UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENS SOERING,

Petitioner-Appellant,

v.

No. 99-6498

GEORGE DEEDS, Warden, Keen

Mountain Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-98-361-R)

Argued: June 8, 2000

Decided: June 30, 2000

Before WILKINS and LUTTIG, Circuit Judges, and

Robert R. BEEZER, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gail Starling Marshall, Rapidan, Virginia, for Appellant.

John H. McLees, Jr., Senior Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

ON BRIEF: Mark L. Earley, Attorney General of Virginia, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Petitioner-appellant Jens Soering appeals from the district court's

denial of his application under 28 U.S.C. § 2254 for a writ of habeas

corpus. Soering claims, inter alia, that several of his confessions were

obtained in violation of Edwards v. Arizona, 451 U.S. 477 (1981),

and that the prosecution withheld material exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Because we conclude that the district court correctly upheld the Supreme Court of

Virginia's rejection of these and other claims advanced by Soering,

we affirm the district court's judgment denying Soering's application

for a writ of habeas corpus.

I.

Soering was sentenced in 1990, in accordance with the jury's recommendations, to two consecutive terms of life imprisonment for the

murders of Derek and Nancy Haysom. Five years earlier, the corpses

of the Haysoms were found in their home, with their throats slashed

and their torsos penetrated with multiple stab wounds. J.A. 1233-34;

1240-42 (autopsy reports). Soering, a German citizen, confessed to

these murders in detail on several occasions following his arrest in

England on unrelated check-fraud charges; he explained how he and

Elizabeth Haysom, the victims' daughter and Soering's former girlfriend, arranged for Elizabeth to provide him with an alibi while he

killed her parents, and he demonstrated to authorities the manner in

which he severed the main artery in each of his victim's necks. See,

e.g., J.A. 154-58, 168, 847-48. Soering's account of how he struggled

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with and then killed the Haysoms was consistent with the deep facial

bruise and the bandages to his left-hand fingers that he was seen with

at the Haysoms' funeral. J.A. 877. Moreover, Soering's blood was of

the same type as the unidentified blood found at the crime scene. J.A.

933, 944.

On direct review, both the Virginia Court of Appeals and the

Supreme Court of Virginia denied Soering's petition for an appeal

from his convictions and sentences for first-degree murder. On state

collateral review, the Supreme Court of Virginia denied his petition

for a writ of habeas corpus, after first remanding his Brady claim for

an evidentiary hearing. Soering then filed an application for a writ of

habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254.

The district court denied Soering's application and subsequently

denied his motion to alter or amend its judgment.

II.

Applying the standard of review set forth by the Supreme Court in

Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000), we consider

whether the Supreme Court of Virginia's rejection of Soering's

claims "was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States," 28 U.S.C. § 2254(d)(1).

A.

Soering first argues that the district court erred in upholding the

Supreme Court of Virginia's rejection of his claim that his confessions in England were obtained in violation of Edwards v. Arizona,

451 U.S. 477 (1981). Under Edwards,

an accused [. . .], having expressed his desire to deal with

the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the

police.

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451 U.S. at 484. Specifically, Soering contends that, even though he

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

the end of his second interview, he was subjected to further interrogation a few hours later by a Virginia law-enforcement officer (Investigator Gardner) and his British counterparts. Soering argues that,

because any self-incriminating statements that he made during the

third and subsequent interviews should have therefore been suppressed, the trial court's failure to do so entitles him to habeas relief.

We conclude that the district court correctly upheld the Supreme

Court of Virginia's rejection of Soering's Edwards claim because,

even assuming that Edwards applies to an American law-enforcement

officer's interrogation of a German citizen in British custody we cannot say that Edwards was actually violated at all: Soering has simply

failed to "rebut[ ]," "by clear and convincing evidence," "the presumption of correctness" that we must accord to the state trial court's

factual finding that Soering himself "initiated" the third and subsequent interviews with the police, § 2254(e)(1); J.A. 480.* Soering

offers nothing more than sheer speculation about whether the police

orchestrated or pressured him into initiating further contact with them

after his second interview. See, e.g. , Appellant's Br. at 43-44. And

there is strong support in the record for the state court's factual finding that Soering himself initiated further communication with the

police. First, after being taken back to his cell, Soering asked one of

the jail guards to inform Detective Constable Wright, who had participated in Gardner's earlier questioning of Soering, that he wished to

speak to Gardner again. J.A. 609. Second, six minutes before the third

interview began, Soering signed the following entry in the custody

log at the British police station where he was being held: "I now wish

to speak to D/S Beever, D/C Wright, D/C Gardner without my solicitor being present." J.A. 609, 633, 1562. Soering therefore clearly indicated that, regardless of what had transpired beforehand, he was

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*The district court held that, under United States v. Verdugo-Urquidez,

494 U.S. 259 (1990), it was clearly established that Edwards applies to

custodial interrogations by American law-enforcement officers of foreign

citizens in foreign custody in foreign lands. J.A. 1556. Given our disposition infra, we need not address the question whether Edwards does in

fact govern custodial interrogations by American law-enforcement officers of foreign citizens in foreign custody in foreign lands.

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"now," at that point in time, initiating contact with the police. And in

doing so, he in no way indicated that he wished to discuss only the

British check-fraud charges, rather than the Haysom murders, about

which Beever, Wright, and Gardner had interviewed him earlier that

day. Third, Soering's statements during the ensuing interview "reflect[ed] no unwillingness to talk or any other reason to believe that he

was taken from his cell against his will and at the instance of law

enforcement officers"; moreover, Soering made no reference whatsoever to the British check-fraud charges during this interview, which

confirms that he did not wish to discuss only those charges. J.A.

1563; 151-90.

Even if the Supreme Court of Virginia's rejection of Soering's

Edwards claim was "contrary to," or "an unreasonable application of,"

Edwards, Soering would still not be entitled to habeas relief on this

ground, since Soering has failed to show that the admission of his

confessions made in England "had [a] substantial and injurious effect

or influence in determining the jury's verdict," thereby causing him

"actual prejudice," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Soering did not suffer "actual prejudice" because the jury in all likelihood would have reached the same verdict that it did in reliance on

Soering's subsequent, voluntary, counseled confession to a German

prosecutor, which Soering does not challenge as being improperly

admitted at trial, and which contained many of the same incriminating

details that his confessions in England did. See , e.g., J.A. 1034-35

("the next thing that I can remember is that I stood behind Mr. Haysom, and then blood ran from his neck into his lap. . . . I stood there

with a knife in my hand. . . . I don't know whether I stabbed him in

the neck or cut down along the neck. . . . Prosecutor: Diagonal cut

through the artery? The defendant [Soering]: Yes, that was it."); J.A.

1038 ("finally I injured Mrs. Haysom, too, at her neck"); J.A. 1046

("I can remember that I caused both of them neck wounds.").

B.

Soering next argues that the district court erred in upholding the

Supreme Court of Virginia's rejection of his claim that material

exculpatory evidence was withheld from him by the prosecution in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically,

Soering contends that the Virginia court's decision was "contrary to,"

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and "an unreasonable application of," Brady because there is a "reasonable probability" that the outcome at trial would have been different, Kyles v. Whitley, 514 U.S. 419, 434 (1995), if the prosecution had

disclosed to Soering evidence that, within a week of the Haysom murders, a sheriff's deputy briefly detained two vagrants, Shifflett and

Albright, who were later convicted of murdering Milliken, another

vagrant. Such evidence, Soering argues, would have bolstered his

defense that the Haysoms were murdered not by him, but rather, by

Elizabeth Haysom, assisted by one or two accomplices.

We conclude that the district court correctly upheld the Supreme

Court of Virginia's rejection of Soering's Brady claim because the

evidence in question is not material for purposes of Brady. The

Supreme Court of Virginia did not unreasonably apply Kyles in holding that there is no "reasonable probability" that "the result of the proceeding would have been different" had the prosecution disclosed to

Soering the evidence concerning Shifflett and Albright, Soering v.

Deeds, 499 S.E.2d 514, 517 (Va. 1998) (quoting, inter alia, Kyles,

514 U.S. at 435). First, the only relationship between the Haysom and

the Milliken murders was that they occurred in the same county

within six days of each other, and both were carried out with a knife.

There is no evidence whatsoever that either Shifflett or Albright had

ever met, or knew of, Elizabeth Haysom or her parents, nor is there

any physical evidence connecting Shifflett or Albright to the Haysom

murders. Second, it is highly unlikely that Shifflett and Albright, who

murdered another vagrant to rob him of his empty wallet, murdered

the Haysoms, since robbery was patently not the motive behind the

Haysom murders: silverware, jewelry, $122 in cash, the automobile

parked outside and the keys thereto, a television, stereo equipment,

and other valuable items that were in plain view were left behind after

the Haysoms were murdered. J.A. 1269, 1273, 1281-83, 694, 690-91.

Third, the manner in which Milliken and the Haysoms were murdered

differed markedly: Milliken's throat was stabbed, not slashed, as was

the case with the Haysoms, and thus Milliken died slowly, unlike the

Haysoms; moreover, the Haysoms were not sexually mutilated, as

was Milliken. Compare J.A. 1243-49 with J.A. 1226-42; see also J.A.

1191. Fourth, it is far from clear that the knife that the deputy found

buried in the back seat of his patrol car one week after he detained

Shifflett and Albright, and that Soering now alleges was used by Shifflett and Albright to murder the Haysoms, even belonged to the two

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vagrants, since the deputy could not recall when he had last checked

his back seat prior to detaining Shifflett and Albright. J.A. 1120.

Fifth, the knife was a very common kind of folding knife, readily

available at retail stores. J.A. 1189. Sixth, even if the knife did belong

to Shifflett and Albright, there were no traces of blood on it, and

although the blade was "consistent with the size and shape of [the]

weapon that could have caused the wounds to [the Haysoms]," the

medical examiner explained that he could not determine the precise

dimensions of the blade actually used to cause the Haysoms' wounds.

J.A. 1187-88, 1186; see also Soering, 499 S.E.2d at 516. In light of

the foregoing, we cannot say that the Supreme Court of Virginia's

rejection of Soering's Brady claim was "contrary to," or "an unreasonable application of," Brady or Kyles.

C.

Finally, Soering raises a number of ineffective-assistance-ofcounsel claims, all of which were rejected by the Supreme Court of

Virginia. We agree with the district court that the Virginia court's

rejection of these claims likewise was not "contrary to," or "an unreasonable application of," Strickland v. Washington, 466 U.S. 668

(1984).

First, Soering argues that counsel was constitutionally ineffective

in failing to object to the prosecutor's comments to the jury about

Soering's refusal to submit blood and hair samples, footprints, and

fingerprints to the authorities when he was asked to do so. We conclude that counsel's failure to object did not "f[a]ll below an objective

standard of reasonableness," Strickland, 466 U.S. at 688, not only

because counsel may have made a tactical decision not to draw the

jury's attention to such comments by objecting, but also because, in

South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court

upheld the constitutionality of a state law permitting the admission

into evidence of a defendant's refusal to submit to a blood-alcohol

test, see id. at 918, 923. Soering counters that Neville is distinguishable because in Neville, unlike in the present case, the police had

probable cause prior to requesting a blood sample from the defendant,

and thus the prosecutor's comments did not burden the defendant's

Fourth Amendment right to refuse unreasonable searches of his body.

Thus, Soering argues, counsel could have successfully objected to the

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prosecutor's comments by arguing for an extension of Griffin v. California, 380 U.S. 609 (1965), which held that a prosecutor's or trial

court's comments on a defendant's refusal to take the witness stand

impermissibly burdened the defendant's Fifth Amendment right to

refuse to testify, see id. at 615. We doubt that such an argument could

have succeeded because, even if the trial court were willing to extend

Griffin to prohibit prosecutors from commenting on a defendant's

refusal to consent to searches unsupported by probable cause, the

prosecutor's comments would have still been permissible as a means

of impeaching Soering's credibility, since Soering testified on his

own behalf. See Portuondo v. Agard, 120 S. Ct. 1119, 1125 (2000)

(limiting Griffin to "comments that suggest [that] a defendant's

silence is [substantive] evidence of guilt" (internal quotation marks

omitted)). In any event, we cannot say that Soering was prejudiced

within the meaning of Strickland. See infra.

Second, Soering contends that counsel was constitutionally ineffective in failing to preserve an objection to the trial court's refusal to

instruct the jury on the crime of being an accessory-after-the-fact.

Counsel was not ineffective because under Virginia law, Soering was

not entitled to an accessory-after-the-fact instruction at all, since he

was not charged with being an accessory-after-the-fact. See Commonwealth v. Dalton, 524 S.E.2d 860, 863 (Va. 2000); Indictments of

Jens Soering (June 13, 1986). Counsel was also not ineffective

because the trial court was entitled to insist, as it did, on giving an

accessory-after-the-fact instruction only if an accessory-before-thefact instruction was also given. Soering argues that the trial court was

not entitled to so insist because, under Virginia law, there was insufficient evidence to support an accessory-before-the-fact instruction.

However, there was ample evidence from which the jury could have

concluded that Soering participated as an accessory-before-the-fact in

planning the murders of the Haysoms. See, e.g., J.A. 998 (Elizabeth

Haysom's testimony that on the morning of the murders, Soering

bought a knife from a sporting goods store with some money that

Elizabeth had just given him); J.A. 1056 (Soering's testimony that he

bought two movie tickets and ordered room service for two on the

evening of the murders in order to produce an alibi for Elizabeth).

Even if Soering were entitled to an accessory after-the-fact instruction, he was not prejudiced by counsel's failure to preserve an objection to the trial court's refusal to give such an instruction, given the

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overwhelming evidence that he personally killed the Haysoms. See

infra.

Third, Soering argues that counsel was constitutionally ineffective

in failing to present more evidence to rebut the prosecution's contention that the bloody sockprint found at the scene of the crime was

Soering's. Counsel's performance was not objectively deficient nor

was Soering prejudiced, since counsel effectively cross-examined one

of the prosecution's witnesses about his failure to compare Elizabeth

Haysom's foot impressions with the sockprint, and since counsel

demonstrated to the jury during closing argument"how one of Elizabeth's foot impressions matched the sock print almost as well as petitioner's [did]." J.A. 969, 1572; see also J.A. 1076 (counsel reminds

the jury during closing argument that the shoe prints found at the

crime scene were similar in size to Elizabeth's shoes).

Finally, Soering argues that his rights under Strickland were

abridged because his lead trial counsel, who has since been disbarred,

was emotionally and mentally troubled at the time of the trial. However, we conclude that the Supreme Court of Virginia's rejection of

this claim was not an unreasonable application of Strickland, not only

because lead trial counsel did not perform below an objective standard of reasonableness, but also because Soering was not prejudiced,

since local co-counsel was of sound mind and represented Soering

competently.

Even considering all of the alleged instances of ineffective assistance of counsel cumulatively, we cannot say that Soering was prejudiced within the meaning of Strickland, given the overwhelming

evidence of his guilt. Soering's confessions to American, British, and

German officials recounted in detail how he and Elizabeth planned

the murders and how he then carried them out. See, e.g., J.A. 154-58,

168, 847-48. These accounts of how he struggled with and then

slaughtered the Haysoms were consistent with the deep facial bruise

and the bandages to his left-hand fingers that he was seen with at the

Haysoms' funeral. J.A. 877. And Soering's blood was of the same

type as the unidentified blood found at the crime scene. J.A. 933, 944.

Given these facts, we cannot say that, "but for counsel's unprofessional errors, the result of the proceeding would have been different,"

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and thus we cannot say that Soering was prejudiced, Strickland, 466

U.S. at 694.

CONCLUSION

For the reasons stated herein, we affirm the district court's judgment denying Jens Soering's application for a writ of habeas corpus.

AFFIRMED

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