                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-1086
                                     ___________

Jeremaine Perry,                          *
                                          *
             Appellant,                   *
                                          *
      v.                                  * Appeal from the United States
                                          * District Court for the Western
Michael Kemna,                            * District of Missouri.
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: September 11, 2003

                                   Filed: January 30, 2004
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Jeremaine Perry was convicted in state court of second-degree murder and
sentenced to life imprisonment. After exhausting his state post-conviction remedies,
Mr. Perry filed a petition under 28 U.S.C. § 2254. The district court1 denied
Mr. Perry's petition but granted him a certificate of appealability on one of his claims,
and we then granted him a certificate of appealability on the four additional claims
addressed in this appeal. We affirm the district court in all respects.

      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
                                            I.
       In an appeal from a judgment on a § 2254 petition, "[w]e review the district
court's findings of fact for clear error and its conclusions of law de novo." Taylor v.
Bowersox, 329 F.3d 963, 968 (8th Cir. 2003). "[W]ith respect to any claim" that the
state court "adjudicated on the merits," we will grant relief only if that court's
decision is "contrary to, or involve[s] an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court," or is "based on an
unreasonable determination of the facts in light of the evidence presented." 28 U.S.C.
§ 2254(d).

                                         II.
      Samuel Duke, Sr., Mr. Perry's grandfather, was shot twice in the head on
January 2, 1993, and died that day. Mr. Perry, who was fifteen years old at the time,
was arrested as a suspect in the murder, and eventually charged and convicted,
following interviews with the police on January 2, 3, 4, and 7, 1993.

       Mr. Perry's pretrial counsel was Dee Wampler, whom he retained on January 4
prior to his third interview. Mr. Perry asserts that Mr. Wampler rendered ineffective
assistance by arranging for him 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 that were
used against him at trial. Mr. Perry contends that the state court erroneously found
that he and his parents decided that he should talk to the police despite Mr. Wampler's
express advice not to do so.

       It is helpful to clarify the contents of the Missouri courts' findings of fact
relating to the ineffective assistance of counsel claim, as these findings are presumed
to be correct absent "clear and convincing evidence" to the contrary presented by
Mr. Perry, see 28 U.S.C. § 2254(e)(1). This "presumption of correctness applies to
factual determinations made by state courts, whether the court be a trial court or an

                                         -2-
appellate court. The statute makes no distinction between the factual determinations
of a state trial court and those of a state appellate court." King v. Bowersox, 291 F.3d
539, 540 (8th Cir. 2002) (internal quotations omitted), cert. denied, 537 U.S. 1093
(2002).

      The Missouri Court of Appeals made the following factual findings in denying
Mr. Perry's ineffective assistance of counsel claim:

              There was testimony at the evidentiary hearing that Wampler
      advised [Mr. Perry] against making both the January 4th and the January
      7th statements to the police. Wampler testified that he initially advised
      [Mr. Perry] not to go to the interview on January 4, but that it was "their
      call. If Jermaine wanted to go it was -- it would be his call; he's the
      client." Wampler testified that he did call to confirm the 1:30
      appointment "as just a courtesy." On cross-examination, Wampler
      testified that he advised the Perrys to not feel pushed into having to
      make the 1:30 appointment with the juvenile officer. Wampler testified
      that he "warned them about the pitfalls of talking to the police," but the
      Perrys were "hell bent" on talking to the police and telling the truth.


              Conversely, Eldo Rado Perry ([Mr. Perry's] adoptive father)
      testified that he had not scheduled the appointments, but that the
      decision was made by Wampler. He testified that Wampler did not
      advise them against it, and told them to return on January 7 for an
      appointment with juvenile authorities. Mary Perry ([Mr. Perry's]
      mother) testified that going to the 1:30 p.m. appointment on January 4
      was Wampler's idea and that he made the phone call to arrange it. She
      testified that she did not want [Mr. Perry] to make a statement.
      [Mr. Perry] testified that when he went to the January 4 interview, it was
      what his attorney wanted him to do, and that he did not want to go, nor
      did his parents want him to go to the interview. He testified that
      Wampler set up the interview, and made the decision for him to talk to
      the police on January 7. [Mr. Perry] also testified that Wampler told him
      it was best to make the statement, and that Wampler never said he was
      better off not talking to the police.

                                          -3-
             Wampler testified that he did not remember whether he scheduled
      the January 7th meeting, or if someone else did. Wampler did state that
      his "general thought" was that if [Mr. Perry] talked to the police, it
      might result in him remaining under the juvenile system, and not be
      certified as an adult. Wampler accompanied [Mr. Perry] to the January 7
      statement.
              Giving 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." There was evidence
      indicating that the attorney's performance was not deficient, as he
      testified that he advised [Mr. Perry] not to talk to the authorities, and
      [Mr. Perry] acted against that advice.

Perry v. State, 11 S.W.3d 854, 858-59 (Mo. Ct. App. 2000). The district court, after
citing the factual findings of the Missouri courts, stated:

      Absent clear and convincing evidence to the contrary, the factual
      determinations of the state court are presumed to be correct. See
      28 U.S.C. § 2254(e)(1). [Mr. Perry] has not presented this Court with
      clear and convincing evidence that would cause this Court to disregard
      factual determinations made by the Missouri courts. Therefore, as stated
      by the Missouri Court of Appeals, there is evidence tending to show that
      Mr. Wampler's performance was within the bounds of competency in
      advising [Mr. Perry] not to make a statement to authorities on
      January 4th and 7th and that [Mr. Perry], at the behest of family
      members seeking the truth, made the statements anyhow. In light of the
      facts as found by the Missouri courts, this Court cannot say that the
      holding of the Missouri Court of Appeals is contrary to, or involved an
      unreasonable application of, clearly established federal law as is
      required before this Court can issue a writ of habeas corpus. See
      28 U.S.C. § 2254(d)(1).

      While the Missouri Court of Appeals made its findings of fact regarding
Mr. Wampler's behavior in the process of evaluating Mr. Perry's ineffective assistance
of counsel claim, which involved both questions of law and fact, the underlying
factual findings are entitled to deference. We agree with the district court that, in the

                                          -4-
course of rejecting Mr. Perry's ineffective assistance of counsel claim, the Missouri
Court of Appeals found it to be a fact that Mr. Wampler advised Mr. Perry against
making both the January 4 and the January 7 statements to the police.

       Indeed, Mr. Perry agrees in his brief that the Missouri courts made a factual
finding that Mr. Wampler advised him not to talk to the police on both January 4 and
7. Discussing a statement made by Mr. Wampler during the January 7 interview,
Mr. Perry argues that "[t]his cannot be reconciled with the state court's finding that
Wampler's advice to appellant was not to proceed with the interrogation." Mr. Perry
also notes that "Wampler claimed that he advised appellant not to talk to police on
January 4 and 7, 1993, a position which the state court credited." Mr. Perry's
argument is not that the Missouri courts did not find that Mr. Wampler advised him
not to talk to the police on January 4 and 7, but that the presumption of correctness
of this finding has either been overcome or is inapplicable. He has thus acquiesced
in the district court's determination that the state court found it to be a fact that
Mr. Wampler advised him not to talk to the police, and he has consequently forfeited
any claim based upon the premise that the state court never made such a factual
finding.

       In attempting to demonstrate that the state courts' fact-finding was inconsistent
and contradictory, and thus not entitled to a presumption of correctness, Mr. Perry
relies upon evidence before the state post-conviction court that Mr. Wampler
affirmatively allowed both interviews to proceed. A deputy juvenile officer testified
that Mr. Wampler called to set up the date and time of the January 4 interview after
indicating that Mr. Perry "wanted to come into the office and tell [the police] what
happened." During the audiotaped January 4 interview, the chief juvenile officer told
Mr. Perry that Mr. Wampler had "authorized" Mr. Perry to "go ahead and talk to us
in his absence" and that Mr. Wampler had "indicated to us that you can proceed."
And during the audiotaped January 7 interview, Mr. Wampler, who was present



                                          -5-
during the first part of the interview, affirmatively indicated to a detective that he was
"ready to proceed to allow [Mr. Perry] to be questioned."

       None of this evidence, however, is inconsistent with or contradicts the state
court's finding that Mr. Wampler had advised Mr. Perry not to talk to the police on
January 4 and 7. It does tend to show that Mr. Wampler left the ultimate choice of
whether to talk to the police to his client and that he did not impede Mr. Perry's desire
to ignore his legal advice by making statements to the police. But the evidence does
not constitute clear and convincing evidence sufficient to rebut the presumed
correctness of the state court's finding that Mr. Wampler advised Mr. Perry not to talk
to the authorities and that Mr. Perry acted against that advice.

       Mr. Perry also argues that the presumption of correctness is not dispositive of
his right to relief on this claim because the Missouri courts made the "inherently
contradictory findings" that, on the one hand, Mr. Wampler told him not to make a
statement, but that on the other, Mr. Wampler had valid strategic reasons for advising
him to confess. The Missouri Court of Appeals did note that Mr. Wampler had
"state[d] that his 'general thought' was that if Movant talked to the police, it might
result in him remaining under the juvenile system, and not be certified as an adult."
Perry v. State, 11 S.W.3d at 859. During the post-conviction hearing, however, in
response to the question "And still, the meeting on the 7th was still against your
advice?" Mr. Wampler had testified, "It was against my advice and admonition, and
when Jeremaine said this is what he wanted to do, I said, 'I'm with you. I will go with
you. And we will go together, and that's what we'll do, and -- and we're off.' " Earlier
in the post-conviction hearing, Mr. Wampler had provided a more nuanced
explanation of his thoughts about the decision to submit to the January 7 interview,
stating, "I talked to Jeremaine, and, you know, the general thought was that this is
what he wanted to do, and he was a fine young man, fetching young man, and looked
like if he did testify and cooperate, that there was a possibility that they wouldn't
certify him. And that was what we were shooting for: we didn't want him certified."

                                           -6-
We think that Mr. Wampler's eventual recognition of the strategic benefits of
cooperating with the police is not sufficiently contradictory to his initial "advice and
admonition" that Jeremaine not talk to the police to allow a rejection of the Missouri
courts' factual findings. It is plausible that Mr. Wampler's awareness of both
Mr. Perry's earlier fabricated statements to the police and Mr. Perry's steadfast desire
to come clean with the truth led him to abandon his attempt to prevent Mr. Perry from
volunteering for another interview. We thus conclude that the Missouri courts'
findings were not inherently contradictory, and thus that their finding that
Mr. Wampler advised Mr. Perry against speaking to the police on January 4 and 7
should be presumed correct.

      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. Perry and his parents that
Mr. Wampler had advised them to talk to the police. Federal habeas review "gives
federal courts no license to redetermine [the] credibility of witnesses whose demeanor
has been observed by the state trial court, but not by them." See Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). We therefore reject this claim.

                                           III.
       Mr. Perry also contends that he did not waive his Miranda rights knowingly,
voluntarily, and intelligently because of his limited intellect and maturity, and
because of coercion and pressure applied by the police and juvenile authorities. The
state argues that this claim is procedurally barred due to a failure to present it in state
court.

       To avoid a procedural default, a habeas petitioner must "present the same facts
and legal theories to the state court that he later presents to the federal courts." Jones
v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). In state court, Mr. Perry claimed that
he "did not make a knowing and voluntary waiver of his constitutional rights to

                                           -7-
remain silent and to counsel because statements elicited from him were in violation
of" a Missouri juvenile court rule requiring the authorities to give juveniles certain
warnings about their rights. The factual and legal bases for Mr. Perry's claim in state
court thus differed somewhat from those relied upon here, and it is therefore probably
barred. We find it unnecessary, however, to resolve that question, as Mr. Perry's
claim clearly fails on the merits.

        The United States Supreme Court has made clear that the validity of a Miranda
waiver has "two distinct dimensions" – whether the waiver is voluntary and whether
it is knowing and intelligent. Colorado v. Spring, 479 U.S. 564, 573 (1987). We thus
evaluate Mr. Perry's claim that his waivers were "not knowing, voluntary and
intelligent" within this bifurcated framework.

                                          A.
       We first address Mr. Perry's argument that his Miranda waivers were not
voluntary. The proper inquiry is whether the Miranda waiver "was the product of a
free and deliberate choice rather than intimidation, coercion, or deception." Moran
v. Burbine, 475 U.S. 412, 421 (1986); United States v. Turner, 157 F.3d 552, 555 (8th
Cir. 1998).

       Mr. Perry contends that the police utilized coercive tactics in obtaining his
waiver by lying to him about his attorney's instructions and subjecting him to
repeated questioning. We reject these contentions. First, the record does not show
that the police lied to Mr. Perry, as the truth of their statement to him that
"Mr. Wampler has indicated to us that you can proceed [with the interview]" is
consistent with the state court's finding that Mr. Wampler had advised Mr. Perry
against making statements to the police but had left the final decision on whether to
talk in the hands of Mr. Perry and his parents. Mr. Perry's argument that his waivers
were involuntary because he "was repeatedly interrogated over the course of several
days" is also plainly without merit. The waivers at issue undisputedly occurred

                                         -8-
before the beginning of each of Mr. Perry's interviews. The quantity and frequency
of questions asked within an interview cannot possibly have any effect on a waiver
that precedes that interview.

       To the extent that Mr. Perry is contending that the frequency and duration of
the questioning rendered his confessions involuntary despite his waivers, we reject
this contention as well. Mr. Perry voluntarily appeared at the police station for both
of the interviews in which he made the damaging recorded statements used against
him at trial. The duration of the questioning was not excessive: the January 4
interview lasted one hour, and the January 7 interview lasted one-and-a-half hours.
Transcripts of each of the interviews reveal that, following Mr. Perry's Miranda
waivers, police investigators asked direct and straightforward questions, and no
threats or promises of leniency were made. Mr. Perry has failed to show that his
confessions were involuntary because he has failed to show that he was subjected to
coercive police tactics.

                                         B.
       We also reject Mr. Perry's argument that his waivers were not knowing and
intelligent. A valid Miranda waiver "must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it." Moran, 475 U.S. at 421. The Missouri Court of Appeals found that
"under the totality of the circumstances, it is clear that [Mr. Perry] was fully aware
that anything he said during each of his interviews could be used against him in an
adult court proceeding." State v. Perry, 954 S.W.2d 554, 563 (Mo. Ct. App. 1997)
(Perry I). Mr. Perry has not presented clear and convincing evidence sufficient to
rebut the presumed correctness of these findings. Indeed, there is substantial
evidence indicating that Mr. Perry subjectively understood and waived his rights to
remain silent and to have counsel present. As the state court noted, transcripts from
Mr. Perry's interviews support a conclusion that he was informed of his rights and
was afforded appropriate warnings before the beginning of each interview, and that

                                         -9-
he affirmatively indicated his understanding of those rights. Id. at 562-63. Mr. Perry
thus cannot prevail on this claim.

                                         IV.
      Mr. Perry's third claim is that his right to the effective assistance of counsel
was violated by Mr. Wampler's disclosure to the prosecution of privileged or secret
information obtained from Mr. Perry during attorney-client conferences. The proper
standard for evaluating Mr. Perry's claim is set forth in Strickland v. Washington,
466 U.S. 668, 687 (1984), under which Mr. Perry must show both deficient
performance on Mr. Wampler's part and resulting prejudice to his case.

       Just prior to Mr. Perry's trial, the special prosecutor disclosed to the trial court
that he had met with Mr. Wampler and that he intended to call Mr. Wampler to testify
that, prior to Mr. Perry's confession to the police, Mr. Perry made a statement to
Mr. Wampler that he had shot his grandfather twice. After an objection and a hearing
to determine whether the statements were protected by the attorney-client privilege,
the special prosecutor decided not to call Mr. Wampler as a witness. Mr. Perry
contends that, despite the fact that the communications between Mr. Perry and
Mr. Wampler were never placed before the jury, Mr. Wampler's decision to provide
the prosecution with statements made by Mr. Perry amounts to ineffective assistance
of counsel in violation of Mr. Perry's sixth amendment rights.

       It is undisputed that Mr. Wampler met with prosecutors and provided them
with statements made by Mr. Perry during attorney-client conferences that his parents
attended. The Missouri Court of Appeals found that "such a meeting is unusual, if
not improper," Perry v. State, 11 S.W.3d 854, 861 (Mo. Ct. App. 2000) (Perry II),
and the district court found that "Mr. Wampler disclosed confidential information
regarding Petitioner's statements to Special Prosecutors in this case and thus fell
below the standard expected of a reasonably competent attorney under similar
circumstances."

                                           -10-
       We agree with the district court that Mr. Wampler's revelation to the
prosecution of secret information relating to his representation of Mr. Perry was
professionally unreasonable, whether or not Mr. Perry's statements were protected by
the attorney-client privilege. We also agree with the district court, however, that
Mr. Perry has failed to make the requisite showing that Mr. Wampler's actions
prejudiced his defense.

       Prejudice is shown only where "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. We concede that Mr. Wampler's disclosures
may have had some negative impact on Mr. Perry's defense. The special prosecutor
gave the following reason to the trial court for seeking to introduce Mr. Wampler's
statement: "I know what's coming down the road. [The defendant]'s going to ... say,
they forced me to make a statement that wasn't true ... [W]e have been told that his
position is, I didn't do this crime, that I confessed to something I didn't do." The
information supplied by Mr. Wampler gave the special prosecutor insight into the
defense strategy of challenging the reliability of Mr. Perry's statements to the police.
The mere possibility of Mr. Wampler testifying might have affected Mr. Perry's
defense strategy at trial. Because Mr. Wampler did not testify, however, the theory
that his disclosures to the prosecution altered the jury's verdict is too speculative to
satisfy the "prejudice" requirement of an ineffective-assistance claim. Mr. Perry has
failed to show that it was reasonably probable that Mr. Wampler's actions changed
the result of his trial.

                                        V.
      Mr. Perry was certified to stand trial as an adult by former Missouri Circuit
Judge Thomas McGuire. Mr. Perry contends that the proceedings before
Judge McGuire violated his rights to due process and equal protection of the law
under the fifth and fourteenth amendments because Judge McGuire was prejudiced
against Mr. Perry, who is black, because of his race. The due process clause

                                         -11-
guarantees a fair and impartial judge, of course, but we begin a consideration of this
kind of claim with a presumption that decision-makers are honest and impartial. See
Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999) (per curiam).

       Mr. Perry's argument that Judge McGuire's decision to certify him as an adult
was motivated by racial bias is based on racially derogatory remarks that
Judge McGuire allegedly made off the record. Paul Hungerford, Judge McGuire's
former bailiff, testified at a motion hearing before the trial court that while the
petition to certify Mr. Perry as an adult was pending, Judge McGuire said "something
to the effect that" Mr. Perry's parents "had raised a nasty little nigger that killed the
best niggers in Springfield." Mr. Hungerford also admitted in his testimony,
however, that he had had a disagreement with Judge McGuire over a job. In
Judge McGuire's deposition, which was introduced at the hearing, he denied ever
having made the comments alleged by Mr. Hungerford or any other racist comments
in connection with the case. The state trial court chose to believe Judge McGuire and
to disbelieve Mr. Hungerford, and the state appellate court, in denying the claim,
deferred to the trial court's superior opportunity to determine the credibility of
witnesses whom it observes. Perry I, 954 S.W.2d at 567-68 & n.19.

       Under § 2254(e)(1), the Missouri courts' finding discounting Mr. Hungerford's
testimony is entitled to a presumption of correctness unless Mr. Perry can rebut the
presumption by "clear and convincing evidence," 28 U.S.C. § 2254(e)(1). He has
failed to present such evidence. A federal habeas court has no power to redetermine
Mr. Hungerford's credibility. See Marshall, 459 U.S. at 434. Furthermore, Mr. Perry
has identified no other evidence in the record tending to show that Judge McGuire's
decision to dismiss the juvenile proceeding was the product of racial prejudice.
Although Mr. Perry asks us to consider newspaper articles about events involving
Judge McGuire unrelated to Mr. Perry's proceedings, those articles were not in the
record below and, in any event, are necessarily hearsay, and thus could not properly
be before the court.

                                          -12-
       Mr. Perry argues that he was entitled to an evidentiary hearing in the federal
district court in order to develop a factual basis for this claim. A federal habeas
court's power to conduct an evidentiary hearing is, however, sharply limited by
28 U.S.C. § 2254(e)(2)(B), which provides that, as a prerequisite to such a hearing,
a petitioner must show that "the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense." Because Mr. Perry does not even contend that he has any new evidence
bearing on his actual innocence, it would be inappropriate to conduct new evidentiary
inquiries at this stage in the proceedings. For all of the reasons stated, we deny this
claim.

                                           VI.
       Mr. Perry was brought to trial and convicted by a jury in September, 1996, over
three-and-a-half years after his original detention in juvenile court. He contends that
this delay deprived him of his sixth amendment right to a speedy trial.

       The state appellate court evaluated and rejected this claim using the principles
outlined in Barker v. Wingo, 407 U.S. 514, 530 (1972), under which a court faced
with this kind of claim is obliged to consider the length of delay, the reason for the
delay, whether the defendant asserted his right in the trial court, and any prejudice
that the delay caused the defendant. Perry I, 954 S.W.2d at 565-66. The court first
noted that the delay in bringing Mr. Perry to trial exceeded eight months, and was
thus presumptively prejudicial, inviting further inquiry. Id. The court then found that
the reason for the delay was a combination of Mr. Perry "engag[ing] in a vigorous
defense, involving the filing of numerous motions, many of which were subsequently
amended during the litigation process," and the State "engag[ing] in a vigorous
prosecution with its attendant motions, together with its applications for change of
judge." Id. at 566. Next, the court found that, as Mr. Perry admitted, he had failed
to move for an earlier trial. Id. Finally, the court found that Mr. Perry's evidence of

                                         -13-
prejudice from the delay due to his aging and change in personality was "speculative,
at best." Id. (internal quotations omitted).

       The state court's conclusion that Mr. Perry's rights were not violated, arrived
at after a careful consideration of the relevant circumstances noted above, was not
contrary to, or an unreasonable application of, clearly established federal law, nor was
it based on an unreasonable determination of the facts in light of the evidence
presented to the state court. See 28 U.S.C. § 2254(d). This claim therefore must fail.

       Mr. Perry asserted, for the first time in the district court, that he was prejudiced
because "evidence was lost" and "memories faded" during the time between arrest
and trial. We agree with the district court that this argument is procedurally barred
due to Mr. Perry's failure to present it in state court.

                                        VII.
       For the reasons indicated, we affirm the district court's denial of Mr. Perry's
petition.

BYE, Circuit Judge, concurring.

       I agree with the majority in affirming the district court's order refusing
Jeremaine 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.



                                           -14-
                                             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 2. 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 deficiently 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 (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

                                           -15-
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. With 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

      2
       "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).
      3
         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. Perry and his parents that Mr. Wampler had
advised them to talk to the police." Ante at 7. 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.
      4
        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

                                          -16-
      On the contrary, the state trial court's only unequivocal statement regarding the
January 7 meeting shows it found Wampler 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 authorities 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


deficiency never occurred. To this limited extent I believe the district court and the
majority are correct.
      5
       The state court also concluded that Wampler 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.

                                          -17-
to that finding." United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.
1991).6 Since 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, 499 U.S. 539 (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

      6
        In Partee, the Seventh Circuit construed an earlier version of the habeas
statute, but the requirement that federal courts presume state court findings of fact
correct is essentially the same today as it was then.
      7
       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, 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

                                          -18-
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,
"[g]iving 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 presumption 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

      § 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 (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).
      8
       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.

                                          -19-
      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, "[a]ppellate
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


      9
        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).

                                          -20-
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 859. 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 (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


      10
        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.
      11
         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 testified 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.

                                         -21-
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. 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 Wampler 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


      12
         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. Lane, 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.

                                           -22-
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 district 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
(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 (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


      13
         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. Arizona. 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.

                                        -23-
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
(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); Kight v. Singletary, 50 F.3d 1539, 1548
(11th Cir. 1995); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)

      14
         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-indictment 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.

                                          -24-
(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 F.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). 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

                                          -25-
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.

                                           III

        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.
                         ______________________________




                                          -26-
