Soffar v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 16, 2004
April 21, 2004
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk

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

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

guilt phase proceedings, and (2) his right to counsel was violated
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 case 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 first 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 physical 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 of counsel was neither properly

2
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 ineffective 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 and 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 facts 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 course of a robbery at the

Fairlanes-Windfern Bowling Alley, located at 14441 Northwest

3
Freeway, approximately 13.5 miles northwest of downtown Houston,

Texas. 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 Fairlanes-

Windfern 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 closing 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 Freeway2

1
At the time of the robbery-murders in this case, two of the
four suspects 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 subsequently 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
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 approximately $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 other 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 going 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, he

(which the bowling alley fronted).

5
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 head 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 youth 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 to

6
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 the concession area.3 Photographs of the crime scene

indicate that, in general terms, Felsher's, Sims's, and Temple's

bodies were positioned in a somewhat semi-circular array, with a

greater distance 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.

3
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 doors-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 access 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 left 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
 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 personnel 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 treating 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 Gildonburg, 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

left eye. The bullet also caused some skull fragmentation

resulting in embedded bone fragments in a small portion of Garner's

8
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 victims 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 also

4
Dr. Gildonburg testified at Soffar's trial during 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 preceding 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 return 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." Soffar 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 fact that Garner's
account of the details of the robbery and shootings differs
radically from 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
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 Soffar's

trial as "contaminated" in the sense that medical personnel

attempting to resuscitate Felsher and Garner disturbed the

positioning of their bodies and left debris 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, moving 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,

10
Soffar's alleged accomplice.5

Investigating officers who questioned those present at the

crime scene determined that there was no 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 described 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 would 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 ransacked. Crime scene investigators were

dispatched and attempted to lift fingerprints from the church as

well.

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 released shortly thereafter because of the lack of evidence.
He has never been charged with any offense relating to this
incident.

11
 During the night of the murders, an interested and curious

local citizen, Richard Civitello, who came 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

bowling 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

from the 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 same 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

initially 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 wallets over to one of three officers

who, the next day, accompanied him back to the location where he

had found the wallets.

Forensic evidence obtained from the crime scene the night of

12
the murders, and during 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 originally

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.6

6
This fact is particularly significant, 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 infra, Soffar's confession
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
ballistics evidence better supports Garner's account of the body
positions at the time of the shootings than it does Soffar's

13
 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 were 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 Garner was independently remembering details of the offense

and was alert enough to briefly speak with detectives. Over a

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

separate occasions, and each conversation was both tape recorded

confession. These and other inconsistencies between Soffar's
confession and Garner's account of events are discussed in Part
I.D. infra, and are summarized in “Appendix A” to this opinion.

14
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 by

7
The state habeas 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 constituted 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
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 next evening, Kardatzke

returned with Detective Williamson and Officer Yarberra to speak

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

was also taped and transcribed by the police, Garner's responses

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

night 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 a

16
plastic container 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 get 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."

Garner 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 follows: Felsher,

Sims, Garner, Temple.

8
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
 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 added 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 floor. 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 of 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 of Sims.

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

other, no one screamed, and the robber 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.

18
 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 because 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.9

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 regarding 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 district attorney's
letterhead and signed by Robert J. Bodisch and B.T. Neff.

The witness 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
 his car to the church across the 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 persons
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,
parted 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
wearing a short sleeve shirt. The witness stated that
Steve then went to the middle of the counter and called
Tommy 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 seconds
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

20
 v. The Composite Drawing

In addition 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 brown 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 therefrom

Soffar 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 composite
drawing of the same perpetrator on August 5, 1980, the day Soffar
was initially arrested for theft of a motorcycle 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
throughout 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 talked 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 statements, 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 League

12
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
City police contacted 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 friend.

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 have

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

primary job as a police officer was to get 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 Statement14

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 a

13
We note that because Clawson’s conversations with Soffar
were never tape recorded or transcribed, we do not know what was
said to convince Soffar to talk.
14
A more detailed description of the events involved in the
taking of Soffar's statements can be found in Soffar I. See 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
written statement prepared by Detective Schultz. The statement was

identified as State's Exhibit 108, and while 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 checked 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 front 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 store16 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 Houston police officers before he was

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

ii. August 6, 1980--Soffar's Second Statement

the record before us.
16
There is no evidence confirming that this robbery occurred.

24
 Beginning shortly after 9:00 a.m. the morning of August 6,

1980, Williamson mirandized and interrogated Soffar for

approximately 50 minutes in a tape-recorded conversation during

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

that he drove 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.18 Soffar was

then mirandized and interrogated again by Williamson and Ladd, for

approximately 1 hour and 15 minutes 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 second

17
While neither a cassette tape or a transcript of this
conversation is contained in our record, the record does reflect
that during Williamson's interrogation, 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 Houston 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 sessions was summarized by detectives and
presented to Soffar in the form of written statements for his
signature.

25
statement was not introduced into evidence by the State, but was

used during the guilt phase of his capital murder trial. In his

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

first 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

for 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 the 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.

Bloomfield 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," and

20
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
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 privately 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 inside of the bowling alley. At

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

south of Houston where he identified Lawrence Bryant, 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 took Soffar to Galveston where

Soffar 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 Detectives

21
Celia 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 to 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
became 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
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 Ladd23 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 murders alone, Soffar contacted a family member and asked

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

approximately 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 minutes before beginning to take and prepare Soffar's

third statement.

At 9:25 p.m. on August 7, 1980, Soffar signed the third

23
Detective Tom Ladd is the brother of Detective J.W. Ladd
("Ladd").

28
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
his 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 lot 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 what 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
around and lay facing the way all the others were. 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. The

24
This statement is reproduced exactly as prepared. All
scrivener's errors and omissions are contained in the original.

29
girl screamed and then Lat told her 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 other guy who was still left who was
closest to the door and fired one time. I hit him in the
back of the head behind the ear. I walked around the
other 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 cheek. 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 saw some headlights. I went
outside but I didn't see anyone so when I came back in
Lat was rumageing [sic] through their pockets and took
the wallets out of their pockets. He took the money and
I think that he kept the wallets. We looked around to
make sure that nobody was looking and 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 Lat

30
 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

the 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 of

25
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." Soffar 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
events 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 in “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 police that after he

used the phone, he 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 statement.

32
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 support Soffar's account of Garner

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

fact, the only unmatched bullet hole, which could represent the

final 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

show 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 the

33
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

statement, Soffar made his preliminary initial appearance on the

felony capital murder charge before the 232nd Judicial District

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

court appointed Frederick Stover and Joseph Cannon to represent

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

in the courtroom to accept their appointment, were 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 was

27
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 was 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
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 something 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 had 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
stole some silver from my house so I was going to tell
the police he did it and get the reward, and get evan.
She 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.

The night before the robbery, their was a burgurly at
this bowling alley. I told the police the night before
the robbery, I broke into the bowling alley. That 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. They

35
 asked me that quiestion about 100 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 were 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 will 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
out 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
her, 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 officers 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 submitted Garner to questioning under

36
hypnosis. Presumably, the hypnotic interview was conducted in an

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

However, Soffar's appointed 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 initial interviews with

investigators, and that version of events differed dramatically

from the version given by Soffar in his written statements. See

“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 Garner, during its

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

suffering from retrogressed amnesia and that Garner 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 was 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 attempt to interview Garner themselves.

37
Rather amazingly, defense 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 admissibility of Soffar's first three

written statements. During the Jackson 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 the

38
Statutory and Constitutional rights."

Clawson and the other witnesses who testified at the Jackson

v. Denno hearing, repeated the 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 testified 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 presented 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 straight in the summer heat. Mrs. Soffar testified

39
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 numerous witnesses to attest to Soffar's criminal

history and reputation for having a violent 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 reasonable

29
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
 doubt whether the conduct of the Defendant in killing the
deceased was unreasonable in response to the provocation,
if any, by the deceased?

TEX. CRIM. PROC. CODE ANN. § 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 injection.

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 Soffar's conviction and sentence in a written

opinion. See 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. See Soffar v.

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

On December 14, 1992, 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. Azios30

conducted a thirteen-day evidentiary hearing during the time period

between August 16, 1994 and September 8, 1994. On November 10,

30
Judge Azios was not the same judge who tried the case
originally. Judge Van Stovall, who was a visiting judge, presided
over Soffar's original trial.

41
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 application 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. The

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 Brady32 claims, which were premised upon the State's

alleged suppression of a ballistics report and the pretrial

statements of Garner. The district court assumed that Soffar had

properly exhausted his state court remedies with respect to the

Brady claims, and denied Soffar's Brady claims on the merits. The

31
Claim 24 concerned the argument that execution of a death
sentence after a period of more than 15 year since the sentence was
imposed is cruel and unusual punishment. See Lackey v. Johnson, 83
F.3d 116 (5th Cir. 1996).
32
Brady v. Maryland, 373 U.S. 83 (1963).

42
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 counsel, 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 rendered his subsequent custodial

statements involuntary;

(2) Whether the extraneous offense evidence used 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 because the State

interrogated Soffar after he had requested and been appointed

counsel;

(3) Whether Soffar was denied the effective assistance of

33
The district court specifically found "that the Record was
sufficient for determination of the pending motions," and denied
Soffar's motions to augment the record.

43
counsel by virtue of his defense counsel's failure to investigate,

develop, and present available evidence during the guilt phase of

Soffar's trial; specifically, 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 challenge, 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 application 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. Soffar 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. En banc reconsideration was granted on

May 31, 2001, thereby vacating the panel opinion. The en banc

44
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 en 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 en banc Court, therefore,

remanded the case to the panel for consideration on the merits of

the outstanding two issues for which COA was granted. Soffar, 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 prior 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

corpus, we presume the factual determinations of the state court

34
The conclusionary disposition of the en banc majority
opinion stated:

“We also REINSTATE the panel’s rulings granting or
denying 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
made after a hearing to be correct unless one or more of the

following exceptions to such a presumption of correctness applies:

(1) that the merits of the factual 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 factual
issue was made, pertinent to a determination of the
sufficiency of the evidence to support such a factual
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 factual
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. See Crane v. Johnson, 178 F.3d 309,

312 (5th Cir.), cert. denied, 528 U.S. 947 (1999).

III. DISCUSSION

46
 We now address whether Soffar was denied the effective

assistance of counsel by virtue of his defense counsel's failure to

investigate, develop, and present 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 preliminary 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 assistance 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 the

47
panel. On en 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 en 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 appealability on all of the four issues which

petitioner 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 COA 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
underlying merits. Slack, 529 U.S. at 481,
120 Supreme Court 1595; Hohn, 524 U.S. at 241,

48
 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 reinstated by the opinion of the en banc Court in

Soffar II, clearly complies with the test of “debatability of the

underlying constitutional claims” as instructed by the Supreme

Court in Miller-El.

In his dissent here in Soffar III, Judge Garza obviously

decides to change his mind in part about our prior grant of COA’s

on the 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 seeking federal habeas relief under § 2254 must

49
exhaust all claims in state court 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. See Duncan v. Henry, 513 U.S. 364, 366

(1995); Fisher v. State of Texas, 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, see 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 fulfilled

50
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 confession
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 defense

35
We note that on March 8, 1994, the state habeas court signed
an order, 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 and 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
did not exclude Soffar's claims regarding Garner's statements to
police or the ballistics evidence.

51
 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 his 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.'" Fisher, 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

law presented to the state habeas court, Soffar consistently

recited facts and allegations that give rise to the constitutional

claims under Strickland, which are now before this Court. Soffar

52
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 not 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 Garner's statements regarding the contents of
their offense reports, 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, ballistics-
related 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 four 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,

53
evidence which, again, conflicted with [Soffar's] Statement, but

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 retain 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 discovery 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." TEX. R. CIV. P. 67.

The fact that the Texas Court of Criminal Appeals did not make

an explicit 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 the

54
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 assistance

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 United States Constitution As A Result Of Defense

55
 Counsels’ Unreasonable Failure To Investigate, Develop
And Present 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, Soffar is clearly asserting a

claim that encompasses both the Garner statements and the

ballistics evidence.

Soffar provides 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 doubt on Soffar’s statement

that five shots had been fired rather than four as the combined

weight of the bullet fragments recovered and accounted for in

56
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 police 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 specific ground for

relief, identifying defense counsel’s failure 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 conflicting

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 failing

57
to contact Garner when doing so would have clarified the extent to

which Garner could have assisted them in contradicting 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 ballistics-
related 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

Soffar again raises the issues relating to his defense

58
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 present

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

identifying 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 his

59
 failure to identify [Soffar] 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
falsely told defense counsel that Garner was a
“vegetable,” and defense counsel accepted this false
information, making no attempt to even contact Garner
prior to trial. None of the numerous discrepancies
between [Soffar’s] Statement and the evidence, as set
forth herein, were brought out at trial, and there is
nothing in the trial record to indicate that defense
counsel were ever even aware of these discrepancies —
including the key fact that the physical, ballistics-
related 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
contradicting 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
put forth by the State as “corroboration” for the
[Soffar’s] Statement, and found that the evidence:
established that the bodies of the victims
were found in a line basically parallel, in
order of Temple, Sims, Welsher and Garner,
with Garner’s body 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 all facing back towards the
snack bar.”
Petitioner’s defense counsel, having been advised by the

60
 prosecutor that Garner was a “vegetable” who was
unavailable to testify, failed to take any steps to bring
out the critical contrary evidence relating to 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 reflects

36
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. However, 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.
37
While Judge Garza concedes that Soffar’s ineffective
assistance of counsel claims were raised in the appendix to his
motion for summary judgment, he maintains, however, that the
district court did not rule on these claims, “apparently
recognizing that it could not consider claims not raised in the

61
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 contention 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 Ineffective 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 counsel

habeas 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 Pennsylvania (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
habeas 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
claim. Soffar contends that he received ineffective assistance of

counsel during the guilt phase of his trial because his counsel

failed to conduct an adequate pretrial investigation. Under the

two-prong test enunciated in Strickland 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. Id. at 689. Under the second prong,

prejudice must be demonstrated by showing that the defendant's

counsel’s errors were so serious that they rendered the proceedings

fundamentally unfair or the result unreliable. Lockhart 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

ineffective 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's

63
account and the ballistics evidence were substantially consistent,

whereas 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 from

38
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 State, 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
Bloomfield’s release, including whether Bloomfield had an alibi
which 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
performance. See 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
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.

Second, Soffar argues that his counsel were ineffective for

failing to retain a ballistics 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 argued 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

ballistics expert would have highlighted is that the police

discovered Garner in a location different from where he said he was

65
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." Id. at 688. The Supreme Court has

declined to articulate specific guidelines for appropriate attorney

conduct 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, counsel

66
 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,
applying 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 events; to (2)

determine whether he could testify at trial, the substance of his

potential testimony, and whether it would be consistent with his

taped and transcribed statements and any other information he gave

to 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.’” Anderson v. Johnson,

67
338 F.3d 382, 391 (5th Cir. 2003) (quoting Bryant v. Scott, 28 F.3d

1411, 1418 (5th Cir. 1994)). In Bryant, the defense counsel did

not interview two eyewitnesses and 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 constitutionally 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 that Soffar’s defense counsel have offered no

acceptable justification for their failure to take the most

elementary step of attempting to interview the single known

eyewitness to the crime with which their client was charged. We

conclude that this failure is sufficiently deficient to satisfy the

first prong of Strickland.

As we discussed supra, Garner provided the police with four

68
statements and a post-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 violation 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 oversight,

Soffar's counsel must have been aware of the existence of Garner's

statements. Garner's statements, as clearly shown in “Appendix 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) gained

39
The district court in this habeas proceeding concluded:

In light of the 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 less 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
known, of the essential facts permitting him to take
advantage of any exculpatory evidence,” it can 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
 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 counsel, however, chose not to utilize Garner's

statements to show reasonable doubt as to the reliability of

Soffar's statements 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

Garner 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 in-

court identification of Soffar by Garner and a potential series of

“damning recollections spurred by an in-court confrontation 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 rationale

70
here — that a failure 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 that 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
to 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,
recorded 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 news

71
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, they 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 surviving 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 apparent reasonable possibility that information and evidence

favorable to Soffar’s defense could have been obtained through

pretrial investigation and interviews of Garner; furthermore, a

reasonable lawyer would have made efforts to investigate whether

Garner could testify favorably and decide whether Garner’s

72
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.” Wiggins 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 ballistics evidence to show a correlation between the

statement attributed to Soffar and the crime scene. Yet Soffar's

defense counsel never even consulted with a ballistics expert.

Defense counsel were aware of the inconsistencies between Garner’s

73
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 defense

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 Supreme Court recognized that an

ineffective assistance of counsel claim based on the "failure to

investigate" increases the temptation to rely on hindsight. 466

U.S. at 689. Thus, the Court noted that "strategic choices made

after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable." Id. 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 judgments

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.

74
 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 rather 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 review 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

concluded 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 prevailed 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 determining

75
objective reasonableness 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 decision 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 unspecified 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 of

40
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 to 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 Cir. 2002) (applying Strickland to
ineffective assistance claim involving penalty phase of capital
murder trial).
76
investigations into these matters certainly falls below an

objective standard of reasonableness.

Likewise, Soffar's defense counsel chose to do nothing about

the 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 testified 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 closest 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 (see "Appendix C"). Ignoring such evidence under the

77
circumstances of this case simply cannot be characterized as the

reasonable exercise of professional judgment. Strickland, 466 U.S.

at 691.

Soffar's defense counsel, therefore, were deficient for two

reasons. First, although defense counsel knew that Garner was the

only known eyewitness, were aware the State did not plan to call

Garner as a witness, and had access to Garner’s taped and

transcribed 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 transcribed

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 decision 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 avenues

78
of evidence 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 Strickland, Soffar must

establish a “reasonable probability that, but for counsel’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 warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the

judgment." Id. at 691. Rather, the test we must apply is whether

there is a reasonable 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 harmless 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 given

79
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

linked 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 contrary, the arguably incorrect pattern of the

shootings deduced by the police from the victims’ ultimate 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 an

80
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 Soffar, 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 return a verdict of guilty. The

available evidence casting doubt on the truth and veracity 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 thin 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 deficient conduct more likely than not altered the

outcome in the case." Strickland, 466 U.S. at 693. In order to

81
establish prejudice, Soffar need only show that had his defense

counsel conducted an adequate pretrial investigation as discussed

above, there is a reasonable probability that the jury's verdict

would have been different. Id. 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 panel

41
This Circuit has found the constitutionally deficient
performance of counsel to be prejudicial on numerous 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); Beltran v. Cockrell, 294 F.3d
730, 733-35 (5th Cir. 2002) (finding prejudice where defense
counsel decided not to impeach eyewitnesses' testimony that
defendant was only person whom they had picked from photographic
array with the 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 disclosed 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 facts in these cases and for the
reasons set 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
and the en banc Court have previously granted a COA. We do not

consider or address Soffar’s additional claim that the State

violated his Sixth Amendment 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, and 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.

83
EMILIO M. GARZA, Circuit Judge, dissenting:

We do not have jurisdiction to consider Soffar’s ineffective 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 charge 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

his trial counsels were deficient in failing to investigate and bring out inconsistencies between 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 those

grounds raised Strickland claims: Ground I alleged 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

of 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

42
Greg Garner was shot in the head and left 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.
to retain a ballistics expert, develop ballistics evidence, or develop evidence with respect to Garner’s

statements. As the majority opinion notes, Ground I most closely resembles the claims presently

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 incriminating statements.

Soffar argued extensively about his counsels’ failure to investigate and develop evidence of his mental

condition, its effect on his willingness to give a false confession, and the fundamental flaws o his
f

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 relief was that his trial

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 reliability of his incriminating 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 medical

-85-
 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 and testing on
Max confirms the existence of substantial permanent organic brain damage.” Id. ¶
65, at 25.

“Defense counsel had available to them psychiatric 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 does

44
Ground III: “The State’s withholding of material evidence
relevant to the guilt phase of Petitioner’s trial, which if
admitted likely would have mandated suppression of Petitioner’s
written statements, 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-
refer to the prosecution’s failure to turnover ballistics evidence. He does not, however, refer either

to the need for testimony from a ballistics expert or to the Garner statements. Even if he had made

these factual references, he certainly never articulated or even casually referenced the Strickland

claims presently before this Court.

Under Brady v. Maryland, “suppression by the prosecution of evidence favorable to an

accused upon request violates due 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 Brady

claim is misbehavior by a prosecutor, and the constitutional right asserted is due process of law under

the Fourteenth Amendment. See 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 Strickland claim is deficient attorney

performance, and the constitutional right asserted is t he Sixth Amendment right to counsel. See

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 quotations omitted). Considering a Brady 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 petitioners 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 attorneys can distinguish between errors

to 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-
by a prosecutor under the Fourteenth Amendment and errors by a defense counsel under the Sixth

Amendment.

It is simply not true that Soffar “explicitly 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 this case because Soffar

“explicitly and adequately” outlined Strickland claims in eight separate grounds for relief in his habeas

petition. See 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 ballistics 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 these claims as

irrelevant because “this fact reflects only that the district court, like the state habeas court, simply

considered and rejected Soffar’s claims of ineffective 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 to

45
There is no mention of them in the body of the brief.
-88-
address these particular claims in a 127 page opinion46 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. See FED R. APP. P. 22(a) (providing the 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 matter.”).

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 counsel. However, because I do not believe relief can be

granted on Soffar’s phantom Strickland claim, I must address the merits of his contention that his

Sixth Amendment right to counsel was violated when he was interrogated by a Harris County

detective regarding an unrelated sexual assault charge.

46
The state habeas trial court’s opinion is 183 pages.
47
Because I find that Soffar’s Strickland claims are not
properly 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-
 At some point while Houston Police were interrogating Soffar as to the murders at issue in

this case, Soffar, without provocation, confessed to the rape of a woman in Harris County. After

charging Soffar with the murders at the bowling 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 later

identified 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 Detective Bockel’s

illegal interrogation of Soffar in violation of his Sixth Amendment right to counsel. See Maine v.

Moulton, 474 U.S. 159, 180, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). Soffar then cl aims 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 Amendment rights is submitted during the

penalty phases of his capital 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 questioning Soffar about the

48
Soffar was not subsequently charged with the rape,
presumably because he was convicted of these murders.
-90-
sexual assault offense, including Soffar’s confession and the victim’s testimony, were admissible in

the punishment phase of his capital murder trial, even though he was never formally charged with

committing the sexual assault. See 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

charge, preliminary hearing, indictment, information, or arraignment”). As Soffar knowingly and

intelligently waived his Miranda rights before being questioned by Detective Bockel about the

uncharged sexual assault offense, the police were free to question him, without counsel present, about

that offense. See 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 they 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 another 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 charges.

-91-
He thus argues that the police officers purposefully “circumvented” his right to counsel as to the

murder charges by questioning him as to the sexual assault charge for the purpose of soliciting

incriminating 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, “incriminating statements pertaining to pending charges are

inadmissible at the 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.” Id. Thus, if, during the

interrogation, Soffar had made incriminating statements pertaining to his capital murder charges,

those statements would have been inadmissible at Soffar’s capital murder trial, if the State knowingly

circumvented 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 incriminating

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’s

-92-
interrogation was limited 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

sexual assault for the limited purpose of determining punishment.49 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

he was info rmed that Soffar had already confessed to a rape in Harris County. Before Bockel

49
Specifically the state habeas court found:

1) on August 19, 1980, in the presence of Detective 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 August 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 sufficiently understood those
warnings, that Soffar specified that he did not want his attorneys present but rather wanted to talk
to Detective Bockel only, that the conversation only concerned the sexual assault of [the victim], and
that no coercion or threats were made to Soffar to obtain this confession;

4) during the Jackson v. Denno hearing in the instant 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
victim] for the limited purpose of aiding the jury in answering any questions that might be presented
in the punishment charge, and also instructed the jury that, 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-
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 taking 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 of the 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 incriminating 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. See id. at 176 (“[T]he Sixth Amendment is not

violated whenever))by luck or happenstance))the State obtains incriminating statements from the

accused after the right to counsel has attached.”).

Further, the victim’s testimony, to the extent that it is the fruit of Soffar’s rape confession,

50
Although the victim was unable to conclusively identify
Soffar in the live line-up, the use of the line-up further supports
the conclusion that Detective Bockel’s purpose in interrogating
Soffar was to further the investigation of the sexual assault
rather than gather evidence for the punishment phase of the murder
trial.
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is the fruit of his confession to Houston Police, not to Detective Bockel. By the 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 violate Soffar’s Sixth Amendment right to counsel because he made no

incriminating 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 evidence 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 victim’s testimony was

the fruit of his confession to the Houston 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

Soffar’s Written Statement Garner Interview

August 7, 1980 July 17-20, 1980
Latt and I both went inside the There was just one robber who

bowling alley together. entered the bowling alley.
Latt had a stocking over his The robber wore no disguise

head and I had my shirt pulled and I had an unobstructed view

up over my face. of his face.
Latt and I went right in an Steve Sims unlocked the front

unlocked front door. door and let in the robber who

had been knocking on the door.
We stayed inside of the It appeared that the robber

bowling alley during the had told Steve he was having

entire time we were there. car trouble. He was carrying

a water jug that he wanted to

fill up, and the robber and

Sims went back outside

together.

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 APPENDIX A

Soffar’s Written Statement Garner Interview

August 7, 1980 July 17-20, 1980
As soon as we walked in, Lat When Sims and the same robber

grabbed the first guy we saw guy came back inside, I walked

by the hair (the dude, who up from bowling on lanes 25/26

according to Soffar, ended up to see what was going on. The

lying farthest from the front robber asked Sims if anyone

door, i.e, Tommy Temple) and else was there, and Sims

made him get down on his called Temple and Felsher up

knees. The other three people to the front.

saw this and they walked up to

see what was going on.
The girl screamed and kept No one, not even the girl,

screaming. Latt kicked her, screamed or said anything, and

and he also kicked the second the robber never hit, kicked,

dude (Sims) because he kept or touched anyone.

looking up.

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 APPENDIX A

Soffar’s Written Statement Garner Interview

August 7, 1980 July 17-20, 1980
Latt fired a warning shot, and I think there were four shots

there were four more shots fired total. The same lone robber

after that. (Latt shot the shot us all, one right after

first two guys from behind, in another. Felsher was in

position 3 and 4, then he threw position 1, Sims in position 2,

the gun to me. he made me shoot I was in position 3, and Temple

Garner from behind, position 1, was in position 4.

and I walked around in front of

Felsher and he made me shoot her

in cheek, position 2)51

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).
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 APPENDIX A

Soffar’s Written Statement Garner Interview

August 7, 1980 July 17-20, 1980
The victims’ positions at the The body positions at the time

time of the shootings were male, of the shootings were female,

female, male, male. Latt shot male, male, male. I got up and

Sims first in position 3, then made a call to my mother, and

he shot Temple in position 4. then the manager called me. I

Next, I shot Garner in position then went back and laid down

1, and then I shot Felsher when next to the female, assuming a

she was in position 2. position closest to door (thus

changing the body configuration

to male, female, mail, male).
I went around and emptied the Before the shootings, the robber

cash register after the asked if I could open the

shootings. 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

with his gun on us. He then

made Steve come back around and

lie down. Then the robber shot

us all.

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 APPENDIX A

Soffar’s Written Statement Garner Interview

August 7, 1980 July 17-20, 1980
Latt emptied the victims’ The robber asked me for my

pockets to get their wallets wallet when I first approached

after the shootings. 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

52
This information was derived from Garner’s hypnotic interview
on August 21, 1980.

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