concurring.
I agree with the majority in affirming the district court’s order refusing Jere-maine Perry’s habeas petition and join in all parts of the majority opinion except Part II. Two reasons cause me to write separately. First, I believe the majority misstates the nature of Perry’s ineffective representation claim and perpetuates an error of the district court. In a normal ineffectiveness case, I would argue we should, as a result, consider the merits of that claim. This is not such a case, which is the other reason I write separately. In my view, decisions of the Supreme Court compel the conclusion Perry did not have a right to counsel under the Sixth Amendment when he confessed to murdering his grandfather. I would affirm on that basis.
I
Part II of the majority opinion suffers, in my view, from two maladies. First, it mischaracterizes Perry’s complaint about his attorney’s conduct. According to the majority, Perry’s claim is this: “Wampler rendered ineffective assistance by arranging for [Perry] to be interviewed by police once without the presence of counsel (on January 4) and again with counsel absent for a part of the time (on January 7), during which interviews Mr. Perry made damaging statements which were used against him at trial.” Ante at 882-83. So stated, the most troubling aspects of Perry’s claim escape review entirely. A fair rendering of the critical part of Perry’s complaint follows: Wampler acted defi-ciently in advising Perry to confess to murdering his grandfather at the January 7 meeting with police, and in doing so without attempting to engage in plea bargaining to keep Perry in the juvenile justice system. This is a serious charge that raises important questions even under the unforgiving standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The decision to admit to committing a crime is a grave one. It is, in fact, “ordinarily the most important single decision in a criminal case.” United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998) (holding defendant did not receive effective assistance at post-indictment plea negotiations when counsel seriously underestimated his exposure at sentencing) (internal quotation and citation omitted); see also United States v. Day, 969 F.2d 39, 42-44 (3d Cir.1992) (same); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir.1991) (“A criminal defendant has a right to effective assistance of counsel in deciding whether to accept or reject a proposed plea agreement.”). Any lawyer considering such an option should do so with the utmost care. Any court reviewing such a claim should at a minimum acknowledge its nature and seriousness.
The second concern with Part II of the majority’s opinion is it replicates an error of the district court. The district court misread the state trial court’s findings of fact. According to its version, the state court found Wampler advised Perry not to talk to the police on January 4 and again advised him not to talk to them on January 7, when Perry confessed to the murder. The district court deferred to these findings of fact as required by the habeas statute,2 and rejected Perry’s claim because he had not produced clear and convincing evidence to overcome the presumption of correctness such findings enjoy. *891With those factual findings in place, Perry’s ineffectiveness claim could not survive because, at least so far as the district court could recognize, Wampler did not commit the complained of acts. The majority opinion agrees with the district court in all respects.3 The district court’s reasoning is sound but is based on a false premise — 'the state trial court did not find Wampler advised against confessing on January 7.4
On the contrary, the state trial court’s only unequivocal statement regarding the January 7 meeting shows it found Wam-pler advised confession. The court wrote:
Wampler testified that it was his belief ... the only way to salvage a positive result was to keep [Perry] in the juvenile justice system and do everything possible to prevent Movant’s certification to be tried as an adult. By January 6, once Wampler was finally told the truth by [Perry], Wampler, based on his testimony at the post-conviction relief hearing, did have a strategy. In his mind, the only strategy left to [Perry] was to cooperate with atithorities and convince them that his client, a juvenile, should be handled by the juvenile justice system. Even the defendant was aware of the strategy that he and his attorney were trying to employ.
Findings of Fact & Conclusions of Law and Order, App. Appendix vol. VII at 2399 (emphasis added). This passage indicates the court accepted Perry’s claim Wampler recommended full cooperation at the January 7 meeting. The state trial court’s handling of Perry’s claim is consistent with this finding. Rather than determine Wampler did not act in the manner Perry claimed, the court conducted a Strickland inquiry based on the premise that Wampler did advise confession, and rejected Perry’s claim on the basis he suffered no prejudice from taking that advice.5 Id. at 2411.
The district court therefore committed clear error in its analysis and the majority opinion replicates that error. Before the presumption of correctness “can even arise, the state court must have resolved the merits of a factual dispute. In essence ... the habeas statute merely codifies the self-evident proposition that a state court must have made a finding on a particular issue before a federal court can defer to that finding.” United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.1991).6 *892Since I believe the state court actually-made the contrary finding — that Wampler in fact advised confession — I conclude the district court also erred in failing to defer to the state court’s actual finding. Since there is no showing the state trial court erred in this regard — indeed, no one seems willing even to engage the trial court’s findings in their own right — the district court should have accepted that Wampler advised Perry to confess.
The majority prefers to disregard the district court findings of fact. Instead it focuses on the “factual findings” of the Missouri Court of Appeals and defers to them under the rule of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), as it is expressed in King v. Bowersox, 291 F.3d 539 (8th Cir.2002). In Sumner, the Supreme Court held that state court factual findings are entitled to deference under the habeas statute, regardless whether it is a state trial court or state appellate court making those findings. I differ with the majority over the applicability of that rule to this case.7 I cannot agree the Missouri Court of Appeals made findings of fact in its opinion. Instead, as the majority opinion quotes at length, the court of appeals listed the record evidence both supporting and undermining the proposition that Wampler advised Perry not to talk to the police.8 Recitation complete, the court of appeals concluded, “[gjiving deference to the motion court’s ability to judge the credibility of the witnesses, this court does not conclude that the court erred when finding this claim to be ‘without merit.’ ” Perry v. State, 11 S.W.3d 854, 859 (Mo.Ct.App.2000) (Perry II). On its face then, the court of appeals’ opinion states it is not finding facts, but instead performing the customary responsibility of an appellate court — reviewing a factual finding under a standard of review. This court previously has held a state appellate court makes a legal determination when it reviews a trial court factual finding under a standard of review, and such a legal determination is not entitled to a *893presumption of correctness. Jones v. Jones, 938 F.2d 838, 842-43 (8th Cir.1991). In Jones, the court wrote:
The Missouri Court of Appeals upheld the trial court’s implicit finding with respect to each struck venire member under the clearly erroneous standard and stated its legal conclusions in language such as “the conclusion is not clearly erroneous,” “we defer to that finding,” or “we find no error.” Sumner does not require us to apply the [habeas statute’s] presumption to these legal conclusions.
It therefore is concluded the majority is wrong in determining the Missouri Court of Appeals made findings of fact when it recited the evidence in the record.
Indeed, if the majority were correct that the Missouri Court of Appeals made its own findings of fact, the state appellate court would have committed an error of law.9 Missouri Supreme Court Rules of Criminal Procedure specify the standard of review for state appellate courts considering appeals from state trial court orders on post-conviction challenges under Rule 29.15. According to such rule, “[ajppellate review of the trial court’s action on the motion filed under this Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Mo. R.C.R.P. Rule 29.15(k); see also, Missouri v. Madison, 997 S.W.2d 16, 22 (Mo.1999) (“The standard of review for denial of a motion for post-conviction relief is whether the motion court’s findings and conclusions were clearly erroneous.”). If the state appellate court issued its own findings, it would have impermissibly exercised de novo review of the state trial court’s findings of fact. Burton v. Missouri, 895 S.W.2d 648, 649 (Mo.App.1995) (“Were this court to furnish the necessary findings and conclusions, review would be impliedly de novo and impermissible in face of the unequivocal mandate of the Rule.”).10 I prefer to read the appellate court decision as conforming to the court’s appellate responsibilities. I conclude, therefore, the state appellate court made no findings, and we are not required by the habeas statute to decide whether its statements are clearly erroneous under the evidence presented at the state post-conviction hearing.
I do agree with the majority, however, it being possible to read the Missouri Court of Appeals decision as construing the state trial court as finding Wampler did not recommend confessing at the January 7 meeting. After noting the state trial court’s factual findings are owed deference, the appellate court wrote: “There was evidence indicating that the attorney’s performance was not deficient, as he testified that he advised [Perry] not to talk to the authorities, and [Perry] acted against that advice.”11 Perry II, 11 S.W.3d at *894859. In so construing the state court findings of fact, the appellate court made a determination about the historical facts of the litigation of the case. Parker v. Dugger, 498 U.S. 308, 320, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991) (“[A] determination of what the trial judge found is an issue of historical fact. It depends on an examination of the transcript of the trial and sentencing hearing, and the sentencing order. This is not a legal issue; no determination of the legality of Parker’s sentence under Florida law necessarily follows from a resolution of the question of what the trial judge found”). Such determination is factual in nature, and subject to the deference federal courts owe state court factual findings under the habeas statute. 28 U.S.C. § 2254(e)(1); Dugger, 498 U.S. at 320, 111 S.Ct. 731. Accordingly, we cannot dislodge the appellate court’s construal of the trial court’s findings unless it clearly erred while construing them.
To determine whether the Missouri Court of Appeals construal of the facts is clearly erroneous, we must compare its version of the facts to the state trial court’s written findings. We do not compare the appellate court’s version to the evidence in the record because the court limited its findings to determinations about what the state trial court said. We should determine, therefore, whether the state trial court’s findings of fact clearly and convincingly show it found Wampler did advise confession. As discussed above, the state trial court’s findings provide all the needed evidence. Perry adequately identified the error.12 Far from finding Wam-pler advised Perry against talking to the police on January 7, the state court found Wampler had advised confession. Insofar as the state court of appeals construed the trial court decision to the contrary, it committed clear error. By accepting the state appellate court’s mischaracterization, the district court and the majority commit clear error as well and thereby avoid grappling with the merits of what would be, absent the defect I note below, a serious ineffective representation claim.
II
All of the foregoing assumes Perry was protected by a right to effective assistance of counsel when he confessed. Despite the problems I have with the majority opinion and despite the fact I have concerns about Wampler’s conduct, I conclude we must affirm because Perry’s Sixth Amendment right to counsel had not attached when he confessed.13 Since we may affirm the dis*895trict court’s decision on any basis, Khaalid v. Bowersox, 259 F.3d 975, 978 (8th Cir.2001), I would affirm solely for this reason.
The Sixth Amendment right to counsel does not attach until “the government’s role shifts from investigation to accusation.” Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); United States v. Ingle, 157 F.3d 1147, 1151-52 (8th Cir.1998). The Supreme Court has identified such point as being when prosecution has commenced “by way of formal charge, preliminary hearing, indictment, information or arraignment.” United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984).
A defendant must have a right to counsel before having a right to effective assistance of counsel. The right to effective assistance of counsel arises from the Sixth Amendment’s guarantee — “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. CONST, amend. VI. Supreme Court “decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel.” Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Thus the right to competent assistance arises, like the right to counsel itself, at the beginning of the state’s commitment to prosecution and not before. United States v. Moody, 206 F.3d 609, 612-13 (6th Cir.2000) (holding a defendant did not have a right to effective assistance of counsel when engaged in pre-indictment plea negotiations with a government attorney);14 United States v. Alvarez, 142 F.3d 1243, 1250 (10th Cir.1998) (rejecting defendant’s ineffectiveness claim because the “government had not initiated formal proceedings against him” when he confessed to transporting cocaine, despite the fact he had been arrested and spent a night in jail).
The federal courts of appeals have interpreted the attachment rule in two distinct ways. Some courts have held Moran and Gouveia enunciate a bright line test subject to no exceptions and no blurring. In those circuits, the Sixth Amendment right to counsel, in all of its manifestations, attaches only upon the commencement of formal charges. Moody, 206 F.3d at 613 (“The Supreme Court’s holding that the Sixth Amendment right attaches only ‘at or after the initiation of judicial criminal proceedings’ ... is a bright line test.”); United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1117 (10th Cir.1998); Alvarez, 142 F.3d at 1250; United States v. Latouf, 132 F.3d 320, 330 (6th Cir.1997); Right v. Singletary, 50 F.3d 1539, 1548 (11th Cir.1995); United States v. Sutton, 801 F.2d 1346, 1365 (D.C.Cir.1986) (basing its view on the textual point that the Sixth Amendment provides that only the “accused” have a right to counsel). Other courts have held the crucial moment may occur before the government files charges if the state has committed itself to prosecution. Matteo v. Superintendent, 171 *896F.3d 877, 892 (3d Cir.1999) (“[T]he right to counsel might conceivably attach before any formal charges are made.”); Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir.1995); United States v. Larkin, 978 F.2d 964, 969 (7th Cir.1992); Judd v. Vose, 813 F.2d 494, 497 (1st Cir.1987); United States ex rel. Hall v. Lane, 804 F.2d 79, 81-82 (7th Cir.1986). Though the Eighth Circuit has used language suggesting it would adopt the bright line approach, it has not directly been called upon to take sides in this dispute. See Ingle, 157 F.3d at 1151 (“However, ‘looking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the Sixth Amendment right to counsel.’ ”) (quoting Moran, 475 U.S. at 431, 106 S.Ct. 1135). Nor would we need to take sides for purposes of resolving Perry’s ineffectiveness claim.
Perry’s case falls outside even the less constrained test. Were the Eighth Circuit to adopt the view wherein the right to counsel may attach prior to the institution of formal charges where the government has changed its stance from investigatory to prosecutory, Perry still would not benefit. It is admitted by all parties the police were conducting an investigation when Perry confessed. Though their interest in Perry intensified as his story changed from meeting to meeting, his interactions with the police were strictly voluntary. Indeed, it is a crucial premise of Perry’s ineffectiveness argument that he went voluntarily to the authorities and gave himself up when he did not have to do so. Through his own testimony, Perry and Wampler shared the explicit strategy of confessing, calculated to ensure him when the authorities eventually began prosecution he would be processed as a juvenile. Perry was not under arrest and was not confronted by expert prosecutors at the meeting. All of this is well established in the record and beyond question. Thus, even under the more forgiving standard favored by some courts, Perry did not have a constitutional right to effective assistance of counsel before or during his January 7 meeting with the police. He surely did not have a constitutional right under the stricter bright line test, since he had not been charged with any crime when he confessed. Thus, it would be futile to consider the merits of Perry’s ineffectiveness claim, even should this court suppose it might otherwise succeed.
Ill
Like the majority, I would affirm the district court’s order denying Perry’s petition for habeas corpus. However, I decline to join the majority opinion as to Part II for the reasons set forth above.
. "In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
. The majority opinion replicates the district court's error, stating: "Simply put, the Missouri courts decided to credit the testimony of Mr. Wampler and the deputy juvenile officer that Mr. Wampler had advised Mr. Perry not to speak with the police, and to discredit the testimony of Mr. Periy and his parents that Mr. Wampler had advised them to talk to the police.” Ante at 885. This assertion is accurate only insofar as it is limited to the state trial court’s treatment of the January 4 meeting. The state appellate court did not credit Wampler's testimony; it deferred to the state trial court’s decision to credit that testimony. But the state trial court credited Wampler’s testimony only insofar as it concerned the January 4 meeting.
. The district court treated Perry’s claim with respect to the January 4 meeting correctly. The state court held a post-conviction relief hearing to determine how Wampler acted. The court heard conflicting testimony and credited Wampler's version. It found as a fact Wampler advised Perry not to give a statement on January 4 and repeatedly stated throughout its opinion that Perry ignored that advice. The district court properly deferred to the state court on this finding and concluded Wampler’s conduct on January 4 was not professionally deficient because the alleged deficiency never occurred. To this limited extent I believe the district court and the majority are correct.
. The state court also concluded that Wam-pler did not violate professional standards in advising confession without attempting to negotiate a binding plea agreement. Findings of Fact, App. Appendix vol. VII at 2413.
. In Partee, the Seventh Circuit construed an earlier version of the habeas statute, but the *892requirement that federal courts presume state court findings of fact correct is essentially the same today as it was then.
. Sumner and its progeny apply only in those circumstances where state appellate courts make findings of fact as distinguished from reviewing findings under a standard to determine whether they are adequately supported. So, in Sumner, the Supreme Court held that a California Court of Appeal’s determinations were due deference when that court made factual findings regarding a defendant’s due process challenge to a police photographic identification procedure. Since the trial court had not considered the matter, the court of appeals was forced to make its own factual determinations. Though the court of appeals could have avoided review entirely, Sumner, 449 U.S. at 547, 101 S.Ct. 764, it chose to consider the merits of the claim. The Supreme Court noted the importance of this feature of the case, stating:
Admittedly, the California Court of Appeal made the factual determinations at issue here and it did so after a review of the trial court record. Nevertheless, it clearly held a “hearing” within the meaning of § 2254(d). Both respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court.
Id. at 546, 101 S.Ct. 764 (emphasis added). The other cases upon which the majority relies present similarly anomalous appellate court findings of fact. See Weaver v. Bowersox, 241 F.3d 1024, 1031-32 (8th Cir.2001); Jones v. Jones, 938 F.2d 838, 843 (8th Cir.1991).
. I note the Missouri Court of Appeals adverts only to evidence supporting a finding that Wampler advised Perry not to talk to the police on January 4. The only unequivocal evidence concerning the January 7 meeting indicates that Wampler did recommend Perry confess on that date. In fact, even Wampler did not deny advising confession. He claimed instead not to remember his advice regarding the January 7 meeting.
.I do not suggest that we could review such a legal error, even if it appeared that the Missouri Court of Appeals had made it. I raise the applicable standard of review to show it is most natural to interpret the court as applying a clearly erroneous standard of review, which does not require finding facts. It is not our province to correct the state courts in applying their indigenous laws, as the habeas statute limits our review to decisions "contrary to, or involv[ing] an unreasonable application of, clearly established federal law” or "based on ... unreasonable determination[s] of the facts in light of ... evidence presented in ... State court proceeding[s].” 28 U.S.C. § 2254(d)(1) & (2) (emphasis added).
. The Burton court considered a petition under Mo. R.C.R.P. Rule 24.035, which requires appellate courts to review trial court actions regarding Rule 24.035 post-conviction petitions under a clearly erroneous standard. The appellate review portions of Rule 24.035 and Rule 29.15 are identical.
. The Missouri Court of Appeals opinion is ambiguous on this point. In the first place, the court does not distinguish cleanly between the two meetings in this portion of its discussion. Further, the opinion recites no evidence to support a finding that Wampler advised against confessing on January 7. Quite the contrary, the opinion notes "Wampler tes*894tified that he did not remember whether he scheduled the January 7th meeting” and "Wampler did state that his 'general thought' was that if [Perry] talked to the police, it might result in him remaining under the juvenile system, and not be certified as an adult.” Perry II, 11 S.W.3d at 859. Wampler’s testimony clearly undercuts the court of appeals' claim that there was evidence that Wampler advised against talking to the police on January 7.
. It should be obvious, therefore, I do not agree with the majority's suggestion Perry acquiesced in the Missouri Court of Appeals's misconstrual. The majority relies on a narrow-gauge characterization of Perry’s argument. Perry cites United States ex rel. Partee v. fLane, which holds that the state court must have made a finding before the federal courts are required by the habeas statute to defer to it. 926 F.2d at 700. He also points out the inconsistency demonstrated by the court of appeals in stating that Wampler advised against confessing and that Wampler thought Perry's only option was to confess so he could avoid prosecution as an adult. While Perry's arguments may not be artfully crafted and while he jumbles together arguments in the alternative, Perry does cite to the appropriate facts and case law. We should demand no more. While clarity and perspicacity are to be encouraged, they are not required.
. The Fifth Amendment right to counsel may attach before the Sixth Amendment right to counsel. See, e.g., Cody v. Solem, 755 F.2d 1323, 1330 n. 11 (8th Cir.1985) ("Cody was subjected to custodial interrogation and therefore had the right to counsel under Miranda v. *895Arizona. Cody's sixth amendment right to counsel had attached at the time of the consent [to search] since he had been charged with the murder by way of information.”) (internal citation omitted). The discussion of Part II therefore has no implications for the separate Fifth Amendment right.
. Moody is consistent with Toro, 940 F.2d 1065, cited supra at 2. Toro held counsel accountable to professional standards — for constitutional purposes- — during post-indict-merit plea negotiations. Moody refuses to hold them accountable — again for constitutional purposes — during pre-indictment plea negotiations. Though the distinction is fine, the cases are consistent with each other and with existing Supreme Court precedent. The discrepant results suggest, however, that criminal defense attorneys should — in an extra-constitutional sense — await formal charges before recommending confession just in case their recommendations are professionally deficient.