                     United States Court of Appeals,

                            Eleventh Circuit.

                                No. 94-6687.

             Billy Wayne WALDROP, Petitioner-Appellant,

                                       v.

               Ronald E. JONES, Respondent-Appellee.

                             Feb. 26, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 90-H-1845-S), James Hughes Hancock,
Judge.

Before KRAVITCH, EDMONDSON and COX, Circuit Judges.

     COX, Circuit Judge:

     Billy   Wayne    Waldrop    was   convicted   in   Talladega   County,

Alabama, for murder and sentenced to death.        He appeals the denial

of relief on his 28 U.S.C. § 2254 petition for a writ of habeas

corpus.   We affirm.

I. FACTS AND PROCEDURAL HISTORY

     On the night of June 2-3, 1982, Thurman Macon Donahoo was

robbed, beaten, shot, and left for dead in his house as it burned

to the ground. Investigators found his body, charred almost beyond

recognition, during their investigation of the fire.            Suspicion

about the identity of the perpetrator focused almost immediately

upon Billy Wayne Waldrop.

     In July 1982 Waldrop was arrested in California on a charge of

driving under the influence of alcohol.        He waived extradition and

was returned to Alabama based on a warrant issued by the Calhoun

County Circuit Court charging him with receipt of stolen property.

Apparently the property in question was that taken from Donahoo's
home on the night of his murder.               Although Waldrop was returned to

Alabama on the basis of a Calhoun County warrant, he was taken to

Talladega County on August 19, 1982.                 While incarcerated there,

Waldrop gave two statements implicating himself in the Donahoo

robbery and murder.

     In December 1982 Waldrop was indicted on six counts of capital

murder. The first four counts of the indictment charged variations

of murder during the course of a first degree robbery.                            See

Ala.Code § 13A-5-40(a)(2).              Counts five and six charged murder

during two separate types of first degree burglary.                    See Ala.Code

§ 13A-5-40(a)(4).

     On February 18, 1983, the petitioner was found guilty of the

murder    of   Donahoo.        On   the   same     day,   the   jury   unanimously

recommended the imposition of the death penalty.                 After a separate

sentencing hearing on March 22, 1983, the trial court sentenced the

petitioner to death.           On direct appeal, the Alabama Court of

Criminal Appeals affirmed the conviction and sentence and denied

rehearing.      Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983).

The Alabama Supreme Court affirmed, Ex parte Waldrop, 459 So.2d 959

(Ala.1984), and the United States Supreme Court denied certiorari,

Waldrop v. Alabama, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323

(1985).

     In June 1985 Waldrop filed a petition for writ of error coram

nobis    in    the   Circuit    Court     of    Talladega   County.       After   an

evidentiary hearing, the trial judge denied coram nobis relief.

The Alabama Court of Criminal Appeals affirmed the denial of coram

nobis relief. Waldrop v. State, 523 So.2d 475 (Ala.Crim.App.1987).
Both the Alabama Supreme Court and the United States Supreme Court

denied certiorari.     Id.;   Waldrop v. Alabama,    488 U.S. 871, 109

S.Ct. 184, 102 L.Ed.2d 154 (1988).

     Waldrop filed a second petition for relief in November 1988 to

vacate and set aside his conviction and death sentence pursuant to

Rule 20 of the Alabama (Temporary) Rules of Criminal Procedure.

The Circuit Court of Talladega County denied relief, and the Court

of Criminal Appeals affirmed without opinion.            Waldrop v. State,

564 So.2d 115 (Ala.Crim.App.1990). Waldrop did not file a petition

for writ of certiorari with the Alabama Supreme Court.

     In September 1990 Waldrop filed the present petition for a

writ of habeas corpus in the Northern District of Alabama.               He

later filed an amended petition, and in May 1991 filed a second

amended petition.    After construing the State's answer as a motion

for summary judgment, the district court granted the State's motion

and denied the petition for habeas relief. Waldrop v. Thigpen, 857

F.Supp. 872 (N.D.Ala.1994).

II. ISSUES ON APPEAL

     Waldrop raises several issues on appeal.        First, he contends

that the district court erred in denying him relief on his claim

that his counsel was ineffective for failing to present mitigating

evidence during the penalty phase of the trial.            Second, Waldrop

attacks   the   district   court's   conclusion   that    he   procedurally

defaulted his claim based on Cage v. Louisiana, 498 U.S. 39, 111

S.Ct. 328, 112 L.Ed.2d 339 (1990), that the jury instruction

defining "reasonable doubt" violated the Due Process Clause of the

Fourteenth Amendment.      Finally, Waldrop challenges the district
court's conclusion that his confession was properly admitted and

not involuntary under the Fourteenth Amendment or obtained in

violation of his Sixth Amendment right to counsel.1

III. DISCUSSION

A. Ineffective assistance of counsel

      Waldrop contends that the district court erred in finding that

his   lawyers     were       not    ineffective    and     that     Waldrop     was   not

prejudiced       by   their      failure   to    present      allegedly       mitigating

evidence    during         the   sentencing     phase   of    his    trial.      Waldrop

contends that his counsel failed to adequately investigate his

background, thereby depriving the jury and judge of evidence of his

violent and abusive family background, mental instability, and

neurological damage from a gunshot wound inflicted in November

1981.      The    State      asserts     that   the     district     court     correctly

concluded that Waldrop showed neither ineffective assistance of

counsel nor prejudice because of his counsel's failure to introduce

this evidence.

      Relying on the findings of the coram nobis court, the district

court     concluded         that,    although      Waldrop's         trial     counsel's

investigation         of    mitigating     factors      was   "far    from     the    most

thorough," it was professionally reasonable.                    Waldrop v. Thigpen,

857 F.Supp. at 916. The district court also concluded that Waldrop

was not prejudiced by his counsel's failure to introduce this

allegedly mitigating evidence.                Id. at 919.

      1
      Waldrop also argues that several comments made during the
prosecutor's summation at the penalty phase of the trial deprived
him of a fundamentally fair trial. This argument is without
merit and does not warrant further discussion. See 11th Cir.R.
36-1.
         An    ineffective   assistance   of   counsel    claim    is    a   mixed

question of law and fact, subject to de novo review.              Strickland v.

Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674

(1984).       To prove ineffective assistance of counsel, a petitioner

must prove that counsel's performance was deficient and that the

deficiency prejudiced the defendant.            Id. at 687, 104 S.Ct. at

2064. To satisfy the prejudice prong, a petitioner "must show that

there    is     a   reasonable   probability    that,    but   for      counsel's

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Mills v. Singletary, 63 F.3d

999, 1020 (11th Cir.1995) (quoting Strickland, 466 U.S. at 694, 104

S.Ct.     at    2068)   (internal   quotation    marks    omitted).           When

challenging a death sentence, a petitioner must show that "there is

a reasonable probability that, absent the errors, the sentencer ...

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death." Strickland, 466 U.S. at 695,

104 S.Ct. at 2069.        Because a petitioner must satisfy both prongs

of the Strickland test, a failure to prove either provides a

sufficient basis to deny relief on the ineffective assistance

claim.    Id. at 697, 104 S.Ct. at 2069.2

     Waldrop alleges that certain evidence about his background

would have changed his sentence if it had been offered by his

     2
      Although it first addressed the performance component and
then moved to the prejudice component in Strickland, the Supreme
Court specifically held that a court need not address the
components in any particular order or even address both if the
defendant makes an insufficient showing on one. 466 U.S. at 696,
104 S.Ct. at 2069; see also Marek v. Singletary, 62 F.3d 1295,
1298 (11th Cir.1995).
counsel.      But   the    coram    nobis    court    and   the   district   court

disagreed, finding that much of the evidence Waldrop offered was

not credible and concluding that none of it would have altered

Waldrop's sentence.            The State urges that those findings are

justified by the record.           The state court's findings of fact are

entitled to a presumption of correctness and are given deference if

fairly supported by the record of the coram nobis hearing.                       28

U.S.C. § 2254(d);       see also Strickland, 466 U.S. at 698, 104 S.Ct.

at 2070.

      Waldrop first would have had his counsel introduce evidence

of his allegedly abusive and traumatic childhood.                 He claims that

as a child, he endured violent physical and sexual abuse.                 Waldrop

testified that his father, uncle, and half-sister all sexually

abused     him,   and     he   alleges      that   these    experiences      caused

long-lasting effects on his behavior.                See Waldrop v. State, 523

So.2d at 483-84.        But the evidence presented at the coram nobis

hearing about Waldrop's childhood was contradictory and at times

supported by nothing more than Waldrop's own testimony.                   See id.

The state court found that the petitioner was not sexually abused

as a child, id., and it also concluded that Waldrop failed to

establish that he suffered any lasting negative effects from the

alleged physical abuse, id. at 483.                These findings are fairly

supported by the record.           The evidence about Waldrop's childhood,

if presented, would not have weighed heavily as a mitigating

factor.

         Waldrop also contends that his counsel should have offered

evidence of the neurological damage he allegedly suffers from a
gunshot wound to his brain in 1981.                 Waldrop testified that the

wound has caused lasting effects on his behavior.                   His mother, as

well as several other family members, corroborated his testimony,

and they stated that he had suffered seizures on several occasions.

Id. at 484-85.            Dr. Zeiger, Waldrop's treating neurosurgeon,

contradicted Waldrop's evidence;            he testified that the wound had

healed well and that there was no evidence of any resulting seizure

activity.     Dr. Zeiger also stated that the damage to Waldrop's

frontal     lobe    did    not    affect   either    his    mental      or    physical

functioning. The coram nobis court credited the doctor's testimony

and found that Waldrop suffered no behavioral effects as a result

of the gunshot wound.              Id. at 485.        This finding is fairly

supported by the record; thus, evidence of the gunshot wound would

not constitute mitigation.

       Waldrop also claims that evidence concerning his history of

excessive alcohol and drug use constituted a mitigating factor. He

alleges that the combination of his anti-seizure medication, which

he   took   sporadically,        and    several   illicit       drugs   altered      his

behavior.     Waldrop also claims that he was severely depressed and

had attempted suicide at the time of Donahoo's murder.                               The

district    court    found       that   these   facts,     if   shown,       would   not

constitute evidence in mitigation of the death penalty. Waldrop v.

Thigpen, 857 F.Supp. at 919.            We agree;    indeed, admission of some

of this evidence might have been harmful to Waldrop's case.

      In sum, the evidence that Waldrop claims his counsel should

have introduced would not have changed the outcome in his case.                       We

agree with both the coram nobis court and the district court that
Waldrop has not demonstrated that his counsel's failure to present

the evidence in question altered the outcome of the sentencing

phase of his trial.       "Given the [ ] aggravating factors, there is

no reasonable probability that the omitted evidence would have

changed     the     conclusion    that    the      aggravating    circumstances

outweighed the mitigating circumstances and, hence, the sentence

imposed."         Strickland,    466   U.S.   at   700,   104   S.Ct.   at   2071.

Waldrop's claim must fail because he was not prejudiced by any

ineffective assistance of counsel that may have occurred.
B. The jury instruction on reasonable doubt

         Waldrop next challenges the trial court's jury instruction

that "[a] reasonable doubt means an actual, substantial doubt."3

     3
      The court's instruction on reasonable doubt was as follows:

                 Now, you will want to know what a reasonable doubt
            is. When I say the state is under the burden of
            proving guilt beyond a reasonable doubt and to a moral
            certainty, that does not mean that the state must prove
            an alleged crime beyond every imaginable or speculative
            doubt, or beyond all possibility of mistake, because
            that would be impossible.

                 A reasonable doubt means an actual, substantial
            doubt. It could arise out of the testimony in the case
            or a reasonable doubt could arise from a lack of
            testimony in the case. It is a doubt for which a
            reason can be assigned, and the expression "to a moral
            certainty" means practically the same thing as "beyond
            a reasonable doubt" because if you are convinced to the
            point where you no longer have a reasonable doubt, then
            you are convinced to a moral certainty.

     (Trial Tr., R. 4-16 at 576-77.)

          On appeal, Waldrop also challenges the portion of the
     instruction in which the trial court equates proof beyond a
     reasonable doubt with proof to a moral certainty. However,
     he did not present this claim in his amended petition in the
     district court, (see R. 2-31 at 34-35 (Second Am.Pet. WW 87-
     90)), and the district court did not address the issue. We
     decline to address an issue not presented to the district
He relies on Cage, 498 U.S. at 39, 111 S.Ct. at 328, to support his

argument that the use of the phrase "actual, substantial doubt" to

define "reasonable doubt" allowed a finding of guilt based upon a

degree of proof below that required by the Due Process Clause of

the Fourteenth Amendment. 4      The State contends, and the district

court concluded, that the Cage claim is procedurally defaulted and

therefore cannot be raised in federal court. Waldrop counters that

his attack on the instruction is not defaulted because Alabama

courts do not strictly and regularly apply their procedural default

rules in cases such as his;      thus, he argues, there are no adequate

state grounds to bar federal review of his claim.             Waldrop further

argues that even if the claim is procedurally defaulted, there is

cause to excuse the default.

         A federal court will not address a federal question on

collateral review of a state conviction if a state court's denial

of relief is based on adequate and independent state grounds.

Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103

L.Ed.2d 308 (1989).       Here, the state court has not passed upon

Waldrop's challenge to the trial court's definition of reasonable

doubt because he first made this challenge in his federal habeas

petition.     In   such   a   case,   the   federal   court    should   itself

determine whether the claim would be procedurally defaulted under

state rules constituting an adequate and independent state ground


     court but raised for the first time on appeal.             See Depree
     v. Thomas, 946 F.2d 784, 793 (11th Cir.1991).
     4
      In Cage, the Supreme Court ruled that a similarly-worded
instruction improperly "suggest[ed] a higher degree of doubt than
is required for acquittal under the reasonable-doubt standard."
Id. at 41, 111 S.Ct. at 329-30.
for denial of relief.          See Teague v. Lane, 489 U.S. 288, 298-99,

109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).5
         Alabama law precludes post-conviction relief for claims which

could     have   been    but    were    not   raised   on    direct    appeal.

Ala.R.Crim.P. 32.2(a)(5).            Under Rule 32, this jury instruction

claim should have been raised on direct appeal.              Because it was

not, it has been defaulted.            Thompson v. State, 581 So.2d 1216,

1218 (Ala.Crim.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct.

868, 116 L.Ed.2d 774 (1992);           Weeks v. State, 568 So.2d 864, 871

(Ala.Crim.App.1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112

L.Ed.2d 184 (1990).

        Waldrop acknowledges that Alabama law requires that challenges

to jury instructions be raised on direct appeal, but he argues that

Alabama courts permit the assertion of claims otherwise defaulted

if the claim is based upon a new rule of law that could not have

been anticipated.        Alabama's procedural default rule, Waldrop

argues, is thus unclear, with the result that the procedural

default rule is not strictly and regularly applied.

        In Ex Parte Beavers, 598 So.2d 1320, 1324-25 (Ala.1992), the

court acknowledged that a failure to object at trial may not, under

Alabama law, bar a later post-conviction challenge to a jury

instruction      based   upon    a    subsequent   Supreme   Court    decision

announcing a "clear break" with past precedent.                 In the same


     5
      Although a federal court may dismiss a petition when it
contains both exhausted and unexhausted claims, Rose v. Lundy,
455 U.S. 509, 532-33, 102 S.Ct. 1198, 1210-11, 71 L.Ed.2d 379
(1982), the State has not argued exhaustion. The State argues
that Waldrop has no state remedy available because of his
procedural default.
decision, however, the court rejected the argument that Cage was

such a decision.

     Waldrop cites no Alabama authority supporting his argument

that Alabama does not regularly and strictly apply its rule that

challenges to jury instructions must be raised on direct appeal.

Moreover, Waldrop cites no cases to support his argument that

exceptions to this rule under Alabama law are not strictly and

regularly applied.       We hold, therefore, that Waldrop's failure to

challenge the reasonable doubt instruction on direct appeal is an

adequate and independent state ground for denial of relief on his

claim.

     Waldrop also contends that the futility of challenging the

instruction in state court is cause to excuse his failure to raise

the issue on direct appeal.         He argues that Alabama courts have

approved similar jury instructions on reasonable doubt,                  e.g.,

Beavers, 598     So.2d    at   1324-25   (stating   that   Cage   was   merely

application of settled precedent to specific factual context), and,

therefore, it would have been futile to raise this issue earlier.6

         According to the Supreme Court, the "futility of presenting

an objection to the state courts cannot alone constitute cause for

a failure to object at trial."       Engle v. Isaac, 456 U.S. 107, 130,

102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982).                This reasoning

applies equally to Waldrop's failure to raise the issue on direct

     6
      The petitioner cites Layton v. Carson, 479 F.2d 1275 (5th
Cir.1973), to support this argument. However, Layton does not
hold that futility excuses a state procedural default; rather,
the opinion states that futility will excuse the failure to
exhaust state remedies. Id. at 1276. Layton is thus inapposite;
the State has not raised exhaustion as a basis for the denial of
relief.
appeal.     Even if it was unlikely that his claim would have been

well-received in state court, Waldrop should have presented it.

See id.

     Waldrop also contends that the procedural default should be

excused because Cage represents a change in the law.      He argues

that, due to the novelty of Cage, he could not have been expected

to anticipate that the trial court's definition of reasonable doubt

would be disapproved until Cage was decided in 1990.   The district

court concluded that "the basic legal principles were available to

[Waldrop] to assert this claim at least at the time of his 1988

Rule 20 petition."    Waldrop v. Thigpen, 857 F.Supp. at 935.7

         We conclude that Waldrop had at his disposal the essential

legal tools with which to construct his claim in time to present

the claim to state court on direct appeal.   We have held that Cage

was a "new rule" under Teague, 489 U.S. at 288, 109 S.Ct. at 1060,

but under Teague a rule is "new" if it is not dictated by prior

precedent.     On the other hand, a rule is "novel," and therefore

cause for a procedural default, only if the petitioner did not have

the legal tools to construct the claim before the rule was issued.

See Dugger v. Adams, 489 U.S. 401, 409-10, 109 S.Ct. 1211, 1216-17,

103 L.Ed.2d 435 (1989).     As the district court noted, "[i]t is

     7
      The district court held that Waldrop would be barred from
attacking the instruction in a new Rule 32 petition for two
reasons. First, Rule 32.2(b) (the substantive equivalent of
former Rule 20) prohibits successive petitions brought on grounds
which were available or could have been ascertained at the time
of the first Rule 32 petition. Ala.R.Crim.P. 32.2(b).

          Second, Rule 32.2(c) bars a petition for relief based
     on a constitutional claim if the petition is filed after the
     two-year statute of limitations period has run.
     Ala.R.Crim.P. 32.2(c).
plainly      possible   that    the   legal   elements    of    a    claim   can    be

available and reasonably recognizable without being dictated by

prior precedent."       Waldrop v. Thigpen, 857 F.Supp. at 934 n. 42.

        In   fact,   before     Waldrop's     trial,    many    defendants       were

attacking instructions which defined "reasonable doubt" in terms

very similar to the instruction used in Waldrop's case.                          Such

claims were percolating in both state and federal courts at the

time of Waldrop's trial.         See, e.g., United States v. Muckenstrum,

515 F.2d 568, 570-71 (5th Cir.) (criticizing instruction that

defined "reasonable doubt" as one that "must be substantial" and

more than "a mere possible doubt"), cert. denied, 423 U.S. 1032, 96

S.Ct. 564, 746 L.Ed.2d 406 (1975);              Bryant v. State, 348 So.2d

1136,    1138    (Ala.Crim.App.)       (rejecting      attack       on   instruction

defining "reasonable doubt" as a "real and substantial doubt"),

cert. denied sub nom. State ex rel. Attorney General, 348 So.2d

1138     (Ala.1977);           Hall   v.    State,     306     So.2d      290,     293

(Ala.Crim.App.1974) (same), cert. denied, 293 Ala. 757, 306 So.2d

294 (1975).      The existence of such cases is strong evidence that a

"reasonable basis" for Waldrop's attack on the reasonable-doubt

instruction existed before Cage.            See Reed v. Ross,468 U.S. 1, 13-

20, 104 S.Ct. 2901, 2909-12, 82 L.Ed.2d 1 (1984) (stating that

novelty can excuse default if no "reasonable basis" for claim

previously existed;           discussing what constitutes a "reasonable

basis");      James v. Cain, 50 F.3d 1327, 1331 (5th Cir.) (stating

that novelty is less likely an excuse where other defendants have

contemporaneously perceived and litigated similar issues) (citing

Engle, 456 U.S. at 134, 102 S.Ct. at 1575), cert. denied, --- U.S.
----, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995).             Waldrop, therefore,

has not demonstrated cause for his default.

C. Involuntary confession

      While held in the Talladega County jail, Waldrop confessed on

September 15, 1982, and again on October 18, 1982, to participating

in the robbery and murder of Donahoo.              Waldrop challenges his

conviction based on the admission at trial of the October 18

confession.      He    argues   that   because   he    was   detained   in   the

Talladega     County    jail    without    probable     cause    and    without

presentation to a judicial officer for four months, his confession

was coerced and therefore obtained in violation of the Due Process

Clause of the Fourteenth Amendment.8

          On review of a habeas petition, we make an independent

assessment of the voluntariness of the confession.                 Miller v.

Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405

(1985).      The subsidiary and historical facts found by the state

trial court, however, are presumed correct under 18 U.S.C. §

2254(d).     Id. at 112, 106 S.Ct. at 450.        When a state court fails

to make explicit findings, a state court's denial of the claim

"resolves all conflicts in testimony bearing on that claim against

the criminal defendant."         Culombe v. Connecticut, 367 U.S. 568,

604-05, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961).

          To determine whether a confession is voluntary, the court

must assess "the totality of all the surrounding circumstances—both

the   characteristics     of    the    accused   and   the   details    of   the

      8
      The petitioner also raised a Fifth Amendment challenge to
his confession in his petition, but has not questioned on this
appeal the denial of relief on this claim.
interrogation."    Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).           The inquiry focuses on

whether there has been any "police overreaching."              Colorado v.

Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 520, 93 L.Ed.2d 473

(1986).   Factors to be considered include the "[accused's] lack of

education, or his low intelligence, the lack of any advice to the

accused of his constitutional rights, the length of detention, the

repeated and prolonged nature of the questioning, and the use of

physical punishment such as the deprivation of food or sleep."

Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (citations omitted).

     The trial court held an evidentiary hearing on Waldrop's oral

motion to suppress the October 18, 1982, confession. 9          In denying

the motion to suppress, the court implicitly found that (1) Waldrop

had been advised of and understood his Miranda rights before making

his statement; (2) Waldrop asserted that he knew the rights better

than the officers did;     (3) he wished to talk to the authorities;

(4) he asserted that he did not want or need a lawyer;              (5) he

never requested counsel;        (6) no threats or promises were made to

induce Waldrop's statement; (7) the statement had not been induced

by telling Waldrop that it was necessary to prepare him for a

polygraph examination;     and (8) Waldrop's visiting privileges had

been suspended, not as an inducement to confess, but because

weapons were found on persons attempting to visit him at the jail.

Waldrop   v.   Thigpen,   857    F.Supp.   at   894-895   (summarizing   the

evidence at the hearing and the implicit factual findings of the


     9
      The September 15, 1982, confession was not introduced at
trial.
trial court).10   The court made similar factual findings during the

hearing on Waldrop's coram nobis petition.    See Waldrop v. State,

523 So.2d at 487-88.11    The coram nobis court additionally found

that (1) Waldrop was never allowed conjugal visits and thus was not

told that these visits would cease until he confessed; (2) Waldrop

was held in Talladega County on the Calhoun County receiving stolen

property warrant;   (3) this warrant was obtained because there was

sufficient evidence to prove the crime at that point and not to

hold petitioner while the Donahoo investigation continued; (4) the

sheriff did not know that Waldrop needed to go to Calhoun County

and would have returned Waldrop had he known;       and (5) Waldrop

never requested that he be returned to Calhoun County but preferred

to remain in Talladega County.   Id.   After reviewing the evidence,

we believe that these factual findings are fairly supported by the

record.12

     Waldrop argues that his lengthy detention without a judicial

     10
      Although the district court used these facts in its
assessment of Waldrop's Fifth Amendment claim, they can also be
used in a voluntariness determination. During the suppression
hearing, Waldrop offered contradictory evidence on these factual
issues. However, the trial court's denial of the motion
implicitly credits the State's evidence. See Culombe, 367 U.S.
at 604-05, 81 S.Ct. at 1880.
     11
      As the district court noted, Waldrop v. Thigpen, 857
F.Supp. at 895 n. 11, these factual findings were made by the
coram nobis court in the context of an ineffectiveness claim.
However, these findings of fact are presumed correct under §
2254(d) for all claims.
     12
      On appeal, Waldrop specifically challenges only the
district court's factual finding that he wanted to remain in
Talladega County to be near his family. We agree that the state
trial court did not find this, but we find that the record fairly
supports the coram nobis court's finding that Waldrop wanted to
remain in Talladega County. (See Tr., Coram Nobis Hr'g, R. 2 at
273-74.)
presentment or counsel in a county in which no charge lay against

him renders his confession involuntary.    Waldrop had been held in

the Talladega County jail for less than a month when he made the

September statement.    Although he alleges that he was interrogated

ten times before making the September statement, "there is nothing

in the record to indicate that any single session was exhaustingly

lengthy.   There is no evidence that the police used any physical

force against the petitioner or that they threatened or harassed

him in any way."    Waldrop v. Thigpen, 857 F.Supp. at 896.   Nothing

suggests that Waldrop was deprived of food or sleep.     He was not

isolated from others, but was allowed visitors until the visitors

were found with weapons.

      Waldrop was held pursuant to a valid arrest warrant.     He was

not presented to a judicial official before he made his statements,

but because he had been "arrested pursuant to a warrant issued by

a [judicial official] on a showing of probable-cause[, Waldrop was]

not constitutionally entitled to a separate judicial determination

that there [was] probable cause to detain him pending trial."

Baker v. McCollan,     443 U.S. 137, 143, 99 S.Ct. 2689, 2694, 61

L.Ed.2d 433 (1979).

      Waldrop complains that the Talladega police violated Alabama

law by detaining him in Talladega County.      Removal to a distant

prison location is a factor to be considered in a voluntariness

determination.     Culombe, 367 U.S. at 630, 81 S.Ct. at 1893-94.

Here, the petitioner was undoubtedly removed from Calhoun County to

Talladega County.      However, the coram nobis court found that

Waldrop wanted to be in Talladega County and never requested that
he be returned to Calhoun County.               Furthermore, the sheriff of

Talladega County stated that he would have returned Waldrop if he

had known that Waldrop was needed in Calhoun County.                         It is

possible that the Talladega County police violated Alabama law by

moving the petitioner to Talladega County;            however, that question

is not before us.        Moreover, a violation of state law does not

necessarily render a confession involuntary. Cf. Fikes v. Alabama,

352 U.S. 191, 194 n. 2, 77 S.Ct. 281, 283 n. 2, 1 L.Ed.2d 246

(1957).

       Waldrop contends that detention without counsel added to the

involuntariness     of     his    confession.      But     the   district    court

correctly concluded that Waldrop's right to counsel had not yet

attached on the uncharged murder offense.                  While Waldrop       was

entitled to counsel during his detention for the robbery, he had

been advised of his rights on several occasions and indicated that

he did not want or need a lawyer.

      [T]here is no evidence which suggests that [petitioner] was
      unable to comprehend the Miranda warnings or the consequences
      of his waiver of those rights. He stated to the police that
      he understood the rights better than they did and his past
      criminal history evinces his familiarity [with] the warnings
      and the legal system in general.

Waldrop v. Thigpen, 857 F.Supp. at 896.            There is also no evidence

in   the   record   that    Waldrop     suffered    from    diminished      mental

capacity, as a result of his gunshot wound or the brain surgery

which followed it, that would have called into question his waiver

of his Miranda rights.       Id.;     see also Waldrop v. State, 523 So.2d

at 484 (discussing deposition testimony from coram nobis proceeding

of Waldrop's neurosurgeon, Dr. Zeiger, who stated that petitioner

suffered   no   permanent        disability   or   diminished     capacity    from
surgery).

       We   acknowledge   that   under    some   circumstances     a    lengthy

detention might induce an involuntary confession.                See Davis v.

North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 1770, 16 L.Ed.2d

895 (1966).     But we find no coercion here.          After assessing the

totality of the circumstances, we conclude that the confession

given by Waldrop on October 18, 1982, and later used at trial, was

not involuntary.

D. Confession obtained in violation of the Sixth Amendment

       Waldrop finally claims that his October confession, made

without counsel present, was obtained in violation of the Sixth

Amendment because his right to counsel had already attached at the

time he made the statement.       The district court held and the State

contends that the claim is procedurally barred.             We agree.

       In Claim II of his first coram nobis petition, Waldrop argued

that his statement had been illegally obtained in violation of his

Fourth, Sixth, and Fourteenth Amendment rights.             The state circuit

court held that it could not review the claim because the claim had

been litigated on direct appeal.13 But Waldrop abandoned this claim

on his coram nobis appeal.        He instead argued that his attorneys

were    ineffective   because    they    did   not   move   to   suppress   his

confession—a statement which, Waldrop claimed, violated his Sixth

Amendment right to counsel.14

       13
      In fact, the petitioner did not raise this claim on direct
appeal; he argued that his statement had been obtained in
violation of his Fifth Amendment rights.
       14
      In Waldrop's coram nobis brief to the Alabama Court of
Criminal Appeals, Claim II is headed: "The Admission in Evidence
of Appellant's Illegally Obtained Statement Violated His
       We    agree   with   the   district   court   that    this   claim   is

defaulted.     Waldrop abandoned it during his appeal to the Alabama

Court of Criminal Appeals following the denial of his coram nobis

petition.    "[T]he state court that is usually the final arbiter of

such [a] collateral attack[ ] on [a] criminal conviction[ ] was not

afforded a fair opportunity to rule on [it]."           Collier v. Jones,

910 F.2d 770, 773 (11th Cir.1990).             Waldrop's claim is thus

"analogous to claims that have never been presented to a state

court, and which have become procedurally barred under state

rules."   Id.;   see Ala.R.Crim. P. 32.2(b) & (c).      Given the posture

of Waldrop's Sixth Amendment claim, the district court properly

found that the claim is procedurally defaulted.             See Collier, 910

F.2d at 773.

IV. CONCLUSION

     We have reviewed Waldrop's ineffectiveness claim, improper

prosecutorial remarks claim, and involuntary confession claim on

the merits and find no constitutional error.            We conclude that

Waldrop's attack on the trial court's reasonable-doubt instruction

and his Sixth Amendment right to counsel claim are procedurally

barred.     Accordingly, the district court's denial of the petition

for a writ of habeas corpus is affirmed.

     AFFIRMED.




Constitutional Rights." However, the text of the argument does
not support an independent Sixth Amendment claim.
