1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-1994

Alston v. Redman, Wdn.

Precedential or Non-Precedential:

Docket 93-7423

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 93-7423 

 

 HAROLD S. ALSTON, 

 Appellant

v. 

 WALTER REDMAN, Warden; CHARLES M. OBERLY, III, Attorney General 

 of the State of Delaware; and the STATE OF DELAWARE, 

 Appellees

 

 On Appeal from the United States District Court 

 for the District of Delaware 

 (D.C. Civil No. 91-00441) 

 

 Argued May 2, 1994 

 BEFORE: GREENBERG and GARTH, Circuit Judges, 

 and ROBRENO, District Judge*

 (Filed: September 7, 1994) 

 

 Robert E. Nicholson (argued) 

 155 Livingston Avenue 

 New Brunswick, NJ 08901 

 

 Attorney for appellant

 

 Loren C. Meyers (argued) 

 Deputy Attorney General 

 Department of Justice 

 State Office Building 

 820 N. French Street 

 Wilmington, DE 19801 

 

* Honorable Eduardo C. Robreno, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
 Attorney for appellees
 

 

 OPINION OF THE COURT 

 

EDUARDO C. ROBRENO, District Judge. 

 Harold S. Alston appeals the denial by the district 

court of his petition for writ of habeas corpus. He argues that 

his present incarceration by the state of Delaware is illegal 

because his conviction was bottomed on self-incriminating 

statements taken in violation of his constitutional rights. More 

specifically, Alston claims that he was interrogated by the 

authorities in violation of his right to counsel as established 

by the Sixth Amendment and by Miranda v. Arizona, 384 U.S. 436 

(1966). He also claims that his waiver of his Miranda right to 

counsel was coerced. We find that the Sixth Amendment violation 

was harmless error, that petitioner's invocation of his Miranda

right to counsel was anticipatory since it was made outside of 

the context of custodial interrogation, and was thus ineffective, 

and that his waiver was not coerced. We will therefore affirm. 
I. 
 In the summer of 1985, police officers were 

investigating a number of robberies that had taken place in and 

around Wilmington, Delaware. At the scene of the robbery of 

Allen Medkeff and Michelle Sands (the "Medkeff-Sands robberies"), 

police recovered a fingerprint from an item touched by the 

robber. Acting upon information provided by a confidential 

informant linking petitioner Harold S. Alston to the MedkeffSands robberies, the police compared the recovered fingerprint to 

Alston's known prints, and established that the prints matched. 

A warrant for Alston's arrest issued, charging him with first 

degree robbery and second degree conspiracy, and he was arrested 

in North Carolina on August 19th. Waiving extradition, he was 

brought to Delaware on August 23rd, and was interrogated that 

same day by Delaware State Police. The police gave Alston his 

Miranda warnings, as required by Miranda v. Arizona, 384 U.S. at 

444-45. He waived his Miranda rights and the police proceeded to 

question him about the robberies, including the Medkeff-Sands 

robberies. Though at first denying any involvement, Alston 

eventually admitted to a number of robberies after the police 

reminded him of the fingerprint that they had recovered at the 

scene. In light of the offer by the police interrogators that 

they would recommend to the prosecutor that Alston be charged 

with only one count of robbery if he cooperated, Alston admitted 

to participating in the Medkeff-Sands robberies, as well as six 

other robberies committed during the summer of 1985. Alston was 

taken before a Justice of the Peace on the robbery and conspiracy 
charges and was committed to Gander Hill prison for pretrial 

detention. 

 Three days later, on August 26, 1985, Alston was 

interviewed by a person from the Public Defender's office, who 

Alston assumed was an attorney.1 See App. at 227. During the 

course of the interview, Alston signed a form letter, addressed 

to the warden of the Gander Hill facility: 

 Dear Sir: 

 I am presently a detainee in this institution and 

I will not speak to any police officer, law enforcement 

officers, their agents, or representatives from the 

Department of Justice, of any jurisdiction, without a 

Public Defender being present at such a meeting. 

 I further do not wish to be removed from my [cell] 

and brought to a meeting with the above-mentioned 

officers for the purpose of discussing a waiver of my 

constitutional rights in this regard. 

 Signed /s/Harold S. Alston 

 Date 8-26-85 

App. at 4. The letter was never actually delivered to Gander 

Hill's warden, since the established practice at Gander Hill was 

that someone from the warden's office would call the Public 

Defender's office when officers sought to question a prisoner, 

and inquire whether such a form letter had been executed. If a 

prisoner wished to speak to the authorities notwithstanding his 

prior execution of the invocation of counsel form letter, he 

 

1. The testimony by an investigator from the Public Defender's 

office at the suppression hearing held in the state trial court 

suggested that the individual who met with Alston was an 

investigator, and not an attorney. See App. at 71-72. The 

outcome of this appeal, however, does not turn on the identity or 

the status of the individual with whom Alston spoke. 
would be asked to sign a form waiving his previous request to 

have counsel present during an interrogation. Alston never 

signed this second form. 

 On August 28th, Alston was indicted for the MedkeffSands robberies. On August 29th, he was taken from Gander Hill 

to the Wilmington police department for processing on the new 

charges stemming from the six other robberies to which he had 

confessed on the 23rd and for further questioning. The warden's 

office made no inquiry of the Public Defender's office regarding 

whether Alston had signed the invocation of counsel form. At the 

police station, after the police read Alston his Miranda rights 

and he waived them, Alston was questioned for a second time, six 

days after his first interrogation on August 23rd. During this 

second interrogation, Alston confirmed his prior confessions, 

and, after prompting by one interrogator, confessed to another 

robbery that he had not mentioned before. It is the legality of 

the use of this second confession at his trial that forms the 

core of petitioner's appeal. 

 Due to Alston's perceived lack of candor, the police 

informed the prosecutor of the promise made, but declined to 

recommend that Alston be charged with one count of robbery. The 

grand jury subsequently delivered a superseding indictment 

against Alston and a number of other defendants, indicting Alston 

on nine counts of first degree robbery and nine counts of second 

degree conspiracy. 

 Before trial, Alston sought to suppress the statements 

he gave to the police on the 23rd and the 29th, claiming that 
both of his statements were involuntary and, further, that his 

second statement was taken in violation of his Sixth Amendment 

right to counsel. The trial court denied the suppression motion. 

See App. at 117-21. Alston proceeded to trial, where the state 

introduced, inter alia, the fingerprint evidence, the 

confessions, and the testimony of Medkeff and Sands, both of whom 

identified Alston. Alston was found guilty on seven of the nine 

robbery counts and on all of the conspiracy counts, including the 

Medkeff-Sands robberies. 

 On direct appeal, the Delaware Supreme Court agreed 

with Alston that the statement made during the August 29th 

interrogation concerning the Medkeff-Sands robberies was taken in 

violation of his Sixth Amendment right to counsel, but ruled that 

the error was harmless, since there was substantial evidence 

supporting the conviction. See Alston v. State, 554 A.2d 304, 

308-09 (Del.), cert. denied, 490 U.S. 1101 (1989). The Court 

also found that the statements were made voluntarily, that 

Alston's waivers of his Miranda rights were proper, and that 

Alston's execution of the form provided to him by the Public 

Defender's office and never transmitted to the warden did not 

serve to invoke his Miranda right to counsel. See id. at 307-08, 

310-11. Finally, the Court reversed one of the conspiracy 

convictions relating to the Medkeff-Sands robberies, since the 

evidence showed only one agreement. See id. at 312. Alston's 

petition for writ of certiorari was denied by the United States 

Supreme Court, 490 U.S. 1101 (1989), as was his application for 
state post-conviction relief, Alston v. State, 590 A.2d 502 (Del. 

1991) (unpublished disposition). 

 Alston petitioned the district court for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254, claiming, inter alia, 

that his execution of the invocation of counsel form letter was 

sufficient to trigger his Miranda right to counsel, thus 

rendering inadmissible at trial any statements made during the 

August 29th interrogation. The petition was referred to a 

magistrate judge, who recommended that the petition be denied. 

The district court, after a de novo review of the record, adopted 

the magistrate judge's Report and Recommendation and denied the 

petition for habeas relief. A motions panel of this Court issued 

a certificate of probable cause. See Fed. R. App. P. 22(b). 
II. 

 The matter was properly before the district court, and 

this Court has jurisdiction over petitioner's appeal. See 28 

U.S.C. §§ 1291, 2253. The claims raised in the petition were 

properly exhausted, having been fairly presented to the Delaware 

Supreme Court. See Castille v. Peoples, 489 U.S. 346, 351 

(1989); Wise v. Fulcomer, 958 F.2d 30, 33 (3d Cir. 1992). In 

deciding this appeal, the Court exercises a mixed standard of 

review. The district court's legal conclusions are subject to 

plenary review, but factual conclusions are reviewed for clear 

error. See Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. 

denied, ___ U.S. ___, 112 S. Ct. 2283 (1992). There is a 

presumption that historical fact-finding by a state court, 

whether trial or appellate, is correct.2 See 28 U.S.C. 

§ 2254(d); Miller v. Fenton, 474 U.S. 104, 117 (1985); Sumner v. 

Mata, 449 U.S. 539, 545-47 (1981). 

 

2. As this Court stated recently, there are "four prerequisites 

for giving deference to state court findings: 1) a hearing on 

the merits of a factual issue, 2) made by a state court of 

competent jurisdiction, 3) in a proceeding to which the 

petitioner and the state were parties, 4) evidenced by a written 

finding, opinion or other reliable and adequate written indicia." 

Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991) (citing 28 

U.S.C. § 2254(d)), cert. denied, ___ U.S. ___, 112 S. Ct. 1679 

(1992). There is no indication in the briefs or the record that 

the review by the Delaware Superior Court and Supreme Court did 

not satisfy the Reese requirements, and petitioner has not 

questioned on appeal the correctness of the state courts' 

findings of fact. 
III. 

 Petitioner argues that his execution of the form 

provided to him by the Public Defender's office was sufficient to 

invoke his right to counsel and to thwart any further policeinitiated questioning, thereby rendering inadmissible the 

statements he gave at the August 29th interrogation. Our 

analysis of this claim must begin with a review of Miranda and 

its progeny. 

A. 

 In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme 

Court examined an individual's Fifth and Fourteenth Amendment 

right to be free from compelled self-incrimination in the context 

of custodial interrogation, and concluded that certain procedural 

safeguards were necessary to "dissipate the compulsion inherent 

in custodial interrogation and, in so doing, guard against 

abridgement of [a] suspect's Fifth Amendment rights." Moran v. 

Burbine, 475 U.S. 412, 425 (1986); see Miranda, 384 U.S. at 468; 

see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (incorporating the 

Fifth Amendment privilege against compelled self-incrimination 

into the Fourteenth Amendment). These safeguards include certain 

rights that an accused must be informed of, and must waive, 

before interrogation can commence: 

 He must be warned prior to any questioning that he has 

the right to remain silent, that anything he says can 

be used against him in a court of law, that he has the 

right to the presence of an attorney, and that if he 

cannot afford an attorney one will be appointed for him 

prior to any questioning if he so desires. Opportunity 
to exercise these rights must be afforded to him 

throughout the interrogation. 

Miranda, 384 U.S. at 479. Only if there is a voluntary, knowing, 

and intelligent waiver of the rights expressed in the warnings 

can police question a suspect without counsel being present and 

introduce at trial any statements made during the interrogation. 

See id.; Fare v. Michael C., 442 U.S. 707, 724-25 (1979); Johnson 

v. Zerbst, 304 U.S. 458, 464 (1938). 

 In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme 

Court added a second layer of prophylaxis to the protections 

dictated by Miranda. In Edwards, the defendant stated during the 

course of interrogation that he wanted to negotiate a "deal," and 

was provided with a phone and the number of the county attorney. 

After calling the county attorney, defendant stated that he 

wanted a lawyer before making any deal. See id. at 479. All 

interrogation ceased and he was taken back to his cell. The 

following day, interrogation was resumed without an attorney 

being present and notwithstanding the defendant's assertion that 

he did not wish to speak. During this second interrogation, the 

defendant made incriminating statements, which were eventually 

used against him and contributed to his conviction. See id. at 

480. In reversing the conviction, the Supreme Court held that 

once a suspect invokes his right to counsel, "a valid waiver of 

that right cannot be established by showing only that he 

responded to further police-initiated custodial interrogation 

even if he has been advised of his rights." Id. at 484. The 

Court further held that once a suspect invokes the right, there 
can be no further police-initiated interrogation "until counsel 

has been made available to him, unless the [suspect] himself 

initiates further communication." Id. at 484-85; see also

Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (holding that 

after counsel is requested, there can be no further policeinitiated interrogation without counsel being present). Thus, 

once a suspect has asked for the assistance of counsel, "it is 

presumed that any subsequent waiver that has come at the 

authorities' behest, and not at the suspect's own instigation, is 

itself the product of the 'inherently compelling pressures' [of 

custodial interrogation] and not the purely voluntary choice of 

the suspect." Arizona v. Roberson, 486 U.S. 675, 681 (1988); cf.

Michigan v. Mosley, 423 U.S. 96, 104-06 (1975) (finding no 

Miranda violation when the police resumed questioning after the 

suspect's invocation of his right to cut off questioning was 

"scrupulously honored"). The Edwards protection is not offensespecific. Rather, a suspect who has requested the presence of 

counsel cannot be questioned concerning any crime, not just the 

one that put him in custody. See Roberson, 486 U.S. at 683-84. 

Further, the Edwards presumption focuses on the suspect's state 

of mind, not the police's. "[C]ustodial interrogation must be 

conducted pursuant to established procedures, and those 

procedures in turn must enable an officer who proposes to 

initiate an interrogation to determine whether the suspect has 

previously requested counsel." Id. at 687. Thus, officers who 

interrogate a suspect after the suspect has invoked his right to 

counsel are charged with the knowledge of the prior invocation. 
See, e.g., United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir. 

1983) (holding that knowledge of request for counsel "is imputed 

to all law enforcement officers who subsequently deal with the 

suspect"). 

 The remedy for a violation of Miranda or Edwards is 

straightforward--any statement given in violation of the rules 

established in these cases cannot be introduced into evidence in 

the state's case-in-chief. See Miranda, 384 U.S. at 479; cf. New 

York v. Quarles, 467 U.S. 649, 655-56 (1984) (recognizing a 

"public safety" exception to Miranda); Harris v. New York, 401 

U.S. 222, 225-26 (1971) (allowing the use of statements taken in 

violation of Miranda for purposes of impeachment). 

 The notion that custodial interrogations, in and of 

themselves, have an inherent coercive effect on an accused is the 

essential predicate to the prescription contained in the MirandaEdwards line of cases, that counsel be present, if one is 

requested, when an interrogation occurs in a custodial setting. 

"In essence, Miranda counsel is a buffer against the power of a 

state tempted to force incriminating statements from an unwilling 

suspect." James J. Tomkovicz, Standards for Invocation and 

Waiver of Counsel in Confession Contexts, 71 Iowa L. Rev. 975, 

989 (1986); see also Miranda, 384 U.S. at 460 (recognizing that 

"the constitutional foundation underlying the privilege [against 

compelled self-incrimination] is the respect a government--state 

or federal--must accord to the dignity and integrity of its 

citizens"). As one commentator has noted, "[t]he [Supreme] Court 

presumes that the confluence of interrogation and custody 
generate an intolerable degree of pressure upon a criminal 

suspect. Thus, the combined impact of interrogation and custody 

make[s] counsel's compulsion-dispelling presence--or, at least, 

the opportunity to claim that presence--essential." Tomkovicz, 

supra, at 991 (footnotes omitted). Providing an accused the 

option of having a lawyer present during a custodial 

interrogation was the Miranda Court's practical accommodation of 

the need to shelter an accused's constitutional right to be free 

from compelled self-incrimination, with the public's legitimate 

interest in the interrogation of suspected criminals.3 See

Moran, 475 U.S. at 426 ("Admissions of guilt are more than merely 

'desirable'; they are essential to society's compelling interest 

in finding, convicting, and punishing those who violate the 

law.") (citation omitted); Miranda, 384 U.S. at 479-81. It is 

Miranda's role in protecting the Fifth Amendment privilege in the 

singular context of custodial interrogation that is its "only 

 

3. In contrast, the Miranda Court could have completely 

forbidden custodial interrogation, or could have required that 

all such interrogation be conducted with a judge present. Cf.

Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350, 2358 

(1994) (Scalia, J., concurring) (suggesting that 18 U.S.C. § 3501 

abrogates the Miranda safeguards in federal criminal prosecutions 

and requires only a determination of voluntariness); State v. 

Scales, ___ N.W.2d ___, ___, 1994 WL 315702, at *5 (Minn. June 

30, 1994) (requiring that "all custodial interrogation . . . 

shall be electronically recorded where feasible" and holding that 

statements taken in violation of the requirement shall be 

suppressed if the violation is "substantial"). A complete 

prohibition, however, might have cut too broadly, since it is 

only compelled self-incrimination, not self-incrimination per se, 

that is forbidden by the Fifth Amendment. See Miranda, 384 U.S. 

at 478; Tomkovicz, supra, at 989 n.55. 
source of legitimacy." Moran, 475 U.S. at 425.4 Because the 

presence of both a custodial setting and official interrogation 

is required to trigger the Miranda right-to-counsel prophylactic, 

absent one or the other, Miranda is not implicated.5 See

Miranda, 384 U.S. at 477-78; United States v. Mesa, 638 F.2d 582, 

584-85 (3d Cir. 1980); see also Illinois v. Perkins, 496 U.S. 

292, 297 (1990) ("It is the premise of Miranda that the danger of 

coercion results from the interaction of custody and official 

interrogation."). 

 

4. As the Supreme Court has repeatedly noted, the Miranda

safeguards are not constitutionally mandated and serve only to 

protect the privilege against compelled self-incrimination in the 

context of custodial interrogation. See, e.g., Connecticut v. 

Barrett, 479 U.S. 523, 528 (1987); Moran, 475 U.S. at 424-25; New 

York v. Quarles, 467 U.S. 649, 654 (1984); Michigan v. Tucker, 

417 U.S. 433, 444 (1974); see also Giuffre v. Bissell, No. 93-

5541, slip op. at 26 (3d Cir. August 4, 1994) (recognizing that 

the Miranda right to counsel is "a procedural safeguard, and not 

a substantive right"). 

5. Hence, the focus in much of the Court's Miranda jurisprudence 

on the legal contours of "custody," see, e.g., Stansbury v. 

California, ___ U.S. ___, ___, 114 S. Ct. 1526, 1528-29 (1994) 

(per curiam); Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984); 

Orozco v. Texas, 394 U.S. 324, 325-26 (1969), and 

"interrogation," see, e.g., Arizona v. Mauro, 481 U.S. 520, 526 

(1987); Estelle v. Smith, 451 U.S. 454, 468-69 (1981); Rhode 

Island v. Innis, 446 U.S. 291, 300-01 (1980), and the requirement 

that both be present for the Miranda protections to attach. 
B. 

 In the instant case, the magistrate judge found, and 

the district court agreed, that petitioner's execution of the 

invocation form was insufficient to trigger his Miranda right to 

counsel. The magistrate found that the attempt to invoke the 

right to counsel was made outside of the context of custodial 

interrogation, and was thus ineffective. Petitioner argues that 

this case satisfies both prongs of Miranda, pointing out that he 

was already in custody, he was a suspect in a number of 

robberies, and he had already been interrogated at the time that 

he made his request for counsel. All of these circumstances 

taken together, concludes petitioner, created the "atmosphere of 

coercion," Br. at 18, that Miranda and progeny seek to protect 

against, and mandates a finding that his invocation of his right 

to counsel was proper. We disagree. 

 As evidenced by the Supreme Court's repeated rehearsal 

of the issue, the term "custodial interrogation" defies easy 

definition. We have recognized that such a determination 

requires individualized analysis on a case-by-case basis. See

United States v. Mesa, 638 F.2d 582, 584 (3d Cir. 1980). 

Assuming, arguendo, that petitioner was in custody for purposes 

of Miranda analysis,6 we disagree that at the time petitioner 

 

6. When he signed the request for counsel form on August 26th, 

Alston was obviously in custody in the physical sense, given that 

he was being held in a prison. However, "[w]hile Miranda may 

apply to one who is in custody for an offense unrelated to the 

interrogation, incarceration does not ipso facto render an 

interrogation custodial." Leviston v. Black, 843 F.2d 302, 304 

(8th Cir.) (citations omitted), cert. denied, 488 U.S. 865 

(1988); see, e.g., Cervantes v. Walker, 589 F.2d 424, 428-29 (9th 
requested counsel he was being interrogated, or that 

interrogation was imminent. Petitioner was questioned on August 

23rd and again on August 29th. There is no evidence in the 

record to suggest that he had been questioned on the 26th, the 

date on which he made his request for counsel, or that there was 

a continuous interrogation during the period from August 23rd to 

August 29th. His putative invocation of his right to counsel on 

August 26th was made while he was sitting in his jail cell 

speaking with a representative of the Public Defender's office, 

far removed from the strictures of custodial interrogation feared 

by the Miranda Court. See id. at 590 n.1 (Adams, J., concurring) 

("In Innis the Court indicated that "interrogation," as 

conceptualized in the Miranda opinion, must reflect a measure of 

compulsion above and beyond that inherent in custody itself."). 

Absent the "interaction of custody and official interrogation," 

Perkins, 496 U.S. at 297, the petitioner's Miranda right to 

counsel had simply not attached when petitioner signed the 

invocation form in his cell. 

(..continued) 

Cir. 1978) (finding that inmate questioned during a search of his 

cell was not in custody because there was no greater restraint on 

his freedom than usual). Though Alston was in custody as a 

suspect in the Medkeff-Sands robberies, he was not necessarily 

"in custody" for Miranda purposes as to interrogation on the 

other robberies. Since we decide Alston's appeal on other 

grounds, we need not reach the issue of whether he was in custody 

for Miranda purposes when he requested counsel. 
C. 
 In essence, Alston asks this Court to adopt, as an 

extension of the reach of Miranda, a rule allowing a suspect to 

invoke the right to counsel in cases where the suspect is in 

custody, has already been interrogated, and may be reinterrogated 

at some point in the future. We decline the invitation. As did 

the district judge, we find the Supreme Court's opinion in McNeil 

v. Wisconsin, 501 U.S. 171 (1991), to have presaged the result in 

this case. In McNeil, the petitioner was arrested on a charge of 

armed robbery. After a bail hearing on the armed robbery charge, 

at which he was represented by an attorney, he was repeatedly 

questioned by police officers concerning a different crime, and 

he eventually made an inculpatory statement. See 501 U.S. at 

173-74. After his conviction at trial, at which his statement 

was used against him, petitioner filed for a writ of habeas 

corpus, arguing that his appearance at the bail hearing, 

accompanied by an attorney, was sufficient to invoke his Miranda

right to counsel, thus invalidating the police-initiated 

interrogation under the operation of Edwards. See id. at 174-75. 

After carefully distinguishing the differing objectives of the 

right to counsel under Miranda and the Sixth Amendment, the Court 

rejected the argument that the assertion of the Sixth Amendment 

right to counsel was an explicit or implicit assertion of the 

Miranda right to counsel, holding that "[t]he rule of [Edwards] 

. . . requires, at a minimum, some statement that can reasonably 

be construed to be expression of a desire for the assistance of 

an attorney in dealing with custodial interrogation by the 

police." Id. at 178. The Court explicitly rejected the "bright-
line" rule proposed by McNeil--"no police-initiated questioning 

of any person in custody who has requested counsel to assist him 

in defense or interrogation"--which was similar to the one 

advocated by the instant petitioner. See id. at 181. 

 Of particular interest to the case sub judice is the 

majority's reply to the dissent's prediction that the decision 

would be circumvented by the explicit invocation of the Miranda

right to counsel at preliminary hearings. See id. at 184 

(Stevens, J., dissenting). The majority noted that premature 

invocation of the Miranda right to counsel would be 

impermissible: 

 We have in fact never held that a person can invoke his 

Miranda rights anticipatorily, in a context other than 

"custodial interrogation"--which a preliminary hearing 

will not always, or even usually, involve. If the 

Miranda right to counsel can be invoked at a 

preliminary hearing, it could be argued, there is no 

logical reason why it could not be invoked by a letter 

prior to arrest, or indeed even prior to identification 

as a suspect. Most rights must be asserted when the 

government seeks to take the action they protect 

against. The fact that we have allowed the Miranda 

right to counsel, once asserted, to be effective with 

respect to future custodial interrogation does not

necessarily mean that we will allow it to be asserted 

initially outside the context of custodial 

interrogation, with similar future effect.

Id. at 182 n.3 (citations omitted) (emphasis added). Though this 

passage in McNeil is essentially dicta, being a response to a 

hypothetical posed by the dissent, we must consider it with 

deference, given the High Court's paramount position in our 

"three-tier system of federal courts," Casey v. Planned 

Parenthood, 14 F.3d 848, 857 (3d Cir. 1994), and its limited 
docket. See Town Sound & Custom Tops, Inc. v. Chrysler Motors 

Corp., 959 F.2d 468, 495 n.41 (3d Cir.) (in banc), cert. denied, 

___ U.S. ___, 113 S. Ct. 196 (1992); accord Doughty v. 

Underwriters at Lloyd's, London, 6 F.3d 856, 861 & n.3 (1st Cir. 

1993); Hendricks County Rural Elec. Membership Corp. v. N.L.R.B., 

627 F.2d 766, 768 n.1 (7th Cir. 1980) ("A dictum in a Supreme 

Court opinion may be brushed aside by the Supreme Court as dictum 

when the exact question is later presented, but it cannot be 

treated lightly by inferior federal courts until disavowed by the 

Supreme Court.") (citing 1B Moore's Federal Practice ¶ 0.402, at 

112 & n.3), rev'd on other grounds, 454 U.S. 170 (1981). The 

footnote strongly supports the proposition that, to be effective, 

a request for Miranda counsel must be made within "the context of 

custodial interrogation" and no sooner. See United States v. 

Wright, 962 F.2d 953, 955 (9th Cir. 1992); United States v. 

Barnett, 814 F. Supp. 1449, 1454 (D. Alaska 1992). 

 The antipathy expressed in McNeil towards the 

anticipatory invocation of the Miranda rights is consistent with 

Miranda's underlying principles. The Miranda right to counsel is 

a prophylactic rule that does not operate independent from the 

danger it seeks to protect against--"the compelling atmosphere 

inherent in the process of in-custody interrogation"--and the 

effect that danger can have on a suspect's privilege to avoid 

compelled self-incrimination. Miranda, 384 U.S. at 478. To 

allow an individual to interpose Miranda in a situation outside 

the custodial interrogation context would represent an 

unwarranted extension of Miranda's procedural safeguards, an 
extension best left to the discretion of the Supreme Court, which 

devised the Miranda safeguards in the first place and which has 

quite recently expressed disinterest in expanding them. See, 

e.g., Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350, 

2355 (1994) (declining "to extend Edwards and require law 

enforcement officers to cease questioning immediately upon the 

making of an ambiguous or equivocal reference to an attorney"); 

McNeil, 501 U.S. at 182; Quarles, 467 U.S. at 658 ("At least in 

part in order to preserve its clarity, we have over the years 

refused to sanction attempts to expand our Miranda holding."); 

see also Barnett, 814 F. Supp. at 1454 (assuming that footnote 3 

in McNeil "accurately predicts that the . . . Supreme Court will 

hold that an accused cannot invoke his Fifth Amendment right to 

counsel until he is taken into custody, and prior to 

interrogation, warned of those rights"). As the Supreme Court 

recognized in Innis, "[i]t is clear . . . that the special 

procedural safeguards outlined in Miranda are required not where 

a suspect is simply taken into custody, but rather where a 

suspect in custody is subjected to interrogation." 446 U.S. at 

300.7

 

7. Petitioner points to language in Miranda itself that, read in 

isolation, would seem to allow invocation of the right to counsel 

in the manner he proposes: 

 If, however, [the defendant] indicates in any manner 

and at any stage of the process that he wishes to 

consult with an attorney before speaking there can be 

no questioning. 

384 U.S. at 444-45. Read in context, however, it is clear that 

the "process" referred to by the Court is the actual process of 

custodial interrogation. 
 The McNeil footnote also reflects the general 

proposition, consistent with recent Supreme Court jurisprudence,8

that the rights guaranteed by the Constitution of the United 

States are primarily negative in character, standing guard as 

vigilant sentinels at the perimeter of permissible state conduct. 

See Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir. 

1983), cert. denied, 465 U.S. 1049 (1984); David P. Currie, 

Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 

864 (1986). But see Susan Bandes, The Negative Constitution: A 

Critique, 88 Mich. L. Rev. 2271, 2273-78 & n.20 (1990) 

(critiquing the prevailing view of the Constitution as "a charter 

of negative liberties" and collecting scholarly sources espousing 

a similar view). It is only at the time that the state seeks to 

invade this citadel of individual liberty that these 

constitutional guarantees can be summoned to battle. This 

position has strong textual support in the Bill of Rights. The 

right of free speech, the right to be free from unreasonable 

searches and seizures, the right to be free from double jeopardy, 

the right to due process under the Fifth Amendment, all of these 

are framed as prohibitions on state conduct, rather than as 

 

8. In the context of the Due Process Clause, the negative nature 

of constitutional rights is viewed as imposing on the state no 

positive obligation to act absent some special circumstance such 

as custody. See Collins v. City of Harker Heights, ___ U.S. ___, 

___, 112 S. Ct. 1061, 1069 (1992); DeShaney v. Winnebago County 

Dep't of Social Servs., 489 U.S. 189, 195-200 (1989); Harris v. 

McRae, 448 U.S. 297, 317-18 (1980); D.R. by L.R. v. Middle Bucks 

Area Vocational Technical Sch., 972 F.2d 1364, 1368-69 (3d Cir. 

1992) (in banc), cert. denied, ___ U.S. ___, 113 S. Ct. 1045 

(1993). 
commandments for state action. Similarly framed is the 

prohibition against compelled self-incrimination that is involved 

in this case. U.S. Const. amend. V ("nor shall [any person] be 

compelled in any criminal case to be a witness against 

himself").9 To require that the Government first act to compel 

an individual to incriminate herself before that individual can 

assert her right to remain silent is merely to recognize that the 

privilege against compelled self-incrimination acts as a shield 

against state action rather than as a sword, and that the shield 

may only be interposed when state action actually threatens.10

 

9. In fact, the entire Fifth Amendment is written in similar 

vein: 

 No person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or 

indictment of a Grand Jury, except in cases arising in 

the land or naval forces, or in the Militia, when in 

actual service in time of War or public danger; nor 

shall any person be subject for the same offence to be 

twice put in jeopardy of life or limb; nor shall be 

compelled in any criminal case to be a witness against 

himself, nor be deprived of life, liberty, or property, 

without due process of law; nor shall private property 

be taken for public use, without just compensation. 

U.S. Const. amend. V. 

10. That Miranda imposes an affirmative obligation on 

interrogators to inform a suspect of his rights, indeed, to 

provide the suspect a lawyer if one cannot otherwise be afforded, 

does not change the basic negative nature of the Miranda

protections, because the true protection of Miranda, the 

suppression of statements given without a valid waiver by the 

suspect of her Miranda rights, only arises if the state chooses 

to question a suspect without providing the Miranda warnings and 

attempts to introduce those statements in evidence. See Miranda, 

384 U.S. at 479. Until the attempt is made, the Miranda right, 

and the corresponding Fifth Amendment right it prophylactically 

protects, essentially lies dormant. If the state never 

interrogates a suspect, Miranda is not implicated. 
 Our decision also finds support in the Ninth Circuit's 

opinion in United States v. Wright, 962 F.2d 953 (9th Cir. 1992). 

Wright presented a real-life example of the hypothetical posited 

by Justice Stevens in his McNeil dissent, the anticipatory 

invocation of the Miranda right to counsel. Wright was arrested 

and pled guilty to armed robbery. At the plea hearing, his 

attorney stated that she wanted to be present at any interviews 

with her client. See id. at 954. Shortly thereafter, Wright was 

interrogated, without counsel being present, as to an unrelated 

bank robbery. He confessed, a confession that he moved to 

suppress. When that was unsuccessful, he entered a conditional 

guilty plea and appealed on the basis that his counsel's 

statement at the hearing triggered the Edwards presumption 

concerning further police-initiated questioning. See id.

 The Ninth Circuit rejected the claim, holding that a 

request by counsel, during a plea hearing, to be present at any 

further "interviews" with a suspect did not trigger Edwards. See

id. at 956. As explained by the court, McNeil compelled this 

conclusion: 

 McNeil strongly suggests that Miranda rights may not be 

invoked in advance outside the custodial context. 

Wright's request through his attorney would do just 

that if it were more broadly effective than to assure 

counsel's presence at interviews having to do with the 

robbery. The Court has never held that Miranda rights 

may be invoked anticipatorily outside the context of 

custodial interrogation; we see no reason, apart from 

those already rejected in McNeil, to do so here. 

Id. at 955. Though arguably distinguishable, since Wright was at 

a plea hearing, not "in custody," when he made his request for 
the presence of counsel at future interviews, the opinion is an 

affirmation of the principle expressed in footnote three of 

McNeil that there must be both custody and interrogation before 

the right to counsel can be invoked. 

 We recognize that some courts, post-McNeil, have found 

a proper invocation of the Miranda right to counsel when a 

suspect has requested counsel prior to interrogation or to the 

reading of the Miranda rights. In United States v. Kelsey, 951 

F.2d 1196 (10th Cir. 1991), petitioner Joseph Kelsey arrived at 

his home late one night to find eighteen members of a police 

narcotics task force conducting a search for contraband. See id.

at 1198. He was searched and arrested before entering the house, 

and was placed on a couch alongside three others who had been 

arrested during the raid. Kelsey asked to see his lawyer three 

or four times, but the police only responded that "if they 

'allow[ed] him to see [his] lawyer now, then they would not be 

able to ask [him] any further questions and would have to take 

[him] to jail.' . . . The police also told [Kelsey] that 'if [he] 

was to cooperate and talk with the officers, then they'd take it 

easy on [him] . . . .'" Id. (alteration in original). Kelsey 

was not questioned at this point, nor was he read his Miranda

rights. He was later questioned in his home and made 

incriminating statements during the interrogation. See id.

 The Tenth Circuit held that the request by Kelsey for 

his lawyer was sufficient to invoke the protections of Edwards, 

even thought the request was made before questioning or the 

reading of Miranda rights. See id. at 1198-99. Mindful of the 
requirement that there be "some statement that can reasonably be 

construed to be expression of a desire for the assistance of an 

attorney in dealing with custodial interrogation by the police," 

McNeil, 501 U.S. at 178 (emphasis omitted), the Court held that 

Kelsey's request for counsel after being arrested, when it was 

"clear from the exchange between Kelsey and the police . . . that 

the police intended to question Kelsey at some point at his home, 

and that the police understood Kelsey to be invoking his right to 

counsel during questioning," Kelsey, 951 F.2d at 1199, was 

sufficient to trigger Edwards. The Court rejected the 

Government's argument that Rhode Island v. Innis required that 

there be questioning before the invocation of the right to 

counsel, finding that the fact that Kelsey asked for an attorney 

"before the police were required to inform him of that right 

[was] irrelevant." Id. at 1199. 

 In State v. Torres, 412 S.E.2d 20 (N.C. 1992), the 

North Carolina Supreme Court examined a similar issue. Georgia 

Torres was a battered spouse who one night, in the midst of an 

altercation with her intoxicated husband, shot him to death. 

Though not placed under arrest, she was transported by a police 

officer to the sheriff's department, and was detained in a 

conference room by a deputy from 7 P.M. to 10 P.M., pending 

questioning concerning the shooting of her husband. At around 10 

P.M., she was taken into the sheriff's office, and the sheriff 

informed her that she would be shortly questioned by two other 

police officers. See id. at 24. At two points, while 

sequestered in the conference room and while meeting with the 
sheriff, Torres asked if she needed an attorney, and was told 

both times that she did not. See id. at 23. At 10:35, she was 

given her Miranda warnings, which she waived, was interrogated, 

and gave an incriminating statement. See id. at 25. She was 

thereafter convicted of murder. 

 On appeal, Torres argued that her interrogation 

violated Edwards, since she had made a request for counsel before 

the police initiated her interrogation. The Court accepted her 

argument, finding that Edwards had been violated even though she 

was not being questioned at the time she requested an attorney: 

 . . . [T]he State argues that defendant could not 

have invoked her right to counsel because she was not 

being questioned at the time she inquired about an 

attorney. 

 . . . If defendant "at any stage of the process" 

indicates her desire to consult with counsel, all 

questioning must cease. . . . [A]lthough an individual 

cannot waive her right to counsel prior to receiving 

Miranda warnings, a suspect in custody can certainly 

assert her right to have counsel present during her 

impending interrogation prior to Miranda warnings and 

the actual onset of questioning. 

Id. at 25 (citations omitted). The Court distinguished footnote 

three in the McNeil opinion by noting that "[t]he examples of 

'anticipatory invocation' cited by the Court in that . . . 

footnote . . . make clear that the Court had in mind situations 

in which a person was not in custody at the time of her 

invocation." Id. Thus, for the Torres court, it was sufficient 

for Miranda and Edwards purposes that the suspect was in custody 

and awaiting interrogation when she invoked her right to counsel. 

See id. at 26 ("It would make little sense to require a defendant 

already in custody to wait until the onset of questioning or the 
recitation of her Miranda rights before being permitted to invoke 

her right to counsel."). 

 The decisions in Kelsey and Torres are distinguishable 

from our decision in this case. The suspects in both of those 

cases, though not being interrogated when they requested counsel, 

were faced with "impending interrogation." Torres, 412 S.E.2d at 

26 (emphasis added); Kelsey, 951 F.2d at 1199. Kelsey had just 

been arrested in his home, and the dialogue between him and his 

captors indicated he would be interrogated in his home. See id. 

Torres had been taken to the police stationhouse immediately 

after shooting and killing her husband, and she was sitting in a 

conference room awaiting imminent questioning. See 412 S.E.2d at 

25-26. In no manner can Alston's situation be analogized to 

Kelsey and Torres. In fact, when Alston requested counsel, he 

was in his cell, with no state official present, speaking to a 

representative of the Public Defender's office, having already 

been interrogated three days earlier, with no further 

interrogation pending, and without any indication that he was to 

be reinterrogated. Whatever the merits of the position taken in 

those cases, i.e., an accused may invoke the right to counsel 

anticipatorily when an interrogation is imminent, the instant 

case falls outside the ambit of their reasoning. Given that 

Alston was not being interrogated when he signed the invocation 

form, and that no interrogation was impending or imminent, we 

hold that Alston was not within the "context of custodial 

interrogation" when he signed the invocation form, and therefore 
that the prophylactic rules of Miranda and Edwards did not render 

inadmissible the statement taken on August 29th.11

D. 

 Even if we were to conclude that Alston could invoke 

his Miranda right to counsel when an interrogation was impending 

or imminent, we cannot conclude that the method used by Alston, 

i.e., advising the warden of his decision, was sufficient to 

trigger the protections of Miranda-Edwards and of Arizona v. 

Roberson, 486 U.S. 675 (1988). In Roberson, the Supreme Court 

rejected the contention that an interrogator's lack of knowledge 

concerning a previous invocation of the Miranda right to counsel 

vitiated the Edwards prophylactic: 

 In addition to the fact that Edwards focuses on the 

state of mind of the suspect and not of the police, 

custodial interrogation must be conducted pursuant to 

established procedures, and those procedures in turn 

must enable an officer who proposes to initiate an 

interrogation to determine whether the suspect has 

previously requested counsel. . . . [W]hether the same 

or different law enforcement authorities are involved 

in the second investigation, the same need to determine 

whether the suspect has requested counsel exists. The 

police department's failure to honor that request 

cannot be justified by the lack of diligence of a 

particular officer. 

 

11. Additionally, we note that the extension of Miranda and 

Edwards implicitly requested by petitioner, i.e., allowing him to 

invoke the right to counsel outside of the context of custodial 

interrogation, would diminish the "bright-line" nature of the 

Supreme Court's Miranda jurisprudence, often cited by the Court 

as one of qualities of that body of law. See Jackson, 475 U.S. 

at 634; Smith v. Illinois, 469 U.S. 91, 98 (1984); Quarles, 467 

U.S. at 658; Fare, 442 U.S. at 718. 
Roberson, 486 U.S. at 687-88 (footnote omitted). Applying this 

language on direct appeal, the Delaware Supreme Court held that 

the investigating officers who interrogated Alston on August 29th 

could not be charged with "constructive knowledge" of an 

invocation contained in "records which are merely accessible to 

other state agents who function at the custodial level." Alston, 

554 A.2d at 310. The court therefore concluded that the 

interrogation of August 19th did not run afoul of Roberson. We 

agree, though on different grounds. While the holding of the 

Delaware Supreme Court is based on a determination that the 

warden of Gander Hill prison never had possession, and thus never 

had knowledge, of Alston's pro forma invocation, see id., our 

decision turns on the inapplicability of Roberson to a noninvestigating state official such as a warden.12

 

12. Because the Delaware Supreme Court rested its decision on 

this point, i.e., that the warden never had knowledge because he 

had no possession, we feel compelled to address it. We believe 

that basing the decision in this case on these grounds goes too 

far. If the state puts into place a record-keeping system that, 

as an essential element, contemplates that records will be 

maintained by a third-party, e.g., the Public Defender's office, 

it would be inequitable to allow the state official charged with 

administering the system to disclaim at least constructive 

knowledge of the information contained in those records. We 

therefore do not find the warden's lack of actual possession of 

Alston's letter to be dispositive. 

 We also note in passing that petitioner neither here nor 

below argued that the state should be estopped from questioning 

the validity of his pro forma invocation, due to the warden's 

establishment of and participation in the procedure employed in 

Gander Hill. While we do not reach the issue, we do not mean to 

diminish any due process considerations that may accompany 

official conduct that actively misleads an accused in the 

exercise of her Miranda rights. Cf. Tukes v. Dugger, 911 F.2d 

508, 516 n.11 (11th Cir. 1990) (rejecting, in dicta, the 

contention that the state can disregard a suspect's invocation of 

the right to counsel that is made after he has been given his 
 The Supreme Court's opinion in Roberson focused on 

multiple interrogations concerning different crimes, principally 

holding that the Miranda right to counsel was not offensespecific. See 486 U.S. at 682-85. As a corollary to that 

holding, the Court directed that "custodial interrogation must be 

conducted pursuant to established procedures, and those 

procedures in turn must enable an officer who proposes to 

initiate an interrogation to determine whether the suspect has 

previously requested counsel." Id. at 687 (emphasis added). 

Later interrogators are thus charged with the knowledge of what 

occurred during prior interrogations, not what occurred during 

other time periods, i.e., while the suspect was sitting in his 

cell speaking with a representative from the Public Defender's 

office. The practical implication of this conclusion is that 

noninvestigatory officials charged with the mere custody or care 

of a suspect, e.g., jailers, doctors, vocational instructors, 

should not be considered state agents capable of accepting a 

suspect's invocation of his Miranda rights.13 Any other 

interpretation of Roberson would not provide serviceable guidance 

to law enforcement officials seeking to administer the MirandaEdwards protections, since, in effect, they would become 

absolutely liable for any statement made by an incarcerated 

(..continued) 

Miranda warnings, even if the suspect is not yet in custody), 

cert. denied sub nom. Singletary v. Tukes, ___ U.S. ___, 112 S. 

Ct. 273 (1991). 

13. With the caveat that someone acting as an investigatory 

official's agent in conducting an interrogation would likely 

assume the status of her principal. 
suspect to his jailer.14 This conclusion is consistent with our 

rejection supra of anticipatory invocations. If Alston cannot 

assert his Miranda rights anticipatorily, it would make little 

sense to permit him to assert them to the warden, a 

noninvestigatory state official. 

 Petitioner cites to no case law, other than Roberson

itself, supporting his contention that the knowledge of his 

putative invocation on the 26th must be imputed to the officers 

who interrogated him on the 29th, and the Court's research has 

likewise failed to unearth any such support. On the contrary, 

the courts that have applied Roberson were dealing with 

defendants who were reinterrogated notwithstanding earlier 

requests for counsel that were made to law enforcement officers. 

See, e.g., United States v. Lucas, 963 F.2d 243, 244-45 (9th Cir. 

1992); United States v. Lenfesty, 923 F.2d 1293, 1297 (8th Cir. 

1991); Balfour v. State, 598 So.2d 731, 736, 745-46 (Miss. 

1992); State v. Schuster, 502 N.W.2d 565, 570 (S.D. 1993); cf.

People v. Young, 607 N.E.2d 123, 126-28 (Ill. 1992) (refusing to 

impute knowledge from a Wisconsin law enforcement agency to an 

Illinois law enforcement agency). We conclude that knowledge of 

 

14. Petitioner's focus on Roberson's admonition that Edwards

"focuses on the state of mind of the suspect," 486 U.S. at 687, 

does not change the result. In Edwards, there was no question 

that there had been a proper invocation of the right to counsel. 

See Edwards, 451 U.S. at 479 (suspect stated during custodial 

interrogation that "I want an attorney before making a deal"). 

Absent such a proper invocation, the suspect's state of mind is 

essentially irrelevant, because a suspect cannot "believe" a 

right into existence. Since Alston's initial invocation was 

insufficient, the fact that he believed he had invoked his right 

to counsel is beside the point. 
the letter "sent" by Alston to the warden of the Gander Hill 

facility cannot be imputed to the police officers who 

interrogated Alston on the 29th, and that the interrogation was 

therefore not violative of Miranda, Edwards, or Roberson.

15

* * * 

 We decline to extend the reach of Miranda-Edwards to 

encompass a suspect sitting in his cell, free of any 

interrogation, impending or otherwise. As the Supreme Court 

stated in rejecting the McNeil petitioner's proposal to expand 

Miranda, "[i]f a suspect does not wish to communicate with the 

police except through an attorney, he can simply tell them that 

when they give him the Miranda warnings." McNeil, 501 U.S. at 

180. We add no more. 

 

15. Alston's argument that the absence of a waiver of counsel 

form on file in the warden's office is notice of an invocation of 

the right to counsel is also without merit. The presence or 

absence of forms in a custodial state agent's files cannot 

suffice for the imputation of knowledge to investigatory 

officials. 
IV. 

 Petitioner also argues that the magistrate and district 

judges erred in concluding that the admission of the statements 

taken in violation of his Sixth Amendment right to counsel was 

harmless error. Before the Delaware state courts, and before 

this Court, the respondents have acknowledged that the statements 

of August 29th concerning the Medkeff-Sands robberies were 

impermissibly taken, since Alston's Sixth Amendment right to 

counsel had attached once the indictment of August 28th was 

returned, and he was interrogated without his lawyer being 

present. See Michigan v. Jackson, 475 U.S. 625, 636 (1986) 

(applying the Edwards presumption concerning police-initiated 

interrogations to the Sixth Amendment right to counsel); United 

States v. Gouveia, 467 U.S. 180, 198 (1984); Massiah v. United 

States, 377 U.S. 201, 206 (1964).16 The state courts and the 

district court found that this error, however, was harmless, 

since there was sufficient evidence introduced during trial to 

convict Alston regardless. We agree. 

 In Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert. 

denied, ___ U.S. ___, 114 S. Ct. 2730 (1994), we recently held 

that admission of a statement taken in violation of the Sixth 

Amendment right to counsel is "trial type error," requiring on 

collateral review application of the harmless error standard 

 

16. Under Maine v. Moulton, 474 U.S. 159, 180 & n.16 (1985), 

interrogation concerning the other crimes was permissible, 

notwithstanding the attachment of the Sixth Amendment right to 

counsel as to the Medkeff-Sands robberies. This point is not 

contested on appeal. 
utilized in Brecht v. Abrahamson, ___ U.S. ___, 113 S. Ct. 1710 

(1993). See Deputy, 19 F.3d at 1495-96; see also Arizona v. 

Fulminante, 499 U.S. 279, 307-08 (1991) (opinion of Rehnquist, 

C.J., for the Court) (characterizing a "confession obtained in 

violation of Massiah" as a "trial error"). Under Brecht, "where 

a constitutional error is a 'trial type error' which implicates 

the weight and effect of evidence presented to the jury, we must 

ask whether the error had 'substantial and injurious effect or 

influence in determining the jury's verdict.'" Deputy, 19 F.3d 

at 1496 (quoting Brecht, 113 S. Ct. at 1722). The analysis 

"'must take account of what the error meant to [the jury], not 

singled out and standing alone, but in relation to all else that 

happened.'" Brecht, 113 S. Ct. at 1724 (Stevens, J., concurring) 

(quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)). 

Only if the error was not harmless can the writ of habeas corpus 

issue. 

 The evidence at trial concerning the Medkeff-Sands 

robberies was substantial. Both victims identified Alston as the 

perpetrator, Alston's fingerprint was recovered at the scene, and 

Alston confessed to the crime during the interrogation of August 

23rd. The evidence introduced concerning the August 29th 

confession, consisting of the testimony of one of the 

interrogators as well as a transcript of the confession, which 

had been recorded, was in essence cumulative. Viewed in relation 

to the other evidence in the case as to the Medkeff-Sands 

robberies, the Court finds that the August 29th statements did 

not have a "substantial and injurious effect" on the jury's 
verdict, and their introduction into evidence was therefore 

harmless error.17

 

17. The Delaware Supreme Court applied the higher standard 

announced in Chapman v. California, 386 U.S. 18, 23-24 (1967), 

finding that the error was "harmless beyond a reasonable doubt." 

Alston, 554 A.2d at 309. Were the Court required to apply this 

standard, we would reach the same conclusion. 
V. 

 Petitioner's final point of appeal is that the 

interrogation of August 29th somehow denied him "fundamental 

fairness," and was therefore violative of the Fourteenth 

Amendment's Due Process clause. In support of this argument, 

petitioner states that he "could not resist the pressures of 

custodial interrogation," and argues that this is the only 

possible conclusion "because, otherwise, it is incomprehensible 

why a 28 year [old] literate man with three prior felonies would 

so readily incriminate himself." Pet. Br. at 32. Petitioner 

apparently claims that his waiver of his Miranda rights at the 

beginning of the August 29th interrogation was somehow faulty, 

and he was therefore deprived of his right to counsel. See

Miranda, 384 U.S. at 444 (providing that the Miranda safeguards 

may be waived, "provided the waiver is made voluntarily, 

knowingly and intelligently"); Ahmad v. Redman, 782 F.2d 409, 

412-13 (3d Cir.), cert. denied, 479 U.S. 831 (1986). The 

respondents argue that this issue was initially raised in 

petitioner's objections to the magistrate's report, was therefore 

not properly before the district court, and ipso facto is not 

properly before this Court. Whatever merit respondent's position 

may have, the record in this case indicates that the magistrate 

judge addressed petitioner's Fourteenth Amendment claim, see

Report & Recommendation at 12, and we will do likewise. 

 "[T]he voluntariness of a defendant's waiver of Miranda

rights is a mixed question of law and fact, subject to plenary 

review by federal habeas courts." Ahmad, 782 F.2d at 413. 
Though we do not treat with deference the legal conclusions 

reached by the state court, the underlying factual findings, upon 

which the court based its conclusions, if fairly supported by the 

record, are entitled to the statutory presumption of correctness 

provided by 28 U.S.C. 2254(d). See McAleese v. Mazurkiewicz, 1 

F.3d 159, 166 (3d Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 

645 (1993); Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991), 

cert. denied, ___ U.S. ___, 112 S. Ct. 1679 (1992). In assessing 

the validity of the waiver, we must determine whether it was 

voluntary, i.e., free of coercion or deception, and whether it 

was knowing. "Only if the 'totality of the circumstances 

surrounding the interrogation' reveal both an uncoerced choice 

and the requisite level of comprehension may a court properly 

conclude that the Miranda rights have been waived." Moran, 475 

U.S. at 421 (quoting Fare v. Michael C., 442 U.S. at 725); see

United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989), 

cert. denied, 494 U.S. 1017 (1990). 

 The Delaware courts found that Alston understood his 

Miranda rights when he signed the waiver form proffered to him at 

the beginning of the August 29th interrogation. See App. at 118, 

254. This finding has a basis in the record, given defendant's 

execution of the waiver form and the testimony of the 

interrogating officers concerning their recitation of the rights 

and Alston's acknowledgement that he understood them. Cf.

Collins v. Brierly, 492 F.2d 735, 739 (3d Cir.) (in banc) ("It 

may be assumed that [a written waiver's] main purpose is 

evidentiary, to establish with a minimum of difficulty and a 
maximum of certainty that the police gave the warnings and that 

the suspect had agreed--preliminarily--to answer questions."), 

cert. denied, 419 U.S. 877 (1974). There is also no contention 

that Alston did not understand his Miranda rights when he waived 

them during the interrogation of August 23rd. Given the 

presumption of correctness, we are satisfied that Alston 

understood his Miranda rights, and that he did knowingly waive 

them at the August 29th interrogation. 

 As to the question of voluntariness, the only 

indication in the record of any coercion on the part of the 

interrogators is the offer to Alston to make a plea 

recommendation to the prosecutors if Alston cooperated fully in 

the interrogation. "That a law enforcement officer promises 

something to a person suspected of a crime in exchange for the 

person's speaking about the crime does not automatically render 

inadmissible any statement obtained as a result of that promise." 

United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993); see

Miller v. Fenton, 796 F.2d 598, 604-08 (3d Cir.), cert. denied 

sub nom. Miller v. Neubert, 479 U.S. 989 (1986). The question of 

voluntariness ultimately turns on whether the totality of the 

circumstances indicates that the will of the suspect was 

overborne by government coercion. See Colorado v. Connelly, 479 

U.S. 157, 169-70 (1986); Moran, 475 U.S. at 421; Walton, 10 F.3d 

at 1028. In making its assessment, the Court must evaluate the 

events that occurred, as well as the suspect's background and 

experience, including prior dealings with the criminal justice 

system. See Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983) 
(plurality opinion); United States v. Cruz Jimenez, 894 F.2d 1, 

7-8 (1st Cir. 1990); Velasquez, 885 F.2d at 1086. 

 The Delaware Supreme Court made the following findings 

of fact concerning Alston's background: 

 Alston was 28 years old at the time of his arrest and 

had previously been convicted of three felonies. 

Alston had completed the tenth grade and was able to 

read and write. At the time his statements were made 

he was alert and did not appear to be under the 

influence of alcohol or drugs. The interviews were 

during the day, and each interview lasted approximately 

one to one and one-half hours. Although in custody, 

Alston was not handcuffed during either session. 

Alston, 554 A.2d at 307. We find no reason, and Alston makes no 

claim, to disturb these findings. See 28 U.S.C. § 2254(d); 

Reese, 946 F.2d at 254. 

 As to the promise, the investigators promised Alston 

during the interrogation of August 23rd that they would recommend 

to the prosecutor that Alston be allowed to plead to one count of 

first degree robbery, a promise conditioned on Alston's full 

cooperation. The promise was made with the caveat that the 

recommendation was in no way binding on the prosecutor. App. at 

41-42, 54-55. During the course of the first interrogation, 

Alston did not mention a robbery that the police suspected him 

in, a robbery to which Alston confessed during the second 

interrogation after the police prompted him. Due to this failure 

to cooperate, as well as the police's strong belief that Alston 

had been involved in other crimes as to which he did not confess 

at either interrogation, the police informed the prosecutor of 

the proposal made to Alston, but did not make the recommendation. 
App. at 102-03. As already noted, Alston was then indicted on 

nine counts of first degree robbery and nine counts of second 

degree conspiracy. 

 In light of Alston's age, literacy, and prior 

experience with the criminal justice system, as well as the 

limited nature of the promise made by the investigators, a 

promise to make a non-binding recommendation to the prosecutor, 

the Court finds that Alston's written waiver of his Miranda

rights on August 29th was not coerced. Alston's three prior 

convictions indicate that he was not "an 'uninitiated novice,' 

susceptible to coercive pressure or threats by law enforcement 

officers." Cruz Jimenez, 894 F.2d at 8. If anything, his 

dealings with the criminal justice system would have allowed him 

to fully comprehend the serious situation in which he found 

himself, as well as the nature of the circumscribed promise made 

to him. Faced with substantial charges, implicated in the 

Medkeff-Sands robberies by fingerprint evidence, and incriminated 

by his confession of August 23rd, a confession that he does not 

challenge, Alston's decision on August 29th to waive his Miranda

rights and cooperate with the authorities was a reasonable one, 

and there is nothing in the record to indicate that the promise 

made coerced him into waiving his rights. 

 As Chief Justice Burger noted in his concurrence in 

Edwards, the Supreme Court "consistently has 'rejected any 

paternalistic rule protecting a defendant from his intelligent 

and voluntary decisions about his own criminal case.'" Edwards, 

451 U.S. at 490-91 (Burger, C.J., concurring) (quoting Mosley, 
423 U.S. at 109 (White, J., concurring)). We find that Alston 

made just such an autonomous decision when he waived his Miranda

rights and spoke with the police on August 29th, and that he was 

not denied in any way the "fundamental fairness" guaranteed him 

by the Fourteenth Amendment. 

VI. 

 This petition has raised some significant questions 

concerning the efficacy of the procedures used in Delaware's 

Gander Hill prison facility. Perhaps if this Court were charged 

with crafting a procedure for the recordation and maintenance of 

a suspect's invocation of his right to counsel, we would devise a 

less cumbersome system than the one applied to the petitioner. 

But it is not our task to develop such a system, nor do we sit as 

an ecumenical overseer of the state's detention procedures. We 

are solely charged with determining whether petitioner is being 

held in violation of his constitutional rights. Limited as we 

are to this jurisdictional grant, we find that there was no 

deprivation of Alston's constitutional rights, and will affirm 

the district court's denial of Alston's petition.