                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                              Nos. 01-3685/02-1361
                                  ___________

Robert A. Shafer,                     *
                                      *
            Appellee/Cross-Appellant, *
                                      * Appeals from the United States
      v.                              * District Court for the
                                      * Eastern District of Missouri.
Michael Bowersox, Superintendent,     *
Potosi Correctional Center,           *
                                      *
            Appellant/Cross-Appellee. *
                               ___________

                             Submitted: September 9, 2002
                                Filed: May 27, 2003
                                 ___________

Before HANSEN,1 Chief Judge, LAY and MURPHY, Circuit Judges.
                              ___________

MURPHY, Circuit Judge.

      After Robert Shafer waived his right to counsel and his right to a trial by jury
for both guilt and punishment phases, he pled guilty to two counts of first degree
murder and two counts of armed criminal action and requested imposition of the




      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
death penalty. At that same hearing, the Missouri trial judge accepted Shafer's
waivers and pleas and imposed a death sentence.

      Shafer sought post conviction relief in state court, and resentencing was
ordered based on his sentencing phase waivers and the lack of a presentence report.
Both sides appealed, and these appeals were consolidated with Shafer's direct appeal.
The Missouri Supreme Court affirmed Shafer's convictions and reinstated his death
sentence. See State v. Shafer, 969 S.W.2d 719 (Mo. 1998).

       Shafer then filed this petition for habeas relief under 28 U.S.C. § 2254. After
examining all the circumstances related to Shafer's waivers of counsel, guilty pleas,
and waiver of the right to introduce mitigating evidence, the district court2 concluded
that the Missouri Supreme Court had unreasonably applied clearly established federal
law in ruling that his waivers and pleas had been knowing, voluntary and intelligent.
See Shafer v. Bowersox, 168 F. Supp. 2d 1055 (E.D. Mo. 2001). It also concluded
that the supreme court had unreasonably determined the facts in light of the evidence
when it found that the trial court had considered mitigating evidence before imposing
the death sentence.

       Shafer was granted a conditional writ, to become permanent if the state were
not to allow him to withdraw his guilty pleas and afford him an opportunity to
proceed to trial. The district court rejected Shafer's other claims, concluding that the
Missouri Supreme Court had not unreasonably applied, or acted contrary to, clearly
established federal law when it refused to suppress his confession and rejected his
claims that ex parte contacts between the trial judge and the prosecutor had denied
him due process and that he had received ineffective assistance of counsel. Both
sides appeal.


      2
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota, sitting by designation.

                                           2
                                          I.

       Keith Dennis Young and Ford Jerry Parker were shot to death on April 29,
1990, and Shafer and his friend David Steinmeyer later confessed to the murders,
although they gave multiple and conflicting accounts. At different times each
implicated himself or the other as the sole shooter, but each also claimed to have shot
one of the victims. On July 24, 1992, Shafer gave a confession that was later used as
the factual basis for his guilty pleas.

       In his confession Shafer told the police that he had lost his job on the morning
of April 29, 1990 and asked Steinmeyer to "come over and get high." The two spent
the afternoon drinking and smoking marijuana, and began to discuss a plan to assault
and rob "some homosexuals." According to Shafer he took a .22 revolver and five
shells from his sister's bedroom that evening, and the friends walked to an area called
Blanchette's Landing where they planned to find victims.

      After they saw Young and Parker embracing, they approached the pair and
asked for a ride to a neighboring town. The four set out in Young's car, which was
soon taken over by Shafer and Steinmeyer and driven to a remote location. Shafer
confessed that when Young and Parker tried to run away, he shot them. Shafer and
Steinmeyer took money and other belongings from the bodies of the victims, and later
removed items from the car. The next day both Shafer and Steinmeyer admitted to
several people, including a priest and their mothers, that they had killed Young and
Parker, and their mothers convinced them to turn themselves in to the police.

       On December 27, 1990, Shafer was charged by information with two counts
of first degree murder and two counts of armed criminal action. A public defender
was appointed to represent him, but for more than a year that attorney did not
investigate or do any work on the case. Several other defense attorneys were
appointed but did little, and some of them had to withdraw because of a conflict.

                                          3
Meanwhile, Shafer found life in the county jail intolerable and pressured his attorneys
to obtain a transfer.

       A motion to transfer Shafer to another facility was eventually filed, alleging
that correctional officers had not protected him from repeated sexual assaults by a
fellow inmate, had frequently physically abused him, and had harassed him verbally
with threats, curses, and questions about his sexual orientation. Although the court
found that some of these allegations were probably true, it denied the motion to
transfer because it seemed that the jail had taken steps to fix the problems and Shafer
had provoked many of the confrontations.

      Assistant public defender Susan McGraugh began to represent Shafer in
February 1992, but in April he moved to proceed pro se, saying that he wanted to
plead guilty and be sentenced to death. The state moved for a hearing on Shafer's
motion and urged the court to grant it. The court convened a hearing on April 27,
1992, and then continued it so that a psychological exam could be completed.

       Before the next hearing and without communicating with his attorney, Shafer
contacted a police officer involved in the investigation and offered to confess. The
officer went to the jail on July 23, 1992, and Shafer told him that he "wanted to take
full responsibility for the shootings." After this conversation, the officer contacted
attorney McGraugh who told him not to interview Shafer unless she was present. The
next day the officer received another letter from Shafer that he would "give whatever
is necessary," and the officer decided to speak with Shafer without notifying
McGraugh. On that day Shafer gave a written and videotaped confession after
signing a Miranda waiver. Shafer stated in the taped interview that he had been
advised by counsel not to speak with the police, but that he wished to disregard that
advice.




                                          4
      On the basis of Shafer's confession, the state reached a plea agreement with
codefendant David Steinmeyer in which he agreed to plead guilty to two counts of
felony murder in return for a recommended prison sentence of twelve years and six
months. The same trial judge presided over the prosecutions of both Shafer and
Steinmeyer, and he accepted Steinmeyer's plea and sentenced him on October 21,
1992 to the term recommended in his plea agreement.

      Three days after Shafer's confession, the court reconvened the hearing on his
motion to discharge counsel. Shafer testified that he wished to proceed pro se and
expressed frustration with what he perceived to be ineffective and inattentive counsel.
He also stated that he was unsure whether he would "plead guilty to life without
parole" because his purpose in seeking to waive counsel and plead guilty was to
receive the death penalty. At the request of McGraugh, who was still counsel of
record, the court took judicial notice of the fact that the state had not yet filed notice
of any aggravating circumstances, which are required under Missouri law in order to
impose the death penalty. The prosecutor asked Shafer whether he believed that his
recent confession contained aggravating circumstances, and he said that he did.

       Expert evidence regarding Shafer's mental state was also received. The court
took judicial notice of the report of Dr. Terrance Kukor, the psychologist who had
conducted Shafer's initial competency evaluation. Dr. Kukor had stated in his report
that Shafer did not suffer from a mental disease or defect that rendered him incapable
of understanding the proceedings against him. Testifying live at the motion hearing
was Dr. Daniel Cuneo, a psychologist engaged by defense counsel to conduct the
evaluation ordered by the court at the April 27 hearing. Dr. Cuneo testified that he
had examined Shafer on May 21 and that Shafer suffered from nonspecified
personality disorder, making him prone to impulsive decision making and severely
impairing his ability to waive counsel and represent himself. Dr. Cuneo predicted
"He's going to bounce from one day to the next to the next and when it's all over, he's
going to come back and say, 'I want a change,' and he won't have that option then."

                                            5
At the close of the hearing, Shafer requested another psychological evaluation, and
one was ordered by the court.

       Four days later on July 31, 1992, the state filed a notice to seek the death
penalty and a notice of statutory aggravating circumstances. The latter notice charged
that (1) each murder had occurred during the commission of another homicide, (2) the
murders were committed for the purpose of receiving money or items of value from
the victims, (3) they were committed during a robbery, (4) the victims were killed as
a result of their status as witnesses or potential witnesses, and (5) the murders were
committed to conceal a felony. Since Shafer's attorney was not a designated death
penalty counsel, Herman Jimerson was appointed to replace her.

       Dr. Richard Gowdy conducted the psychological evaluation ordered at the July
27 hearing, and he issued a report on September 15, 1992. Although Dr. Gowdy's
report stated that he found Shafer competent to waive his right to counsel, he did not
offer any opinion on the legally separate question of whether Shafer's mental
condition impacted his ability to make knowing, voluntary, and intelligent waivers
of his rights. Since Dr. Kukor also had not addressed this issue, the only expert
opinion was provided by Dr. Cuneo, who had testified that Shafer's ability to waive
counsel and represent himself was severely impaired.

       The reconvened hearing took place on January 4, 1993. This proceeding lasted
less than two hours, and during that span of time Shafer was permitted to waive his
right to counsel and to represent himself, to waive his right to a jury trial with all
associated rights, to plead guilty, and to proceed immediately to the penalty phase at
which he also waived his rights and requested a sentence of death. During this same
short hearing, the court accepted Shafer's waivers and guilty pleas, found all
aggravating circumstances advanced by the state, and sentenced Shafer to death.




                                          6
       At the outset of the hearing Herman Jimerson was still defense counsel, and he
protested that Shafer was not competent to make these decisions—for "a person
cannot make an informed decision to plead if that decision is based on some
irrationality." Counsel argued that the circumstances of Shafer's jail situation were
causing him to proceed irrationally, but the court appeared to interpret the argument
to relate only to the competency issue decided earlier. It said that Shafer had been
found competent and that a defendant is competent to proceed "if after being advised
of all his legal rights, he fully understands what he's doing." The court indicated it
had no further concern about Shafer and informed him he could go to trial between
March 22 and April 2, 1993 if he did not want to change his pleas.

        In addressing the rights Shafer would be giving up by proceeding without
counsel the court told Shafer: "it would be to your advantage to have an attorney, as
the Court believes everyone should be represented by counsel to get legal advice, but
this is your decision" and "by entering a guilty plea, any objections in the future that
you may have against any of your attorneys is being waived." The court followed
with a statement that it believed Shafer knew what he was doing, and then asked,
"[d]o you feel you know what you're doing?" Shafer responded, "Yes, I do." The
court then granted his motion to discharge counsel and to proceed pro se.

       Jimerson, who had been ordered to remain as standby counsel, spoke up to
raise questions about the prospective penalty phase. He asked the court to appoint
an attorney to present mitigating evidence at the penalty phase if Shafer's pleas were
accepted, and the court responded by telling Shafer he had a right to an attorney at
each of two stages, for both the guilt and the sentencing phases. Then it asked him
whether he wished to waive counsel for the "second stage of the proceedings." Shafer
stated that he did not understand, and the district court modified its question to "Do
you wish to waive counsel through all stages?" Shafer replied "I haven't decided. I'm
waiving counsel now. What I do at a later stage, I haven't decided, but at this point
… I think that I will waive counsel through all stages and all appeals." The court

                                           7
explained that the appeals are "something else" so it was only asking whether Shafer
wanted an attorney to present evidence on his behalf at sentencing. Shafer stated "I
think I could do that myself," and the court asked if that was what he wanted to do.
Shafer said yes.

       Next the court asked whether Shafer understood that by pleading guilty he
would waive the right to a jury trial and associated rights to remain silent, to
subpoena witnesses, to cross examine witnesses, and to be presumed innocent unless
proven guilty beyond a reasonable doubt. Shafer was asked in addition whether he
also intended to waive counsel at the sentencing stage, and the court read the charges
against him and the penalties they carried. The court did not, however, explain the
elements of first degree murder, possible defenses to the charges such as diminished
capacity, the possibility of being convicted for lesser included offenses, or the
possibility of receiving lesser sentences than death or life in prison.

       After the court accepted Shafer’s confession as the factual basis for his pleas,
the prosecutor reported that there was an inconsistency between Shafer's confession
and the physical evidence in the case. Forensic analysis showed that the bullets
recovered from the victims did not match the .22 caliber revolver Shafer said he had
taken from his sister's closet and used in the killings. Both Shafer and Jimerson
stated that they had been unaware of this exculpatory evidence, and Shafer
complained that the prosecutor had failed to comply with discovery requests "quite
a few times." He went on to say "I'm sorry that their tests weren't accurate, but I
know that was the gun." The court inquired whether Shafer understood that he had
a right to discovery and that it would be waived if he pled guilty. Shafer said that he
understood and wanted to plead guilty, and the court then accepted his pleas to all
counts.

       The sentencing phase followed and took little time. First, the court announced
that "[a]t this time it's necessary to proceed to sentencing." It told Shafer that he had

                                           8
a right to be represented by counsel and to a jury trial for the sentencing phase and
asked whether he wished to "continue to waive" those rights. Shafer said yes, and the
court accepted these waivers after briefly inquiring whether anybody had "forced,
coerced, threatened or abused" him. Shafer also waived his right to introduce any
mitigating evidence, and he made no statement with respect to sentencing—other than
to ask the court to consider several letters of his requesting the death penalty. The
prosecutor asked the court to consider Shafer's confession as the factual basis for the
aggravating circumstances necessary to impose the death penalty, and the court found
that all five aggravating circumstances had been established beyond a reasonable
doubt.

       Next the court said it was "prepared to proceed with sentencing today. Do you
wish the Court to proceed with sentencing today?" Shafer asked, "do I have an
option?" The court responded that it was "prepared to proceed today if you wish to
proceed." Shafer replied that he would, and the court sentenced him to death on each
count of first degree murder and to life in prison for each count of armed criminal
action. Jimerson objected that Shafer's rights under both the federal and state
constitutions had been violated, but the court ruled that he had no standing to object.

       On the same day Shafer wrote a letter to the trial court requesting it to help him
resolve discovery disputes with the prosecutor. He called an assistant public defender
shortly after the hearing, expressing surprise that he was still in jail and that the
earlier proceeding had been "a mistake." Three weeks later he wrote another letter
to the court stating he wanted to challenge his convictions to the fullest and asking
for help in obtaining an attorney.

       Shafer later filed a motion for post conviction review under Missouri Rule
24.035. He argued that his pleas and waivers had not been "knowing, voluntary, and
intelligent" and that the sentencing judge had not sufficiently advised him of his
rights. Shafer also complained that the police had taken advantage of his mental

                                           9
illness and violated his Sixth Amendment right to counsel by eliciting his confession
in the absence of his attorney even though she had specifically instructed them not
to talk with him alone. The post conviction court held a three day evidentiary hearing
and heard testimony regarding the effect of Shafer's mental health on his decision to
waive his rights and plead guilty.

      Five expert witnesses testified that Shafer's waivers had not been knowing,
voluntary, and intelligent: Dr. Cuneo, Dr. Vliestra, Dr. Kohrs, Dr. Logan, and Dr.
Fleming (by deposition). They based their opinions on diagnoses of borderline
personality disorder, nonspecified personality disorder, depression, and bipolar
disorder. These conditions were said to cause Shafer to make impulsive and
emotional decisions, to have frequent mind changes, and to be unable to consider
rationally the consequences of his actions.3 No expert testified that Shafer's pleas and
waivers had been knowing, voluntary, and intelligent. During his testimony Dr.
Kukor admitted that he had neither analyzed nor determined whether Shafer could
knowingly, voluntarily, and intelligently waive his rights or plead guilty.

       The postconviction court denied Shafer's motion to vacate or set aside his
convictions, but it ordered that he be resentenced because of deficiencies at the
penalty phase. Resentencing was necessary it concluded because 1) no presentence
investigation report had been ordered or prepared before the death sentence had been
imposed, and 2) Shafer's waivers, of counsel at the sentencing stage and of his right
to present mitigating evidence, had not been knowing, voluntary, and intelligent. The


      3
       In the opinion of these experts, Shafer's condition resulted from a chaotic and
violent childhood, including physical abuse at home and repeated sexual abuse by a
male neighbor. Shafer started using alcohol and drugs in the fifth grade and was
twice confined to Kansas youth detention centers for theft and burglary.
Psychological evaluations during juvenile detention revealed he had a low I.Q. and
an impulsive approach to problem solving that did not "reflect on probable
consequences."

                                          10
proceedings at the guilt phase were found "barely sufficient" even though the trial
court had failed to provide the type of warnings and information a reviewing court
might "well determine … [were] required for a voluntary, knowing and intelligent
waiver," because Shafer had been "intent … upon pleading guilty." Shafer's claims
regarding his confession were denied on the ground that he had waived his Sixth
Amendment rights when he spoke to the police without counsel present.

       Both the state and Shafer appealed the decision, and their appeals were
consolidated with his direct appeal to the Missouri Supreme Court. The supreme
court applied a multifactor test adopted by the Eleventh Circuit in United States v.
Cash, 47 F.3d 1083, 1088–89 (11th Cir. 1995), to determine whether Shafer's waivers
were knowing, voluntary, and intelligent. It concluded that the trial court’s colloquy
with Shafer about his rights and the consequences of waiving them had been adequate
if considered in light of his stated goal to plead guilty and receive a death sentence.
See Shafer, 969 S.W.2d at 730–31. The trial court's failure to discuss available
defenses or lesser included offenses before allowing Shafer to plead guilty was not
dispositive because such information "made no difference to him at the time."4 Id.
at 733. In reaching these conclusions, the court expressly declined to consider
Shafer's mental health because it regarded that factor as only relevant to whether he
was competent to proceed, not as to whether he had made knowing, voluntary, and
intelligent waivers and pleas. Id. at 729–30.

      The supreme court denied all of Shafer's claims although it did not specifically
discuss those related to his confession. It also reinstated the sentences originally


      4
        The court also expressed its view that the rules requiring that a defendant be
informed of defenses and lesser included offenses "are imposed by judicial decisions
that find no direct textual support in the federal or state constitutions. Indeed, the
body of case law that now surrounds these issues seems more revealing of judicial
antipathy for guilty pleas than honoring a constitutional principle." 969 S.W.2d at
732.

                                          11
imposed, concluding that the finding that Shafer was competent foreclosed his waiver
arguments related to the penalty phase and that his claim about the failure to have a
presentence report had not been properly raised in his motion for postconviction
relief. See id. at 737–39. Shafer's petition for certiorari to the United States Supreme
Court was denied.

       Shafer then filed this petition seeking a writ of habeas corpus in the Eastern
District of Missouri. After briefing and a hearing, the district court concluded that
the Missouri Supreme Court had unreasonably applied clearly established federal law
in ruling that Shafer's waivers of the right to counsel at the guilt and sentencing
phases, his guilty pleas, and his waiver of the right to introduce mitigating evidence
had not been knowing, voluntary, and intelligent. See Shafer, 168 F. Supp. 2d at
1066–87. It also held that the supreme court had unreasonably determined the facts
in light of the evidence in concluding that the trial court had considered mitigating
circumstances before imposing the death penalty. See id. at 1091–93.

        The court granted a conditional writ, to become permanent unless the state
permits Shafer "to withdraw his plea of guilty and commences proceedings to afford
[him] a trial." Id. at 1094. The district court denied Shafer’s other claims for relief.
The rejected claims included allegations that his confession had been obtained in
violation of the Sixth Amendment, that he had received ineffective assistance of
counsel before discharging his attorney, and that his due process rights had been
violated by an ex parte conversation between the judge and prosecutor sometime
before the plea hearing during which the judge said in advance that he intended to
accept Shafer's pleas.5 See id. at 1061–94. The state appeals the grant of habeas
relief, and Shafer cross appeals the denial of relief on the rejected grounds.


      5
       The district court also rejected Shafer's claims that his death sentence was
disproportionate and that the aggravating circumstances found by the trial court were
invalid. These issues were not included in the certificate of appealability.

                                          12
                                          II.

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
when a claim has been adjudicated on the merits in state court, an application for a
writ of habeas corpus cannot be granted unless the state court adjudication

      (1)    resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law, as
             determined by the Supreme Court of the United States; or

      (2)    resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in the
             State court proceedings.

28 U.S.C.§ 2254(d). The "contrary to" clause is satisfied if a state court has arrived
"at a conclusion opposite to that reached by [the Supreme Court] on a question of
law" or "confronts facts that are materially indistinguishable from a relevant Supreme
Court precedent" but arrives at the opposite result. Williams v. Taylor, 529 U.S. 362,
405 (2000). A state court "unreasonably applies" clearly established federal law
when it "identifies the correct governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the facts of the prisoner's case."
Id. at 413. A case cannot be overturned merely because it incorrectly applies federal
law, for the application must also be "unreasonable." See id. at 411. A federal
district court's conclusions of law in deciding a habeas petition are reviewed de novo,
but its findings of fact are reviewed for clear error. See Simmons v. Bowersox, 235
F.3d 1124, 1130 (8th Cir. 2001).

                                          A.

      Although a criminal defendant has a constitutional right to represent himself,
the Supreme Court has clearly established that the presiding court must undertake a


                                          13
thorough colloquy with the defendant before permitting him to proceed in this way.
The colloquy must inquire into his understanding of the right and must warn him of
the dangers involved in order to ensure that he has full knowledge of the
consequences:

      When an accused manages his own defense, he relinquishes, as a purely
      factual matter, many of the traditional benefits associated with the right
      to counsel. For this reason, in order to represent himself, the accused
      must "knowingly and intelligently" forgo those relinquished benefits ….
      [H]e should be made aware of the dangers and disadvantages of self-
      representation, so that the record will establish that "he knows what he
      is doing and his choice is made with eyes open."

Faretta v. California, 422 U.S. 806, 835 (1975) (citations omitted).

       The Faretta knowing and intelligent requirement for valid waivers arose in a
case in which the defendant sought to represent himself at trial, see id. at 809–11, but
similar care must be taken to ensure that a defendant who wants to waive counsel and
plead guilty is acting knowingly and intelligently. See Von Moltke v. Gillies, 332
U.S. 708, 723–24 (1948). In Von Moltke the Supreme Court instructed that the
presiding judge must ensure that a defendant's waiver of counsel is "intelligent and
competent" before he may proceed to plead guilty. Id. at 723. A conclusory
statement by the defendant that he is aware of his rights is not sufficient assurance,
for a valid waiver requires "an apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder,
possible defenses to the charges and circumstances in mitigation thereof, and all other
facts essential to a broad understanding of the whole matter." Id. at 724. To "make
certain that an accused's professed waiver of counsel is understandingly and wisely
made," a trial judge must undertake a "penetrating and comprehensive examination
of all the circumstances under which such a plea is tendered." Id.; see also North



                                          14
Carolina v. Alford, 400 U.S. 25, 31 (1970) (guilty plea that is not "voluntary and
knowing" violates due process).

       The record reveals that the trial court asked few questions in this capital case
with respect to Shafer's waiver of counsel for the guilt phase and did not fully inform
him about his possible options or the choices he faced. The court began by asking
Shafer whether he understood that a letter he had submitted was a request to waive
counsel and plead guilty. Shafer answered affirmatively, and the court stated that it
"believes you know what you're doing. Do you feel you know what you're doing?"
Shafer replied "Yes, I do." Under law clearly established by the Supreme Court a trial
court cannot accept a defendant's mere assurance that he has been informed of his
right to counsel and desires to waive it, however. See Von Moltke, 332 U.S. at 724.
Here, the court asked few questions and never probed beneath the surface of Shafer's
declaration that he wanted to waive his right. This is not the type of "penetrating and
comprehensive examination" that Von Moltke requires, id., especially when the trial
court suggested the answer to its own question by assuring Shafer that it believed he
knew what he was doing.

       A trial court also has responsibility to ensure that the defendant is "aware of the
dangers and disadvantages of self-representation" so that his "choice is made with
eyes open." Faretta, 422 U.S. at 835. The court provided only two warnings before
Shafer waived counsel at the guilty plea phase. The court told Shafer that "it would
be to [his] advantage to have an attorney," and warned that by waiving counsel he
would be giving up the right to attack the performance of his attorneys. Simply
telling Shafer that it would be to his advantage to have an attorney did not advise him
of specific dangers or limitations related to self representation. The supreme court's
conclusion that this extremely limited exchange was adequate and amounted to the
type of warnings required by the Supreme Court precedents was not a reasonable
application of clearly established federal law.



                                           15
       The trial court's colloquy with Shafer regarding his waiver of counsel for the
sentencing phase was even less exacting. After Shafer was allowed to discharge
counsel and proceed pro se, the court asked him whether he intended to waive
counsel for the sentencing phase as well. Shafer first said “I haven’t decided,” and
that he was waiving counsel "now" but was undecided about what to do at "a later
stage." After he went on to say that he thought he would "waive counsel through all
stages and all appeals," the court explained that appeals were not then the question.
The issue was whether Shafer wanted an attorney to present evidence on his behalf
at sentencing. The court made no attempt to clarify Shafer's inconsistent statements
or to explain other services of counsel at the sentencing phase of a capital case. It just
repeated its question whether Shafer wished to represent himself at sentencing, and
Shafer said yes.

        The topic of waiver of counsel for the sentencing phase came up again after
Shafer pled guilty to all charges. The court asked Shafer whether he wished to
"continue to waive" counsel, and then asked a series of questions focused entirely on
whether anyone had coerced Shafer to make that decision. The court did not explain
the dangers and disadvantages of waiving counsel at the sentencing phase or the steps
that an attorney could take to help Shafer, and it failed to conduct a probing inquiry
into his understanding of the right he was waiving. Moreover, the court implied that
Shafer had no choice but to proceed immediately to sentencing—it said at one point
that it was "necessary" to proceed and later responded to Shafer's question whether
he had an option to delay sentencing by saying that it was ready to proceed if Shafer
was. The supreme court's conclusion that the court's brief exchange with Shafer was
constitutionally sufficient for a valid waiver of counsel at sentencing was an
unreasonable application of Faretta and Von Moltke.

      The court’s colloquy with Shafer was also inadequate to ensure that he was
making an informed decision to plead guilty. Although the court read the charges
against Shafer and informed him that by pleading guilty he would waive rights

                                           16
associated with a jury trial, it failed to mention the possibility of defenses (even after
the prosecutor revealed the exculpatory ballistics report). It did not inform Shafer
about the possibility of lesser included offenses or the possibility of receiving
sentences other than death or life in prison. The latter information would have been
especially important to Shafer, as the record indicates that he was under the
impression that his only alternative to the death penalty was life in prison, which he
considered unbearable because of his experiences in jail. During the hearing he even
said he was unsure whether he would "plead guilty to life without parole" as opposed
to death, but the court did not explain that there could be other possible outcomes.
Clearly established federal law, however, required the court to discuss precisely these
things. The Supreme Court specified in Von Moltke that a defendant must be made
aware of the "range of allowable punishments …, possible defenses …, and
circumstances in mitigation thereof" before he can be allowed to waive counsel and
plead guilty, 332 U.S. at 724, and McCarthy v. United States, 394 U.S. 459, 466
(1969), requires that a defendant understand the law in relation to the facts in order
for a plea to be valid.

       The record also indicates other misunderstandings of Shafer. For example, he
explained his desire to plead guilty in this way: "it would save the … State a lot of
money in the cost of a trial, and if they didn't get a conviction, you know, they would
just have to start all over. This way it would be a sure conviction for the State." No
attempt was made to correct this obvious lack of understanding about a defendant's
objectively important rights, such as the state's burden of proof and double jeopardy.
There were also other indications that Shafer did not comprehend the consequences
that would follow from his actions. He wrote a letter to the court on the same day his
pleas were accepted and he was sentenced to death, in which he asked for help in
resolving discovery disputes with the prosecutor.6 Shafer in fact made his decisions


      6
      He also called an assistant public defender shortly after the hearing to say it
had been a "mistake" and to express surprise that he was still in jail. Three weeks

                                           17
to waive his rights and plead guilty without having received responses to some of his
discovery requests or being fully informed about the facts. It was only after he had
waived counsel, and after his confession had been accepted as the factual basis for his
pleas, that the prosecutor revealed that ballistic tests showed that the bullets removed
from the victims did not match the gun Shafer said he had used.

       The importance of the trial court's omissions at the colloquy is magnified in
significance when Shafer's mental condition is taken into consideration. There was
undisputed state court evidence from a number of experts that Shafer suffered from
depression, personality disorders, and other psychological problems that caused
impulsive and irrational decision making and frequent mind changes. The state's
expert admitted that he had not even attempted to determine whether Shafer could
knowingly and intelligently waive his rights and plead guilty. A thorough colloquy
was even more important under these circumstances to ensure that Shafer could make
knowing, voluntary, and intelligent decisions.

       The supreme court declined to consider evidence of Shafer's mental condition
before concluding that his waivers and pleas had been knowing, voluntary, and
intelligent because it believed that reference to that condition was "tantamount to a
claim that he was not competent to waive counsel." It cited two psychological
evaluations finding him competent to stand trial and Godinez v. Moran, 509 U.S. 389,
398–99 (1993), for the proposition that a defendant competent to stand trial is also
competent to waive his right to counsel and plead guilty. See Shafer, 969 S.W.2d at
729.

      Godinez stands for more than the cited proposition because in it the Supreme
Court also distinguished findings of competency from the findings required for valid


later he wrote that he had been wrongly convicted and that he intended to challenge
his conviction "to the fullest."

                                          18
waivers. Although there is no distinction between the competency required to stand
trial and the competency to waive constitutional rights, the Court made clear in
Godinez that a finding that a defendant is competent does not mean that a defendant
has made a knowing and voluntary waiver:

      A finding that a defendant is competent to stand trial, however, is not all
      that is necessary before he may be permitted to plead guilty or waive his
      right to counsel. In addition to determining that a defendant who
      seeks to plead guilty or waive counsel is competent, a trial court
      must satisfy itself that the waiver of his constitutional rights is
      knowing and voluntary. In this sense there is a "heightened"
      standard for pleading guilty and for waiving the right to counsel, but
      it is not a heightened standard of competence.

See id. at 400–01 (citations omitted) (emphasis added). A presiding court must
therefore employ a "heightened" standard to determine whether a defendant may
constitutionally waive counsel and plead guilty. As the Court indicated, a finding of
"knowing" or "voluntary" is not equivalent to a finding of competency. A two part
analysis is required in order to determine if a particular waiver was valid. The first
question is whether the accused was competent—did he have the ability to understand
the proceedings? See id. at 400. The second question is whether he made a knowing
and voluntary waiver of his rights—did he actually understand the consequences of
a particular decision? See id.

       The Supreme Court has explained that an inquiry into whether a waiver of
rights is knowing, voluntary, and intelligent requires examination of "the particular
facts and circumstances surrounding that case, including the background [and]
experience … of the accused." Edwards v. Arizona, 451 U.S. 477, 482 (1981). Von
Moltke cautioned similarly that "[a] judge can make certain that an accused's
professed waiver of counsel is understandingly and wisely made only from a
penetrating and comprehensive examination of all the circumstances under which


                                          19
such a plea is tendered." 332 U.S. at 724. The record evidence made Shafer's mental
condition relevant to determining whether he understood the consequences of his
decision.

      Although courts are to "indulge every reasonable presumption" against waivers
of counsel, Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on other
grounds, Edwards, 451 U.S. at 482–87, in this case the state appellate court not only
chose to disregard Shafer's mental health, it presumed that his decisions would have
been the same even if he had received a full explanation of the law. The presumption
was applied in favor of waiver instead of against it.

       After a careful examination of the entire record, we conclude that the trial
court's colloquies with Shafer, before he waived counsel, pled guilty, and proceeded
immediately to the penalty phase where he was sentenced to death, fell far below the
standards set by the United States Supreme Court. We therefore conclude that the
state supreme court unreasonably applied clearly established federal law when it
excused the inadequacies in Shafer’s trial court proceeding.

       The state raises a number of points about what federal law has been clearly
established by the Supreme Court. It argues that Von Moltke does not qualify as
clearly established federal law because it is an old plurality decision with unusual
facts. The defendant in Von Moltke, a German woman accused of espionage during
World War II, was denied access to counsel, received legal information only from
FBI agents, and was interrogated for more than a month. 332 U.S. at 710–18. A
judge unfamiliar with the case accepted her waiver of counsel and guilty plea during
a short recess from another trial. Id. at 717. The facts of the case have not limited the
impact of Von Moltke, however, for the Supreme Court has cited Von Moltke in a
number of subsequent cases. E.g. Penson v. Ohio, 488 U.S. 75, 86–87 (1988);
Patterson v. Illinois, 487 U.S. 285, 298 (1988). Our court has also had occasion to
consider Von Moltke in the course of deciding cases. In Wilkins v. Bowersox, 145

                                           20
F.3d 1006, 1013 n.5 (8th Cir. 1998), we observed that in Von Moltke "the Supreme
Court established the requirement that a judge's inquiry regarding waiver of counsel
must be comprehensive and probing." Moreover, there are other Supreme Court
precedents which clearly establish the knowing, voluntary, and intelligent rule. See
Godinez, 509 U.S. at 400, 401 n.12; Faretta, 422 U.S. at 835–36; Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942).

       The state also argues that the supreme court reasonably applied the test for the
validity of a waiver of counsel adopted by the Eleventh Circuit in Cash.7 47 F.3d at
1088–89. We must keep in mind, however, that in this habeas case AEDPA
mandates that we focus on the requirements set by the Supreme Court, and in Faretta
and Von Moltke that Court clearly established inquiry and warning requirements
applicable to this case. Cash was a direct criminal appeal in which the defendant's
waiver of counsel was held not to be knowing, voluntary, and intelligent because the
court's colloquy was not specific or thorough enough, especially in light of the
defendant's mental problems. Id. at 1089–90. One of the Cash factors is a
defendant’s mental health, and this factor tipped "the balance" for Cash. Id. at 1089.
The court found no indication in the record that he understood his options and the
full consequences of his waiver, concluding that his was not one of the "rare cases"
where the lack of a sufficient colloquy could be overlooked. Id. at 1088–90. Since
the record indicates that Shafer's mental condition would similarly have impacted his
ability to make knowing and intelligent waivers, application of the Cash test should
have included an examination of whether Shafer understood what he was doing.


      7
       The Cash factors examine the defendant's (1) age, educational background,
and physical and mental health; (2) contact with lawyers prior to trial; (3) knowledge
of the nature of charges, possible defenses, and penalties; (4) understanding of
procedural rules, evidence, and courtroom decorum; (5) experience in criminal trials;
and additionally (6) whether standby counsel was appointed and aided the defendant;
(7) whether there was mistreatment or coercion of the defendant; and (8) whether the
defendant was trying to manipulate events. 47 F.3d at 1088–89.

                                          21
        In urging that the district court be reversed the state also cites Hunter v.
Bowersox, 172 F.3d 1016, 1020–23 (8th Cir. 1999). In that case the petitioner had
also waived counsel, asked for the death penalty, and later claimed that his plea had
not been knowing, voluntary, and intelligent because he had been depressed, affected
by the conditions of his confinement, and wanted to die. Id. A significant difference
in that case, however, was that the trial court's colloquy was not attacked for failing
to provide sufficient warnings or for failing to inquire adequately into the
petitioner’s understanding. Moreover, in Hunter the supreme court considered the
effect of the petitioner's mental health on his ability to make valid waivers before
concluding that his plea had been "freely and voluntarily given with full knowledge."
Id. at 1022. For these reasons Hunter is not apposite.

       Shafer on the other hand urges that our decision in Wilkins should lead to
affirmance of the district court. Although the facts there were very similar to our
case, Wilkins was not decided under AEDPA. The petitioner there had been found
competent to stand trial for murder and later moved to discharge counsel, stating that
he wished to plead guilty and receive the death penalty. Wilkins, 145 F.3d at 1009.
Instead of undertaking a probing analysis to determine whether Wilkins should be
allowed to waive counsel and plead guilty, the trial court used "leading questions
that failed to allow [him] to articulate his reasoning process," and failed to inform
him of defenses, lesser included offenses, or "the full range of punishments that he
might receive." Id. at 1012.

       We concluded that this type of limited colloquy did not comply with the
requirements of Faretta and Von Moltke. Id. at 1013. We also observed that the
Missouri courts had not acknowledged undisputed expert testimony that Wilkins’
waivers and pleas had not been knowing, voluntary, and intelligent. There was
expert opinion in the record that he suffered from mental disorders causing him to
make impulsive and irrational decisions, but the state courts had concluded that
earlier competency findings satisfied any concern about his mental condition. Id. at

                                          22
1013–15. We held, however, that the refusal to consider the impact of his mental
disorders on his ability to make knowing and intelligent choices was contrary to
Godinez and that his mental condition had prevented him from making knowing,
voluntary, and intelligent waivers. Id. We affirmed the district court's grant of
habeas relief and required that Wilkins be given an opportunity for trial because
there had been an inadequate colloquy in the trial court and his mental health had not
been considered. See id. at 1011.

       Similar concerns are present in Shafer's case. Here the trial court omitted
essential elements of the required colloquy such as available defenses and lesser
included offenses. It relied on leading questions to determine whether Shafer
understood what he was doing and did not help him to "articulate his reasoning
process." See id. at 1012. Here too, the supreme court failed to consider the impact
of Shafer’s mental health on his understanding and the need for the court to comply
fully with colloquy standards. This was despite undisputed expert testimony that
Shafer was prone to make impulsive and irrational decisions without considering the
consequences. Even though AEDPA did not apply to Wilkins, it is an important
precedent for Shafer's case for it drew on the clearly established governing law and
illustrates a reasonable application of the Supreme Court precedents in a factually
similar case.

       The rapid pace at which the trial court moved Shafer—from the question of
waiving counsel to his decisions about changing pleas, and then on to the waivers
at the penalty phase which resulted in an immediate imposition of the death
sentence—skimmed over procedures meant to ensure that a defendant's rights are
protected. Shafer was allowed to waive counsel at both the guilty plea and
sentencing phases without a penetrating and comprehensive examination of his
understanding, and without clear and specific information about his options or
warnings about the consequences of his actions. See Von Moltke, 332 U.S. at 724.
The trial court simply asked whether he thought he knew what he was doing and told

                                          23
him that he would be better off with an attorney. Shafer was allowed to plead guilty
without any assurance that he understood that there were legal defenses that might
provide him an opportunity to avoid conviction of the charged offenses or options
that might lead to a sentence other than life in prison or death, failures the state
supreme court was willing to overlook because it assumed nothing would have
affected his decisions. See Shafer, 969 S.W.2d at 733. The supreme court also
failed to consider undisputed expert opinions regarding Shafer's mental health, signs
that he did not understand his rights or the consequences of his actions, and the fact
that he reached his decisions to waive counsel, plead guilty, and ask for the death
penalty without being informed about the exculpatory ballistics evidence.

       We conclude that the state supreme court unreasonably applied clearly
established federal law when it determined that Shafer's guilty pleas and his waivers
of counsel were knowing, voluntary, and intelligent. We therefore conclude that the
district court did not err in granting relief and in ordering that Shafer be allowed to
withdraw his pleas and waivers and be provided an opportunity to make fully
informed decisions, starting with his decision whether to be represented by counsel.8

                                          B.

      On his cross appeal Shafer argues that the district court erred by denying his
claim that his confession should be suppressed because it was taken in violation of
his constitutional right to counsel. He argues that the police violated his right to
counsel by talking to him without permission from his attorney and that the supreme


      8
        In light of this decision we need not consider additional grounds in the
certificate of appealability which are now moot: 1) that the trial court failed to
consider mitigating evidence before sentencing, and 2) that Shafer's waiver of the
right to introduce mitigating circumstances was not knowing, voluntary, and
intelligent. These issues relate to the original penalty phase, and the nature of the
conditional writ makes it unnecessary to decide them.

                                          24
court decision was contrary to and an unreasonable application of clearly established
federal law.9 The state responds that clearly established federal law permits waiver
of the right to have counsel present during questioning if an individual has been
informed of his rights. It points out that Shafer initiated the police contact, offered
to confess, and confessed only after being informed of his Miranda rights.

       Shafer claims that a confession is per se invalid whenever the state
deliberately elicits incriminating statements in the absence of counsel after a
defendant’s Sixth Amendment right to an attorney has attached and he has obtained
representation, and that the police violated this rule by interviewing him and
obtaining his confession. He relies primarily on broad statements in two Supreme
Court decisions, Massiah v. United States, 377 U.S. 201 (1964), and Maine v.
Moulton, 474 U.S. 159 (1985). The Sixth Amendment was violated in Massiah by
use of "evidence of [the defendant's] own incriminating words, which federal agents
had deliberately elicited from him after he had been indicted and in the absence of
… counsel," 377 U.S. at 206, and the Supreme Court explained in Moulton that the
"police have an affirmative obligation not to act in a manner that circumvents and
thereby dilutes the protection afforded by the right to counsel." 474 U.S. at 171.

       As the state points out, these cases are factually distinguishable because they
did not present an issue of intentional waiver. In Massiah a codefendant allowed
police to install a radio transmitter in his car and then asked questions of the
defendant while authorities listened. 377 U.S. at 202–03. Similarly, in Moulton a
cooperating codefendant wore a wire to record a conversation in which he enticed
Moulton to make incriminating statements. 474 U.S. at 165–66. In both of these
cases, the defendant had no idea that he was being interrogated at the instigation of



      9
       The supreme court denied all of Shafer’s claims, though it did not discuss his
confession claim.

                                          25
the police. Shafer, on the other hand, not only knew that he was speaking to the
police, but intentionally initiated a conversation with them in the absence of counsel.

       The right to counsel under the Fifth Amendment may be waived even after it
has been invoked if "the accused himself initiates further communication … with the
police." Edwards, 451 U.S. at 484–85. The Supreme Court has indicated on two
occasions that the same waiver rule applies under the Sixth Amendment. See
Patterson, 487 U.S. at 291 (indicating that waiver is permitted under Sixth
Amendment if accused initiates discussion); Michigan v. Jackson, 475 U.S. 625, 635
(1986) (written waivers "are insufficient to justify police-initiated interrogations
after the request for counsel in a Sixth Amendment analysis"). In this case there is
no question that it was Shafer, not the police, who initiated the interview that led to
his confession on July 24, 1992. Shafer contacted an officer involved in the
investigation, both on that day and on the day before, to express his desire to talk and
to confess.

       Since Shafer initiated the interview, he could validly waive his right to counsel
for the purpose of confessing if his waiver was knowing, voluntary, and intelligent.
See Patterson, 487 U.S. at 292. Here, the record reflects that Shafer was adequately
informed of his right to counsel, that anything he said would be used against him,
and of the consequences of waiver before he signed Miranda waivers which he orally
reaffirmed during his videotaped interview. Shafer also told police that his attorney
had advised him not to speak to them but that he wished to disregard her advice and
proceed with the interview in her absence. The warnings he received were sufficient
to allow him to make an informed decision to waive his Sixth Amendment right to
counsel. See id., at 292–93 (Miranda warnings sufficient to make accused aware of
Sixth Amendment right to have counsel present during questioning and of possible




                                           26
consequences of waiver).10 Although Shafer states in his brief that the police
"exploited" his mental condition by allowing him to confess, he has never argued
that mental illness interfered with his ability to understand what he was doing when
he made his confession. We cannot conclude on this record that the Missouri
Supreme Court decision denying this claim was either contrary to or an unreasonable
application of clearly established federal law.11

                                          III.

       In sum, we conclude that the district court did not err in concluding that the
state supreme court unreasonably applied clearly established federal law in finding
that Shafer's waivers of counsel and guilty pleas were knowing, voluntary, and
intelligent. The district court also did not err by refusing to suppress Shafer's
confession after concluding that the state court's rejection of his Sixth Amendment
claim was neither contrary to, nor an unreasonable application of, clearly established
federal law. Shafer is therefore entitled to the writ granted by the district court but
to no other relief. The judgment of the district court is affirmed.


      10
         Although the Court indicated in Patterson that it might have reached a
different result if the defendant had been represented at the time he spoke with the
police, 487 U.S. at 290 n.3 (citing Moulton, 474 U.S. at 176), there are no cases in
which it has reached such a conclusion. It was thus not unreasonable for the Missouri
court to apply Patterson to a represented defendant who initiated contact with police
for the purpose of confessing, was informed of his rights, and proceeded to confess.
      11
         Shafer raises two additional arguments on his cross appeal: 1) that he received
ineffective assistance of counsel because his attorneys failed to investigate potentially
exculpatory evidence or to develop available theories of defense before they were
relieved, and 2) that he was denied due process by an ex parte conversation between
the trial court and the prosecutor in which the judge indicated in advance of the
hearing that he was likely to accept Shafer's pleas (and possibly that he would grant
Shafer's wish for the death penalty). These claims are moot at this point and need not
be addressed.

                                           27
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                              28
