United States Court of Appeals

Fifth Circuit



## FILED

April 21, 2004

Charles R. Fulbruge III

Clerk REVISED JUNE 16, 2004

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-20385

MAX ALEXANDER SOFFAR,

Petitioner-Appellant,

VERSUS

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondents-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

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

DeMOSS, Circuit Judge:

This case returns to us upon reinstatement by the en banc

Court, Soffar v. Cockrell

, 300 F.3d 588 (5th Cir. 2002) (" Soffar

II "), of the original panel's grant of a Certificate of

Appealability ("COA"), Soffar v. Johnson

, 237 F.3d 411 ( 5th Cir.

2000) (" Soffar I "), as to Petitioner Max Alexander Soffar's claims

tha t (1) he did not have effective assistance of counsel in the

guilt phase proceedings, and (2) his right to counsel was violated2

by police interrogation regarding an extraneous offense after he

had been charged with capital murder and had requested and received

appointed counsel, when that interrogation was later used to obtain

a death penalty at the penalty phase.

For the reasons stated herein, we reverse the district court's

order granting the Director's motion for summary judgment and

remand this cas e to the district court for entry of an order

( i) granting Soffar's application for writ of habeas corpus,

(ii) setting aside Soffar's conviction and sentence for capital

murder, and (iii) ordering Soffar 's release unless the State

commences a re-trial of Soffar within 120 days. This current

opinion will be sometimes referred to herein as Soffar III

.

As a brief overview, this opinion addresses three fundamental

aspects of Soffar’s fi rst claim before us here, i .e.

, his

ineffective assistance of counsel claim. First, as has been

discussed and developed on previous occasions, Soffar’s conviction

was based indispensably on the statements taken from him by police

after three days of interrogation and without an attorney present.

Importantly, the single known eyewitness was neither contacted by

defense counsel nor called to testify; and except for the facts

recited in Soffar’s confession, which could have been controverted

by that uncalled eyewitness, there was no phy sical evidence,

circumstantial evidence, or other evidence that connected Soffar to

the crime. Second, we address the State’s argument that Soffar’s

claim of ineffective assistance o f counsel was neither properly3

exhausted in his state habeas petition nor properly raised in his

federal habeas application. As we will detail below, specific and

unambiguous language in the court documents submitted by Soffar’s

habeas counsel reveal that Soffar’s ineffe c tive assistance of

counsel claim was properly exhausted in the state courts and

properly raised before the district court. Finally, as to the

merits of Soffar’s ineffective assistance of counsel claim, for a

litany of reasons bolstered by ample evidence in the record, we

conclude that Soffar was denied the constitutional protections

afforded by the Sixth Amendment a nd defined by Supreme Court

precedent.

I. BACKGROUND AND PROCEDURAL HISTORY

We start with the facts of the case presented in a

substantially similar form as in our original opinion in Soffar I

.

The facts are taken primarily from the facts found by the state and

federal habeas courts. However, we also have included additional

relevant f acts that we have found to be undisputed based on our

independent and exhaustive review of the entire record of this

case.

A. The Offense

In either the late evening hours of Sunday, July 13, 1980, or

the early morning hours of Monday, July 14, 1980, four young people

were each shot in the head during the c ourse of a robbery at the

Fairlanes-Windfern Bowling Alley, located at 14441 Northwest1 At the time of the robbery-murders in this case, two of the

four suspe cts from the previous night's burglary of the bowling

alley were still at large, though they were apprehended within a

day or two of the robbery-murders. The other two suspects had

already been arrested for the burglary. The four youths who were

involved in the burglary the night before subsequent ly disavowed

any knowledge of, or association with Soffar or his alleged

accomplice Latt Bloomfield.

2 At that time, the Northwest Freeway was a four-lane, divided

highway with two one-way outbound lanes (which the church fronted),

separated by a grassy median from the two one-way inbound lanes

4 F reeway, approximately 13.5 miles northwest of downtown Houston

,

T exas. The victims who were killed were Stephen Allen Sims, a

young male who was the assistant manager of the bowling alley;

Tommy Temple, a young male employee of the bowling alley; and,

Arden Alane Felsher, a young female non-employee. Gregory Garner,

another young male employee of the bowling alley, was the only

victim who survived.

On the night before the robbery-murders, the FairlanesWindfern Bowling Alley had been burglarized. 1 The side door of the

bowling alley, which was broken by the burglars to gain entry the

night before, had not been fixed by the next evening and could not

be locked. As a result, at around 7:30 p.m. on the night of the

13th, Jim Peters, the manager of the bowling alley, asked Garner

and Temple, to stay late after closin g to keep an eye on the

premises, at least until the early morning cleaning crew arrived at

approximately 4:00 a.m. At approximately 9:30 p.m., Garner moved

his car across the street into the parking lot of the Houston First

Church of God, which was directly across the Northwest Freeway 2(which the bowling alley fronted).

5 from the bowling alley, so that after closing it would appear that

no one was at the bowling alley. Just as the bowling alley closed,

a robber or robbers entered the bowling alley, shot the four

individuals, and absconded with approximat e ly $1,000 in cash.

Garner was the only victim who survived; the other three victims

died at the scene.

Shortly after the robbery ended, at approximately 12:08 a.m.,

Garner, although seriously wounded, managed to get up from the

floor and telephone his mother, Nellie Garner, from the control

booth next to where he and the ot her victims were lying. He

relayed to his mother that someone had been at the bowling alley

and that he needed help. His mother told him that she was sending

his father, Ira Garner, to the bowling alley and she asked her son

if he was all right. After Garner responded "yeah, I'm all right,"

the bowling alley's other phone line rang and Garner told his

mother that he was putting her on hold. The other caller was

Peters, who was calling to check and make sure that everything was

in order at the bowling alley. Peters testified that Garner's

speech was garbled but that Garner told Mr. Peters either "we, he,

or they" made us lay down. Peters, sensing that something was

awry, told Garner that he was g oing to call the police. After

Peters called the police, he started on his own trip to the bowling

alley. When Garner returned to the phone line with his mother, he6

told her again that he was all right and that the robber or robbers

had just left. He answered his mother's questions by telling her

that he was bleeding from the side of his hea d and that he was

holding his eyeball. Mrs. Garner then hung up the phone and headed

towards the bowling alley.

After he hung up the phone with his mother, Garner moved over

and lay down next to the female victim Felsher, who was the only

other person still alive at the time. When he lay down next to

Felsher, he was positioned as the victim closest to the front door

of the bowling alley, just inside the doors. Garner's father was

the first to arrive at the scene. When he arrived, he parked his

car in front of the building with his headlights facing the front

door. This illuminated the inside of the bowling alley and he saw

four people lying on the floor. When he honked his horn, he could

see his son lift his head and it was immediately apparent to him

that Garner was injured. He ran inside, comforted his son, and

then tried to telephone for help from the bowling alley phone. He

was unable to make the call because he could not get an outside

line. He then drove across the freeway to the church and asked a

woman, who had gathered with several others awaiting the return of

their children from a church yo uth trip, if she would call the

police. He then returned to the bowling alley.

As Ira Garner described the scene, his son was closest to the

door on his stomach; Felsher was lying on her stomach, still alive,

next to his son; Sims was lying dead on his stomach next to3 Physically, the bowling alley was set up as follows. As one

entered the two sets of glass front doors, a concession area/snack

bar was to the left, and the main control booth/cash register area

was located on the right, approximately 8 feet from the front

doors. Temple's body was found approximately 15 feet from the left

set of front double doors, with his head pointed towards the snack

area to the left. Garner's body was found just inside the right

set of front double doors with his head pointed somewhat towards

the front door s-he was located just at the front corner of the

control booth with his feet roughly perpendicular to the booth.

Beyond him was the body of Felsher, who was lying approximately 11

feet inside the right set of doors, next to, and perpendicular to

the control booth, with her head pointed in the direction of the

snack bar. Just beyond Felsher, Sims's body was found

approximately 14 feet inside the right set of doors, with his feet

positioned next to, and perpendicular to the area of the control

booth with swinging doors providing ac cess to the cash register,

but his torso was angled towards the front doors. While Temple's

and Sims's bodies were roughly equidistance from the front doors,

more than 8 feet separated their bodies along the lef t to right

dimension of the bowling alley. Just beyond the feet of Temple's

body were the seats in front of the individual bowling lanes.

7 Felsher; and Temple was lying dead on his stomach on the other side

of Sims. The first three victims were lying closer to the control

booth where the cash register was located, and Temple was located

closer to th e concession area. 3 Photographs of the crime scene

indicate that, in general terms, Felshe r's, Sims's, and Temple's

bodies were posit ioned in a somewhat semi-circular array, with a

greater distanc e separating Temple from Sims. Garner was found

aligned next to Felsher, but as discussed below, by his own

account, and consistent with a bullet hole found in the carpet

between the bodies of Sims and Temple, he was lying between Sims

and Temple when he was shot, thus filling the gap in what would

have been a fully semi-circular configuration at the time of the

shootings.8

After Ira Garner had arrived back at the scene, Jim Peters

arrived, and he was followed shortly thereafter by Mrs. Garner.

Additionally, two men from the church across the street arrived at

the scene to assist. Felsher was flipped over onto her back to

clear her airway because according to those present, she was

gurgling blood. Police and medical personnel arrived at the scene

shortly thereafter. Dr. Daniel Bethingcord, a second-year resident

from Hermann Hospital, was a member of the life-flight team of

medical personn el that arrived later at the scene by helicopter.

He directed efforts taken over from the fire department EMS

personnel to resuscitate the only two living victims found on

arrival, Felsher and Garner. Felsher was given priority of

treatment because of her critical condition. All efforts to

resuscitate Felsher were unsuccessful and she was pronounced dead

at 1:40 a.m.

Dr. Bethingcord then turned his efforts to tre ating Garner,

who had previously been determined to be in more stable condition.

Dr. Bethingcord thought Garner had suffered from two gunshot wounds

to the head, but it was "difficult to tell which was the entrance

and which was the exit." In fact, it was later determined by Dr.

Phillip Gildon b urg, the neurosurgeon who performed surgery on

Garner at the hospital, that the bullet which hit Garner entered

just above and in front of his left ear, and exited just below his

lef t eye. The bullet also caused some skull fragmentation

resulting in embedded bone fragments in a small portion of Garner's4 Dr. Gildonburg testified at Soffar's trial d uring the

State's case-in-chief regarding Garner 's injuries. He also

testified that, in his medical opinion, it was "possible" that

Garner's injuries could have caused him to suffer from a condition

known as retrogressed amnesia. This condition, according to the

doctor, results when the portion of the brain which classifies and

stores recent memory suffers trauma from a concussion. When such

a concussion occurs, memory of events immediately p receding the

trauma can be temporarily, and in severe cases, permanently "wiped

out." The more severe the trauma, the farther back in time

preceding the trauma might the memory loss be. The doctor conceded

that it is possible that all memory would retur n and that none

would be lost. Dr. Gildonburg also testified that Garner's ability

to speak was not affected by his injury. Aside from Dr.

Gildonburg's testimony, no other explanation for Garner's absence

as a witness, either for the State or the defense, was presented.

As the Texas Court of Criminal Appeals noted on direct review of

this case, "[a]mazingly, the State presented no direct testimony or

evidence at [Soffar's] trial that would have accounted for Garner's

absence at trial." S offar v. State

, 742 S.W.2d 371, 373 n.1 (Tex.

Ct. Crim. App. 1987) (en banc). We pause here to note that what

most accurately accounts for the State's failure to call Garner as

a witness, as will be discussed infra

, is the fac t that Garner's

account of the details of the robbery and shootings differs

radically fro m the account of events put forth in Soffar's

confessions. If Garner had testified at trial consistent with the

various statements he made to the police, his testimony would have

significantly undermined the credibility and accuracy of Soffar's

confessions.

9 brain. As result of his injuries, Garner ultimately lost his left

eye. 4 Once Garner had been airlifted to the hospital, the police

began their investigation of the crime scene in earnest.

Autopsies later revealed that the victi ms suffered the

following injuries. Temple suffered a gunshot wound to the head

which entered the back of his head on the left side and the bullet

remained lodged in his right ear, never exiting his body. Sims

suffered a gunshot wound to the head that entered the back of his

head on the left side and which exited his left cheek; he also10

suffered surface wounds on the front of his chest which resulted

from bullet fragmentation. Felsher suffered a gunshot wound to the

head which entered the front of her face just under her right cheek

and which exited near the rear center of the top of her head. As

stated above, Garner suffered a gunshot wound to the head that

entered the side of his head just in front of and above his left

ear and which exited his left cheek, just below his left eye.

Gunshot wounds were ruled the causes of Temple's, Sims's, and

Felsher's deaths.

B. The Investigation

The crime scene itself was most aptly described at So ffar's

trial as "contaminated" in the sense that medical personnel

attempting to resuscitate Felsher and Garner disturbed the

positioning of their bodies and left de bris scattered throughout

the area surrounding the bodies. Additionally, Garner's parents,

the bowling alley manager, and two men from the church across the

street entered the crime scene, movin g items around and touching

crucial areas of the crime scene. The forensic technicians

testified that they had a difficult time recovering very many

usable fingerprints. Despite this fact, several fingerprints and

one palm print were lifted from the area surrounding the cash

register. It was later determined that none of these fingerprints

matched the fingerprints of either Soffar or Latt Bloomfield,5 Latt Bloomfield, the son of a Houston police detective, was

an associate of Soffar. Bloomfield was detained for these murders

based on Soffar’s statements, but, according to the authorities, he

was r eleased shortly thereafter because of the lack of evidence.

He has never been charged with any offense relating to this

incident.

11 Soffar's alleged accomplice. 5

Investigating officers who questioned those prese nt at the

crime scene determined that there was n o eyewitness to the

shootings, except for Garner. However, one individual by the name

of Frank Karibus told a Houston homicide detective, G.J . Novak,

that from his vantage point across the street at the church several

hundred yards away, he had seen someone running from the bowling

alley and getting into a small brown car, possibly a Honda. He

initially descr ibed the individual as 5'-8" to 5'-9" with blonde

shoulder length hair, but later gave a varying description of the

individual he saw. Karibus was never called as a State witness to

identify Soffar. Melvin Neal, the youth pastor at the church

testified that it wou ld be virtually impossible to specifically

identify any individual at night from across the highway.

Investigating officers also learned from pastor Neal that the

church had been burglarized in the late evening hours of that same

night as well. At some point that evening, entry was made into the

church through a pried open door and the church's main office had

been broken into and ransac ked. Crime scene investigators were

dispatched and attempted to l ift fingerprints from the church as

well.12

D uring the night of the murders, an interested and curious

local citizen, Richard Civitello, who cam e to the scene sometime

after he heard about it on his police scanner , pulled into the

parking lot and saw a billfold in the path of his headlights. He

stopped, picked it up, and turned it over to investigating officers

at the scene. That wallet belonged to Steven Sims. The very next

day, a truck driver by the name of Andrew Davis, passed by the

b owling alley on the inbound lanes of the Northwest Freeway.

Traffic was bogged down, and as Davis looked out of his window he

noticed a billfold on the pavement next to the grassy median

separating the inbound and outbound lanes, approximately 100 yards

fromthe bowling alley. The wallet was on what would be the

driver's side of an inbound vehicle. He pulled over so that he

could walk back and retrieve the wallet he had seen. On his way

back he spotted a second billfold in the sam e area. One of the

wallets contained some money and both contained various other

papers. Based on the information contained on the identification

cards in the wallets, Davis tried to contact Garner but was

initi ally unsuccessful. He eventually reached Ira Garner, who

informed him that the wallet belonged to his son, who had been shot

in a robbery the night before. After learning this, Davis called

the police and turned the wall ets over to one of three officers

who, the next day, accompan ied him back to the location where he

had found the wallets.

Forensic evidence obtained from the crime scene the night of6 This fact is particularly s ignificant, because as noted

infra

, Garner stated to the police that he was lying between Sims

and Temple when he was shot and that his position closest to the

door resulted from his having moved from between Sims and Temple to

a position between the front doors and Felsher after he got up and

called his mother. Also, as noted i nfra

, Soffar's confessi o n

recites that the victims were shot in the order in which they lay

when they were discovered; that is, male, female, male, male, and

not female, male, male, male as Garner repeatedly explained the

shootings to police. The importance here lies in the fact that the

b allistics evidence better supports Garner's account of th e body

positions at the time of the shootings than it does Soffar's

13 the murders, and du ring subsequent investigations of the crime

scene yielded the following evidence. Four bullet holes were found

in the carpeting of the bowling alley. One hole, which contained

a large fragment representing the remainder of a bullet, was

located just above the area where Felsher's head was or iginally

positioned. A second bullet hole, also containing a large fragment

was located at or just below the location of Sims's head. A third,

elongated hole was located near Sims's body, closer to his torso,

accompanied by a dent in the padding of the carpet. A fourth hole

located to the right of Sims's head contained a bullet embedded in

the padding of the carpet. No bullet hole was found anywhere near

Temple's body, because the bullet which killed him never exited his

body. And no bullet hole was found anywhere near where Garner was

found lying either. Rather, the extra bullet hole, which was not

closely aligned with any victim's exit wound as the bodies were

found, was between Sims's and Temple's body, where Garner was lying

when shot, and plausibly represented the point of exit from

Garner's head. 6confession. These and other inconsistencies between Soffar's

confession and Garner's account of eve nts are discussed in Part

I.D. infra

, and are summarized in “Appendix A” to this opinion.

14 Homicide detectives pursued all available leads to the fullest

extent, but had little success. The news media reported widely on

the police investigation and reported all pertinent details as they

became available from the police. For example, as early as the day

after the shootings, the press reported that the bowling alley had

been burglarized the night before, that four victims were shot in

the head, execution style, with the males being shot in the left

side of the backs of their heads, and the female shot in the cheek,

that wallets we re found near the scene, and that money was taken

from the register. The press also reported on the $10,000 reward

being offered by the Fairlanes Company, and later that the reward

was increased to $15,000 by a private donor.

At the scene, Garner was unable to make any statement to aid

in the police investigation. He underwent more than seven hours of

surgery the morning of July 14th and remained in critical condition

for several days. However, as his condition was improving by July

17th, Garner's treating physician advised the homicide detectives

that Garn er was independently remembering details of the offense

and w as alert enough to briefly speak with detectives. Over a

period of four days, Garner spoke with homicide detectives on four

separat e occasions, and each conversation was both tape recorded7 The state h abeas court sustained the State's objections to

the admission of both the transcripts of Garner's statements and a

diagram of the victims' body positions at the time of the shootings

penned by Garner, on the grounds that the transcripts and the

diagram were not relevant since Garner was not called as a witness.

In our view, the state habeas court's failure to admit these

matters co nstituted plain and clear error. Likewise, the state

habeas court's failure to admit these materials leads us to

conclude that, under § 2254(d)(2), "the fact finding procedure

employed by the State court was not adequate to afford a full and

fair hearing" on the ineffective assistance claim.

15 and transcribed by the police. 7 The essence of each of Garner' s

interviews with the detectives is abstracted as follows:

i. Garner's July 17, 1980, Statement

On the morning of July 17, 1980, Garner gave his first taped

interview with Houston homicide detectives Miland Kardatzke and Gil

Schultz. This first interview occurred only three days following

his surgery and was relatively brief. The dialogue contained in

the transcript is direct in that the detectives did not employ

either leading or suggestive questions. However, in this first

interview, which had to be cut short, Garner's responses can at

times best be described as garbled, but he was nevertheless able to

relay to the detectives the following basic information.

At the time of the robbery there were four individuals present

at the bowling alley. Approximately one hour after the doors were

locked, the lone robber, a male individual whom Garner had never

seen before, came into the bowling alley through the front door and

asked all four to lie down near the control booth. Garner indicated

that the robber gained initial entrance into the bowling alley by16

convincing the night manager, Steven Sims, that he needed to fill

a white plastic container with water for his car. Garner also

indicated that Sims and the robber went outside together after the

robber talked his way in and that when they came back in, the

robber directed Sims to get the money out of the register and made

all four of the victims lie down on the floor. After a minute or

so, Garner stated that the robber just started shooting and he

thought he was shot third.

ii. Garner's July 18, 1980, Statement

At approximately 4:45 p.m. the ne xt evening, Kardatzke

returned with Detective Williamson and Of ficer Yarberra to speak

with Garner in his hospital room. In this second interview, which

w as also taped and transcribed by the police, Garner's respon ses

were more articulate, and he added the following information.

Garner had arrived at work at approximately 5:30 p.m. and

worked until closing. He and Temple were going to stay through the

n ight and Steve Sims was going to leave once he finished his

paperwork after closing. Garner recounted how he moved his car

across the street to the church so that it would look like no one

was there. He stated that Sims locked the front door after

closing, but unlocked the door sometime later to let the robber in.

When the robber first arrived, Garner was bowling on lanes 25

and 26. Garner gathered from the context of Sims's and the

robber's actions and conversation that the robber needed to fill a8 Garner's drawing is initialed by Williamson, who was present

during the July 18th interview with Garner and who testified at the

state habeas evidentiary hearing as to the authenticity of the

drawing as being Garner's account of the body positions at the time

of the shootings. See “Appendix B,” Garner's drawing attached to

this opinion.

17 plastic c ontainer he was carrying with water for his car. Sims

went out the front door with the robber and they returned a short

time later. When the two men reentered the building, Garner walked

up to see what was going on. He noticed then that the robber had

a gun by his side. Garner stated that the robber took Sims over to

the register to g et the money out and that they were all made to

lie down. Then, according to Garner, the robber just shot them,

" boom, boom, boom." Garner stated that no one screamed or said

anything and that the robber didn't strike anyone before shooting.

He recalled talking on the phone to both his mother and the manager

of the bowling alley whom he referred to as "the head guy."

Garner initially stated that the robber was a black man, but

later corrected the detectives by stating "no, he was white."

G arner also described the man as approximately 25-28 years old,

with no hat or mask. He also described the robber as medium build.

In addition to the statement given to the detectives on the 18th,

Garner also identified the relative positions of the victims at the

time of the shootings in a drawing made during this interview. 8 He

depicted the victims' relative positions at the time of shooting,

in a semi-circular configuration ordered as follo ws: Felsher,

Sims, Garner, Temple.18

iii. Garner's July 19, 1980, Statement

On the evening of July 19th, Garner gave his third interview

with Houston homicide detectives Novak and Magan, which was taped

and transcribed by the police. Garner reiterated most of the

information previously given to the other detectives; that is, that

Sims let the robber in after he knocked on the door, that the

robber had a container for water for his car and that Sims and the

robber exited and returned.

Garner a dded that when he first approached Sims and the

robber, the robber asked him if he could open the register, to

which he responded "I don't know how." The robber then made him

lie down on the flo or. The robber asked Sims if anyone else was

there. Temple and Felsher were called up to the front and the

robber made them lie down on the floor, too. The robber then

stayed in front o f the control counter with the gun on everybody

and directed Sims to go empty the register and hand over the money.

After Sims did this, the robber made him come out from behind the

control counter and lie down on the floor just outside of the

swinging doors. Garner told the officers that he lay down between

Sims and Temple, with Felsher lying on the other side o f Sims.

Garner stated that while on the floor, no one said anything to each

other, no one screamed, and the robb er didn't hit anyone. Once

Sims was back down on the floor, the robber just paused for a

minute, said "good-bye," and shot everyone.9 We note here that, at the police investigators' request,

Garner underwent hypnosis on August 21, 1980, and a report of that

session confirmed the general information provided by Garner in his

tape recorded interviews of July 17, 18, 19, and 20 . Additional

information regardin g the taking of wallets and the robber's

physical description was obtained from this interview. The

following is taken from the written summary report of the hypnotic

interview which was memorialized on the distr ict attorney's

letterhead and signed by Robert J. Bodisch and B.T. Neff.

The witn ess stated that he arrived at work at

approximately 4:30 p.m.

. . . [A]t approximately 9:30

p.m. the bowling alley manager called and asked him to

spend the night at the bowling alley. The witness told

the manager it would be O.K. if he could get another man

to do it with him. The witness stated that he then moved

19 Garner recounted again how he got up after the robber left and

called his parents, and he remembered the manager of the bowling

alley calling him. He then stated that he went back over and lay

down in a different position than where he had been shot. He

recalled lying down next to Felsher bec ause she was the only one

still alive. Garner surmised that he passed out shortly

thereafter. He regained consciousness when his father arrived at

the scene.

iv. Garner's July 20, 1980, Statement

Garner gave his fourth interview with Kardatzke and Detective

Ladd ("Ladd") the evening of July 20th which was taped and

transcribed by the police. He repeated the same general

information he had given the three previous days but added that the

robber was a little over 6 feet tall, had no facial hair, and had

light brown hair pulled back. No additional information was

provided at this interview. 9his car to the church across th e street. He stated he

moved his car so that nobody could see it. He stated

that the manager also talked to Tommy about staying. The

witness stated that at 11:30 p.m. they were getting ready

to close, the customers had left, and at that time Tommy,

Steve, Elaine [sic] and himself were the only p ersons

left in the bowling alley. He stated that he was at the

bowlers stand on lane 25-26 with Elaine [sic] and he

noticed Steve letting a guy into the front door. The

witness stated that he had never seen the guy before, he

had dark hair, a little bit curly around the shoulders,

p arted down the middle, clean shaven face. He stated

that he did not pay much attention to the guy because he

thought Steve knew him. He stated that the guy went

outside but came back in[;] at this time he finished

bowling and was walking to the counter. He stated that

Steve and the other person were next to the counter. The

witness stated that as he walked up to the counter the

guy asked him if he could get the money out of the

register. He stated that the guy had a gun in his right

hand. The witness stated that he told the guy he

couldn't get the money out of the register. The guy then

asked if he had his wallet and the witness replied no.

The witness was then told to lay on the floor. The guy

then asked Steve if anyone else was in the place and he

replied yes. The witness further described the guy as 6

feet, 170 lbs., dark hair, skin was white, clean shaven,

curly hair-shoulder length-pretty long, average build

wea ring a short sleeve shirt. The witness stated that

Steve then went to the middle of the counter and called

T ommy to come up to the front. Tommy and Elaine [sic]

both arrived and laid down next to the witness. Steve

and the guy then went to the register and got the money

and then Steve laid down beside the others on the floor.

The guy then again asked for this witnesses [sic] wallet

and this time the witness took it out of his back- pocket

and placed it in front of his head. The witness stated

that the guy told them they only had 10 or 15 s econds

left, and that the guy was nervous. The witness stated

that the guy shot us. He stated he heard one maybe two

shots before he was shot, and that he was not the last

one to be shot. He stated, "I don't know why he shot, he

didn't say anything." The witness stated that the man

who shot him was the same man that came in the first time

after they closed.

This hypnotic interview was conducted approximately two weeks after

20Soffar was arrested and charged for capital murder of Felsher, and

after Garner was unable to identify Soffar in a line-up.

10 Garner assisted in the production of a second composi t e

drawing of the same perpetrator on August 5, 1980, the day Soffar

was initially arrested for theft of a motorcyc le and first

questioned regarding the bowling alley murders. Despite this, he

was unable to identify Soffar in a line-up on the next day, August

6.

11 Indeed, Soffar's sister, Jackie Carney, testified that at

some point between July 14th and August 5th, and while in her car

en route to her doctor, Soffar said "Jackie, you know that

composite drawing that I seen on the news, . . . that looked kind

of like Latt [Bloomfield], and that would be an easy way to get a

$10,000 reward would be to say that Latt [Bloomfield] did it."

21 v. The Composite Drawing

In additi on to the information Garner provided to the

investigators about how the robbery occurred, he was also able to

assist a police artist in developing a composite drawing of the

lone perpetrator. Along with the composite drawing, on July 30,

1980, police released Garner's description of the perpetrator as a

white man between 25 and 30 years of age, 6'-2", 160 to 185 pounds

with brown to dark br own hair worn combed back in front and over

the ears, but not touching the collar. 10 The composite drawing and

Garner's description were widely publicized in the newspaper and on

the local television news. 11

It is apparent that despite the alleged "retrogressed

amnesia," which the State suggested at Soffar's trial rendered

Garner's memory unreliable, detectives relied on the credibility of

Garner's statements and composite drawings obtained therefrom12 League City, Texas, is located in Galveston County, Texas,

and lies approximately 23 miles southeast of downtown Houston, on

the east side of Interstate 45.

22 throughou t their investigation. Police statements to the press

included the investigators' firm belief that they were looking for

one unknown white male "hi-jacker" matching the description Garner

gave, who ta lked his way into the bowling alley by feigning car

trouble. After initially receiving over 250 calls in regard to

publication of the composite drawing, by August 4, 1980, the

exhaustive police investigation of the bowling alley murders had

few if any promising leads.

On August 5, 1980, at approximately 8:00 a.m., a League City,

Texas, police officer, Raymond Willoughby, observed Soffar

traveling approximately 57 miles per hour on a motorcycle in a 45

mile per hour speed zone on the westbound side of West 518 in

League City, Texas. 12 Subsequent investigation disclosed that the

motorcycle was stolen in Friendswood, Texas on August 4, and Soffar

was arrested for motor theft and placed in jail.

C. The Interrogation of Max Soffar and His First Three Written

Statements

Over a period of three days following his arrest on the stolen

motorcycle charge, while he was in custody and without counsel

present, Soffar would sign three written state ments, prepared by

detectives, in which he implicated himself and Latt Bloomfield in

the bowling alley robbery-murders.

After booking Soffar for the motorcycle charge, the League13 We note that because Clawson’s conversations with Soffar

were never tape recorded or tra nscribed, we do not know what was

said to convince Soffar to talk.

14 A more detailed description of the events involv ed in the

taking of Soffar's statements can be found in Soffar I

. S ee Soffar

I

, 237 F.3d at 425-32.

15 Soffar was also questioned for approximately 20 minutes by

Assistant District Attorney Terry Wilson, and only this brief

interview was tape recorded that day. Neither a cassette tape nor

a transcript of this brief interview with Wilson is contained in

23 City police contact ed Detective Bruce Clawson of the Galveston

County Sheriff’s Organized Crime Unit, for whom Soffar had been an

informant. Soffar also knew Clawson from spending time at the

Friendswood Police Department and considered Clawson his frie nd.

Because of this supposed friendship, Clawson was summoned to be a

“friendly face” for Soffar and to “hold Soffar’s hand,” in an

effort to convince him that “he should talk to the Houston

detectives.” It is clear, however, that although Soffar believed

that they were friends, the feeling was not mutual. Discussing his

relationship with Soffar, Clawson stated, “Max might h ave

considered me a friend but I didn’t consider him a friend ... my

primary job as a police officer was to ge t Max to talk.” After

speaking with Soffar during the morning of August 5 , Clawson

succeeded in getting Soffar to speak with the Houston detectives. 13

i. August 5, 1980--Soffar's First Statement 14

After Clawson's efforts to get Soffar to continue talking were

successful, Detective Schultz interrogated Soffar for an additional

two hours. 15 At 3:30 p.m. on August 5, 1980, Soffar signed athe record before us.

16 There is no evidence confirming that this robbery occurred.

24 written statement prepared by Detective Schultz. The statement was

identified as State's Exhibit 108, and wh ile not introduced into

evidence by the State, it was used against Soffar during the guilt

phase of his capital murder trial. In this first statement, Soffar

stated the following. He and Bloomfield went to the bowling alley

one night in the first part of July and Soffar entered through a

side door and c hecked the cash drawer. Bloomfield asked him to

return the next night with his pistol , but he told Bloomfield he

was not going to do it. He did, however, later agree to drive

Bloomfield to the bowling alley and wait outside. While he waited

in the car outside the fr ont door, he saw Bloomfield move some

people around and he heard two shots when Bloomfield was out of his

sight. He then saw Bloomfield make some people get on their knees.

As he moved the car forward, he heard another shot and then two

more shots. He stated that Bloomfield told him that someone pulled

a gun on him. They then went to Galveston where Bloomfield robbed

a U-Totem convenience store 16 and they bought some drugs.

After giving this first written statement, Soffar was

transported to Houston police headquarters, where he spent an

additional 3 hours with Housto n police officers before he was

transported to the jail at approximately 7:43 p.m.

ii. August 6, 1980--Soffar's Second Statement17 While neither a cassette tape or a transcript of this

conversation is contained in our record, the rec ord does reflect

that during Williamson's interrogatio n, he drew a map for Soffar

including significant details, and that the map was then adopted by

Soffar.

18 Garner was also unable to positively identify Bloomfield,

who had been arrested and brought to Housto n police headquarters

and placed in a line-up. We pause here to note also that a search

warrant executed on Bloomfield's residence and car yielded no

evidence linking him to the bowling alley robbery-murders.

Similarly, a search warrant executed on Soffar's residence failed

to produce any evidence of Soffar's involvement.

19 This conversation, like virtually all others with Soffar was

neither tape recorded nor transcribed. Instead, the substance of

these interrogation session s was summarized by detectives and

presented to Soffar in the form of written statements for his

signature.

25 B eginning shortly after 9:00 a.m. the morning of August 6,

1980, Williamson mirandized and interrogated Soffar for

approximately 50 minutes in a ta pe-recorded conversation during

which Soffar relayed more details of the same basic scenario, i.e.,

that he d rove to the bowling alley and that Bloomfield did the

robbery and shootings alone. 17 At approximately 10:00 a.m., Soffar

was taken to a line-up arranged for surviving witness Garner's

viewing. Garner failed to positively identify Soffar. 1 8 Soffar was

then mirandized and interrogated again by Williamson and Ladd, for

approximately 1 hour and 15 minut es before giving his second

statement. 19

At 2:44 p.m. on August 6, 1980, Soffar signed the second

written statement prepared by Ladd. This statement was identified

as State's Exhibit 109. As with State's Exhibit 108, the second20 The police obviously knew this was not true because they had

previously arrested the four youthful perpetrators of the burglary

which Soffar now claimed that he and Bloomfield committed.

26 statement was not introduced into evidence by the State, but was

used during the guilt phase of his capita l murder trial. In his

second statement, Soffar told the same basic story as he had in his

f irst statement, adding the following details. The night before

the robbery-murders, it was Soffar who kicked in the glass side

door of the bowling alley to commit the burglary. 20 The next day,

Bloomfield picked him up at 1:00 p.m. and they hung out together

f or the afternoon. That evening they drove back to the bowling

alley at 9:00 p.m., but since there were a lot of people there,

they just parked t he car and drank beer until most everyone had

left. Again, Soffar stated that he pulled the car up in front of

the doors while Bloomfield went inside of an unlocked front door.

Bloomfield was approached by two people and then another, and he

made these three lie down on the floor right in front of the door.

Bloomfield motioned to someone else to come over and then Soffar

heard the first shot. He could see the feet of the people on the

floor. He then heard another and then several other shots.

Bloomfiel d came running out of the bowling alley with the gun in

one hand and the lady's stocking he had put over his face when he

entered in the other hand. Bloomfield told him that someone pulled

a gun on him so he "did what he had to do." Soffar added that they

went to buy drugs that night from an individual named "Pops," and21 Cel ia Nathan was also an attorney who had represented the

Soffar when they had Max Soffar committed to a Texas state mental

hospital in Max's pre-teen years.

22 In a letter written t o one of Soffar's appointed defense

counsel, Joe Cannon, which is discussed infra at Part I.E.iii

. Soffar alleged that during this drive around town, the detectives

becam e forceful with him and told him that Garner had picked him

out of the line-up, so he "might as well say [he] did it and get a

life sentence."

27 that several weeks after the robbery-murders Soffar told Pops about

the "deal at the bowling alley." He asked Pops "if he heard about

it and that Latt [Bloomfield] and I had done it."

At some point after signing his second statement at 2:44 p.m.,

Soffar was visited by, and he spoke pri vately with: his mother,

Zelda Soffar; his uncle, Carl Lander; and his aunt, Celia Nathan. 21

Ms. Nathan informed Detective Ladd that the family was in agreement

that Max should cooperate with the police. At approximately 4:00

p.m., Detectives Williamson and Ladd checked Soffar out of the jail

and took him in a patrol car to the crime scene. They pulled into

the parking lot, but did not go ins ide of the bowling alley. At

approximately 5:30 p.m., the detectives d rove Soffar to an area

south of Houston where he identified Lawrence Bryan t, a.k.a.

“Pops,” as the person from whom he and Bloomfield had allegedly

purchased drugs the night of the robbery-murders. At approximately

7:30 p.m., the detectives then to ok Soffar to Galveston where

Soff ar pointed out a convenience store Bloomfield had allegedly

robbed. Soffar was checked back into the jail at 10:55 p.m. 22

During the time Soffar was riding around with Detectives23 Detective Tom Ladd is the brother of Detective J.W. Ladd

("Ladd").

28 Williamson and Ladd, the police released Bloomfield from custody,

citing a lack of any corroborating evidence to justify charging him

in the robbery-murders.

iii. August 7, 1980--Soffar's Third Statement

Beginning at approximately 8:42 a.m. the morning of August 7,

1980, Detectives Tom Ladd 23 and Ted Thomas interrogated Soffar for

approximately two and one-half hours. Soffar was also briefly

interrogated that morning by Williamson. That afternoon, a felony

capital murder complaint was filed against Soffar alleging that he

intentionally caused the death of Felsher while in the course of

committing or attempting to commit the armed robbery of Sims.

Upset because he had learned that Bloomfield had been released

and because he thought that he was going to be charged with all

three m urders alone, Soffar contacted a family member and asked

them to have detectives come and see him at the jail. At

approximatel y 7:30 p.m. that evening, Detectives Ladd and

Williamson came to see Soffar again. Soffar inquired as to why

Bloomfield had been released and the detectives responded that they

did not yet have enough evidence on Bloomfield to either hold or

charge him. Ladd then began actively interrogating Soffar for

another 30 mi nutes before beginning to take and prepare Soffar's

third statement.

At 9:25 p.m. on August 7, 1980, Soffar signed the third24 This statement is reproduced exactly as prepared. All

scrivener's errors and omissions are contained in the original.

29 written statement prepared by Ladd. This statement, identified as

State's Exhibit 110, was introduced into evidence by the State, and

used against Soffar during the guilt and penalty phases of his

capital murder trial. The entire text of Soffar's third statement

reads as follows: 24

My name is Max Soffar. I have been in jail since Tuesday

morning for this bowling alley deal. I gave two previous

statements, one to detective Schultz and one to detective

Ladd. I didn't tell the whole truth in those statements

and want to now so that I don't take this whole thing by

myself.

One thing that I didn't tell the truth on was that

Lat Bloomfield and I did this thing when we first got to

the bowling alley, not like I said about being there in

the parking lot for awhile. Lat drove in and we were in

h is brown thunderbird. Lat pulled right to the front

door so that the passenger side was next to the bowling

alley. I think that there was a couple of cars in the

parking lo t when Lat pulled to the door. Lat pulled a

stocking over his hair so that his hair would be pulled

back. I pulled up my t-shirt over my nose and mouth.

Lat had his 357 revolver which I think is an R-G model.

This gun had about a three inch barrel. He had the gun

under his shirt when we walked in a guy asked w hat we

were doing. Lat pulled the revolver and stuck it in this

guys face and said, "This is a robbery." Lat pulled this

guy by the hair and made him get down on his knees and xx

walked up. This was two dudes and a girl. Lat told them

to get on the floor and if they didn't do what he told

them that he would shoot this first guy who was already

on the floor. They got down on their knees away from the

counter and Lat made them come back closer to the control

counter and they did. They were laying from the door so

that there was a dude and then a girl and then another

dude and then the last dude. The second dude was trying

to look up and Lat told him not to be looking and to turn

a round and lay facing the way all the others w ere. He

then turned around so that they were all facing back

towards the snack bar. The second dude kept looking

around so Lat fired a warning shot into the floor. The30

girl screamed and then Lat told h er to shut up and she

kept screaming. Lat kicked the girl in the back and then

the second dude who was the one who kept looking up

started to raise up. He was about half way up when Lat

shot him in the back of the head. Then Lat just turned

around and shot the third dude. This third dude was the

first one Lat grabbed and made get on the floor. He shot

him the same way as the first one that he shot. Lat threw

me the gun and told me to shoot the other two. I

hesitated and then he said, "Shoot them now." I aimed

the gun and the oth er guy who was still left who was

closest to the door and fired one time. I hit him in the

back of the head behi nd the ear. I walked around the

o ther side of them and heasitated [sic] and Lat said,

"Shoot her." She had her face down and she just looked

up at me and I aimed and turned my head and shot her. I

think I hit her in the ch eek. I had the gun and ran

around and looked in the cash register over by where you

get the shoes. I got all the bills and a little of the

change and then went to the office but the door was

locked. I went over to the cash register by the snack

bar and took bills out of it too. I put the money in my

pockets. I went back by the office and tried to force

the door open but I couldn't get it opened. Lat was

looking under the counter for a money bag and I think he

got 50 or 60 dollars. We walked over by the office and

I told him I thought I sa w some headlights. I went

outsid e but I didn't see anyone so when I came back in

Lat w as rumageing [sic] through their pockets and took

the wallets out of their pockets. He took the money and

I t hink that he kept the wallets. We looked around to

make sure that nobody was looking a nd we didn't see

anybody. I asked him if he wanted to check in the back

and he said no. So, we looked in the bathrooms making

sure no body was in there. Then we left. I still had

the gun. Lat drove and we had the windows down to his

car. He made a right on the highway and drove down for

a little bit and then turned around and came back past

the bowling alley. I asked him why he shot the dudes and

he said he shot the dude for raising up and playing hero.

He said he made me shoot the other two so that I would

be as guilty as him if we got caught. I put the gun

under the front seat after I reloaded it and it only had

one live bullet in it before reloading. I don't know

where the gun is now. The last time I saw the gun was I

believe last Saturday night and Lat had it at that time.

We went to score some pills and got 24 pills over at the

dope house. These were preludins. After the gas and

pills I got 95 dollars out of the deal and I think Lat25 We note, as did the Texas Court of Criminal Appeals, that

neither this third statement nor either of the two previous

statements, set out "the date, county, city, state, nation, street

address or name of the bowling alley, the name of any victim, or

any other fact which might expressly reflect that appellant's

statement relates to the offense for which he was tried, convicted,

and given the death sentence." S offar v. State

, 742 S.W.2d at 375.

26 The witness signatures at the bottom left side of the

diagram belong to Detectives Cain and Kardatzke.

31 got a lot more. We went to my house and did some

preludin and Lat said he was afraid someone had seen his

car so he went and took it home. He walked back over to

my house that night and we did the rest of the pills. We

stayed up all day and went out to the park the next day.

I was scared and that is the reason that I did not tell

the whole truth before and I feel like shit and feel bad

about what happened and ought to take my punishment for

it. I think Lat and me both ought to pay for what we

did. 25

In addition to his written statement, Soffar drew a diagram of

the positions of the victims at the time of the shootings. In the

diagram, Soffar depicted the four victims lying parallel to one

another with their feet aligned along the edge of the control

booth. This diagram was not introduced into evidence during

Soffar's capital murder trial, but was admitted into evidence by

th e state habeas court. It is attached to this opinion as

“Appendix C"

. 26

D. Inconsistencies Between Garner's and Soffar's Accounts

As a factual matter we pause here briefly to note that when

juxtaposed, Garner's and Soffar's accounts of the robbery-murders

appear dramatically at odds with one another. The numerous

fundamental factual inconsistencies between these two versions of32

e vents are both obvious and striking. The most noteworthy

discrepancies between Garner's recollection during interviews by

detectives and Soffar's third written statement are summarized in

table format i n “Appendix A" to this opinion. This appendix is

followed by Garner's diagram of the victims' positions at the time

of the shootings ( see “Appendix B" )

, which also differs

dramatically from Soffar's diagram of the victims' positions at the

time of the shootings ( see “Appendix C" ).

According to Garner’s diagram, the victims at the time of the

shooting were in a semi-circular position with Garner located

between Sims and Temple. Thus, the order of the victims was

Felsher, Sims, Garner, and Temple, or female, male, male, male. In

contrast, Soffar’s diagram shows the victims at the time of the

shooting in a straight line in the following order: male, female,

male, male. Although Soffar’s diagram is consistent with the scene

when the victims were found, it is significantly inconsistent with

Garner’s version of where the victims were located when the

shooting took place. Further, in his statements, Garner explained

why the order of the victims changed from the time of the shooting

to the time the police arrived, telling the pol ice that after he

used the phone, h e laid down in a different location next to

Felsher, who was the only other victim still alive at the time.

We also note that the physical evidence in this case supports

Garner's account of events more than Soffar's third state ment.33

With respect to the forensic and ballistics evidence, as discussed

supra

, the bullet holes found in the carpeting of the bowling alley

are consistent with the body configuration recalled by Garner, that

is, with him lying between Sims and Temple when he was shot. There

is no physical evidence to suppo rt Soffar's account of Garner

having been shot lying between the front door and Felsher. In

fact, the only unmatc hed bullet hole, which could represent the

f inal resting point of the bullet exiting just beneath Garner's

left eye, is the one between Sims and Temple. Also with respect to

body configuration, the photographs of the crime scene depict the

bodies aligned, not parallel to one another along the edge of the

counter as depicted in Soffar's account, see “Appendix C" , but in

a semi-circular configuration nearly identical to that depicted by

Garner in his diagram, see “Appendix B" . Indeed, the photographs

sho w a large vacant space between the bodies of Sims and Temple

where, according to Garner, he would have been lying when shot.

With respect to Garner's account of how the perpetrator gained

access to the bowling alley by feigning car trouble, a passerby to

the bowling alley, who was never called as a witness by the State,

told the police that at approximately 11:50 p.m., he passed the

bowling alley and slowed down because he was looking for a place to

purchase cigarettes, and that he saw a car parked directly in front

of the bowling alley with its hood up. This individual saw just

one person walking from that car toward the front entrance of the27 The police overlooked the water jug and did not dust it for

fingerprints. The next morning, the bowling alley cleaning crew

recalled seeing it, but removed it and washed it because they

thought it wa s used by investigators to clean up fingerprinting

dust.

28 This letter is reproduced exactly as penned by Soffar. All

scrivener's errors and omissions are contained in the original.

34 bowling alley. Additionally, one of the police photographs of the

crime scene showed that there was a white plastic water jug like

the one described by Garner as belonging to the robber located on

the control booth counter. 27

E. Appointment of Counsel and Pre-trial Developments

On August 8, 1980, the day after Soffar gave his third written

s tatement, Soffar made his preliminary initial appearance on the

f elony capital murder charge before the 232nd Judicial District

Court of Harris County, Texas. During this appearance, the state

court appointed Frederic k Stover and Joseph Cannon to represent

Soffar because of his indigence. These attorneys, who were present

in the courtroom to accept their appointment, w ere advised that

their client had already signed three written statements

implicating himself in the charged offense.

i. Soffar's Letter to Counsel

At some point after first meeting with Cannon, Soffar wrote a

letter to Cannon explaining his side of the story. In a

handwritten letter, Soffar wrote: 28

This whole thing started when, this detective in

Friendswood said he was going to lock me up cause I was35

a habitual criminal. His name is Mr. Palmary. He's

busted me a few times and he does not like me. He told

me next time I bust you for som ething bad I'm going to

put you away for the rest of your life. Well anyway, he

busted me the last time for false imprisonment. Me and

a girl had an argument and she wanted to leave and I

wouldn't let her. So someone called the police and he

talked her or rather he therened her. She had a 38 snub

nose pistol in her pocket when we were arrested, so he

told her if she didn't file some charges on me for

kidnapping or false imprisonment, that he would file on

her for a concealed wepon. Then he comes in and says I

got you now boy. So when I got arrested on that stolen

bike I look up and who drives up, Mr. Palmary, and he's

standing there with them lueague City police saying, I've

got you now punk. So we go to lueague City Jail and I

started thinking well Ill fix you smart ass and I told

them I wanted to talk to bruce Clawson about the bowling

alley. I knew it would be hell on me if I said anything

but at that point I didn't care.

I was already on a years probation out of galveston co.

and I'm caught on stolen bike. By the way that bike had

the licence plate on it from another bike I had stolen.

plus I ha d been on bond from an auto theft charge from

Brazoria County. plus I am holding pot and some stolen

jewels. So I told them that so palmary couldn't put his

slimy hands on me. I told my sister when I saw that

drawing of the killer, I told her it looked like latt. he

stol e some silver from my house so I was going to tell

the police he did it and get the reward, and get evan.

Sh e told me not to do it so I didn't. Then when I got

pulled over and I see palmary standing their I decided to

say I knew who did it. Next thing I know them homicide

detectives had me saying I did it. the truth is I did not

kill anyone. There is a lot more to this than I can

write. I will tell you the whole thing when I see you so

you can check out my side of this to be sure yourself.

Them police had me say what they wanted to hear. Did you

know I took a polygraph test? I was on acid when I took

it.

T he night before the robbery, their was a burgu rly at

this bowling alley. I told the police the night before

t he robbery, I broke into the bowling alley. Th at was

what I saw on the t.v. so I said in a statement, me and

lat bloomfeild did the burgurly. When I told them I

killed some girl, which was another lie, they asked me if

I really broke in the night before. I said no. They36

asked me that quiestion about 1 00 times. I put in a

statement that I did. But after they kept asking me that

same question over and over I said no, just to see what

he would say. I did not put in a statement that I didn't

brake in the bowling alley. I said I did. Then he told

me I didn't do the burgurly cause they arrested some kids

for it. If I really did this why didn't I say I didn't

brake in. Cause that was what I saw on the news. I

thought the brake in was done by the same person or

persons that did the robbery.

Me and 2 homicide police went out looking at bowling

alleys. They wanted me to point out the bowling alley we

robbed. They w ere drinking

. We stopped 3 or 4 times for

cokes for their mixed drinks! I asked them for some for

my nerves and they said no. But they were drinking and

that's when they started getting forceful. I made 2 more

statements later that day. I w ill take a polygraph test

to prove I'm not lying about the drinking or the force

they used. They also told me that greg gardner picked me

ou t so I might as well say I did it and get a life

seentence. They also asked me why lat shot the girl in

the face before I made the last 2 statements. I said in

one of the statements that I did it. In the 3rd

statement after they gave me a few details, I said I shot

he r, to get them off my back. I went thru more

quiestions than I thought I would. After I went back to

my cell after I gave the second statement I was so tired

I just gave in to them.

The of ficers that were drinking was detective ladd and

detective Williamson. They took me to galveston and to

lamarge, to check out some robberys that I told them me

and lat did. They all turned out to be lies. I admit

that I did rape that girl in Alvin I told them I did. I

told the Galveston County Sheriff I stole 2 motorcycles

and I did

. But I told them I shot the girl in this case.

It's a lie

. I knew I was in lots of trouble anyway, for

all the other things I have done, that's why Im in the

trouble Im in now.

ii. Garner’s Final Interview

On August 21, 1980, after all of Soffar's confessions had been

taken and the State had been enjoined from interacting with Soffar

any further, the State su bmitted Garner to questioning under37

hypnosis. Presumably, the hypnotic interview was conducted in an

effort to bolster the strength of the State's case against Soffar.

However, Soffar's a ppointed counsel were not invited and did not

attend this session with Garner ; and in the end, Garner's account

of events under hypnosis only served to confirm the version of

events he had described in his init ial interviews with

investigators, and that version of events differed dramatically

from the version given by Soffar in h is written statements. S ee

“Appendix A"

. If Garner had testified at trial in a manner

consistent with the statements made to investigators on July 17,

18, 19, 20, and August 21, 1980, such testimony would have

seriously undermined the State's case against Soffar.

The State did not call Garner as a witness at Soffar's trial.

Indeed, at trial, instead of calling Garner, the State called Dr.

Gildonburg, the neurosurgeon who operated on Garne r, during its

case-in-chief. Dr. Gildonburg testified that Garner could be

suffering from retrogressed amnesia and that Ga rner could have

created a false memory of events. Dr. Gildonburg did not express

any medical opinion that Garner was in fact suffering from amnesia.

Additionally, we note that Soffar's defense counsel were informed

that Garner w as a "vegetable" with no memory of the offense, and

incredibly, based upon this assertion and the fact that Garner was

not going to be called by the State as a witness, Soffar's defense

counsel did not even at tempt to interview Garner themselves.38

Rather amazingly, d efense counsel instead chose to bolster Dr.

Gildonburg's testimony by asking and receiving an affirmative

response to the question, "would it be a fair statement

. . . that

a person that suffered the type of wounds that Greg Garner

suffered, no one, including Greg Garner, himself, would ever know

whether he was giving an accurate account of the events that caused

his injury?," thus implying to the jury that, indeed, Garner had no

useful memory of the offense.

F. The Trial

Beginning on March 16, 1981, Judge Van Stovall presided over

Soffar's capital murder trial which, exclusive of nearly four weeks

of voir dire and jury selection, lasted two and a half weeks.

During the trial, and pursuant to Jackson v. Denno , 378 U.S.

368 (1964), Judge Stovall conducted a two-day hearing out of the

jury's presence on the admiss ibility of Soffar's first three

written statements. During the J ackson v. Denno hearing, Sergeant

Bruce Clawson testified that Soffar neither asked for an attorney,

nor had any questions about his rights. At the conclusion of the

admissibility hearing, Judge Stovall entered an oral ruling that

the three statements were freely and voluntarily made after

appropriate Miranda warnings. A written order to the same effect

was entered on May 22, 1981. In his rulings, Judge Stovall held

that each of Soffar's first three written statements was signed

after Soffar "knowingly, intelligently and voluntarily waived the39

Statutory and Constitutional rights."

Clawson and the other witnesses who testified at the Jackson

v. Denno hearing, repeated t he essence of their testimony before

the jury. The State offered the testimony of Lawrence "Pops"

Bryant to corroborate Soffar's confession. Bryant testified that

several weeks after the bowling alley robbery-murders, Soffar asked

him if he had heard about the bowling alley murders and then stated

to him "if I told you who did it you wouldn't believe me." During

this conversation, Soffar told Bryant that three people got shot.

Bryant te stified that Soffar indicated to him that he and

Bloomfield were involved in the bowling alley robbery. Mabel Cass,

Bryant’s girlfriend testified that she did not participate in, but

witnessed the conversation between Bryant and Soffar, and confirmed

in substance that Soffar talked to Bryant about the bowling alley

robbery-murders.

Defense counsel pr esented Soffar’s case based on an alibi

theory. Soffar's mother, Zelda Soffar and other witnesses

confirmed that Soffar spent the entire weekend of July 12-13, 1980

helping a family member move. Martin and Donna Naylor testified

that they dropped Soffar off at his mother's house in Friendswood

sometime after 7:00 p.m. on the evening of July 13, 1980.

According to the Naylors, all of the men who were moving the family

belongings, including Soffar, were exhausted from working all day,

for two days stra ight in the summer heat. Mrs. Soffar testified29 Mrs. Soffar, who had a substantial hearing problem also

testified that, though she did not hear Max or anyone else come or

go that evening, and though the family dog never barked as it

normally did when people came to the house, Max's bedroom had its

own exterior door. Prosecutor Tobias suggested during her

cross-examination that it was possible that Soffar left, committed

the bowling alley robbery-murders, and returned before she awoke.

40 that Max was exhausted when he was dropped off and that he watched

a little bit of television and then went straight to bed. She

testified that he was in the house when she awoke the next morning,

July 14, 1980. 29

On March 31, 1981, the jury returned a verdict of "guilty of

the offense of capital murder." Judge Stovall then presided over

the penalty phase of Soffar's trial, which lasted three days. The

State called nume rous witnesses to attest to Soffar's criminal

history and reputation for having a vi olent temper. Amazingly,

Soffar’ s defense counsel presented no testimony or mitigating

evidence of any kind whatsoever during the penalty phase.

The three special issues submitted to the jury pursuant to the

applicable version of Article 37.071(b) of the Texas Criminal Code

were as follows:

A. Do you find from the evidence beyond a reasonable

doubt that the conduct of the Defendant that caused the

death of the deceased was committed deliberately and with

the reasonable expectation that the death of the deceased

or another would result?

B. Do you find from the evidence beyond a reasonable

doubt that there is a probability the Defendant would

commit criminal acts of violence that would constitute a

continuing threat to society?

C. Do you find from the evidence beyond a reasonable30 Judge Azios was not the same judge who tried the c a se

originally. Judge Van Stovall, who was a visiting judge, presided

over Soffar's original trial.

41 doubt whether the conduct of the Defendant in killing the

deceased was unreasonable in response to the provocation,

if any, by the deceased?

T EX

. C RIM

. P ROC

. C ODE A NN . § 37.071(e) (Vernon 1981).

On April 3, 1981, the jury returned its verdict answering each

of the three special issues in the affirmative. Consequently, as

required by Texas law when the jury so answered, the trial court

entered an order sentencing Soffar to death by lethal injec tion.

Id.

G. Post-Conviction Proceedings

Soffar's conviction and sentence were automatically appealed

to the Texas Court of Criminal Appeals which, on September 23,

1987, affirmed So ffar's conviction and sentence in a written

opinion. S ee Soffar v. State

, 742 S.W.2d 371 (Tex. Ct. Crim. App.

1987) (en banc). Soffar's conviction became "final" for purposes

of this appeal when the United States Supreme Court denied Soffar's

petition for writ of certiorari on October 10, 1989. S ee Soffar v.

State , 493 U.S. 900 (1989).

On December 14, 1 992, Soffar filed a state application for

writ of habeas corpus in the 232nd District Court of Harris County,

Texas, alleging twenty-four grounds for relief. Judge A.D. Azios 3 0

conducted a thirteen-day evidentiary hearing during the time period

between August 16, 1994 and September 8, 1 994. On November 10,31 Claim 24 concerned the argument that e xecution of a death

sentence after a period of more than 15 year since the sentence was

imposed is cruel and unusual punishment. S ee Lackey v. Johnson

, 83

F.3d 116 (5th Cir. 1996).

32 Brady v. Maryland , 373 U.S. 83 (1963).

42 1995, Judge Azios entered written findings of fact and conclusions

of law recommending denial of Soffar's application. On April 8,

1996, the Texas Court of Criminal Appeals, in a two-paragraph,

unpublished per curiam opinion, followed Judge Azios's

recommendation and denied Soffar's appl ication for habeas corpus

relief.

On April 22, 1996, Soffar filed his first federal petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Southern District of Texas alleging

twenty-four claims for relief. Soffar filed a motion for partial

summary judgment in the district court, and the Director filed a

motion for summary judgment on all of Soffar's claims. T he

Director did not contest that Soffar had sufficiently exhausted his

available state remedies, except with respect to claim 24, 31 as to

which the Director waived exhaustion, and with respect to a portion

of Soffar's Brady 32 claims, which were premised upon the State's

alleged suppression of a ballistics repo rt and the pretrial

statements of Garner . The district court assumed that Soffar had

properly exhausted his state cour t remedies with respect to the

Brady claims, and denied Soffar's Brady claims on the merits. The33 The district court specifically found "that the Record was

s ufficient for determination of the pending motions," and denied

Soffar's motions to augment the record.

43 district court refused to grant Soffar's motion for discovery and

an evidentiary hearing, 33 and entered a written order granting the

Director's motion for summary judgment on all claims.

Soffar filed his notice of appeal from the decision of the

district court in this case on April 24, 1998, and he filed his

motion requesting issuance of a certificate of probable cause to

appeal with this Court on September 3, 1998, which covered among

other claims the following issues:

(1 ) Whether the State violated Soffar's Fifth Amendment

privilege against compelled self-incrimination by interrogating him

after he had invoked his right to c ounsel, and further, that the

State obtained an invalid waiver of his rights by virtue of untrue

and deceptive responses made by a detective to Soffar's questions

about obtaining counsel, which re ndered his subsequent custodial

statements involuntary;

(2) Whether the extraneous offense evidence u s ed against

Soffar in the penalty phase, that is, Soffar's August 19, 1980,

written statement as to the rape of Caroline Knight, was tainted by

a violation of Soffar's Sixth Amendment rights beca use the State

interrogated Soffar after he had requested and been appointed

counsel;

(3) Whether Sof far was denied the effective assistance of44

counsel by virtue of his defense counsel's failure to investigate,

develop, and present available evidence during the guilt phase of

Soffar's trial; spe cifically, the failure to retain a ballistics

expert or develop ballistics evidence, and the failure to

investigate, develop, or present evidence with respect to Garner's

statements to police.

On December 21, 2000, the panel issued its opinion in Soffar

I which granted a COA on the merits as to each of the issues

described above. Having determined that Soffar was entitled to

full relief from his conviction and sentence based on the merits of

his Fifth Amendment chall enge, the panel majority reversed the

order of the district court granting summary judgment in favor of

the Director, and remanded the case to the district court for entry

of an order granting Soffar's applica tion for writ of habeas

corpus, setting aside Soffar's conviction and sentence for capital

murder, and ordering Soffar's release unless the State commences a

re-trial of Soffar within 120 days. S offar I

, 237 F.3d at 461.

The panel did not address the merits of the remaining two issues.

On January 11, 2001, the Director petitioned for rehearing en

banc, in which the Director raised for en banc reconsideration the

correctness of the panel’s determination of the merits of the Fifth

Amendment/ Miranda issues and the panel’s grant of COA on the merits

as to the two other issues. E n banc reconsideration was granted on

M ay 31, 2001, thereby vacating the panel opinion. The e n ba n c34 The conclusionary disposition of the en banc majority

opinion stated:

“We also REINSTATE th e panel’s rulings granting or

de nying a COA as to each claim raised by Soffar. We

REMAND to the panel for consideration on the merits of

the outstanding issues for which a COA has been granted.

See footnote 1.”

45 Court, in an opinion ( Soffar II ) issued on July 29, 2002, and

authored by Judge Emilio Garza, affirmed the district court's

denial of Soffar's Fifth Amendment claims raised in his habeas

petition. However, the e n banc Court reinstated the panel's

rulings granting or denying COA on the merits as to each of the

other claims raised by Soffar. The e n banc Court, therefore,

remanded the case to the panel for consideration on the merits of

the outstanding two issues for which COA was granted. S offar

, 300

F.3d at 598. 34

II. STANDARD OF REVIEW

Because this is Soffar's first federal habeas corpus petition,

which was filed pursuant to 28 U.S.C. § 2254 on April 22, 1996, two

days pr ior to the effective date of AEDPA, we are bound by the

Supreme Court's decision in Lindh v. Murphy , 521 U.S. 320 (1997),

to apply the substantive provisions of § 2254 as they existed prior

to the changes made by AEDPA. Under the pre-AEDPA provisions of

§ 2254(d), which govern our substantive review of the merits of

Soffar's petition, when considering a petition for writ of habeas

corpu s, we presume the factual determinations of the state court46

made after a hearing to be correct unle ss one or more of the

following exceptions to such a presumption of correctness applies:

(1) that the merits of the factu al dispute were not

resolved in the State court hearing;

(2) that the fact finding 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 applicant in the

State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation his constitutional right, failed to

appoint counsel 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;

(7) that the applicant was otherwise denied due process

of law in the State court proceeding;

(8) or unless that part of the record of the State court

proceeding in which the determination of such f actual

issue was made, pertinent to a determination of the

sufficiency of the evidence to support such a f actual

determination, is produced as provided for hereinafter,

and the Federal court on consideration of such part of

the record as a whole concludes that such f actual

determination is not fairly supported by the record[.]

See 28 U.S.C. § 2254(d) (1994). Notwithstanding this deferential

scheme for state court factual determinations, we review the

federal district court's factual findings for clear error, and we

review issues of law de novo

. S ee Crane v. Johnson

, 178 F.3d 309,

312 (5th Cir.), cert. denied , 528 U.S. 947 (1999).

III. DISCUSSION47

We now address whether Soffar was denied the effective

assistance of counsel by virtue of his defense counsel's failure to

investigate, develop, and presen t available evidence during the

guilt phase of Soffar's trial. Specifically, we must consider

whether Soffar's defense counsel’s failure to retain a ballistics

expert or develop ballistics evidence, and the failure to

investigate, develop, or present evidence with respect to Garner's

statements to police amounted to ineffective assistance of counsel.

As a prelimi nary matter, we must first consider the State's

argument (substantially adopted by Judge Garza in his dissent here

in Soffar III ) that "Soffar did not allege, either in state courts

or in the court below, that his trial attorneys rendered

ineffective assistanc e of counsel by failing to investigate and

develop evidence regarding Greg Garner's statements to police or by

failing to obtain a ballistics expert or other ballistics

evidence." The State, therefore, now argues that those claims were

not exhausted because they were never fairly presented to the state

courts. In turn, the State concludes that Soffar's ineffective

assistance of counsel claim should not be considered by this Court.

In his dissent in Soffar I

, Judge Garza sets forth his

disagreements with the panel majority as to the merits of Soffar’s

Fifth Amendment/ Miranda challenge; but he raised no objections of

any kind as to the grant of COA on the merits as to any of the

three issues. We start with the premise, therefore, that the grant

of COA on the merits as to all three issues was unanimous by the48

panel. On e n banc reconsideration, the en banc Court, in an

opinion authored by Judge Garza, addressed and reversed the panel

majority decision on the merits of Soffar’s Fifth Amendment/ Miranda

issue, but it did not decide anything as to the correctness of the

panel’s grant of COA as to the other two issues, though the State

raised such issues in its petition for en banc reconsideration. To

the contrary, the en banc Court “reinstated” the panel’s grant of

COA on the merits as to all issues. Likewise, the e n banc Court

remanded the case to the panel for consideration on the merits of

these two issues. ( see note 34, supra )

After briefs were filed and oral argument was held in the

current appeal and during the time that the opinions here in Soffar

III were being drafted, the Supreme Court issued its decision in

Miller-El v. Cockrell , 537 U.S. 322 (2003), on February 25, 2003

.

In Miller-El

, the U.S. Supreme Court reversed and remanded the

decisions of another panel of this Court which had denied a

certificate of appe alability on all of the four issues which

petit ioner had sought from the United States District Court,

Northern District of Texas. After commenting that our Circuit had

applied “too demanding a standard on more than one level” the

Supreme Court in Miller-El issued the following instructions:

At the C OA stage, however, a court need not

make a definitive inquiry into this matter.

As we have said, a COA determination is a

separate proceeding, one distinct from the

unde rlying merits. S lack

, 529 U.S. at 481,

120 Supreme Court 1595 ; Hohn

, 524 U.S. at 241,49 118 Supreme Court 1969 . The Court of Appeals

should have inquired whether a “substantial

showing of the denial of a constitutional

right,” had been proved. Deciding the

substance of an appeal in what should only be

a threshold inquiry undermines the concept of

a COA. The question is the debatability of

the underlining constitutional claim, not the

resolution of that debate.

Miller-El , 537 U.S. at 342.

In our view the grant of COA by the original panel decision in

Soffar I to consider the merits of the two claims before us here,

which has been rei nstated by the opinion of the e n banc Court in

Soffar II , clearly complies with the test of “debatability of the

underlying constitutional claim s” as instructed by the Supreme

Court in Miller-El

.

In his dissen t here in S offar III

, Judge Garza obviously

decides to change his mind in part about our prior grant of COA’s

on th e merits of these two issues and now contends that the

ineffective assistance of counsel issue is not properly before us

procedurally, thereby avoiding the mandate of our en banc Court to

address the merits of that issue, for which COA was granted. Out

of an abundance of caution, however, we address the State’s (and

now Judge Garza’s) contentions with the following analysis which is

what was relied upon by the panel in Soffar I to grant COA on this

issue, though not expressly articulated therein.

A. Whether Soffar's Ineffective Assistance of Counsel Claim has

been Exhausted in the State Courts

.

Applicants seeki ng federal habeas relief under § 2254 must50

exhaust all claims in state c ourt prior to requesting federal

collateral relief. The exhaustion requirement is satisfied when

the substance of the federal habeas claim has been fairly presented

to the highest state court. S ee Duncan v. Henry

, 513 U.S. 364, 366

(1995); Fisher v. State of Te xas , 169 F.3d 295, 302 (5th Cir.

1999). This requirement provides state courts with a "'fair

opportunity' to apply controlling legal principles to the facts

bearing upon [the petitioner's] constitutional claim." Anderson v.

Harless

, 459 U.S. 4, 6 (1982). A claim is "fairly presented" to

the state courts if there has been, for example, (1) reliance on

pertinent federal cases employing relevant constitutional analysis,

see Gartrell v. Lynaugh

, 833 F.2d 527, 529 (5th Cir. 1987);

Williams v. Lord

, 996 F.2d 1481, 1483 (2d Cir. 1993); (2) assertion

of the claim in terms sufficiently particular as to "call to mind"

a specific right protected by the Constitution, see Evans v. Court

of Common Pleas

, 959 F.2d 1227, 1231-33 (3d Cir. 1992); or

(3) allegations of a pattern of facts that is well within the

mainstream of constitutional litigation, s ee United States v. ex

rel. Sullivan v. Fairman , 731 F.2d 450, 454 n.8 (7th Cir. 1984).

State habeas proceeding

We find that Soffar's ineffective assistance of counsel claim

now before this Court was "fairly presented" to the state courts

and, therefore, that the exhaustion requirement has been fulfilled35 We note that on March 8, 1994, the state habeas court signed

an ord er, which was drafted by the State's attorneys. The State

contends the order limited the hearing to the specific allegations

contained in the application, which according to the State, did not

include allegations regarding Soffar's claims concerning Garner's

statements and the ballistics evidence in question. Specifically,

on this issue, the order limited the hearing to: "Ineffective

assistance of counsel for failure to investigate, develop and

present evidence and argument at the guilty [sic] phase supporting

[defense counsel’s] chosen theory of defense a nd undermining the

reliability of [Mr. Soffar's] written statements to police." Our

review of the order's language leads us to only one conclusion. We

find that the order pertaining to Soffar's ineffective assistance

of counsel claim was defined in terms of broad issues. The order

d id not exclude Soffar's claims regarding Garner's stateme nts to

police or the ballistics evidence.

51 for the following reasons. 35 During the state habeas proceeding,

Soffar's counsel examined Officer Williamson, who along with

Detective Kardenski, conducted an interview with Garner on July 18,

1980. Soffar's counsel moved to admit the transcript of this

interview with Garner into evidence. The State objected to its

admissibility based on relevance. The following dialogue then

occurred between the state habeas court and Soffar's counsel:

THE COURT: Transcript of a[n] interview in which

Detective Williamson and Kardenski–what's the relevancy

of Mr. Gardner's [sic] statement?

MR. SCHROPP: Relevancy is Mr. Gardner was the sole

surviving victim at the bowling alley, gave statements to

the police that were inconsistent with the conf ession

produced, taken from Max Soffar.

THE COURT: So just 'cause they're inconsistent you

want me to admit it or what?

MR. SCHROPP: Yes sir the main reason we want them

admitted has to do with what we previously urged the

Court is that this is material that was available through

the State file through the police file and the offense

report material that was all available to the d efense52

counsel at the time that they were working on the case

Your Honor.

Statement of Facts, Sept. 6, 1994, at 80-81. The State then argued

that admitting Garner's statements during the examination of

Officer Williams was "not the proper way to admit them with regards

to ineffective [assistance] of counsel." The court then ruled that

Garner's statements were not relevant and refused to admit them

into evidence.

There is no doubt that Soffar "fairly presented" his

ineffective assistance of counsel claim concerning h is defense

counsel's failure to investigate the discrepancies between Soffar's

statements and Garner's statements made to the police. "For a

claim to have been 'fairly presented' to a state court to fulfill

the exhaustion requirement, the applicant 'need not spell out each

syllable of the claim before the state court.'" F isher

, 169

F.3d at 303 (quoting Whitehead v. Johnson

, 157 F.3d 384, 387 (5th

Cir. 1998)). The state habeas court, however, chose not to take

the opportunity to apply controlling legal principles to the

relevant facts bearing upon Soffar's constitutional claim. Rather,

it chose to rule that this evidence, perhaps the most compelling

evidence that Soffar had, was not relevant and was inadmissible.

Moreover, in his proposed findings of fact and conclusions of

l aw presented to the state habeas court, Soffar consis tently

recited facts and allegations that give rise to the constitutional

claims under Strickland

, which are now before this Court. Soffar53

did so even though it might have appeared futile to continue

pursuing the issue in the face of the state habeas court's ruling

that Garner's statements were no t relevant and, therefore, were

inadmissible. For example, Soffar asserted:

In light of his prior statements to the police, and his

failure to identify [Soffar] at a line-up, Garner's

testimony would not have supported the case presented by

the prosecutors based on the Statement and, indeed, would

have contradicted it in the key respects noted above,

including the absence of any "warning shots"/"fifth

bullet." The prosecutor falsely told defense counsel

that Garner was, at the time, a "vegetable," and defense

counsel accepted this information, making no attempt to

even contact Garner prior to trial. Joe Cannon Testimony

at 136 (8/23). Defense counsel also took no steps to

develop evidence regarding the substance of Garner's

statements, which could have been done, even in Garner's

absence, by questioning the investigating police officers

who took Ga rner's statements regarding the contents of

their offense repor t s, particularly in light of the

prosecutor's claim of Garner's unavailability as a

witness. There is nothing to indicate that defense

counsel ever became aware that the physical, ballisticsrelated evidence consists of four bullets and 15

fragments and is consistent with the firing of four

shots, not five, in the bowling alley.

Pet.’s Proposed Findings of Fact and Conclusions of Law, July 26,

1995, ¶ 238, at 84.

Soffar, furthermore, argued that "counsel unreasonably failed

to conduct an analysis of the ballistics evidence in the State's

possession, which would have shown that, contrary to the State's

unfounded contentions and the version of events set forth in

[Soffar's] Statement, only fou r shots were fired in the bowling

alley, not five." Id. ¶ 292, at 111. In addition, he contended

that "counsel failed to analyze the ballistics evidence relating to

the location and order of the victims in which they had been shot,54

e vidence which, again, conflicted with [Soffar's] Statement, bu t

which was consistent with a number of statements given to the

police by the only eyewitness to the offense, Garner, whom defense

counsel failed to interview ." Id. ¶ 293, at 111. And, Soffar

complained that "counsel failed to re tain and work with a

ballistics expert who could have explained the significance of the

ballistics evidence to the jury and brought out the inconsistencies

between the physical evidence, on the one hand, and [Soffar's]

Statements and the theory of the case presented by the State on the

other." Id. ¶ 294, at 111. As Soffar notes, these facts were not

explicitly raised in his pleadings because they were not discovered

by his appointed defense counsel. Rather, these facts came to

light during discove ry for the state habeas proceeding. When

factual matters not raised by the pleadings are introduced during

an evidentiary hearing, those facts are treated "in all respects as

if they had been raised in the pleadings." T EX

. R. C IV

. P. 67.

The fact that the Texas Court of Criminal Appeals did not make

an explic it ruling on Soffar’s ineffective assistance of counsel

claim bears no weight on whether the claim has been exhausted.

Once a federal claim has been submitted to the state’s highest

court, the exhaustion requirement is satisfied, even if the state

court fails to address the federal claim. Ridgway v. Baker

, 720

F.2d 1409, 1412-13 (5th Cir. 1983) (citing United States v. Digmon

,

434 U.S. 332, 333-34 (1978)); Carter v. Estelle

, 677 F.2d 427 (5th

Cir. 1982) (determining that when “the substance of the55

petitioner's claims is brought to the state court's attention, the

fact that the court does not explicitly pass on the claims is

irrelevant to the question of exhaustion, because the opportunity

to consider them has been presented”).

Based on the numerous instances cited herein in which Soffar

presented to the state habeas court his ineffective a ssistance

counsel claim as it relates to Garner’s statements and the

ballistics evidence, it is clear that Soffar sufficiently exhausted

his state court remedies.

B. Whether Soffar's Ineffective Assistance of Counsel Claim Was

Properly Raised in the District Court.

Likewise, we also conclude that Soffar properly presented to

the district court his claims that his defense counsel were

deficient because: 1) they failed to investigate and raise readily

apparent inconsistencies between a) facts to which Garner would

have testified that tended to exculpate Soffar, and b) Soffar’s

statements given under interrogation to investigating officers, the

only link between Soffar and the charged offense; and 2) they

failed to retain an expert to examine and develop the ballistic

evidence.

i. Federal habeas petition

In Soffar’s federal habeas petition filed April 22, 1996, his

first ground for relief alleges that:

Petitioner Was Denied The Effective Assistance of Counsel

In Violation Of The Sixth and Fourteenth Amendments To

The Un ited States Constitution As A Result Of Defense56

Counsels’ Unreasonable Failure To Investigate, Develop

And Presen t Evidence And Argument At The Guilt Phase

Supporting Their Chosen Theory Of Defense And Undermining

The Reliability Of Petitioner’s Written Statements To The

Police.

Pet.’s App. Habeas Corpus, at 15. Albeit a general claim for

ineffective assistance of counsel, Soff ar is clearly asserting a

claim that encompasses both the Garner statements and the

ballistics evidence.

Soffar provid es additional detail in support of his first

ground for habeas relief, arguing that:

[h]aving chosen to present the defense that Max’s written

statements to the police were not credible proof that Max

had been involved in the Fairlane-Windfern offense

. . .,

Max’s trial counsel had a duty to conduct a reasonable

pretrial investigation for evidence supporting the chosen

defense.

Id. ¶ 45, at 17.

The Garner statements and the ballistics evidence would have

certainly supported defense counsel’s proffered defense theory that

Soffar’s statements to officers did not constitute credible proof

that he was guilty of the crime for which he was charged and

ultimately convicted. As noted previously, the Garner statements

would have established numerous contradictions to Soffar’s account

of the events that transpired at the bowling alley. In addition,

the presentation of testimony relating to the ballistics evidence

certainly would have cast reasonable d oubt on Soffar’s statement

that five shots had been fired rather than four as the combined

weight of the bulle t fragments recovered and accounted for in57

connection with the crime approximated that of only four bullets.

Had defense counsel conducted a reasonable pretrial investigation,

these two issues in particular would have provided the necessary

support for their defense theory that Soffar’s statements to police

were not credible proof of his guilt.

Moreover, Soffar specifically alleges that defense counsel:

unreasonably limited their investigation of Max’s

involvement in the crime charged and of the credibility

of Max’s statements to the poli ce to examining the

evidence contained in the State’s file pursuant to the

State’s purported “open file” policy. Defense counsel

conducted no investigation of these matters beyond

reading those materials made available from the

prosecution’s file.

Id. ¶ 47, at 17-18 (internal citation omitted).

Again, this allegation sets forth a specifi c ground for

relief, identifying defense counsel’s failur e to investigate the

sources of evidence not in the State’s file, i.e.

, the Garner

statements, the ballistics evidence, as well as interviews of

Garner himself. Whether the Garner statements were in fact

included in the State’s file, defense counsel’s inability to

identify and utilize those statements clearly supports a claim of

ineffectiveness of counsel. Further, defense counsel’s failure to

pursue and develop expert testimony relating to the ballistic

evidence that would have presented the jury with con flicting

evidence as to the number of shots actually fired during the

commission of the crime likewise supports an ineffective assistance

claim. Finally, defense counsel were also ineffective in failing58

to contact Garner when doing so would have clarified the extent to

which Garner could have assisted them in contradi cting the

statements attributed to Soffar.

In Soffar’s third ground for habeas relief in his federal

petition, he alleges that the State violated Brady by failing to

disclose certain evidence, including evidence indicating that only

four spent bullets had been recovered from the crime scene. Soffar

argues that:

[h]ad defense counsel physically examined the ballisticsrelated evidence, or engaged competent experts to do so,

they would have been aware that (i) there were only four

recovered bullets, not five, and (ii) the pattern of the

holes in the carpet, and the fact that one hole did not

go all the way through the carpet pad, as did the other

three, was inconsistent with a theory that they were

caused by one “warning” shot and three bullets existing

from victims . . . .

Id. ¶ 128, at 57-58.

Although this specific allegation is found under Soffar’s

third ground for habeas relief, i.e.

, his Brady claim, there is

nothing in our habeas jurisprudence that requires a party to raise

a constitutional issue on appeal under a particular heading. As

such, this specific allegation explicitly and adequately sets forth

a ground for relief on Soffar’s ineffective assistance of counsel

claim as it relates to defense counsel’s failure to identify and

develop the ballistics evidence.

ii. Soffar’s summary judgment motion filed in district

court

Soff ar again raises the issues relating to his defense59

counsel’s failure to investigate the Garner statements and

ballistics evidence in his summary judgment motion filed with the

district court. In his Statement of Facts, Soffar argues that

“[d]efense counsel’s failure to investigate, develop and pres ent

available evidence and pertinent argument during the guilt phase of

the trial . . . would have provided strong support for the chosen

theory of the defense and would have undermined the statements

signed by [Soffar].” Pet.’s Mem. Supp. Summ. J., at 97.

Specifically, Soffar identifies defense counsel’s failure in

identif y ing and investigating “the extent to which [Soffar’s]

statements were not corroborated by the evidence pertaining to the

offense.” Id. at 97-98.

Importantly, Soffar inserts a footnote to the above statement,

referencing the district court to Appendix B of his motion,

attached thereto, in which Soffar expounds on at least ten major

discrepancies between his written statements given to police and

the Garner statements. This appendix attached to Soffar’s summary

judgment motion provides an explicit and detailed elaboration of

Soffar’s claim that his defense counsel failed to investigate and

utilize both the Garner statements and the ballistics evidence.

The appendix sets out the scope and nature of Garner’s statements

to police and meticulously compares them to the third written

statement provided by Soffar to investigating officers. Noting the

numerous discrepancies between the two accounts, Soffar argues:

In light of his prior statements to the police, and his60

failure to identify [Sof f ar] at a line-up, Garner’s

testimony would not have supported the case presented by

the prosecutors based on [Soffar’s] Statement and,

indeed, would have contradicted it in numerous key

respects noted above. Accordingly, the prosecutor

f alsely told defense counsel that Garner w as a

“vegetable,” and defense counsel accepted this false

information, making no attempt to even contact Garner

prior to trial

. N one of the numerous discrepancies

between [Soffar’s] Statement and the evidence, as set

f orth herein, were brought out at trial, and th ere is

nothing in the trial record to indicate that defense

counsel were ever even aware of these discrepan cies —

including the key fact that the physical, balli sticsrelated evidence consisted of four bullets and was thus

inconsistent with the firing of five shots in the bowling

alley, as set forth in [Soffar’s] Statement, as well as

the numerous details pertaining to the “warning-shot”

scenario set forth in [Soffar’s] Statement.

Id. ¶ 38, at 24 (first emphasis added). It is clear from Soffar’s

argument above that the district court was presented with his claim

that he was denied the effective assistance of counsel both as to

Garner’s statements and the ballistics evidence.

Soffar further alleges in his summary judgment motion that:

Because defense counsel did not bring out the evidence

co ntradicting the State’s theory, due to the fact that

the State had withheld [Garner’s statements and

ballistics-related] evidence, the Texas Court of Criminal

Appeals (as had the jury) accepted the misleading version

of the evidence with respect to the order of the victims

pu t forth by the State as “corroboration” for the

[Soffar’s] Statement, and found that the evidence:

established that the bodies of the victims

w ere found in a line basically parallel , in

order of Temple, Sims, Welsher and Garner,

with Garner’s bo dy closest to the door , and

all facing in the direction of the snack bar.

Appellant’s statement: “They were lying from

the door so that there was a dude then a girl

and then another dude and then the last dude,”

and “They were al l facing back towards the

snack bar.”

Petitioner’s defense counsel, having been advised by the36 Alternatively, Judge Garza suggests in his dissent that the

district court did not address Soffar’s claim as to the Garner

statements because the claim had not been presented to the district

court. H owever, as detailed above, we have identified at least

five instances in which Soffar presents to the district court both

general and specific references to his defense counsel’s failure to

investigate the statements made by Garner to police.

3 7 While Judge Garza concedes that Soffar’s ineffective

assistance of counsel claims were raised in the appendix to his

motion for summar y judgment, he maintains, however, that the

d istrict court did not rule on these claims, “ appa rently

recognizing that it could not consider claims not raised in the

61 prosecutor that Garner was a “vegetable” who was

unavailable to testify, failed to take any steps to bring

out the critical contrary evidence relating t o the

position of the victims at the time they were shot

, as

indicated by the actual evidence collected by the police,

or to counter the prosecutor’s false “five-shot”

scenario, and the “evidence” proffered and argument

crafted by the state in support thereof.

Id. ¶ 42, at 27.

In support of the argument that Soffar failed to raise these

issues before the district court, the dissent points to the fact

that the district court did not make a specific ruling on Soffar’s

ineffective assistance of counsel claim as to Garner’s statements

and the ballistics evidence. 36 However, this Circuit has determined

that all claims not disposed of explicitly in a judgment are

considered to have been implicitly rejected by the district court.

Schmueser v. Burkburnett Bank

, 937 F.2d 1025, 1030 (5th Cir. 1991)

(citing 50 C.J.S. § 539)). Therefore, the federal district court’s

failure to make an explicit ruling on Soffar’s claims regarding the

Garner statements and the ballistics evidence is not dispositive of

whether they were properly raised. 37 Rather, this fact reflectshabeas application.” (emphasis added). The tentativeness of Judge

Garza’s position on this point is made more apparent in the support

he cites: 28 U.S.C. § 2242 (the general habeas application section)

and a 1949 district court decision issued by the Eastern District

of Pen nsylvania (a case in which a writ of habeas corpus was

dismissed because the relator was not confined within the

territorial jurisdiction of the court at the time the suit was

instituted). To hold that these claims were not properly raised

simply because the district court elected not to specifically

address them would have questionable and undesirable effects on our

hab eas jurisprudence. If we were to accept Judge Garza’s

suggestion, then any ground for habeas relief not explicitly

adjudicated by a district court would risk being procedurally

barred solely on account of that omission.

62 only that the district court, like the state habeas court, simply

considered and rejected Soffar’s claims of ineffective assistance

of counsel without reasons or in general terms.

In sum, it is abundantly clear based on a review of the record

that Soffar presented to the district court his content ion that

defense counsel: 1) failed to investigate and raise readily evident

stark inconsistencies between Garner’s description of the shootings

and the one that the officers testified that Soffar gave them; and

2) failed to retain an expert to examine and develop the ballistic

evidence, and that such deficiencies supported Soffar’s ineffective

assistance of counsel claim.

C. Whether Defense Counsel were Ineffect ive at the Guilt Phase

Due to Their Failure to Conduct an Adequate Pretrial

Investigation

Having determined that exhaustion is not a bar and that the

relevant issues were properly raised before the district court, we

turn to the substance of Soffar's ineffective assistance of counsel63

claim. Soffar contends that he received ineffective assistance of

counsel during the guilt phase of his trial because his counsel

failed to conduct a n adequate pretrial investigation. Under the

two-prong te st enunciated in S trickland v. Washington

, 466 U.S.

668, 687 (1984), counsel’s assistance must have been deficient and

that deficiency must have prejudiced the defendant. In evaluating

the first prong, judicial scrutiny of counsel’s performance must be

highly deferential, and courts must indulge in a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance. I d. at 689. Under the second prong,

prejudice must be demonst rated by showing that the defendant's

counsel’s errors were so serious that they rendered the proceedings

fundamentally unfair or the result unreliable. L ockhart v.

Fretwell , 506 U.S. 364, 372 (1993).

Soffar contends that his defense counsel were ineffective for

failing to conduct an adequate pretrial investigation for two

reasons. First, Soffar argues that his defense counsel were

ineff ective in not attempting to contact Greg Garner or to

interview the police officers who took Garner's statements, which

would have enabled Soffar's counsel to introduce into evidence the

significant discrepancies between Garner's account of the crime and

Soffar's statements. Soffar contends that had his defense counsel

done so, the reliability of his confessions would have been

undermined. According to Soffar, this would be particularly true

given that the jury would have been made aware that Garner's38 We also observe here that although Soffar named Bloomfield

as his leader and accomplice in the bowling alley murders when he

confessed, according to the S tate, Bloomfield was released and

never charged with the crime because of a “lack of evidence.”

Despite this, Soffar’s counsel never attempted to locate and

interview Bloomfield prior to trial, obtain any statements he may

have made to police, or inquire further into the reasons for

Bloo mfield’s release, including whether Bloomfield had an alibi

whi ch cast doubt on the reliability of Soffar’s confessions.

Because “[c]ounsel has ‘a duty . . . to investigate all witnesses

who allegedly possessed knowledge concerning [the defendant’s]

guilt or innocence,’” this appears to be yet another potential

basis for finding that Soffar’s counsel were deficient in their

perform ance. S ee Bryant v. Scott

, 28 F.3d 1411, 1419 (5th Cir.

1994) (quoting Henderson v. Sargent

, 926 F.2d 706, 711 (8th Cir.

1991)). But because Soffar did not raise this issue in his habeas

petition, we will not consider it in connection with the first

Strickland prong.

64 account and the ballistics evidence were substantially consistent,

w hereas Soffar’s version conflicted with both. Soffar further

notes that the jury would have learned that Garner had described

the gunman as a lone robber and could not identify Soffar or Latt

Bloomfield as the offender at two line-ups conducted by the

police. 38 The result, according to Soffar, is that the plausibility

of the statements attributed to him by the police would have been

placed in substantial doubt by a reasonable juror.

The State, on the other hand, contends that defense counsel's

failure to call Garner to the stand or introduce his statements to

police was not harmful to the defense. According to the State,

placing Garner on the stand would have risked an in-court

identification of Soffar and "damning recollections spurred by an

in-court confrontation with the assailant." The State, therefore,

argues that "[ t]here was simply nothing to be gained from65

attempting to get the substance of the [Garner] statements before

the jury." Without further investigation and subsequent careful

consideration of the probable impact of Garner’s testimony or

statements, however, the State’s assertions are not persuasive.

S econd, Soffar argues that his counsel were ineffective for

failing to retain a ballistic s expert and introduce evidence

concerning the discrepancies between ballistics-related evidence

and Soffar's statements. According to Soffar, his counsel should

have identified several troubling anomalies, which even a cursory

examination of the State's ballistics evidence revealed.

Specifically, Soffar notes that the State argue d the bullet

fragments recovered at the scene of the crime constituted five

bullets, which, according to the police interrogators, is the

number of bullets Soffar said had been fired. The State's theory

was that Bloomfield (who the State released for lack of evidence)

fired a warning shot and then shot two of the victims once, and

then gave the gun to Soffar who shot the other two victims once.

Soffar argues that, had his defense counsel properly prepared, they

would have been able to present evidence that the fragments

constituted the weight of only four bullets, as the State Firearms

Examiner alternatively found. This proof, according to Soffar,

corroborates Garner's account that no warning shot was fired.

Soffar also contends that another significant discrepancy a

ballistic s expert would have highlighted is that the police

discovered Garner in a location different from where he said he was66

shot. Soffar's statement to police placed Garner between Felsher

and the front doors of the bowling alley. Garner, however, told

police that he was shot while lying between Sims and Temple; and he

stated that after making a phone call he lay down by Felsher's side

in an attempt to aid her, which is where the police found him.

i. Whether counsel were deficient

We first consider whether Soffar satisfied the first prong of

Strickland

, i.e.

, whether counsel’s performance was deficient. 466

U.S. at 687. To establish deficient performance, a petitioner must

demonstrate that counsel's representation "fell below an objective

standard of reasonableness." I d

. at 688. The Supreme Court has

declined to articulate specific guidelines for appropriate attorney

con duct and instead has emphasized that "[t]he proper measure of

attorney performance remains simply reasonableness under prevailing

professional norms." Id. We begin our analysis by noting that, as

in Strickland

, Soffar 's claim stems primarily from his trial

counsel's decision to limit the scope of their investigation into

potential evidence favorable to the defendant. Id. at 672-74. In

rejecting Strickland's claim, the Supreme Court defined the

deference owed such strategic judgments in terms of the adequacy of

the investigations supporting those judgments:

[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support

the limitations on investigation. In other words, counsel67

has a duty to make reasonable investigations or to make

a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness case,

a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances,

appl ying a heavy measure of deference to counsel's

judgments.

Id. at 690-91.

The scope of a defense counsel's pretrial investigation

necessarily follows from the decision as to what the theory of

defense will be. At the state habeas proceeding, both Cannon's and

Stover's testimony made it clear that their defense theory was that

Soffar's self-incriminating statements were false and should not be

believed. Nevertheless, in spite of this theory of defense,

Soffar's defense counsel never attempted to interview Garner, the

only known eyewitness, to (1) obtain his description of the

perpetrator[s] and his version of the crime e vents; to (2)

determine whether he could testify at trial, the substance of his

potential testimony, and whether it would be consiste nt with his

taped and transcribed statements and any other information he gave

t o the police; and (3) whether he could identify the

perpetrator[s], had already done so, or attempted to do so.

Defense counsel testified that they did not seek to interview

Garner because an unspecified person told them Garner was a

“vegetable.”

“Guided by Strickland

, we have held that counsel’s failure to

interview eyewitnesses to a charged crime constitutes

‘constitutionally deficient representation.’” A nderson v. Johnson

,68

338 F.3d 382, 391 (5th Cir. 2003) (quoting Bryant v. Scott

, 28 F.3d

1411, 1418 (5th Cir. 1994)). In B ryant

, the defense counsel did

not interview two eyewitnesses a nd limited his pretrial

investigation to examination of the prosecutor’s file, discussions

with the accused, and a review of the indictment. 28 F.3d at 1418.

We observed that “information relevant to [the] defense might have

been obtained through better pretrial investigation of the

eyewitnesses, and a reasonable lawyer would have made some effort

to investigate the eyewitnesses’ testimony.” Id

. (alteration in

original) (citation and quotations omitted). In Anderson

, we held

that a trial counsel’s failure to interview an eyewitness rose to

the level of constitution ally deficient performance, given the

gravity of the burglary charge, and the fact that there were only

two adult eyewitnesses to the crime; and that counsel relied

exclusively on the investigative work of the State, basing his own

pretrial “investigation” on “assumptions divined from a review of

the State’s files.” Id.

We conclude th at Soffar’s defense counsel have offered no

acceptable justification for their failure to take the most

elementary step of att empting to interview the single known

eyewitness to the crime with wh ich their client was charged. We

conclude that this failure is sufficiently deficient to satisfy the

first prong of Strickland

.

As we discussed supra

, Garner pro vided the police with four39 The district court in this habeas proceeding concluded:

In light of th e undisputed fact that Officer Rushing’s

report was made available to defense counsel, Soffar also

knew or should have known that the police had recovered

bullets and bullet fragments weighing les s than the

weight of five bullets. Accordingly, Soffar already knew

or should have known of the “essential facts” of the

purported inconsistency between his “five shots”

confession and C.E. Anderson’s calculation of “four

bullets’ weight” for the weight of bullets and bullet

fragments recovered by the police. Because Soffar from

other available sources “either knew, or should have

k nown, of the essential facts permitting him to tak e

advantage of any exculpatory evidence,” it c an only be

concluded that the ballistics evidence was not

“suppressed” within the meaning of Brady.

Soffar v. Johnson

, No. 96-1281, Aug. 7, 1997 Memorandum and Order,

at 56.

69 statements and a po st-hypnotic interview concerning the crime.

Those statements were in the prosecutor's files prior to the trial,

and the state habeas court made an express finding that there was

no Brady vio lation because the prosecutor followed an open file

policy and kept all reports in Soffar's file, which defense counsel

accessed on multiple occasions. 39 The necessary corollary of this

finding is that, except for their gross neglect or over sight,

Soffar's counsel must have been aware of the existence of Garner's

statements. Garner's statements, as clearly shown in “ A ppendix A”,

markedly conflict with Soffar's statements in a number of

significant ways, including:

(1) the number of perpetrators;

(2) whether the perpetrator(s) wore a disguise;

(3) the manner in which the perpetrator(s) gained70 access to the bowling alley;

(4) whether any of the victims screamed;

(5) the number of shots fired by the perpetrator(s);

(6) the victims' positions at the time they were shot;

and

(7) how the perpetrator(s) went about emptying the cash

register.

Defense co unsel, however, chose not to utilize Garner's

s tatements to show reasonable doubt as to the reliability of

Soffar's statem ents and as to whether they were based on his own

observations. Furthermore, defense counsel never attempted to

interview Garner to determine whether there were any additional

inconsistencies that could aid Soffar's defense or whether it would

be worth having Garner testify at trial. During the state habeas

proceedings, Soffar's defense counsel stated that they did not do

so because they had been told by an unspecified person that Garner

was a "hopeless vegetable" who could not talk or recognize anyone.

The State argues that defense counsel’s decision not to call

G arner to testify was excusable as a reasonable and strategic

decision. Specifically, the State argues that had Soffar’s defense

counsel placed Garner on the stand, they would have risked an incourt identification of Soffar by Garner and a potential series of

“damning recollections spurred by an in-court con frontation with

the assailant.” However, an actual failure to investigate cannot

be excused by a hypothetical decision not to use its unknown

results. This Court has squarely rejected the State’s rationale71

here

— that a failu re to interview a witness is excusable as a

“strategic decision” if the witness would not have been credible

—

holding that while:

a lack of credibility might support a strategic decision

not to call a witness to testify at trial, we explained

that a witness’s character flaws cannot support a failure

to investigate

. Without so much as contacting a witness,

much less speaking with him, counsel is “ill-equipped to

assess his credibility or persuasiveness as a witness.”

. . . Strickland simply does not “require

. . . defer[ence] to decisions tha t are uninformed by an

adequate investigation into the controlling facts and

law.”

Anderson

, 338 F.3d at 392 (alteration in original) (citations

omitted ).

As we stated in Soffar I :

We find counsel's defense strategy in this regard to be

inexplicable. Given the powerfully exculpatory nature of

the inconsistencies between Garner's account of events

and Soffar's confession, which inconsistencies would

render Soffar's confession implausible, one would have

expected defense counsel to do everything in their power

to get the substance of Garner's police interviews before

the jury either by calling Garner as a witness or by

introducing the transcription of these interviews.

Defense counsel should have at least interviewed Garner

t o determine if he could and would testify at Soffar's

trial consistent with his (Garner's) prior statements.

If Garner was not able or willing to so testify, defense

counsel should have offered the prior statements,

re corded and transcribed by the police, as record

evidence of his testimony. Simply put, we are baffled by

defense counsel's strategy, or complete lack thereof,

regarding Garner's statements to the investigators.

Soffar I

, 237 F.3d at 440 n.44. We believe these words continue to

ring true particularly given that Garner was the only eyewitness to

the crime. In addition, Garner's description of the perpetrator

was used to create a drawing that police circulated and the news72

media broadcast to the public, which indicates that the police

believed Garner had sufficient recollection to identify the suspect

and thus was not a "hopeless vegetable."

Finally, had Soffar's counsel investigated the circumstances

of Garner's statements, th ey would have realized the value in

putting before the jury the fact that Garner could describe the

gunman but could not identify Soffar or Latt Bloomfield at two

line-ups conducted by the police. We are convinced that such proof

probably would have raised reasonable doubt in the minds of the

jurors.

Defense counsel knew that Garner, the only surv iving victim

and eyewitness to the crime, was still alive and possibly available

for them to interview. They also knew that the State had

possession of Garner’s transcribed statements containing

significant exculpatory materials. Because defense counsel knew

before trial that there was no evidence independent of Soffar’s

confessions that tended to connect him with the crimes, that the

State would not call Garner as a witness, and that Garner’s

statements to the police conflicted markedly with Soffar’s

confessions and substantially tended to exculpate Soffar, there was

an appa rent reasonable possibility that information and evidence

favorable to Soffar’s defense could have been obtained through

pretrial i nvestigation and interviews of Garner; furthermore, a

reaso nable lawyer would have made efforts to investigate whether

Garner could testify favorably and decide whether Garner’s73

transcribed statements could and should be introduced as

exculpatory evidence. See Anderson

, 338 F.3d at 391-92; Bryant

, 28

F.3d at 1418 (citing Kemp v. Leggett , 635 F.2d 453, 454 (5th Cir.

1981)); Gaines v. Hopper , 575 F.2d 1147, 1149 (5th Cir. 1978).

The Supreme Court recently determined that “[i]n assessing the

reasonableness of an attorney’s investigation

. . . a court must

consider not only the quantum of evidence already known to counsel,

but also whether the known evidence would lead a reasonable

attorney to investigate further.” W iggins v. Smith

, 123 S. Ct.

2527, 2538, 156 L. Ed.2d 471 (2003). Under the circumstances of

this case, we conclude that Soffar's defense counsel's failure to

interview Garner, and carefully determine whether to use his prior

recorded statements or live testimony at trial was constitutionally

deficient performance. See Bryant , 28 F.3d at 1418 (finding that

counsel's "failure to interview eyewitnesses to the crime was

constitutionally deficient performance").

We also agree with Soffar that his defense counsel were

deficient in not seeking out a ballistics expert when there were

such readily apparent discrepancies between the ballistics evidence

and the State's theory of the case. The State's theory relied

heavily on ba llistics evidence to show a correlation between the

statement attributed to Soffar and the crime scene. Yet Soffar's

d efense counsel never even consulted with a ballistics expert.

Defense counsel were aware of the inconsistencies between Garner’s74

statements and Soffar’s confessions regarding both the number of

shots fired and the location of the victims when the shootings

occurred. The defense counsel also were aware from the

prosecution’ s file that the police recovered bullets and bullet

fragments weighing less than the total weight of five bullets,

which tended to corroborate Garner’s account of the events.

Considering this, it was objectively unreasonable for d e fense

counsel to fail to consult with a ballistics expert to determine

whether they could develop expert testimony as to physical evidence

that tended to undermine the credibility and reliability of

Soffar’s confessions.

In Strickland

, the S upreme Court recognized that an

ineffective assistance of counsel claim based on the "f ailure to

i nvestigate" increases the temptation to rely on hindsight. 466

U.S. at 689 . Thus, the Court noted that "strategic choices m ade

after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable ." I d. at 690 (emphasis

added). The Court, however, went on to say that "strategic choices

made after less than complete investigation are reasonable

precisely to the extent that reasonable professional ju dgments

support the limitations on investigations. In other words, counsel

has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary." Id. at 690-91.75

In Wiggins

, the Supreme Court set out to determine whether the

attorneys in the underlying capital murder trial exercised

“reasonable professional judgmen[t]” in their investigation and

presentation of mitigating evidence during the penalty phase of the

trial. 123 S. Ct. at 2535-42 (quoting Strickland , 466 U.S. at 691

(alteration in original)). In doing so, the Court focused not on

whether defense counsel should have presented a mitigation case

during sentencing, but r ather on whether “the investigation

supporting counsel’s decision not to introduce mitigating evidence

was itself reasonable .” Id. The Court thereafter engaged in an

objective review of defense counsel’s performance, measuring it for

“reasonableness under prevailing professional norms.” Id. (citation

and quotation omitted). The Court’s review documented counsel’s

efforts in investigating mitigating evidence, which included: (1)

arranging for a psychological revie w of the defendant; (2)

reviewing the pre-sentence investigation report; and (3) reviewing

the state records reflecting the defendant’s various placements

within the state’s foster care system. Id. at 2536-37. The Court

concl uded that defense counsel’s “decision not to expand their

investigation beyond the [pre-sentence and social services] records

fell short of the professional standards” that pre vailed at the

time.

. . . [C]ounsel abandoned their investigation of petitioner’s

background after having acquired only rudimentary knowledge of his

history from a narrow set of sources.” Id.

Applying the framework established in Wiggins for determining40 We recognize that Wiggins was decided in the context of a

defense counsel’s decision regarding whether to offer a mitigation

case during the sentencing phase of the trial. However, this is a

difference without distinction. Whether the failure to conduct a

reasonable investigation occurs at the sentencing phase or the

guilt phase should warrant no meaningful distinction in defining a

person’s right to effective assistance of counsel. The two-prong

test established in Strickland applies t o both phases of trial.

See Pondexter v. Dretke

, 346 F.3d 142, 146-47 (5th Cir. 2003)

(applying Strickland analysis to ineffective assistance claim

involving guilt phase of capital murder trial); Smith v. Cockrell

, 311 F.3d 661, 668-69 (5th C ir. 2002) (applying S trickland to

ineffective assistance claim involving penalty phase of capital

murder trial).

76 objective reasonabl eness to the present case, the deficiencies

identified in the performance of Soffar’s defense counsel are made

even more apparent. 40 As discussed previously, at trial, Soffar’s

counsel neither presented Garner as a witness nor raised the

inconsistencies between Soffar’s written statements and the

statements made by Garner to the police. In analyzing defense

counsel’s decis ion not to present such evidence, we focus on

whether the investigation leading up to the decision not to call

Garner as a witness or raise these inconsistencies “was itself

reasonable.” Wiggins

, 123 S. Ct. at 2536. The record reflects that

Soffar’s counsel simply asked an un specified person about Garner

and were told that Garner was a “vegetable.” Moreover, defense

counsel were aware that the State was not going to call Garner, the

only surviving victim and eyewitness to the crime, as a witness.

As we have observed repeatedly, defense counsel’s decision to not

even attempt to interview Garner upon learning this information is

remarkable, and the failure to pursue even the most limited of77

investigations into these matters certainly falls below an

objective standard of reasonableness.

Likewise, Soffar's defense counsel chose to do nothing about

t he ballistics evidence. Had they investigated the evidence and

consulted a ballistics expert, they would have been able to make a

strategic decision as to whether such information would have helped

Soffar's defense. As was made evident during the state habeas

proceedings, Soffar's defense counsel would not have had to look

far to find a ballistics expert who could have provided testimony

to aid his defense.

After analyzing the ballistics evidence, Professor Kenneth

Braunstein te stified on behalf of Soffar during the state habeas

proceedings that the "extra" bullet hole in the carpet, which led

the State to conclude that five bullets were fired instead of four,

was made by the same bullet that had made a hole in the carpet

about a foot away. Braunstein also testified that the shootings

likely were not committed in the manner described by Soffar in his

statements. Specifically, Braunstein testified that when shot,

Felsher was the victim clos est to the front door of the bowling

alley, and the pattern of the victims’ locations when shot was

female- male-male-male (Felsher-Sims-Garner-Temple) as Garner had

told police ( see "Appendix B" ), rather than male-female-male-male

(Garner-Felsher-Sims-Temple) as indicated by Soffar’s written

statements ( s ee "Appendix C" ). Ignoring such evidence under the78

circumstances of this case simply cannot be characterized as the

reasonable exercise of professional judgment. Strickland

, 466 U.S.

at 691.

Soffar's defe nse counsel, therefore, were deficient for two

reasons. First, although defense counsel knew that Garner was the

only known eyewit ness, were aware the State did not plan to call

Garner as a witness, and had access to Garner’s taped and

t ranscribed statements, they did not investigate whether the

discrepancies between Soffar's written statements taken by the

police and Garner's potential testimony or taped and tran scribed

accounts of the crime would aid the defense. Second, Soffar's

defense counsel failed to consult with a ballistics expert although

the State's case was largely based on the testimony of a ballistics

expert to show a correlation between the physical evidence at the

scene of the crime and Soffar's written statements. In our view,

Soffar's defense counsel did not make a reasonable de cision that

further investigation was not necessary with regards to these two

aspects of the case. In fact, during the state habeas proceeding,

Soffar's defense counsel offered no reasonable explanation for why

they did not take advantage of these opportunities. Failing to do

so can not be described as a reasonable exercise of professional

judgment or as “part of a calculated trial strategy, but is likely

the result of either indolence or incompetence.” Anderson

, 338 F.3d

at 393 (citation and quotations omitted). Therefore, we find that

Soffar's defense counsel's failure to investigate these key avenues79

of eviden ce was constitutionally deficient, thus satisfying the

first prong of Strickland

.

ii. Whether counsel's deficient performance prejudiced Soffar

We must now address the prejudice prong of the Strickland

analysis. Under the prejudice prong of S trickland

, Soffar must

establish a “reasonable probability that, but for c ounsel’s

unprofessional errors, the result of the proceeding would have been

different.” 466 U.S. at 694 . "An error by counsel, even if

professionally unreasonable, does not war rant setting aside the

judgment of a criminal proceeding if the error had no effect on the

judgment." I d. at 691. Rather, the test we must apply is whether

there is a reaso nable probability that counsel's errors affected

the outcome of the trial. "A reasonable probability need not be

proof by a preponderance that the result would have been different,

but it must be a showing sufficient to undermine confidence in the

outcome." Williams v. Cain

, 125 F.3d 269, 279 (5th Cir. 1997)

(citing Strickland

, 466 U.S. at 694) (internal quotations omitted).

We are of the opinion that Soffar's defense counsel's failure

to conduct an adequate pretrial investigation had a clear negative

impact on the outcome of the trial. The evidence of Soffar's guilt

in this case was not so extensive as to render harmle ss defense

counsel's errors. To the contrary, the State predominately relied

on Soffar's self-incriminating statements despite his history of

confessing to crimes he did not commit. This is particularly

important when Soffar's statements conflict with the account given80

by Garner, the sole witness to the crime. Under the circumstances

of this case, therefore, we are persuaded that the verdict against

Soffar was more likely than not to have been affected by counsel's

ineffectiveness.

This is absolutely not a case where there was clear objective

evidence of Soffar's guilt. No eyewitness testimony placed either

Soffar or Bloomfield at the crime scene. No fingerprints lifted

from the crime scene matched the fingerprints of either Soffar or

Bloomfield. Nothing was taken from the crime scene and later found

in the possession of either Soffar or Bloomfield. No blood or hair

samples were found at the crime scene that matched those of Soffar

or Bloomfield. The gun used to commit this crime was neither found

nor introduced into evidence. Neither Soffar nor Bloomfield were

l inked to a weapon of the same caliber as the bullets recovered

from the crime scene. Nothing Soffar told the police in his

statements led the police to discover any evidence they did not

already have relating to the bowling alley murders.

On the cont rary, the arguably incorrect pattern of the

shootings deduced by the police from the victims’ u ltimate floor

positions led to statements by Soffar fitting that pattern.

Because of the ineffectiveness of Soffar's defense counsel, the

jury never heard about the significantly different description of

what happened at the crime scene contained in the statements Garner

made to the police. Because of the ineffectiveness of Soffar's

defense counsel, the jury never heard the contrary opinions of an81

available qualified ballistics expert that only four shots were

fired (not five as Soffar's statements purported to say), and that

the arrangement of bullet holes in the carpet clearly showed that

Garner was shot in a different place from where he was found by

police (and not where Soffar said he shot him).

Had the jury been confronted with this considerable evidence

favorable to So ffar, there is a reasonable probability it would

have reached a different result. In particular, had the jury been

so confronted, there is a reasonable probability that at least one

juror would have refused to retur n a verdict of guilty. The

available evidence casting doubt on the truth and ve racity of

Soffar’s confessions is strong enough that the failure to present

any of it for the jury’s consideration undermines confidence in the

outcome. Strickland

, 466 U.S. at 694. In light of the State’s

relatively thi n case consisting only of an uncorroborated

confession, there is a reasonable probability that “but for” trial

counsel’s failure to: (1) interview and call Garner to testify or

introduce his transcribed statements; and (2) consult a ballistics

expert of their own to reconstruct the crime scenario for the jury

in accord with Garner’s testimony or statements, the result of the

proceeding would have been different.

Although Soffar's burden in this case is substantial, he is

not required to establish his innocence or even demonstrate "that

counsel's deficie nt conduct more likely than not altered the

outcome in the case." S trickland

, 466 U.S. at 693. In order to41 This Circuit has found the constitutionally deficient

performance of counsel to be prejudicial on numerou s occasions.

See, e.g.

, Anderson v. Johnson

, 338 F.3d 382, 393-94 (5th Cir.

2003) (finding prejudice in a “relatively ‘weak’ case” against the

defendant where counsel failed to interview one of only two

eyewitnesses to the crime in which there was no physical evidence

linking defendant to the offense ); B eltran v. Cockrell

, 294 F.3d

730, 733-35 (5th Cir. 2002) (find ing prejudice where defense

cou nsel decided not to impeach eyewitnesses' testimony that

defendant was only person whom they had picked from photographic

array with t he witnesses’ prior tentative identifications of

another party); Lockett v. Anderson

, 230 F.3d 695, 715-17 (5th Cir.

2000) (holding that defendant was prejudiced under Strickland based

on counsel’s failure to investigate mitigating evidence relating to

defendant’s mental condition); Moore v. Johnson

, 194 F.3d 586, 619-

22 (5th Cir. 1999) (holding that counsel’s failure to investigate

by interviewing witnesses d isclosed to counsel by the state and

counsel’s failure to proceed reasonably in light of that evidence

once disclosed prejudiced the defendant); Gray v. Lynn

, 6 F.3d 265,

269-71 (5th Cir. 1993) (finding prejudice based on an erroneous

jury instruction where the jury could have had a reasonable doubt

concerning the defendant’s intent to kill, and instead could have

convicted him based on intent to cause great bodily harm).

Based upon a review of the fact s in these cases and for the

reasons se t forth in this opinion, we believe that the

circumstances underlying the deficiencies identified in the instant

case certainly meet, if not exceed, the prejudicial prong as

developed by this Circuit.

82 establish prejudice, Soffar need only show that had his defense

counsel conducted an adequate pretrial investigation as discussed

above, there is a r easonable probability that the jury's verdict

would have been different. I d. at 694. Soffar has met this

burden. 41

D. Whether the State Violated Soffar’s Constitutional Rights in

Conducting Interrogations Subsequent to Indictment and

Invocation of the Right to Counsel

Because we determine that Soffar is entitled to habeas relief

based on the merits of his ineffective assistance of counsel claim,

we need not address the second issue before us for which this panel83

and the en b anc Court have previously granted a COA. We do not

consider or address Soffar’s ad ditional claim that the State

violated his Sixth Amendm ent rights by interrogating him outside

the presence of his counsel of record regarding an extraneous

offense that was presented during the penalty phase of his trial.

We are required to grant Soffar relief from both his conviction and

sentence because of the constitutionally ineffective assistance of

his counsel. Therefore, our pronouncement on Soffar’s extraneous

offense claim would be unnecessary and merely advisory.

CONCLUSION

Based on the foregoing, we hold that Soffar's conviction and

sentence for capital murder are constitutionally infirm by virtue

of the ineffectiveness of Soffar's defense counsel. Therefore, we

REVERSE the order of the district court granting summary judgment

in favor of the Director, a nd REMAND this case to the district

court for entry of an order (i) granting Petitioner Max Alexander

Soffar's petition for writ of habeas corpus; (ii) setting aside his

conviction and sentence for capital murder; and (iii) ordering the

release of Petitioner Max Alexander Soffar from custody unless the

State commences a retrial of the Petitioner within 120 days. All

pending motions are hereby DENIED as MOOT.

REVERSED and REMANDED.42 Greg Garner was shot in the head and le ft for dead on the

night of the murders. He survived and gave an accounting of the

crime to the police.

43 The district court denied Soffar relief on each of these

claims. EMILIO M. GARZA, Circuit Judge, dissenting:

We do not have jurisdiction to consider Soffar’s inef fect ive assistance of counsel claims

because he failed to raise them in his federal habeas application and because the district court never

ruled on them. Further, Soffar’s claim that his Sixth Amendment rights were violated when he was

interrogated regarding an unrelated sexual assault c harge is without merit. Thus, I respectfully

dissent.

I

Soffar requests that we consider whether he was denied effective assistance of counsel under

Strickland v. Washington

, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He argues that

h is trial counsels were deficient in failing to investigate and bring out inconsistencies bet ween his

confession to the murders and Greg Garner’s account of the offense; 42 and were deficient in failing

to retain an expert to examine certain ballistics evidence.

Soffar’s federal habeas application raised twenty-four grounds for relief. Eight of t hose

grounds raised Strickland claims: Ground I alle ged t rial counsels failure to investigate Soffar’s

medical history and his personality; Ground II, alleged their failure to raise a Fifth Amendment

challenge to Soffar’s confession; Ground IV, alleged their failure to investigate an unrelated prior act

o f violent misconduct; and Ground XIX, alleged their failure to object to the court excusing a

particular juror. Ground IX, X, XIII, and XIV related solely to the penalty phase of Soffar’s trial and

did not refer either to Garner’s statements or the ballistics evidence. 43

None of the Strickland claims raised in Soffar’s habeas petition alleged his counsels’ failure-85-

to retain a ballist ics expert, develop ballist ics evidence, or develop evidence with respect to Garner’s

st at ements. As the majority opinion notes, Ground I most closely resembles the claims present ly

before this Court, but a closer inspection clarifies their incongruence. Ground I presented multiple

theories of why Soffar’s trial counsel failed to fully investigate and develop the presented defense that

Soffar’s statements to the police were the product of his mental condition

. It alleged counsels failure

to investigate and develop: 1) evidence contained in the State’s file; 2) evidence relating to Soffar’s

police interrogation; 3) evidence from persons in Soffar’s community relating to his mental state; 4)

evidence of Soffar’s organic brain damage; and, 5) its effect on his making incriminat ing statements.

Soffar argued extensively about his counsels’ failure to investigate and develop evidence of his mental

co ndit io n, its effect on his willingness to give a false confession, and the fundamental flaws o f his

confession. He did not argue, however, that his counsels failed to investigate either Garner’s

statements or the ballistics evidence.

The majority opinion cites language in Ground I that if construed broadly and read in isolation

can be interpreted to have raised the Strickland claims presently before this Court. Other language

in Ground I, however, clarifies that Soffar’s only claim in that ground for r elief was that hi s tri al

counsels’ failed to investigate his mental condition :

“Defense counsel argued to the jury at trial that Max’s statements to the police were

the product of his mental condition .” Pet.’s App. Habeas Corpus, ¶ 44, at 15

(emphasis added).

“[D]efense counsel unreasonably failed to investigate, develop and present available

medical evidence that the specific symptoms of Max’s permanent organic brain

damage seriously undermined the reliabilit y of his incriminat ing statement.” Id. at ¶

51, at 19 (emphasis added).

“As a result of counsels’ unreasonable failure to investigate, critical and available

medical evidence was never developed or presented to the jury supporting counsels’

chosen theory of defense. Counsels’ unreasonable failure to present such medical44 Ground III: “The State’s withholding of material evidence

relevant to the guilt phase of Petitioner’s trial, which if

admitted likely would hav e mandated suppression of Petitioner’s

written stateme nts, due to the violation of his Fifth Amendment

right to counsel, and convinced Petitioner’s jury that a reasonable

doubt existed as to whether Petitioner committed the offense

charged, denied Petitioner due process of law under the Fourteenth

Amendment of the United States Constitution.” Pet.’s App. Habeas

Corpus, at 53.

Soffar specifically complained: “[T]he State failed to

disclose to the defense evidence and information which was material

-86- evidence constituted ineffective assistance.” Id. ¶ 61, at 24 (emphasis added).

“Had counsel undertaken a reasonable investigation, counsel would have learned that

Max was born with permanent organic brain damage

, and that he had acquired, in

childhood, additional permanent organic brain damage.” Id. ¶ 63, at 25.

“For example, neuropsychological and neurological examinations a nd testing on

Max confirms the existence of substantial permanent organic brain damage.” Id. ¶

65, at 25.

“Defense counsel had availab le to them p sychiatric assistance for the preparation

and presentation of Max’s defense.” Id. ¶ 74, at 33.

The majority opinion concludes that Ground I was a “general claim for ineffective assistance

of counsel”which included the claims for which it granted habeas relief. Even a cursory review of the

language in Ground I, however, confirms that, like the seven other Strickland claims raised in Soffar’s

habeas petition, it was a specific claim that did not relate to counsels’ failure to investigate either the

Garner statements or the ballistics evidence.

The majority opinion further finds that Soffar raised these Strickland claims in Ground III of

his federal habeas application as part of his contention under Brady v. Maryland

, 373 U.S. 83, 83 S.

Ct. 1194, 10 L. Ed.2d 215 (1963), that the prosecution failed to turnover “material evidence relevant

to the guilt phase of Petitioner’s trial” in violation of his right to “due process of law under the

Fourteenth Amendment of the United States Constitution.” 44 In this ground for relief, Soffar doesto the guilt phase of Max’s trial and which the State was obligated

to produce under the trial court’s discovery order and the federal

Constitution.” Pet.’s App. Habeas Corpus, ¶ 124, at 54.

-87- refer to the prosecution’s failure to turnover ballist ics evidence. He does not, however, refer either

to the need for testimony from a ballist ics expert or to the Garner statements. Even if he had made

t hese factual references, he certainly never articulated or even casually referenced the S t rickland

claims presently before this Court.

Under Brady v. Maryland

, “s uppression by the p rosecution of evidence favorable to an

accused upon re quest violates d ue process where the evidence is material either to guilt or to

punishment.” Brady , 373 U.S. at 87 (emphasis added). The fundamental characteristic of a B rady

claim is misbehavior by a prosecutor, and the constitutional right asserted is due process of law under

the Fourteenth Amendment. S ee id. (A “ prosecution that withholds evidence

. . . casts the prosecutor

in the role of an architect of a proceeding that does not comport with standards of justice

. . . .”)

(emphasis added). The fundamental characteristic of a S tric kland claim is deficient attorney

performance, and the constitutional right ass ert ed is t he Sixth Amendment right to counsel. S ee

Strickland

, 466 U.S. at 687 (“[T]he Court has recognized that the right to counsel is the right to the

effective assistance of counsel.”) (internal quotati ons omitted). Considering a B rady claim finds fault

with a prosecutor under the Fourteenth Amendment and a Strickland claim finds fault with one’s own

attorney under the Sixth Amendment these two types of constitutional challenges to a conviction are

not easily confused. It is unlikely that the experienced counsel who drafted Soffar’s federal habeas

application mistook one of these claims for the other. Unlike many petitioner s before this Court,

Soffar is not proceedings pro se. Rather he is currently represented by very competent counsel from

one of the top law firms in the country. Presumably these attorney s can distinguish between errors45 There is no mention of them in the body of the brief.

-88- by a prosecutor under the Fourteenth Amendment and errors by a defense counsel under the Sixth

Amendment.

It is simply not true that Soffar “explicit ly and adequately” set forth the grounds of his request

for relief under Strickland v. Washington as part of his claim seeking relief under Brady v. Maryland

.

The majority opinion’s conclusion otherwise is particularly suspect in thi s case because Soffar

“explicit ly and adequately” outlined Strickland claims in eight separate grounds for relief in his habeas

petition. S ee supra

. It would seem odd for him to have hidden his ninth and tenth claims under the

misleading heading of a Brady challenge.

Soffar’s failure to raise his Strickland claims as to the bal list ics evidence and Garner’s

statements in his habeas application is highlighted by the district court’s decision to not rule on them.

Despite Soffar raising elements of these claims in Appendix B of his summary judgment brief, 45 the

district court did not rule on the claims, apparently recognizing that it could not consider claims not

raised in the habeas application. See 28 U.S.C. § 2242 (providing that a petition for habeas corpus

be made in a habeas application); cf. United States v. Warden of Philadelphia County Prison , 87

F.Supp. 339, 340 (E.D. Penn. 1949) (holding that until application for writ of habeas corpus is made

“no suit has been instituted”).

The majority opinion dismisses the district court’s decision to not address th ese claims as

irrelevant because “this fact reflects only that the dist rict court, like the state habeas court, simply

considered and rejected Soffar’s claims of i neffect ive assistance of counsel without reasons . . . .”

Although I do not express an opinion as to whether Soffar raised these claims before the state habeas

court, or whether they were silently addressed by that body, the idea that the district court failed to46 The state habeas trial court’s opinion is 183 pages.

47 Because I find that Soffar’s Strickland claims are not

prope rly before this panel, I do not reach the merits of those

claims nor do I consider Texas’s contention that they were not

exhausted in state court.

-89- address these particular claims in a 127 page o pinion 4 6 in which it fully addressed each of Soffar’s

twenty-four “other” claims is nothing short of fantastic. I also find it hard to believe, as the majority

opinion suggests, that the state trial and appellate courts as well as t he federal district court each

engaged in the irresponsible act of ignoring these claims despite Soffar having “clearly” raised them

during each stage of this process.

The district court never ruled on the merits of the Strickland claims before us, thus there is

no appeal to consider. S ee F ED R. A PP

. P. 22(a) (provi ding t he right to appeal the district court’s

denial of habeas relief). The role of this Court is to review the decisions of the courts below us, it

is not to stand as a court of first instance adjudicating new claims at the will of a petitioner’s fancy.

See Zimmerman v. Spears

, 565 F.2d 310, 316 (5th Cir. 1977) (“[T]he Courts of Appeals are not

vested with jurisdiction to entertain a petition for a writ of habeas corpus as an original m atter.”).

That role, to the extent that it exists, is reserved to district courts. The majority has confused our

separate functions. 47

II

The majority opinion does not address Soffar’s Sixth Amendment claim because it finds that

he was denied effective assistance of coun sel. However, because I do not believe relief can be

granted on Soffar’s phantom Strickland claim, I must address the merits of his conten tion that hi s

Sixth Amendment right to counsel was violated when he was interrogated b y a Harris County

detective regarding an unrelated sexual assault charge.48 Soffar was not subsequently charged with the rape,

presumably because he was convicted of these murders.

-90- At some point while Houston Police were interrogating Soffar as to the murders at issue in

t his case, Soffar, without provocation, confessed to the rape of a woman in Harris County. Aft er

charging Soffar with the murders at the bowlin g alley, Houston Police contacted Harris County

Sheriff’s Detective Bockel and informed him of Soffar’s confession. Detective Bockel contacted the

victim in an unresolved rape case and traveled to Houston to interview Soffar. After advising him

of his right to silence and counsel, both of which Soffar waived, Bockel interrogated Soffar. During

this interrogation, Soffar gave a written confession admitting to the rape of the woman who la t er

ident ified him. 48

The victim testified at the punishment phase of Soffar’s capital murder trial and identified him

as the man who had raped her. Neither Soffar’s written confession presented to Detective Bockel,

nor evidence of his oral confession given to Houston Police were presented at the trial. Soffar first

argues that the testimony is “extraneous offense” evidence that is the fruit of Det ective Bockel’s

illeg al int errogation of Soffar in violation of his Sixth Amendment right to counsel. S ee Maine v.

Moulton

, 474 U.S. 159, 180, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). Soffar then cl ai m s that

because this evidence was improperly admitted during the punishment phase of his capital trial, the

death penalty was “improperly imposed” in his case. See Estelle v. Smith , 451 U.S. 454, 471, 101

S. Ct.866, 68 L. Ed.2d 359 (1981) (holding that the death penalty is “improperly imposed” if

evidence obtained in violation of the defendant’s Sixth Amend ment rights is submitted during the

penalty phases of his capit al trial). Soffar’s Sixth Amendment right to counsel was not violated,

therefore, he is not entitled to habeas relief.

As a preliminary matter, the evidence gleaned by police from questioni ng Soffar about the-91-

sexual assault offense, including Soffar’s confession and the victim’s testimony, were admissible in

t he punishment phase of his capital murder trial, even though he was never formally charged wit h

committing the sexual assault. S ee Alabama v. Shelton

, 535 U.S. 654, 665, 122 S. Ct. 1764, 152 L.

Ed. 2d 888 (2002) (“Once guilt has been established

. . . sentencing courts may take into account not

only a defendant’s prior convictions, but

. . . also [his] past criminal behavior, even if no conviction

resulted from that behavior.”) (internal quotations omitted).

At the time of the questioning, Soffar’s Sixth Amendment right to counsel, an offense-specific

right, had not yet attached to the uncharged sexual assault offense. See Kirby v. Illinois , 406 U.S.

682, 688-89, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (explaining that the Sixth Amendment right

to counsel attaches at the initiation of adversarial judicial proceedings “whether by way of formal

cha rge, preliminary hearing, indictment, information, or arraignment”). As Soffar knowingly and

int elligently waived his M iranda rights before being questioned by Detective Bockel a bout the

uncharged sexual assault offense, the police were free to question him, without counsel present, about

that offense. S ee Texas v. Cobb

, 532 U.S. 162, 167, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001)

(refusing to extend the Sixth Amendment right to counsel to uncharged offenses, even if the y are

“factually related” to the charged offenses); McNeil v. Wisconsin, 501 U.S. 171, 175-79, 111 S. Ct.

2204, 115 L. Ed. 2d 158 (1991) (holding that after a defendant’s valid Miranda waiver, despite the

attachment of his Sixth Amendment right to counsel as to anot her o ffense, the police are free to

question that defendant, without counsel present, about crimes for which he has not yet been formally

charged). Therefore, Soffar had no right to counsel with respect to being questioned about the sexual

assault.

Soffar’s Sixth Amendment right to counsel had, however, attached to the murder c harges.-92-

He thus argues that the police officers purposefully “circu mvented” his ri ght to counsel as to the

murde r charges by questioning him as to the sexual assault charge for the purpose of soliciting

incriminat ing statements to be used at the punishment phase of his murder trial. See Moulton

, 474

U.S. at 180 (prohibiting the knowing circumvention of a prisoner’s right to counsel).

Under Moulton v. Maine

, “incriminat ing s t at ements pertaining to pending charges are

inadmissible at t he trial of those charges, notwithstanding the fact that the police were also

investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by

knowingly circumventing the accused’s right to the assistance of counsel.” I d. Thus, if, during the

interrogation, Soffar had made incriminat ing statements pertaining to his capital murder charges

,

those statements would have been inadmissible at Soffar’s capital murder trial, if the State knowingly

cir cumvent ed Soffar’s Sixth Amendment right to counsel. See id

. at 177 (finding police violated

defendant’s Sixth Amendment rights when it recorded a telephone conversation knowing defendant

would discuss “pending charges”).

First, the state habeas court found that during the interrogation Soffar made no incriminat ing

statements pertaining to his pending murder charges. In fact, it found that “the conversation only

concerned the sexual assault

. . . .” As Soffar made no incriminating statements regarding his murder

charge during the interrogation, Moulton , by its own terms, is inapplicable. See id. at 180.

Second, there is no evidence in the record suggesting that Detective Bockel’s purpose in

interviewing Soffar was to solicit incriminating statements to be used at Soffar’s murder trial. The

state habeas court found that: 1) Harris County Sheriff’s Detective Bockel interrogated Soffar as to

the sexual assault; 2) Soffar was advised of his Miranda rights, which he knowingly and intelligently

waived and never invoked; 3) Soffar made a written confession to the assault; 4) Detective Bockel’s49 Specifically the state habeas court found:

1) on August 19, 1980, in the presence of Dete ct ive Earl Bockel of the Harris County Sheriff’s

Office, Soffar made a written statement confessing to the sexual assault of [the victim];

2) prior to any alleged interrogation from Aug ust 8, 1980 to August 19, 1980, adversarial

proceedings against Soffar for the offense of capital murder in the instant case had been initiated;

however, no such adversarial proceedings had been initiated against Soffar for the offense of the

aggravated sexual assault of [the victim], an extraneous offense introduced into evidence during the

punishment phase of Soffar’s trial;

3) during the Jackson v. Denno hearing in the trial in the primary case, Detective Bockel testified that,

on August 19, 1980, he gave Soffar Miranda warnings, that Soffar suffici ently understood those

warnings, that Soffar specified that he did not want his attorney s present but rather wanted to talk

to Detective Bockel only, that the conversation only concerned the sexual assault of [the vict im]

, and

that no coercion or threats were made to Soffar to obtain this confession;

4) during the Jackson v. Denno hearing in the ins tant case, the tri al court found that Soffar never

invoked his right to counsel, and was repeatedly given Miranda warnings and intelligently waived

them under no coercion or improper influence from the police both regarding interrogations covering

the primary case, as well as interrogations covering the extraneous offense of the sexual assault of

[the victim]; and

5) the trial court instructed the jury to consider the evidence of the extraneous sexual assault of [the

vict im] for the limit

ed purpose of aiding the jury in answering any questions that might be presented

in the punishment charge, and also instructed the jury t hat , before the jury could consider the

testimony of the extraneous offense, the jury must find that Soffar committed the extraneous offense

beyond a reasonable doubt.

-93- interrogation was limit

ed to the subject of the alleged sexual assault; and, 5) at the punishment phase

of Soffar’s murder trial, the trial judge instructed the jury to consider the evidence of the extraneous

s exual assault for the limited purpose of determining punishment. 4 9 It did not find that Bockel’s

purpose in interrogating Soffar was to circumvent his right to counsel as to the murder charges or

to gather information that could be used to prosecute those charges.

Further , the record strongly supports the conclusion that Bockel’s sole purpose in

interrogating Soffar was to investigate the unsolved rape. Bockel sought to speak to Soffar only after

h e was info rmed that Soffar had already confessed to a rape in Harris County. Before Bockel50 Although the victim was unable to conclusiv ely identify

Soffar in the live line-up, the use of the line-up further supports

the conclusion that Detectiv e Bockel’s purpose in interrogating

Soffar was to further the investigation of the sexual a ssault

rather than gather evidence for the punishment phase of the murder

trial.

-94- questioned Soffar, he advised him of his Fifth Amendment right to counsel and took Soffar’s written

confession only after Soffar explicitly waived that right. After t aking So ffar’s confession, Bockel

continued his investigation by bringing the victim down to Houston to identify Soffar in a line-up. 50

Bockel was thus deeply engaged in the sexual assault investigation, before, during, and after his

interrogation of Soffar.

There is, however, no evidence suggesting that he was in any way involved in the murder

investigation. Bockel was not a member o f t he Ho uston Police force, much less a member of the

team investigating the murders at the bowling alley. Nor is there any evidence in the record

suggesting that Houston Police asked Bockel to solicit incriminat ing statements to be used at Soffar’s

murder trial. Soffar’s contention otherwise is nothing but unsubstantiated conjecture.

Nothing in the evidentiary record, or the state habeas findings, suggests that Detective Bockel

intended to interrogate Soffar for the purpose of gathering additional evidence to a crime he was not

investigating. Rather, it demonstrates that his purpose was to gather information regarding an

unsolved rape to which Soffar had already confessed to committing. That the evidence Bockel

obtained during the interrogation was used during the punishment phases of Soffar’s capital murder

trial appears to be nothing more than happenstance. S ee id. at 176 (“[T]he Sixth Amendment is not

violated whenever )) by luck or happenstance )) the State obtains incriminat ing statements from the

accused after the right to counsel has attached.”).

Further, the vict im’s testimony, to the extent that it is the fruit of Soffar’s rape confession,is the fruit of his confession to Houston Police, not to Detective Bockel. By t he time Bockel

interrogated Soffar he had already confessed to the rape. The victim then identified Soffar as the man

who raped her during the punishment phase of Soffar’s capital trial. Her testimony is the fruit of

Soffar’s confession to Houston Police, which Soffar does not contend was taken in violation of either

his Fifth or Sixth Amendment rights.

The police did not vio late Soffar’s Sixth Amendment right to counsel because he made no

incriminat ing statements “pertaining to [his] pending charges”; because at the time of his interrogation

his Sixth Amendment right to counsel had not attached as to the sexual assault charge; because there

is no e vidence in the record indicating that the purpose of the interrogation was to circumvent his

Sixth Amendment right to counsel as to the murder charges; and, because the vict im’s testimony was

the fruit of his confession t o t he Ho ust o n police, not of his confession during his interrogation by

Detective Bockel.

III

For the foregoing reasons, I respectfully dissent from the majority’s decision to remand this

case to the district court for entry of an order granting Soffar’s petition for writ of habeas corpus and

setting aside his conviction and sentence for capital murder.

## APPENDIX A

-96- Soffar’s Written Statement

August 7, 1980 Garner Interview

July 17-20, 1980

Latt and I both went inside the

bowling alley together. There was just one robber who

entered the bowling alley.

Latt had a stocking over his

head and I had my shirt pulled

up over my face. The robber wore no disguise

and I had an unobstructed view

of his face.

Latt and I went right in an

unlocked front door. Steve Sims unlocked the front

door and let in the robber who

had been knocking on the door.

We stayed inside of the

bowling alley during the

entire time we were there. It appeared that the robber

had told Steve he was having

car trouble. He was carrying

a water jug that he wanted to

fill up, and the robber and

Sims went back outside

together.

## APPENDIX A

Soffar’s Written Statement

August 7, 1980 Garner Interview

July 17-20, 1980

-97- As soon as we walked in, Lat

grabbed the first guy we saw

by the hair (the dude, who

according to Soffar, ended up

lying farthest from the front

door, i.e, Tommy Temple) and

made him get down on his

knees. The other three people

saw this and they walked up to

see what was going on. When Sims and the same robber

guy came back inside, I walked

up from bowling on lanes 25/26

to see what was going on. The

robber asked Sims if anyone

else was there, and Sims

called Temple and Felsher up

to the front.

The girl screamed and kept

screaming. Latt kicked her,

and he also kicked the second

dude (Sims) because he kept

looking up. No one, not even the girl,

screamed or said anything, and

the robber never hit, kicked,

or touched anyone.

## APPENDIX A

Soffar’s Written Statement

August 7, 1980 Garner Interview

July 17-20, 1980

51 The numbered positions correspond to the victims’ relative

proximity to the front door, with position 1 being closest to the

front door (i.e., where Garner was found), and position 4 being

farthest from the door (i.e., where Temple’s body was found).

-98- Latt fired a warning shot, and

there were four more shots fired

after that. (Latt shot the

first two guys from behind, in

position 3 and 4, then he threw

the gun to me. he made me shoot

Garner from behind, position 1,

and I walked around in front of

Felsher and he made me shoot her

in cheek, position 2) 51 I think there were four shots

total. The same lone robber

shot us all, one right after

another. Felsher was in

position 1, Sims in position 2,

I was in position 3, and Temple

was in position 4.

## APPENDIX A

Soffar’s Written Statement

August 7, 1980 Garner Interview

July 17-20, 1980

-99- The vi ctims’ positions at the

time of the shootings were male,

female, male, male. Latt shot

Sims first in position 3, then

he shot Temple in position 4.

Next, I shot Garner in position

1, and then I shot Felsher when

she was in position 2. The body positions at the time

of the shootin gs were female,

male, male, male. I got up and

made a call to my mothe r

, and

then the manager cal l ed me. I

then went back and laid down

next to the female, assuming a

position closest to door (thus

changing the body configuration

to male, female, mail, male).

I went around and emptied the

cash registe r a fter the

shootings. Before the shootings, the robber

asked if I could open the

register and I said, “I don’t

know how,” so the robber made

Steve go around behind the

counter and empty register while

he stayed in front of counter

wi t h his gun on us. He then

made Steve come back around and

lie down. Then the robber shot

us all.

## APPENDIX A

Soffar’s Written Statement

August 7, 1980 Garner Interview

July 17-20, 1980

52 This information was derived from Garner’s hypnotic interview

on August 21, 1980.

-100- Latt emptied the vict i ms’

pockets to get their wallets

after the shootings. The robber asked me for my

wa l let when I first approached

him and I told him I didn’t have

it. But later, when we were all

lying on the ground, the robber

made us all empty our pockets

and put our wallets above our

heads, so I did. Right after we

did this, he shot us all. 52-101--102-