properly interpreted Self's cla im as

referring to the June 12 confession. Self did not claim in his

petition that the confession was also obtained in violation of the

Sixth Amendment, but later briefed that issue.

- 6 - court (the presiding judge at trial) ordered an evidentiary hearing

on the issue of effectiveness of counsel. Between June 1979 and

December 1980, it heard testimony on 14 days 7 ; and the scope of the

hearing was expanded to include the voluntarines s of Self's

confessions. In addition to the testimony, the habeas record

included, inter alia , the direct appeal record. In May 1981, the

state judge enter ed detailed findings of fact and conclusions of

law, recommending that the writ be denied. Ten months later, the

Texas C ourt of Criminal Appeals denied this second application

without written order on the findings of the trial court. E x parte

Self , Application No. 5383 (February 24, 1982).

In his second federal application, filed three years later in

February 1985, Self sought relief on three grounds: (1)

involuntary confession 8 ; (2) suppression of exculpatory evidence;

and (3) ineffective assistance of trial counsel. The magistrate

judge ordered an evidentiary hearing, but cancelled it after both

parties agreed that it was unnecessary, because the issues could be

determined on the state record.9 Self did not challenge their denial.

10 It stayed execution of its judgment pending appeal by the

state, but granted Self's motion for immediate release upon posting

bon d. This court stayed his release, in part because of the

Supreme Court's just released opinion in Arizona v. Fulminante

,

__ U.S.

__, 111 S. Ct. 1246 (1991); and subsequently, the parties were requested to brief its application. See note 15, infra

.

11 Section 2254(d) states:

- 7 - In a 3 9-page opinion, the magistrate judge recommended in

August 1990 that relief be granted, on the ground that Self's

conviction resulted from involuntary confessions, obtained in

violation of his Fifth Amendment priv ilege against selfincrimination and his Sixth Amendment right to counsel. But, it

found that the su ppression of evidence and ineffective counsel

claims were meritless. 9

After conducting a d e novo review of the state's extensiv e

objections and the record, the district court in March 1991 adopted

the recommendation. 10

II.

A. Applicable Law

"Th[e] interest in federalism recognized by Congress in

enacting § 2254(d) requires deference by federal courts to factual

determinations of all state courts." S umner v. Mata

, 449 U.S. 539,

547 (1981). That section provides for a presumption of correctness

for those findings, subject to specific exceptions. One is when,

based on review of the pertinent part(s) of the record, the

d istrict court "concludes that such factual determination is not

fairly supported by the record". 28 U.S.C. § 2554(d)(8). 11(d) In any proceeding instituted in a Federal

court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of

a State court, a determination after a hearing on

the merits of a factual issue, made b y a State

court of competent jurisdiction in a proceeding to

which the applicant for the writ and the State or

an officer or agent thereof were parties, evidenced

by a written finding, w ritten opinion, or other

reliable and adequate written indicia, shall be

presumed to be correct , unless the applicant shall

establish or it sha l l otherwise appear, or the

respondent shall admit--

(1) that the merits of the factual

dispute were not resolved in the State co urt

hearing;

(2) that the factfinding procedure

employed by the State court was not adequate

to afford a full and fair hearing;

(3) that the material facts were not

adequately developed at the State court

hearing;

(4) that the State court lacked

jurisdiction of the subject matter or over the

person of the applica nt in the State court

proceeding;

(5) that the applicant was an indigent

and the Sta te court, in deprivation of his

constitutional right, failed to appoint

co unsel to represent him in the State court

proceeding;

(6) that the applicant did not receive a

full, fair, and adequate hearing in the State

court proceeding; or

(7) that the applicant was otherwise

denied due process of law i n the State court

proceeding;

(8) or unless that part of the record of

the State court proceeding in which the

determination of such factual issue was made,

pertinent to a determination of the

sufficiency of the evidence to support such

- 8 -factual determination, is produced as provided

for hereinafter, and the Federal court on a

consideration of such part of the record as a

whole concludes that such factual

determination is not fairly supported by the

record :

And in an evidentiary hearing in the proceeding in

the Federal court, when due pro of of such factual

determination has been made, unless the existence

of one or more of the circumstances respectively

set forth in paragraphs n umbered (1) to (7),

inclusive, is shown by the applicant, otherwise

appears, or is admitted by the respondent, o r

unless the court concludes pursuant to the

provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as a whole, does not fairly support such factual

determination, the burden shall rest upon the

applicant to establish by convincing evidence that

the fac tual determination by the State court was

erroneous.

28 U.S.C. § 2254(d) (emphasis added).

12 A finding of fact "`is "clearly erroneous" when although there

is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.'" Anderson v. City of Bessemer City

, 470 U.S. 564, 573 (1985) (quoting United States v. United States

Gypsum Co.

, 333 U.S. 364, 395 (1948)). S ee Fed. R. Civ. P. 52(a).

- 9 - 1. Standard of Review

We fr e ely review the district court's legal conclusions,

Johnson v. Puckett , 929 F.2d 1067, 1070 (5th Cir.), cert. denied

,

___ U.S.

___, 112 S. Ct. 274 (1991); but "[t]he factual findings of

a federal district court in a habeas action should not be set aside

unless they are clearly erroneous." 12 G uzman v. Lensing

, 934 F.2d

80, 82 (5th Cir. 1991); see also Amadeo v. Zant

, 486 U.S. 214, 223

(1988). However, it is well-settled in this circuit that the

clearly erroneous standard of review does not apply to factual

findings that result from an incorrect application of governing13 See also note 6

, supra , for the finding on direct appeal by

the Texas Court of Criminal Appeals that the June 12 confession was

admissible.

- 10 - legal standards. E.g.

, Matter of Bradley , 960 F.2d 502, 507 (5th

Cir. 1992); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc.

,

6 59 F.2d 695, 703 (5th Cir. Unit A 1981), c ert. denied

, 457 U.S.

1126 (1982).

As stated, the state findings, including for th e motion to

suppress and the habeas application, 13 are pr esumptively correct

unless they are not "fairly support[ed]" by the record, or another

of the exceptions applies, or Self establishes "by convincing

evidence" that they are erroneous. 28 U.S.C. § 2254(d).

Accordingly, if the district court has made factual findings that

are based on an incorrect application of the § 2254(d) governing

standard, those findings are not subject to the clearly erroneous

standard of review. Thus, in reviewing the district court's

factual findings for clear error, we must first determine whether

it properly applied § 2254(d) in making them.

In Marsha ll v. Lonberger , 459 U.S. 422 (1983), in comparing

the deference due state findings with the clearly erroneous

standard applied to federal findings, the Court state d: "We

greatly doubt that Congress, when it used the language `fairly

supported by the record' considered `as a whole'[,] intended to

authorize broader federal review of s tate court credibility

determinations than are authorized in appeals within the federal

system itself." Id. at 434-35. Moreover, the district court may

not dispense with the presumption of correctness without providing14 The Supreme Court was recentl y asked to reconsider its

statement in Miller v. Fenton that mixed constitutional questions

are "subject to plenary federal review" in habeas proceedings.

Wright v. West , __ U.S. __, 112 S. Ct. 2482, 2491 (1992) (quoting

Miller

, 474 U.S. at 112). The Court requested additional briefing

on the issue, id

. at 2486 , but ultimately concluded that it need

n ot decide it, because, "[w]hatever the appropriate standar d of

review, ... there was more than enough evidence to support West's

conviction." Id . at 2492.

- 11 - "at least some reasoned written references to § 2254(d) and the

state-court findings". Sumner v. Mata , 449 U.S. at 549. It must

therefore "include in [an] opinion granting the writ the reasoning

which led it to conclude

... that the state finding was `not fairly

supported by the record.'" Id . at 551.

Finding in several respects that the state findings were not

supported by the record, the district court held, inter alia

, that

Self was illegally arrested; and that his June 9 and 12 confessions

were involuntary and obtained in violation of the Fifth and Sixth

Amendments, in part because he did not waive his rights. Although

"the ultimate question whether, under the totality of the

circumstances, the challenged confession was obtained in a manner

compatible with the requirements of the C onstitution is a matter

for independent federal determination", Miller v. Fenton

, 474 U.S.

104 , 112 (1985), we accord "great weight to the considered

conclusions of a coequal state judiciary". H awkins v. Lynaugh

, 844

F.2d 1132, 1137 (5th Cir.), cert. denied

, 488 U.S. 900 (1988)

(footnotes omitted; citing Miller

, 474 U.S. at 112). 14 Whether a

defendant waived his constitutional rights is an issue of federal

law, and not a question of fact. B rewer v. Williams

, 430 U.S. 387,

397 n.4 (1977). Nevertheless, while "the ultimate issue of- 12 -

`voluntariness' is a legal question requiring independent federal

determination", "subsidiary factual questions, such as

... whether

in fact the police engaged in the intimidation tactics alleged by

the defendant are entitled to the § 2254(d) presumption." Miller

v. Fenton

, 474 U.S. at 110, 112 (citations omitted); see also

Lavernia v. Lynaugh

, 845 F.2d 493, 500 (5th Cir. 1988) (underlying

determinations of historical fact that must be made in order to

answer a m ixed question of law and fact are properly accorded a

presumption of correctnes s). Other subsidiary factual questions

entitled to the presumption of correctness include "the length and

circumstances of the interrogation, the defendant's prior

experience with the legal process, and familiarity with the Miranda

warnings, [because they] often require th e resolution of

conflicting testimony of police and defendant". Id . at 117.

2. Fifth Amendment Privilege Against Self-Incrimination

The Fifth Ame ndment provides that no person "shall be

compelled in any criminal case to be a witness against himself".

U.S. Const. amend. V. Both before and after holding that the Fifth

Amendment privilege against self-incrimination applies to state

action, Malloy v. Hogan , 378 U.S. 1, 6 (1964), and in the context

of custodial interrogations, Miranda v. Arizona

, 384 U.S. 436, 478

(1966), the Supreme Court has applied the Due Process Clause of the

Fourteenth Amendment to prohibit states fro m securing criminal

convictions through the use of involuntary confession s resulting

from coercive police conduct. S ee, e.g., Miller v. Fenton

, 474- 13 -

U.S. at 109; Brown v. Mississippi , 297 U.S. 278 (1936). The test

for determining voluntariness is well-established:

Is the confession the product of a n essentially

free and unconstrained choice by its maker? If it

is, if he has willed to confess, it may be used

against him. If it is not, if his will has been

overborne and his capacity for self-determination

critically impaired, the use of his confession

offends due process.

Schneckloth v. Bustamonte

, 412 U. S. 218, 225-26 (1973). And

pursuant to Jackson v. Denno

, 378 U.S. 368 (1964), a defendant who

challenges the voluntariness of a confession sought to be used

against him at trial has a due process right to "a fair hearing in

which both the underlying factual issues and the voluntariness of

his confession are actually and reliably determined". I d

. at 380.

At such a hearing, "the prosecuti on must prove at least by a

preponderance of the evidence that the confession was voluntary".

Lego v. Twomey , 404 U.S. 477, 489 (1972). Here, after conducting

a Jackson v. Denno hearing, the state court concluded that the June

9 and 12 confessions were voluntary and admissible.

In addition to the due process prohibition against the use of

coerced confessions, the now-familiar procedural safeguards

established in Miranda also protect a n accused's Fifth Amendment

privilege against self-incrimination during custodial

interrogation. See Michigan v. Tucker , 417 U.S. 433, 444 (1974).

Prior to custodial interrogation, the subje ct must be informed

that: he has the right to remain silent; anything said can and

will be used against him in court; he has the right to consult with

counsel prior to questioning, and to have counsel present at the- 14 -

interrogation; and if he cannot afford an attorney, one will be

a ppointed. M

iranda

, 384 U.S. at 468-70, 479. And, "[i]f the

individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the i nterrogation

must cease". I d

. at 473-74. Likewise, "[i]f the individual states

that he wants an attorney, the interrogation must cease until an

attorney is present". Id . at 474. "The sole concern of the Fifth

Amendment [privilege], on which Miranda was based, is governmental

coercion." C

olorado v. C

onnelly , 479 U.S. 157, 170 (1986). The

"voluntariness" determination is designed to determine the presence

of such coercion. Id . at 168. Nevertheless, a Miranda violation

"does not mean that the statements received have actually been

coerced, but only that the courts will presume the privilege

against compulsory self-incrimination has not been intelligently

exercised." Oregon v. Elstad , 470 U.S. 298, 310 (1985).

This cour t has held that "there is nothing inherently wrong

with efforts to create a favorable climate for confession. Neither

`mere emotionalism and confusion,' nor mere `trickery' will alone

necessarily invalidate a confession". H awkins v. Lynaugh

, 844 F.2d

at 1140 (footnotes and citations omitte d). But, "[i]f the

interrogation continues without the presence of an attorney and a

statement is taken, a heavy burden rests on the government to

demonstrate that the defendant knowingly and intelligently waived

his privilege against self-incrimination and his right to

...

counsel". M

irand a

, 384 U.S. at 475. As the Supreme Court- 15 -

explained in Moran v. Burbine

, 475 U.S. 412, 421 (1986), the waiver

inquiry has "two distinct dimensions":

First, the relinq uishment of the right must have

been voluntary in the sense that it was the product

of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the

waiver must have been made with a full awareness of

both the nature of the right being aban doned and

the consequences of the decision to abandon it.

Only if the "totality of the circumstances

surrounding the interrogation" reveal both an

uncoerced choice and the requisite level of

comprehension may a court properly conclude that

the Miranda rights have been waived.

Id . at 422. As noted, the state bears the burden of proving by a

p reponderance of the evidence that a defendant has waived the

protections established by Miranda

. C olorado v. Connelly

, 479 U.S.

at 168-69.

An express statement that the individual is

willing to make a stateme nt and does not want an

attorney followed closely by a statement could

constitute a waiver. But a valid waiver will not

be presumed simply from the silence of the accused

after warnings are given or simpl y from the fact

that a confession was in fact eventually obtained.

Miranda , 384 U.S. at 475.

3. Sixth Amendment Right to Counsel and Its Waiver

The Fifth Amendment right to counsel during custodial

interrogation is distinct from that under the Sixth Amendment,

which attaches at the commencement of formal judicial proceedings

against an accused and applies regardless of whether the accused is

in custody. S ee Brewer v. Williams

, 430 U.S. at 398 ("[T]he right

to counsel granted by the Sixth and Fourteenth Amendments means at

least that a person is entitled to the help of a lawyer at or after

the time that judicial proceedings have been initiated against him- 16 -

-- `whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.'"). In M assiah v. United

States

, 377 U.S. 201 (1964), the Supreme Court held that the Sixth

Amendment is violated when a defendant's "own incriminating words,

which fed eral agents had deliberately elicited from him after he

had been indicted and in the absence of his counsel", were used

against him at tr ial. I d

. at 206. It is undisputed that Self's

Sixth Amendment right to counsel attached well in advance of his

June 12 confession.

To establish a valid waiver of this right, the state must

prove "an intentional relinquishment or abandonment of a known

right or privilege". J ohnson v. Zerbst

, 304 U.S. 458, 464 (1938);

Brew er v. Williams , 430 U.S. at 404. The waiver inquiry is

dependent "upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of the

accused". Johnson v. Zerbst , 304 U.S. at 464. Moreover, "courts

indulge in every reasonable presumption against waiver". B rewer v.

Williams

, 430 U.S. at 404. "[T]he critical inquiry is whether the

prosecution has sustained its heavy bur den of establishing that

[Self] was fully informed of and understood his rights and whether,

having onc e expressed his decision to exercise them, he later

chang ed his mind and knowingly and understandingly declined to

exercise them." U nited States v. Cavallino

, 498 F.2d 1200, 1202

(5th Cir. 1974). "Waiver by a defendant of his constitutional

right to consult with or to have an attorney present does not

require an express statement or disavowal. Waiver may be inferred- 17 -

from the language, acts, conduct and demeanor of a defendant." I d

.

at 1204.

In Edwards v. Arizona

, 451 U.S. 477 (1981), the Supreme Court

established a "bright-line" rule: "[A]n accused ... having

expressed his desire to deal with the police only through counsel,

is not subject to further interrogation by th e authorities until

counsel has been made available to him, unless the accused himself

initiates further communication, exchanges, or conversations with

the police." Id . at 484. The Edwards rule was developed for the

Fifth Amendment; but, in Michigan v. Jackson

, 475 U.S. 625 (1986),

it was made applicable to the Sixth as well. " E dwards established

a new per se rule and to that extent overruled Johnson v. Zerbst ."

Solem v. Stumes

, 465 U.S. 638, 652 (1984) (Powell, J., concurring).

Accordingly, the ru le does not apply retroactively and is,

therefore, unavailable to Self. S olem v. Stumes

, 465 U.S. at 650.

Never t heless, Self contends that, prior to Edwards

, this

circuit held that once the right to counsel had been invoked,

questioning could not resume unless the suspect initiated the

contact. He relies on United States v. Priest , 409 F.2d 491 (5th

Cir. 1969), in which the court stated: "Where there is a request

for an attorney prior to any questioning,

... a finding of knowing

and intelligent waiver of the right to an attorney is impossible".

409 F.2d at 493.

Subsequent cases interpreting Priest make it clear, however,

that the language relied on by Self is not as absolute as it seems.

In 1979, our en banc court resolved the appare nt variance: "We- 18 -

construe Prie st to bar inquiry as to waiver when, prior to any

questioning, the suspect makes an unequivocal request for an

attorney's presence, as was done in Priest

, and when the request is

disregarded and the questioning proce eds." N ash v. Estelle

, 597

F.2d 513, 517 (5th Cir.) (en banc), cert. denied , 444 U.S. 981

(1979). Shortly thereafter, this was repeated in B lasingame v

.

Estelle

, 604 F.2d 893, 895 (5th Cir. 1979). Likewise, shortly

before the 1979 en banc opinion, this court, in Government of Canal

Zone v. Gomez

, 566 F.2d 1289 (5th Cir. 1978), cited Priest for the

proposition that, whe n a suspect requests counsel during

questioning, but the request is ignor ed and interrogation

continues, "a knowing and intelligent waiver is very difficult, if

not impossible, to establish." Id . at 1291.

However, for cases such as this, to which Edwards is not

applicable, when interrogation ceases after the a ccused requests

counsel and then, after a period of time, resumes, "the question of

whether the accused knowingly and intelligently waived his rights

is a question that can be answered only on the facts of each case."

Gomez , 566 F.2d at 1291.

Waiver has been found and the confession

admitted when the interrogation was continued

at the b ehest of the accused, and where

intervening events between the denial of

counsel and the later confession helped

dissipate the taint of the earlier violation.

Central to the outcome of these cases was the

belief that the suspect should not have been

prevented from changi ng his mind once he had

stated that he desired an attorney.

Id . (emphasis added; citations omitted).- 19 -

Other pre- Edwards cases decided after Priest make it clear

that this circuit recognized that waiver is indeed possible after

an accused has requested counsel. S ee, e.g.

, Biddy v. Diamond

, 516

F.2d 118, 122 (5th Cir. 1975), cert. denied , 425 U.S. 950 (1976)

("when a person knows her rights, and has even exercised the right

to counsel, talking with counsel, later volun tary admissions can

constitute a waiver of the rights to counsel and to remain

silent"); United States v. Cavallino

, 498 F.2d 1202, quoted above;

United States v. Hodge , 487 F.2d 945, 947 (5th Cir. 1973) ("An

arrestee can change his mind after requesting an attorney.");

U nited States v. Green

, 433 F.2d 946, 948 (5th Cir. 1970) ("The

right to have counsel present can be waived."). The district court

applied the correct, pre- Edwards

, rule of law in determining waiver

vel non

.

Accordingly, in making our independent federal determination

whether Self's confession was voluntary, the state fin dings are

critical; and our focus is on whether the district court erred in

holding that they are not fairly supported by the record. Because

the district court differed with so many state findings, we must

present a detailed analysis of the voluminous record, including the

state habeas transcript of approximately 1,200 pages.

B. Voluntariness of June 9 and 12 Confessions

1. June 9 Confession

The district court held that Self 's June 9 confession (not

admitted into evidence) was involuntary, because it was the result15 In Arizona v. Fulminante

,

___ U.S.

___, 111 S. Ct. 1246, 1251

(1991), the Court held that the admission of a coerced confession

is subject to harmless-error analysis. The state concedes that if

the June 9 confession was coerced and the June 12 confession

tai nted by that coercion, the admission of the latter cannot

constitute harmless error. Because the state finding that the June

9 confession was not coerced is fairly supported by the record, it

is unnecessary to engage in taint and harmless-error analysis. In

any event, the state habeas court found and concluded that the June

12 confession was not tainted by that of June 9. The record also

fairly supports that finding.

- 20 - of (1) an illegal arrest; and (2) coercion, threats and physical

force. 15

a. Arrest

Self never raised the legality of his arrest as an issue in

any of the state court proceedings, before and after his

conviction, and did not seek federal habeas relief on that ground.

Nevertheless, the district court held that he was unlawfully

arrested, and that his confessions were the fruits of that

illegality. (Self neither responds to the state's argument that

the district erred in so holding, nor attempts to defend that

holding.)

Because Self did not challenge the legality of his arrest, the

state had no reason to prove otherwise, and the Texas state courts

had no opportunity to consider the issue. S ee Stone v. Powell

, 428

U.S. 465, 494 (1976) (a Fourth Amendment violation does not support

habeas relief where state has provided an opportunity for full and

fair litigation of the claim); see also § 2254(b), (c) (requiring

exhaustion of remedies in state court before seeking federal habeas

r elief). Needless to say, the legality of Self's arrest was not

properly before the district court and cannot form the basis for- 21 -

relief. Moreover, the district court improperly relied on its s ua

sponte determination that Self's arrest was unlawful to support its

conclusion that Self did not validly waive his Fifth and Sixth

Amendment rights.

b. Coercion

The district court acknowledged that the state court had twice

found that no force or threats were used against Self to obtain his

June 9 confession. Nevertheless, it found that the confession was

so obtained and not freely given, despite Miranda warnings having

been given. This finding is influenced by its earlier,

unwarranted, sua sponte illegal arrest ruling, as well as by

credibility choices contr ary to those made by the state trial

judge, who had an opportunity to observe the witnesses' demeanor,

and whose province included weighing conflicting testimony.

(1) Physical Force and Threats

The printed portion of the June 9 statement provides that

Officer Morgan advised Self o f his M iranda rights prior to

questioning, and further recites:

I want to answer law enforcement officers'

questions and make this statement without the

p resence and advise [sic] of a lawyer, and I now

freely give up and waive my rights to a lawyer and

to remain silent and do make the fo llowing

voluntary statement.

Self did not testify at the habeas hearing. The following is

a summary of his suppression hearing testimony, regarding his June

9 confession. Chief Morris wanted to frame him for the murders,

because he had allegedly called Morris vulgar names in a recorded

conversation with former chief Norman; and he was afraid of Morris,- 22 -

because Morris had previously threatened "to do everything he could

to see me put in the penitent iary". When he asked for a lawyer,

Morris replied, "You had your chance las t week", referring to

Self's waiver of a lawyer when questioned a week earlier about

possession of marijuana. He repeatedly told the police that he had

not murdered the girls, but Morris placed off icer Morgan's night

stick on the desk and threatened to beat him if he did not say what

Morris wanted to hear. Self was handcuffed and sitting in a chair,

and Morris took the stick with both hands and rammed it into his

abdomen; when he doubled over, Morris hit him three or four times

along the back and shoulders over a five to ten-minute period.

Officers Morgan and Mitchell, who were present during the beating,

walked to nearby windows and said to one another, "Let's look at

the stray dogs wandering the street". Although he first testified

that Morgan and Mitchell were in the room when Morris was

questioning him, Self later testified that he was left alone with

Morris, and that Morris took five bullets out of the chamber and

spun it, held the gun near Self's head, and told him that he would

kill him and say that he ran. Assistant chief Deal was not present

during the beating. Deal, who knew about Self's prior psychiatric

treatment, told him that if he would sign the confession, Deal

would see that he got ps ychiatric help. He made up a story and

signed the confession because he was frightened, not allowed to

call a lawyer, had been beaten, and "just couldn't take any more".

While at a hospital that afternoon for a physical examination, he

observed marks on his stomach where Morris struck him; but he did16 Morris testified that the examination and photographs were a

precaution against a brutality charge.

- 23 - not tell the examining doctor that he was hurt or that he had been

threatened and beaten, because Morris had threatened him with

another beating if he did. He admitted that the bruises he

allegedly received as a result of the beating canno t be seen in

photographs taken that same afternoon, but explained that he does

not bruise easily. 16

Immediately the reafter, Self gave similar testimony to the

jury, but there were several inconsistencies. Although he had

testified at the suppression hearing that Mitchell and Morgan were

present while Morris was beating him, he testified to the jury that

Mitchell did not arrive at the police station until the afternoon

of June 9, after the alleged beating, and that the physical abuse

took p lace while he was alone with Morris. Admitting that this

contradicted his earlier testimony, he testified that he did not

know which version was correct.

At th e suppression hearing, Robert Lee Fulkerson, Self's

roommate when Self was arrested, testified that six to eight weeks

prior to Self's arrest, Morris had told Fulkerson that "he was

going to bust [Self] one of these days on anything that he could";

that Morris had previously displayed violence toward Fulkerson when

Morris tried to accuse him of stealing; and that he knew of threats

Morris had made to others.

During the habeas hearing

, Dewey Meadows, one of Self's trial

attorneys, gave the following testimony. Prior to being appointed- 24 -

chief, Morris had been transferred to Webster by the Department of

Public Safety for disciplinary reasons i nvolving mishandling of

prisoners. When he met with Self shortly after noon on June 9,

Self told him that the confession had been coerced, that he gave it

because he was afraid. Self "indicated" that he was afraid of

Morris, and that Morris was responsible for the coercion. Self

said that he had been hit in the sto mach with a billy club, and

raised his shirt and asked Meadows to view his navel. It was pink,

but not bruised; Meadows did not know whether this was from a blow

or Self wearing a tight belt. But, Meadows' testimony at the

suppression hearing six years earlier included no referenc es to

Self's claims of threats or beatings, nor did he testify about

having viewed Self's navel on June 9.

Self's mother testified at the punishment phase of the trial

and the state habeas hearing. At trial, she did not testify about

any coercion, but gav e the following testimony during the habeas

hearing: Self is easily intimidated, cannot cope with pressure,

and will say or do just about anything to get others to stop

pressuring him; she was away on June 9 and 10, and when she saw

Sel f on June 13, he looked like he belonged in a mental

institution; Self started crying, raised his shirt, and said that

Morris had punched him in the stomach and hit him in the neck with

a club, and had pulled a gun on him and forced him to confess; and

Self wanted her to thank Deal for being so nice to him

-- Deal had

promised to get psychiatric help for him if he would conf ess a

second time.- 25 -

Former Webster policeman David Coburn testified at the habeas

hearing, but not at trial. According to Coburn, Self could be

easily intimid ated by authority; Morris was "a bully"; Self was

afraid of Morris because Morris had threatened to "get" him; Morris

did not like Self, because Self was having "som e sort of a

relationship" with Morris' wife; Mo r ris bragged about abusing

prisoners, and he had previously observed such abuse; Morris'

activities with respect to handling prisoners had been the subject

of several FBI investigations; and Morris was considered to be a

violent person, whose demeanor around prisoners was "mean". Coburn

concluded that it was likely that Self was afraid of being beaten

or killed by Morris during interrogation.

On the other hand, during the habeas hearing, former Webster

councilman Sh apiro testified that Coburn was a heavy drinker and

known for brutality toward prisoners, and that Morris was appointed

chief in an attempt to improve the image of the Webste r police,

which had acquired a reputation for brutality under Coburn and

Norman. The state habeas court found that Coburn's reputation for

being a peaceable and law-abiding citizen was bad.

Jerry Mitchell, a United States Customs Service inspector and

former Webster policeman, who did not testify at trial, offered the

following testimony at the habeas hearing. He was present during

portions of the June 9 interrogation; when he first saw Self, Self

seemed relaxed and at ease, was more concerned with punishment than

with guilt or innocence, and repeatedly claimed innocence; when he

returned to the interrogation room 30-45 minutes later, Morris and- 26 -

Self were alone; Morris had Morgan's 14 to 18-inch night stick in

his hand, and Self seemed highly upset and nervous; Morris was

slapping the stick repeatedly against the palm of his left hand and

was being very forceful and threatening, and using profanity; and

Morris indicated that Self could not leave the police station until

he confessed. Mitchell was in the room for 15 to 20 minutes; and,

although he did not see Morris hit, or point his revolver at, Self,

he thought such events had probably (later he testified may have)

occurre d, because of Self's changed and shaken appearance, and

because Morris had previously used a "Russian ro ulette"

interrogation technique on anothe r prisoner. Morris had a "mean

streak" and Self was "very frightened" of Morris. Mitchell

concluded that Self's confession was the product of psychological

coercion and Self's fear of Morris, and that Self possibly

confessed just to get away from Morris. Conversely, at the habeas

hearing, Shapiro, who was a friend of Mitchell's in 1972 and at the

time of the habeas hearing, testified that Mitchell had never

mentioned that he had observed anything which led him to believe

that Self's confession was involuntary.

Other witnesses who had not testified at trial testifie d at

the habeas hearing. Webster fire chief Gaskins testified that he

saw Self on the afternoon of June 9; Self told him that the police

made him confess and he appeared frightened and was crying. Former

Webster police dispatcher Bruce Wilburn testified that he had

observed Morris abusing and mistreating other prisoners before

M orris became a Webster police officer. Thomas Roberson, Self's17 Morris, Deal, and another Webster policeman who did not

testify in any of the proceedings were convicted for bank robbery.

18 At the ti me of trial, Morgan was no longer employed by the

Webster Police Department. He did not testify at the trial or

habeas hearing.

- 27 - other trial attorney, testified that Self stated that Mor ris was

"after him"; that Self was "quite scared" of Morris; and that Self

told hi m about Morris removing bullets and playing "Russian

roulette". Charles Miller, Self's employer at the time of his

arrest, testified that he had witnessed M orris "brutalizing" a

prisoner, and that Self was afraid of Morris.

Assistant chief Deal and chief Morris testified for the state

at the suppression hearing and at trial. At the time of the habeas

hearing, both were incarcerated; only Morris te stified then (by

deposition). 17 At the suppression hearing, Deal gave the following

testimony. At approximately 5:00 a.m. on June 9, he and officer

Morga n 18 went to where Self worked, read him his Miranda rights,

questioned him about the murders, and left after about 20-25

minutes without placing him under arrest. Deal and Morgan next

went to see Self at about 7:00 a.m.; he agreed to follow them to

the police station; and they arrived there shortly after 7:00 a.m.

Morgan administered the Miranda warnings to Self; Self did not

request an attorney. Self was not taken before a magistrate prior

to being interrogated, because Deal was unable to contact a judge;

all were out of town at a convention. The interrogation lasted a

little over three hours and was conducted by Deal, Morris,

Mitchell, and Morgan. At least two officers were present while- 28 -

Self was being interrogated. Deal left around 8:00 or 8:30 a.m.

and was absent about 30 minut es; other than that, he was present

during the interrogation. Self appeared nervous during the

que stioning, and he became emotionally distraught and cried at

times. He was not handcuffed and would have been permitted to go

to the restroom. After the confession was typed, it was shown to

Self, and he appeared to read it; Morgan also read the statement to

him. At 10:10 a.m., Self signed the confession, in which he

admitted murdering Shaw and Johnson. Self "was not forced, coerced

or in any way threatened or intimidated" into signing. Self was

then taken to Houston , and at 11:59 a.m. was advised about his

rights by Judge Duggan; Self requested that counsel be appointed

to represent him, and Judge Duggan telephoned Meadows at 12:04

p.m.; Meadows arriv ed at the courthouse within minutes and

conversed privately with Self; and, after talking to Meadows, Self

said that he did not commit the m urders. He and Morgan left

Houston that afternoon with Self and went to nearby LaPorte, where

ch arges were filed against him and full-length, front and back,

black-and-white nude photographs taken. Self then directed them to

the location where the remains h ad been found. Self was then

returned to the Webster police department. About 15 minutes later,

he was taken to Cle ar Lake Hospital for an examination. On

Saturday, June 10, Self was transferred to the Harris County Jail.

Deal gave similar testimony at trial.

At the suppression hearing, Morris denied threatening

Fulkerson, and denied telling him that he woul d put Self in the19 Bobby Harold Musser, an exp e rt in polygraph examination,

testified at the habeas hearing regarding the "good g uy-bad guy"

interrogation technique used on June 9. He stated that it utilizes

psychological manipulation and poses dangers of abuse, but conceded

that it was an accepted technique . Musser opined that it was

likely that Self's June 9 confession was a result of Morris

effectively overbearing Self's will to resist.

- 29 - penitentiary. He testified that Fulkerson was upset with him

because he would not hire Fulkerson as a police officer (Fulkerson

had been convicted of theft in 1971 and was on probation) and

because he had been unable to assist Fulkerson in collecting a

reward for his assistance in providing information that led to

Self's arrest. He denied threatening to put Self in the

penitentiary and testified that he did not threaten or physically

abuse Self with a pistol or night stick; that he was present when

Self was examined at the hospital and did not see any marks around

his navel; and that he did not th reaten to beat Self if Self

alerted the doctor. He did not recall being alone with Self on

June 9. Morris testified similarly to the jury and, in addition,

testified that he did not pick up Morgan's nightstick.

In his deposition taken in 1979 for the habeas hearing, Morris

testified that, prior to the arrest for murder, he tried to scare

Self after Self had stolen gas from the fire chief's car; he used

the "good guy, bad guy" interrogation technique with Self on June

9, in which he was the "bad guy"; the technique did not involve any

physical violence or brutality, and he did not make any threats or

use any physical violence during the interrogation 19 ; Self was

frightened of him, but had no reason to be physically afraid; Self

was nervous and intimidated, but no more so than any other subject20 Shapiro's testimony about the examination is inconsistent with

Morris'. Morris testified that he was present and observed the

examination, but Shapiro testified that Morris was not there, and

that he did not know whether anyone else was inside the examination

curtain with Self and the doctor.

21 Concer ning the information provided by the doctor, s ee note

22, infra

.

- 30 - in an interrogation; Self did not fear him enough to confess to a

murder that he did not commit; when Self was confessing his guilt,

Self enjoyed telling about it; and his memory of events as

reflected in his trial testimony was more accurate than at the time

of his deposition, almost six and one-half years later.

Former Webster councilman and H arris County deputy sheriff

Shapiro, whose testimony is discussed in part above, testified at

the habeas hearing as follows. He saw Self and Morris conversing

in Morr is' office on the afternoon of June 9, and Self did not

appear nervous or frightened. Prior to taking Self to the hospital

to be examined, Shapiro asked him if he was hurt; Self replied that

he was not. After the examination, 20 the doctor told Shapiro that

Self was in good shape 2 1 ; and Shapiro saw no physical signs

indicating that Self's confession was involuntary. Morris was

appointed on his recommendation as police chief for the purpose

(noted above) of improving the image of the Webster police.

Webster was a "hot bed of politics" in 1972, and, although Rhonda

Johnson's grandfather, who ultimately was elected may or, was

politically influential, the police department's failure to solve

the murders had nothing to do with the appointment of a new chief.

Although Shapiro was formerly friendly with Morris, his opinion of22 Dr. Davis was chairman of the emergency room committee and

signed the examination note; he testified that Self was examined by

an unknown doctor, probably a medical school resident.

23 Cleboski did not testify at trial.

- 31 - Morris had changed as of the habeas hearing, based on Morris'

conviction and Morris having made advances toward Shapiro's wife.

Nevertheless, Shapiro maintained his belief that Self's confession

was voluntary.

The testimony of other witness es supports the state finding

that Self was not coerced. Dr. Davis, who worked in the hospital

emergency room on June 9, testified at the suppression hearing

that, although he did not conduct the examination, he saw Self that

afternoon and did not observe him making any complaints regarding

physical or other problems. 22 Harris County deputy sheriff Cleboski

testified at the habeas proceeding that he visited with Self on the

afternoon of June 9. He asked Self if he had been abused,

threatened, or mistreated, or if any coercion or trickery had been

used to obtain his statement; Self answered with "a very clear

negative". 23

At the conclusion of the suppression hearing, in written

findings of fact, the state court found that Self had been given

Miranda warni ngs prior to making the June 9 confession and

understood his rights; he "had not been mistreated, physically

abused, threatened in any way or manner, or promised anything of

any kind or nature ... to induce ... [the June 9] statement"; and

he "gave no appearance at any time prior to the making of the [June

9] statement

... of exhaustion, of hunger, of thirst and made no- 32 -

request for food, drink or rest" and "was permitted to go to the

restroom whenever he desi red to do so". It stated that its

findings were "based not only upon the testimony of the witnesses,

but also upon this Court's personal observation of the demeanor and

manner in which each witness testified." It concluded:

Considering all of the facts and findings and chain

of events c o ncerning this case and the written

statements given herein, this Court is convinced

beyond a reasonable doubt that the written

statements were each freely and voluntarily made by

... Self, after he was warned of his constitutional

a nd statutory and legal rights, which rig hts he

fully understood and knowingly and intelligently

waived.

At the conclusion of the habeas hearing, the same judge made

the following findings with respect to brutality allegations:

No physical or psychological coercion or

intimidation was perpetrated upon [Self] by

... Morris

.... Specifically, [Self] was not jabbed in

the stomach with a nightstick nor struck across the

shoulders with a nightstick, by Chief Morris.

Chief of Police Morris had not practiced similar

acts of physical abuse on other prisoners as chief

of police in Webster or as a Depa rtment of Public

Safety officer.

... Chief Morris did not empty all the

bullets save on e from his service revolver and

place the weapon to [Self]'s head. Similar methods

of physical abuse were not practiced b y Chief

Morris upon other individuals in his cus tody. No

conduct of Chief Morris rendered [Self]'s written

confession of June 9, 1972, involuntary un der the

Constitutions of the United States or Texas.

* * *

... There is no evidence of perjured

testimony by former Police Chief Don Morris and

former Assistant Police Chief Tommy Deal, b oth of

whom are now in federal penitentiaries for bank

r obbery

. There has been no connection shown

between the i nstant offense by [Self] and the24 The very scant evidence in the record about the convict ions

reflects that Morris and Deal may have been robbing banks in mid1972, when Self was arrested, and that Morris was arrested in 1975

for such activity. There is no comparable evidence about when Deal

was arrested, but it appears that he was arrested before Morris.

(In additio n, Mitchell testified at the habeas hearing that, in

1974, Deal told him that he was using drugs; but Mitchell did not

know if Deal was doing so in 1972 or 1973.)

The magistrate judge's understandable disdain for such illegal

activity, especially by l aw officers, appears to have improperly

colored his application of the § 2254 standar d of review. For

example, he refers to Morris and Deal as "officer- cum -bank robber"

and states that Shapiro was "instrumental in hiring the bank

- 33 - offenses of which these former law enforcement

officers were convicted.

... At his deposition taken in this

proceeding

..., former Police Chief Don Morris

testified under oath that he kn ows of nothing to

which he testified at [Self]'s trial that was

untrue. There is no testimony at this proceeding

to outweigh that of former Police Chief Don Morris,

at trial, or that of former Assistant Police Chief

Tommy D e al, at trial. P articularly, the Court

finds: Chief Morris did not testify falsely when

he stated that he did not pick up a nightstick or hold it in his hand while questioning [Self] the

m orning of his arrest and shortly before he gave

his first confession. Chief Morris did not falsely

testify that he had not abused or brutalized other

prisoners in the pa st. Chief Morris did not beat

[Self] at the Webster Police Station the morning of

his arrest. [Self] did not make his first or

second statement as a result of physical or mental

coercion of any kind.

(Emphasis added.)

Despite these findings, the district court credited Self's

testimony that Morris struck and threatened him during the June 9

interrogation, as well as testimony from other witnesses that

Morris had mistreated other prisoners. It stated that the state

court failed to accord sufficient weight to the character traits of

Morris and Deal, because of their convictio ns for bank robbery, 2 4robbers". Simply put, the credibility choices based on the state

record were for the state, not federal, judge, as discussed infra

.

- 34 - and also faulted it for failing to give any weight to the testimony

of Coburn, Mitchell, Gaskins, Wilburn, and Miller regarding Morris'

interrogation techniques.

Deference to a state court's findings is particularly

important "where a federal court makes its determination based on

the identical record that was considered by the state appellate

court". S umner v. Mata

, 449 U.S. at 547. As stated in M arshall v.

Lonberger

, "§ 2254[d] gives federal habeas courts no license to

redetermine credibility of witnesses whose demeanor h as been

observed by the state trial court, but not by them." 459 U.S. at

4 34; see also Louis v. Blackburn

, 630 F.2d 1105, 1110 (5th Cir.

1980) ("In order to adequ ately determine the credibility of a

witness ..., the fact finder must observe the witness.").

Implicit in the state findings (as well as the jury's verdict)

is a determination that Self was not credible. "When ... a trial

court fails to render express findings on credibility but makes a

ruling that depends upon an implicit determination that credits one

wi tness's testimony as being truthful, or implicitly discredits

another's, such determinations are entitled to the same presumption

of correctness that they would have been accorded had they been

made explicitly." L avernia v. Lynaugh

, 845 F.2d at 500. The state

court d id take note of Morris' and Deal's convictions, but

nevertheless found that there was "no testimony" at the habeas

proceeding sufficient to outweigh their trial testimony. The- 35 -

district court's disagreement with the credibility choices made by

the state court and with the weight t h at court gave to the

testimony of witnesses whose demeanor was observed by it, but not

the district court, is an insufficient basis for disregarding the

state findings and making contrary ones. The state findings are

fairly supported by the record.

(2) Falsities and Inconsistencies in Confessions

The district court also referred to three perceived falsities

or inconsistencies between the two written confessions as evidence

of coercion; but these findings are either not supported by the

record, and therefore, clearly erroneous, or do not support an

inference of coercion.

First, in describing where the bodies were hidden, the June 9

confession speaks of a "culvert"; the June 12, a "bayou". But, a

photograph in evidence shows that the words "bayou" and "culvert"

are equally descriptive of that location. And, both were used by

witnesses to describe the area.

Second, Self' s statement in the June 12 confession that he

discarded the girls' clothing along the sides of Red Bluff Road is

seemingly inconsistent with the fact that some clothing similar in

appearance to that worn by them at the time they were last seen

alive was instead found in the area surrounding the ditch where the

bodies were hidden. Moreover, officers searched the sides of the

road and did not find the clothing. However, this inconsistency

does not evince coercion. To the contrary, it is reasonable to

assume that Deal, whose interrogation led to the June 1225 Red Bluff Road is the first road to the southwest of the

ditch. It intersects with a road running just north of where the

bodies were hidden, which Self al so stated he used. This road

appears to be named "Old Choate Road".

- 36 - confession, and who participated in the June 9 interrogation, was

familiar with the investigation that had been conducted, and knew

where t he clothing had been found approximately four months

earlier. If Self had been coerced into saying whatever would

please law enforcement officials, it seems most unlikely that they

would have allowed him to sign a confession that was inconsistent

with the physical evidence. And, it is possible that Self might

have intended to say "Old Choate Road" rather than "Red Bluff

Road". 25 In any event, this inconsistency is a very shaky

foundation upon which to find coercion.

And third, Self stated in the June 9 con fession that he met

Rhonda Johnson at a theater and then went to Sharon Shaw's house;

in the June 12 confession, that he picked up Johnson along a road,

and they picked up Sharon Shaw at a yacht club. The district court

found that the described events could not have ha ppened, because

the record contains nothing to indicate that the girls split up on

August 4 and reunited in Self's car. (In another seeming

inconsistency, Self stated in his June 23 oral statement that he

picked Rhonda Johnson up on the road, near a steak house. However,

a private investigator for Self's habeas counsel testified that the

theater (June 9 confession) and steak house (June 23 statement) are

in the same vicinity.) The record is silent both on when the girls

returned to Webster from their day trip to Galveston and whether- 37 -

they separated before being reunited; but, it contains nothing to

indicate that this did not happen. Therefore, there is no evidence

to contradict Self's statements. (And, concerning where Self

picked up Sharon Shaw, although the June 12 confession and June 23

statement appear to be in consistent with the June 9 confession,

this, again, does not show coercion.)

Moreover, the district court's impli cit finding that Self

fabricated the June 9 confession to avoid further physical abuse is

inconsistent with other evidence, such as the fact that Self on two

separate occasions directed two different law officers to the exact

location where the remains had been f ound. After viewing

photocopies of the photographs i ntroduced in evidence, it seems

extremely unlikely that Self would have been able to do so merely

by chance; the area where the remains were found was described as

"very desolate". (Nevertheless, when questioned about how he was

able to pinpoint the exact location, Self testified that he "was

just guessing".) The state record refutes any inference that his

confessions were false.

In sum, conce rning coercion, several parts of the state

record, especially Mitchell's claim about Morris' use of the night

stick, ar e troubling; but, based on our review of the record, we

conclude that it contains the requisite § 2254(d) fair support for

the state findings. Accordingly, the district court erred in

concluding that Self's June 9 confession was coerced.26 The d istrict court also held that Self's oral admissions to

Deputy Beamer during the June 23 trip to the location where Self

said he had hidden the bodies were inadmissible, because they were

obtained in violation of his Sixth Amendment right to counsel.

However, Self's counsel did not object to the admission in evidence

of those statements. Moreover, Self has not alleged that he is

entitled to habeas relief on the basis of the admission of his June

23 statements, nor does he attempt here to defend the district

court's ruling. We note also that Beamer testified that Self did

not request his attorney's presence on June 23, and that Self had

been warned of his rights prior to the trip.

27 The d istrict court's conclusion that Self did not validly

waive his rights is also fatally infected by its improper ruling

that Self was illegally arrested.

- 38 - 2. June 12 Confession

The district court held that the June 12 confession was

obtained in violation of Self's Sixth Amendment right to counsel,

and that Self did not validly waive that right for the June 12

interrogation. 26 These conclusions are based on its findings that:

(1) the June 12 confession was not initiated by Self, as the state

court found, but instead, by the police, due to the unethical

interference of an unnamed district attorney; (2) Self did not have

the mental capacity to intelligently waive his rights; (3) the

coerced June 9 confession was used to obtain the June 12 waiver,

and that waiver was tainted by Self's fear of continuing brutality;

and (4) the police ignored Meadows' instructions that Self not be

interrogated outside his presence, and Morris deliberately misled

Meadows in an attempt to prevent him from speaking to Self shortly

before he signed the June 12 confession. 27

a. Initiation of Contact with Officers

As discussed, Edwards ' per se rule on in itiation is

inapplicable; but, in any event, whethe r the accused initiates- 39 -

contact with the police after the right to counsel has attached is

a factor to be considered in determining whether the accused has

waived that right. F elder v. McCotter

, 765 F.2d 1245, 1249-50 (5th

Cir. 1985), cert. denied , 475 U.S. 1111 (1986).

Concerning initiation, the state habeas court found: "On June

12, 1972, [Self] made the decision to take the polygraph test. It

showed that some of the facts in his statement of June 9, 1972,

were incorrect. He then initiated the making of another statement,

correcting these inaccuracies and adding more details ." The

district court held that this finding "is not supported by the

record". We disagree.

As noted, Meadows testified at the suppression hearing that,

when he met with Self immediately after his appointment on June 9,

he told Self that anything Self said could be used against him, and

advised Self not to make any statements to officials unless he

(Meadows) was present. Meadows further testified:

[S]omething was said about a polygraph test

and I told [Self] at the time that I said

[sic] it was against my advice that y ou take

it. He says, "But I want to take it because I

didn't do it". I said, "If you want to take

that okay, but my advice is not to." And he

said, "I'm going to go ahead and take it", and

I said, "Okay."

On this point, Deal testified at the suppression hearing and

trial as follows. On June 12, beginning at approximately 1:00

p.m., Self took a polygraph examination and was interviewed by

several area law enforcement officials concerning the unsolved28 As noted, the polygraph apparently indicated that Self had

been untruthful with respect to portions of his June 9 statement.

- 40 - murders of other young girls in the area. 2 8 After taking the

examination, Self agreed to give an additional statement, because

he had left out some details in the first. Deal, the only Webster

officer present during the June 12 in terrogation, warned Self of

his right s prior to asking any questions; and Self did not state

that he wanted his lawyer present. The questioning began at 4:40

p.m.; Self signed the confession at approximately 6:00 p.m. No

force, coercion, threats, or intimidation were used.

At the suppression hearing and trial, Sel f testified that,

around 4:30 or 5:00 p.m., Deal asked him if he wanted to change

some errors in the June 9 confess ion. Self was not sure whether

Deal asked him if he wanted a lawyer, but he testified that he

asked Deal if Deal had talked to his (Self's) attorney. Self did

not remember Deal's response. Although he could not remember

whether Deal warned him of his rights prior to questioning him, he

testified that no one beat or threatened him; and that he "gave it

of [his] own free will and volition". He further testified that he

had "no complaints" about the June 12 statement, but would not have

given it if he had not already given the first one.

The June 12 confession contains the following, indicating that

Self was aware of his right to have his attorney present:

I do not want to consult with a lawyer

before I make thi s statement, and I do not

want to remain silent, and I now free ly and

voluntarily waive my right to a lawyer and to- 41 - remain silent and make the following voluntary

statement ....

In addition, the district court does not comment on the following

language from that confession, which lends further support to the

state finding that Self initiated the interrogation that led to it:

Last Frida y, June 9th, 1972, I gave a

statement to Officer Tommy Deal, of the

Webster Police Dept. S ince that statment

[sic], I thought of some additional

information that I wish to ad d to my first

statement

. Therefore I wish to make a new

statment [s ic] and add the things that I had

forgotten in my original staement [sic].

(Emphasis added.)

The district court's finding that Self d id not initiate the

June 12 contact is greatly influenced by its clearly erroneous

finding that an unnamed district attorney unethically interfered

with Self's exercise of his Sixth Amendment right to counsel, by

directing the police to obtain a second confessio n after counsel

had been appointed. At the habeas hearing eight years after the

June 12 confession, Harris County Deputy Sheriff Cleboski, who was

present during it, testified that the Webster police had given him

the impression that there was som ething wrong with the first

confession; that perhaps they had consulted with a prosecutor; and

that he was not directed to take the statement by anyone from the

district attorney's office, but " presume[d] " that if such direction

had been given, it would have been to the Webster police.

(Emph asis added.) Deal testified that he conferred with more

experienced investigators from the Harris County sheriff's

department prior to the June 12 interrogation; he did not mention29 Based on Cleboski's unsupported "presumption", discussed

above, the magistrate judge ruled:

Since [the state] did not dispute Cleboski's

uncontradicted assertion, the Court will assume and

finds that a state's prosecutor requested the

additional written confession from Self. This was,

of course, a violation of the then existing

disciplinary rules of the State Bar of Te xas .... Despite the fact that the Assistant District

Attorney requested that the second statement be

taken, th e Trial Judge found that Self had

ini tiated the taking of the second [June 12]

statement. O bviously the Assistant District

Attorney reviewing the first [June 9] written

confession recognized the apparent falsity of the

girls allegedly leaving with Self from Shaw's home.

(Emphasis added.) Again, it appears that the magistrate judge went

far beyond the standard of review permitted by § 2254.

- 42 - consulting with anyone from the prosecutor's office. Cleboski's

testimony does not furnish a basis for the district court's finding

of unethical conduct by an unnamed district attorney. 29

Next, although the record does not contain any evidence

concerning the actual administration of the polygraph examination

or its results, M eadows' testimony supports the implicit state

finding that it was administered at Self's request. Deal's

testimony, as well as the above-quoted portion of the June 12

confession, fairly support the state finding that, as the logical

sequence to that exam ination, Self prolonged the contact he had

initiated by making the June 12 confession to add details and

additional information to supplement his June 9 confession.

The district court failed to accord the deference required by

§ 2254 to the state court's finding that Self initiated the June 12

contact with police that resulted in his confession later that day.- 43 - b. Mental Capacity for Waiver

At the conclusion of the suppression hearing, the state court

made the following findings regarding Self's mental capacity:

[T]he Defendant, Michael Lloyd Self, was twentythree (23 ) years of age, was in good health, good

physical condition, of sound mind and aware of what

he was doing at the time he made and signed each of

these statem ents. He had the ability to read and

good command of the English language as demonstrated when testifying during this hearing.

And, at the conclusion of the habeas hearing, it made similar

findings:

[Self] was alert and mentally competent when

he made this statement of June 9, 1972.

* * *

... In 1972, he was below normal academically,

and would have been classified by his schoolteacher

mother as "a dull nor mal," this being above the

level where he would have been placed in a special

class. At the time of the taking of the statement

of June 12, 1972, [Self] displayed mental alertness

and understanding. At the time he was given his

magistrate's warning by Judge Duggan, he displayed

understanding and alertness requesting appointment

of counsel. [Self]'s testimony and his demeanor at

pretrial motions, at trial and at the p unishment

hearing, and his demeanor at the ins tant hearing,

were heard and observed by the judge who writes

these findings. That testimony and demeanor

demonstrated mental alertness and understanding.

... [Self] was mentally competent at the time

that he made his statement on June 9, 1972, and at

the time he made his statement on June 12, 1972.

The district court's conclusion that Self did n ot validly

wai ve his right to counsel is based in part on its findings that

"[t]he testimony showed that [he] was a dull student and slow

learner wit h minimal brain injury [, and that] he was pliant and

easily intimidated by authority figures". Although those findings- 44 -

are consistent with some of the state's, and are supported by the

record, the district court failed to explain why it chose to

disregard the other state f indings regarding Self's ability to

comprehend both the nature of his legal rights and the consequences

of his decision to abandon them on June 9 and 12.

The district court did not hold an evidentiary hearing; its

findings are based solely on the state record. Obviously, the

state trial judge, who had an opportunity to observe Self during

his testimony at the suppression hearing and trial, was in a much

better position than the district court to evaluate Self's mental

capacity to understand the nature of h is rights and the

consequences of a decision to waive them. The district court erred

in dis regarding state findings that are fairly supported by the

record.

c. Taint from June 9 Confession

The district court's con clusion that Self did not validly

waive his right to counsel at the June 12 interrogation is based,

in part, on its finding that the waiver was obtained as a

consequence of the coerced June 9 confession and Self's fear of

continuing brutality. We have found that the record fairly

supports the state finding that the June 9 confession was not

coerced. Accordingly, it does not affect the validity of Self's

June 12 waiver.

d. Police Interference

Finally, the district co urt held that Self's June 12 waiver

w as invalid because (1) the police ignored Meadows' command t hat30 Without prov iding supporting facts or law, the magistrate

judge stated that "[h]ad Self truly waived assistance from his

counsel, Meadows would have been promptly notified by the

authorities."

- 45 - they refrain from questioning Self unless he was present; and (2)

Morris impermissibly interfered with Meadows' attempt to represent

Self on June 12, shortly before Self signed the confession at 6:00

p.m. 30

(1) Counsel's Instructions to Police

Although Meadows had informed t he police officers who were

present in Judge Duggan's courtroom on June 9 that they were not to

interview Self outside his presence, Meadows testified, as

discussed earlier, that Self, contrary to his advice, stated that

he intended to take a polygraph examination. Deal testified that

Self did not express any desire to have Meadows present during the

June 12 interrogation, and the June 12 statement corroborates this.

Self had no duty to follow Meadows' instructions to the police,

just as he had no duty to heed Meadows' advice that he not submit

to a polygraph examination. Self was free to choose to forego

Meadows' presence at the June 12 interrogation, and he did not need

Meadows' permission to make that choice. A defendant may waive his

right to counsel without notice to counsel. B rewer v. Williams

,

430 U.S. at 405-06.

Self asserts that Felder v. McCotter is factually similar.

Felder's co unsel consulted with Felder "almost daily" and

"explicitly instructed" police not to questio n Felder unless his

counsel was present; the police agreed. 765 F.2d at 1246.- 46 -

Nevertheless, a H ouston officer, knowing that Felder was

represented by counsel, initiated an interview with him without his

counsel's pres ence or consent. This court rejected the state's

argument that Felder had waived h is Sixth Amendment right to

counsel by failing to assert it after receiving Miranda warnings,

holding that "the mere giving of Miranda warnings, af ter the

accused through his lawyer has instructed the police not to

interrogat e him, does not sanction that interrogation." I d

. at

1249. Meadows instructed the police not to interrogate Self unless

he was present; in that respect, Self's case is similar to Felder ;

but, the similarity ends there. Unlike Self, Felder did not

initiate the contact with police, nor did he express any desire to

talk with police officers in the absence of his attorney. Id. at

1250.

Mos t important, however, "Felder had not acted in a manner

inconsistent with his lawyer's instructions or advice"

. Id . at

1249. "[C]onsistent reliance upon the advice of counsel in dealing

with the authorities" has been held to refute any suggestion of

waiver. B rewer v. Williams

, 430 U.S. at 404. Self did not

consistently rely on Meadows' advice. Indeed, the record

demonstrates that he consistently disregarded Meadows' specific

advice that he not take a polygraph examination and not talk to the

police. The June 12 confession was a continuation of the contact

initiated by Self following the adm inistration of the polygraph

examination, conducted at his request.- 47 -

This case is similar, in some respects, to United States v.

Brown

, 459 F.2d 319 (5th Cir. 1971), cer t. denied , 409 U.S. 864

(1972). Brown spoke with her appointed attorney on the telephone

for 15 to 20 minutes. I d

. at 323. After the conversation, she

told federal agents that the attorney had advised her to remain

silent, but indicated that she had lost confidence in the attorney

because he had not responded to a pr evious call. I d

. She then

confessed. This court held that, "[i]n the circumstances of this

case a failure to invoke the right to counsel, which had just been

exercised, demonstrates a waiver of that right". I d

. There was no

showing that Self had lost confidence in Meadows, but there is

evidence that he disregarded Meadows' specific advice by choosing

to submit to the polygraph examination. Although the amount of

time that elapsed between Self's exercise of his right to counsel

on June 9, and his failure to invoke that right o n June 12, is

greater than that in Brown

, we similarly conclude that in the

circumstances of this case, Self's failure to invoke the right to

counsel, which he had recently exercised, is a valid and

significant factor in the waiver analysis.

(2) Police Delaying Tactics

At the suppression hearing, Meadows testified that he

telephoned the Webster Police Department on the afternoon of June

12 to set up an appointment with Self (who was jailed in Houston)

and spoke with Morris. Meadows first testified that he placed the

call at 4:45 p.m., but later stated that "[i]t was around 5:30 or

5:45". During the habeas hearing, however, he testified that he31 Morris did not testify about a telephone conversation with

Meadows on the afternoon of June 12. In any event, although it is

reasonable to assume that Morris knew that Deal was in Houston for

Self's po lygraph examination, and perhaps to assume that Morris

knew that the first confession co n tained insufficient detail,

making a second confession desirable, there is no evidence that

Morris knew that Self was being interrogated and was moments away

- 48 - placed it at 3:00 or 4:00 p.m. According to Meadows' testimony at

the suppression hearing, Morris discusse d the case with him for

about fifteen minutes (during the habeas hearing, Meadows testified

that it lasted 15 to 30 minutes), and then told him that Self was

then signing a statement. (Self signed at 6:00 p.m.) Meadows

then called the Harris County Sheriff's Department in Houston and

told the person who answered that he did not want Self "making any

statements to anybody without me being there and the officer or

whoever it was on the other end indicated he would not". Meadows

testified at the habeas hearing that, in retrospect, he had the

impression that Morris was trying to stall him so that he would not

find out that Self was being interviewed.

Deal, who was present when Self signed the June 12 confession

in Houston, testified at the suppression hearing that Meadows

called the Harris County sheriff's department at about 6:05 p.m. on

June 12 and told Deal tha t the police were not to talk to Self

anymore unless he was present. Deal testified t hat, by the time he

sp oke with Meadows, Self had already signed the confession; and

they complied with Meadows' request.

There is no state finding on this point. That Morris did not

interfere is implicit in the other findings and is fairly supported

by the record. 31from signing a second confession when Meadows called.

32 It thus seems likely that, if the tape contained exculpatory

evidence, its contents would have been introduced during the habeas

hearing. Moreover, if Self said during the interview that he had

removed the clothing and put it in his car, this statement could

hardly be considered "exculpatory".

- 49 - C. Other District Court Errors

The magistrate judge's recommendation contains other errors,

two of which are mentioned here, because they may have affected his

recommendation, and the district judge's decision, to grant relief.

1. June 10 Recorded Interview

First, the district court found that a recorded interview of

Self on June 10 "[p]resumably

... contained no incriminating

statements since it was never offered in evidence aga inst Self";

but, it further found that, because the tape was never provided to

Self's counsel, "it may well have contained exculpatory matters."

The record does not support these assumptions.

Deal testified at trial that Self was interviewed, and part of

the conversation taped, on Saturday, June 10. After Deal so

testified, Self's counsel asked him to furnish the tape, but Deal

was not then employed by the Webster police department and did not

have access to it. And, in response to a question by Self's habeas

counsel during the state habeas hearing, Meadows testified that he

did not recall having been told that, during the June 10 interview,

Self said that he removed the girls' clothing and put it in his

car. This reference to the contents of the tape suggests strongly

that Self's state habeas coun sel had heard the tape, or seen a

transcript of it. 32- 50 - 2. Evidence of Guilt

The district court also h eld that Self's June 12 confession

"was the sole evidence implicating Self in the murders". It failed

to give weight to evidence that, as discussed, Self twice led

officers to the exact location where the remains were found, first

o n June 9, after his first confession, and again on J une 23.

Perhaps, as discussed in note 26 supra

, it based this conclusion on

its ruling that this evidence was illegally obtained, in violation

of Self's Sixth Amendment right to counsel. Although the district

court noted that Self's counsel failed to object at trial to this

evidence, it failed to note that Self did not allege any

constitutional error in its admission. Nor does Self raise this

issue on appeal.

It is unclear whether these erroneous rulings had any impact

on the decision to g rant the writ. In any event, Self is not

entitled to relief on the basis of either of them.

III.

This is a disturbing case, especially in light of Morris' and

Deal's convictions and Mitchell's claim about Morris' conduct

during the June 9 interrogation (incl uding supposedly slapping a

nightstick in his hand). But, in cases such as this, where the

district court does not conduct an evidentiary hearing and has only

the state record before it, the deference that must be given to

state findings, especially credibility choices, is all the greater

and more necessary. For state habeas applications, pursuant to §

2254 and "our federali sm", federal courts sit not as original- 51 -

finders of fact, but instead to review only within the balanced

boundaries of § 2254.

The state record fairly supports the state findings that Self

was advised about, and understood, his rights prior to the June 9

and 12 interrogations, and freely and voluntarily chose not to

exercise them. And, it is our "independent federal determination",

based upon "the totality of the circumstances, [including the state

findings, that] the challenged confession was obtained in a manner

compatible with the requi rements of the Constitution", M iller v.

Fenton

, 474 U.S. at 112; that Self validly waived his Fifth

Amendment right at the June 9 interrogation, as well as his Fifth

and Sixth Amendment rights at the June 12 interrogation.

For the foregoing reasons, the judgment of the district court

is REVERSED

, and the case is REMANDED for the entry of an order of

dismissal.

REVERSED AND REMANDED.