                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-1994

Alston v. Redman, Wdn.
Precedential or Non-Precedential:

Docket 93-7423




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                       UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                  No. 93-7423


                             HAROLD S. ALSTON,

                                                Appellant

                                      v.

    WALTER REDMAN, Warden; CHARLES M. OBERLY, III, Attorney General
          of the State of Delaware; and the STATE OF DELAWARE,

                                                Appellees



            On Appeal from the United States District Court
                     for the District of Delaware
                       (D.C. Civil No. 91-00441)


                            Argued May 2, 1994

             BEFORE:    GREENBERG and GARTH, Circuit Judges,
                        and ROBRENO, District Judge*

                        (Filed:    September 7, 1994)



                                       Robert E. Nicholson (argued)
                                       155 Livingston Avenue
                                       New Brunswick, NJ 08901

                                            Attorney for appellant

                                       Loren C. Meyers (argued)
                                       Deputy Attorney General
                                       Department of Justice
                                       State Office Building
                                       820 N. French Street
                                       Wilmington, DE 19801

*
   Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Attorney for appellees
                       OPINION OF THE COURT



EDUARDO C. ROBRENO, District Judge.


           Harold S. Alston appeals the denial by the district

court of his petition for writ of habeas corpus.   He argues that

his present incarceration by the state of Delaware is illegal

because his conviction was bottomed on self-incriminating

statements taken in violation of his constitutional rights.   More

specifically, Alston claims that he was interrogated by the

authorities in violation of his right to counsel as established

by the Sixth Amendment and by Miranda v. Arizona, 384 U.S. 436

(1966).   He also claims that his waiver of his Miranda right to

counsel was coerced.   We find that the Sixth Amendment violation

was harmless error, that petitioner's invocation of his Miranda

right to counsel was anticipatory since it was made outside of

the context of custodial interrogation, and was thus ineffective,
and that his waiver was not coerced.   We will therefore affirm.
I.
            In the summer of 1985, police officers were

investigating a number of robberies that had taken place in and

around Wilmington, Delaware.    At the scene of the robbery of

Allen Medkeff and Michelle Sands (the "Medkeff-Sands robberies"),

police recovered a fingerprint from an item touched by the

robber.    Acting upon information provided by a confidential

informant linking petitioner Harold S. Alston to the Medkeff-

Sands robberies, the police compared the recovered fingerprint to

Alston's known prints, and established that the prints matched.

A warrant for Alston's arrest issued, charging him with first

degree robbery and second degree conspiracy, and he was arrested

in North Carolina on August 19th.    Waiving extradition, he was

brought to Delaware on August 23rd, and was interrogated that

same day by Delaware State Police.    The police gave Alston his

Miranda warnings, as required by Miranda v. Arizona, 384 U.S. at

444-45.    He waived his Miranda rights and the police proceeded to

question him about the robberies, including the Medkeff-Sands

robberies.    Though at first denying any involvement, Alston

eventually admitted to a number of robberies after the police

reminded him of the fingerprint that they had recovered at the

scene.    In light of the offer by the police interrogators that

they would recommend to the prosecutor that Alston be charged

with only one count of robbery if he cooperated, Alston admitted

to participating in the Medkeff-Sands robberies, as well as six

other robberies committed during the summer of 1985.      Alston was

taken before a Justice of the Peace on the robbery and conspiracy
charges and was committed to Gander Hill prison for pretrial

detention.

          Three days later, on August 26, 1985, Alston was

interviewed by a person from the Public Defender's office, who

Alston assumed was an attorney.1    See App. at 227.   During the

course of the interview, Alston signed a form letter, addressed

to the warden of the Gander Hill facility:
          Dear Sir:

               I am presently a detainee in this institution and
          I will not speak to any police officer, law enforcement
          officers, their agents, or representatives from the
          Department of Justice, of any jurisdiction, without a
          Public Defender being present at such a meeting.

               I further do not wish to be removed from my [cell]
          and brought to a meeting with the above-mentioned
          officers for the purpose of discussing a waiver of my
          constitutional rights in this regard.

                                   Signed   /s/Harold S. Alston
                                   Date     8-26-85


App. at 4.   The letter was never actually delivered to Gander

Hill's warden, since the established practice at Gander Hill was

that someone from the warden's office would call the Public

Defender's office when officers sought to question a prisoner,

and inquire whether such a form letter had been executed.     If a

prisoner wished to speak to the authorities notwithstanding his

prior execution of the invocation of counsel form letter, he

1
 . The testimony by an investigator from the Public Defender's
office at the suppression hearing held in the state trial court
suggested that the individual who met with Alston was an
investigator, and not an attorney. See App. at 71-72. The
outcome of this appeal, however, does not turn on the identity or
the status of the individual with whom Alston spoke.
would be asked to sign a form waiving his previous request to

have counsel present during an interrogation.   Alston never

signed this second form.

          On August 28th, Alston was indicted for the Medkeff-

Sands robberies.   On August 29th, he was taken from Gander Hill

to the Wilmington police department for processing on the new

charges stemming from the six other robberies to which he had

confessed on the 23rd and for further questioning.   The warden's

office made no inquiry of the Public Defender's office regarding

whether Alston had signed the invocation of counsel form.    At the

police station, after the police read Alston his Miranda rights

and he waived them, Alston was questioned for a second time, six

days after his first interrogation on August 23rd.   During this

second interrogation, Alston confirmed his prior confessions,

and, after prompting by one interrogator, confessed to another

robbery that he had not mentioned before.   It is the legality of

the use of this second confession at his trial that forms the

core of petitioner's appeal.

          Due to Alston's perceived lack of candor, the police

informed the prosecutor of the promise made, but declined to

recommend that Alston be charged with one count of robbery.    The

grand jury subsequently delivered a superseding indictment

against Alston and a number of other defendants, indicting Alston

on nine counts of first degree robbery and nine counts of second

degree conspiracy.

          Before trial, Alston sought to suppress the statements

he gave to the police on the 23rd and the 29th, claiming that
both of his statements were involuntary and, further, that his

second statement was taken in violation of his Sixth Amendment

right to counsel.     The trial court denied the suppression motion.

See App. at 117-21.    Alston proceeded to trial, where the state

introduced, inter alia, the fingerprint evidence, the

confessions, and the testimony of Medkeff and Sands, both of whom

identified Alston.    Alston was found guilty on seven of the nine

robbery counts and on all of the conspiracy counts, including the

Medkeff-Sands robberies.

          On direct appeal, the Delaware Supreme Court agreed

with Alston that the statement made during the August 29th

interrogation concerning the Medkeff-Sands robberies was taken in

violation of his Sixth Amendment right to counsel, but ruled that

the error was harmless, since there was substantial evidence

supporting the conviction.     See Alston v. State, 554 A.2d 304,

308-09 (Del.), cert. denied, 490 U.S. 1101 (1989).    The Court

also found that the statements were made voluntarily, that

Alston's waivers of his Miranda rights were proper, and that

Alston's execution of the form provided to him by the Public

Defender's office and never transmitted to the warden did not

serve to invoke his Miranda right to counsel.    See id. at 307-08,

310-11.   Finally, the Court reversed one of the conspiracy

convictions relating to the Medkeff-Sands robberies, since the

evidence showed only one agreement.    See id. at 312.   Alston's

petition for writ of certiorari was denied by the United States

Supreme Court, 490 U.S. 1101 (1989), as was his application for
state post-conviction relief, Alston v. State, 590 A.2d 502 (Del.

1991) (unpublished disposition).

          Alston petitioned the district court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, claiming, inter alia,

that his execution of the invocation of counsel form letter was

sufficient to trigger his Miranda right to counsel, thus

rendering inadmissible at trial any statements made during the

August 29th interrogation.    The petition was referred to a

magistrate judge, who recommended that the petition be denied.

The district court, after a de novo review of the record, adopted

the magistrate judge's Report and Recommendation and denied the

petition for habeas relief.    A motions panel of this Court issued

a certificate of probable cause.    See Fed. R. App. P. 22(b).
                                II.

           The matter was properly before the district court, and

this Court has jurisdiction over petitioner's appeal.      See 28

U.S.C. §§ 1291, 2253.   The claims raised in the petition were

properly exhausted, having been fairly presented to the Delaware

Supreme Court.   See Castille v. Peoples, 489 U.S. 346, 351

(1989); Wise v. Fulcomer, 958 F.2d 30, 33 (3d Cir. 1992).     In

deciding this appeal, the Court exercises a mixed standard of

review.   The district court's legal conclusions are subject to

plenary review, but factual conclusions are reviewed for clear

error.    See Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert.

denied, ___ U.S. ___, 112 S. Ct. 2283 (1992).   There is a

presumption that historical fact-finding by a state court,

whether trial or appellate, is correct.2   See 28 U.S.C.

§ 2254(d); Miller v. Fenton, 474 U.S. 104, 117 (1985); Sumner v.

Mata, 449 U.S. 539, 545-47 (1981).




2
 . As this Court stated recently, there are "four prerequisites
for giving deference to state court findings: 1) a hearing on
the merits of a factual issue, 2) made by a state court of
competent jurisdiction, 3) in a proceeding to which the
petitioner and the state were parties, 4) evidenced by a written
finding, opinion or other reliable and adequate written indicia."
Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991) (citing 28
U.S.C. § 2254(d)), cert. denied, ___ U.S. ___, 112 S. Ct. 1679
(1992). There is no indication in the briefs or the record that
the review by the Delaware Superior Court and Supreme Court did
not satisfy the Reese requirements, and petitioner has not
questioned on appeal the correctness of the state courts'
findings of fact.
                              III.

          Petitioner argues that his execution of the form

provided to him by the Public Defender's office was sufficient to

invoke his right to counsel and to thwart any further police-

initiated questioning, thereby rendering inadmissible the

statements he gave at the August 29th interrogation.    Our

analysis of this claim must begin with a review of Miranda and

its progeny.



                                  A.

          In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme

Court examined an individual's Fifth and Fourteenth Amendment

right to be free from compelled self-incrimination in the context

of custodial interrogation, and concluded that certain procedural

safeguards were necessary to "dissipate the compulsion inherent

in custodial interrogation and, in so doing, guard against

abridgement of [a] suspect's Fifth Amendment rights."    Moran v.

Burbine, 475 U.S. 412, 425 (1986); see Miranda, 384 U.S. at 468;

see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (incorporating the

Fifth Amendment privilege against compelled self-incrimination

into the Fourteenth Amendment).    These safeguards include certain

rights that an accused must be informed of, and must waive,

before interrogation can commence:
          He must be warned prior to any questioning that he has
          the right to remain silent, that anything he says can
          be used against him in a court of law, that he has the
          right to the presence of an attorney, and that if he
          cannot afford an attorney one will be appointed for him
          prior to any questioning if he so desires. Opportunity
           to exercise these rights must be afforded to him
           throughout the interrogation.


Miranda, 384 U.S. at 479.   Only if there is a voluntary, knowing,

and intelligent waiver of the rights expressed in the warnings

can police question a suspect without counsel being present and

introduce at trial any statements made during the interrogation.

See id.; Fare v. Michael C., 442 U.S. 707, 724-25 (1979); Johnson

v. Zerbst, 304 U.S. 458, 464 (1938).

           In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme

Court added a second layer of prophylaxis to the protections

dictated by Miranda.   In Edwards, the defendant stated during the

course of interrogation that he wanted to negotiate a "deal," and

was provided with a phone and the number of the county attorney.

After calling the county attorney, defendant stated that he

wanted a lawyer before making any deal.   See id. at 479.     All

interrogation ceased and he was taken back to his cell.     The

following day, interrogation was resumed without an attorney

being present and notwithstanding the defendant's assertion that

he did not wish to speak.   During this second interrogation, the

defendant made incriminating statements, which were eventually

used against him and contributed to his conviction.   See id. at

480.   In reversing the conviction, the Supreme Court held that

once a suspect invokes his right to counsel, "a valid waiver of

that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation

even if he has been advised of his rights."   Id. at 484.     The

Court further held that once a suspect invokes the right, there
can be no further police-initiated interrogation "until counsel

has been made available to him, unless the [suspect] himself

initiates further communication."   Id. at 484-85; see also

Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (holding that

after counsel is requested, there can be no further police-

initiated interrogation without counsel being present).     Thus,

once a suspect has asked for the assistance of counsel, "it is

presumed that any subsequent waiver that has come at the

authorities' behest, and not at the suspect's own instigation, is

itself the product of the 'inherently compelling pressures' [of

custodial interrogation] and not the purely voluntary choice of

the suspect."   Arizona v. Roberson, 486 U.S. 675, 681 (1988); cf.

Michigan v. Mosley, 423 U.S. 96, 104-06 (1975) (finding no

Miranda violation when the police resumed questioning after the

suspect's invocation of his right to cut off questioning was

"scrupulously honored").   The Edwards protection is not offense-

specific.   Rather, a suspect who has requested the presence of

counsel cannot be questioned concerning any crime, not just the

one that put him in custody.   See Roberson, 486 U.S. at 683-84.

Further, the Edwards presumption focuses on the suspect's state
of mind, not the police's.   "[C]ustodial interrogation must be

conducted pursuant to established procedures, and those

procedures in turn must enable an officer who proposes to

initiate an interrogation to determine whether the suspect has

previously requested counsel."   Id. at 687.   Thus, officers who

interrogate a suspect after the suspect has invoked his right to

counsel are charged with the knowledge of the prior invocation.
See, e.g., United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.

1983) (holding that knowledge of request for counsel "is imputed

to all law enforcement officers who subsequently deal with the

suspect").

             The remedy for a violation of Miranda or Edwards is

straightforward--any statement given in violation of the rules

established in these cases cannot be introduced into evidence in

the state's case-in-chief.     See Miranda, 384 U.S. at 479; cf. New

York v. Quarles, 467 U.S. 649, 655-56 (1984) (recognizing a

"public safety" exception to Miranda); Harris v. New York, 401

U.S. 222, 225-26 (1971) (allowing the use of statements taken in

violation of Miranda for purposes of impeachment).

            The notion that custodial interrogations, in and of

themselves, have an inherent coercive effect on an accused is the

essential predicate to the prescription contained in the Miranda-

Edwards line of cases, that counsel be present, if one is

requested, when an interrogation occurs in a custodial setting.

"In essence, Miranda counsel is a buffer against the power of a

state tempted to force incriminating statements from an unwilling

suspect."    James J. Tomkovicz, Standards for Invocation and
Waiver of Counsel in Confession Contexts, 71 Iowa L. Rev. 975,

989 (1986); see also Miranda, 384 U.S. at 460 (recognizing that

"the constitutional foundation underlying the privilege [against

compelled self-incrimination] is the respect a government--state

or federal--must accord to the dignity and integrity of its

citizens").    As one commentator has noted, "[t]he [Supreme] Court

presumes that the confluence of interrogation and custody
generate an intolerable degree of pressure upon a criminal

suspect.   Thus, the combined impact of interrogation and custody

make[s] counsel's compulsion-dispelling presence--or, at least,

the opportunity to claim that presence--essential."    Tomkovicz,

supra, at 991 (footnotes omitted).   Providing an accused the

option of having a lawyer present during a custodial

interrogation was the Miranda Court's practical accommodation of

the need to shelter an accused's constitutional right to be free

from compelled self-incrimination, with the public's legitimate

interest in the interrogation of suspected criminals.3    See

Moran, 475 U.S. at 426 ("Admissions of guilt are more than merely

'desirable'; they are essential to society's compelling interest

in finding, convicting, and punishing those who violate the

law.") (citation omitted); Miranda, 384 U.S. at 479-81.    It is

Miranda's role in protecting the Fifth Amendment privilege in the

singular context of custodial interrogation that is its "only



3
 . In contrast, the Miranda Court could have completely
forbidden custodial interrogation, or could have required that
all such interrogation be conducted with a judge present. Cf.
Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350, 2358
(1994) (Scalia, J., concurring) (suggesting that 18 U.S.C. § 3501
abrogates the Miranda safeguards in federal criminal prosecutions
and requires only a determination of voluntariness); State v.
Scales, ___ N.W.2d ___, ___, 1994 WL 315702, at *5 (Minn. June
30, 1994) (requiring that "all custodial interrogation . . .
shall be electronically recorded where feasible" and holding that
statements taken in violation of the requirement shall be
suppressed if the violation is "substantial"). A complete
prohibition, however, might have cut too broadly, since it is
only compelled self-incrimination, not self-incrimination per se,
that is forbidden by the Fifth Amendment. See Miranda, 384 U.S.
at 478; Tomkovicz, supra, at 989 n.55.
source of legitimacy."   Moran, 475 U.S. at 425.4   Because the

presence of both a custodial setting and official interrogation

is required to trigger the Miranda right-to-counsel prophylactic,

absent one or the other, Miranda is not implicated.5   See

Miranda, 384 U.S. at 477-78; United States v. Mesa, 638 F.2d 582,

584-85 (3d Cir. 1980); see also Illinois v. Perkins, 496 U.S.

292, 297 (1990) ("It is the premise of Miranda that the danger of

coercion results from the interaction of custody and official

interrogation.").




4
 . As the Supreme Court has repeatedly noted, the Miranda
safeguards are not constitutionally mandated and serve only to
protect the privilege against compelled self-incrimination in the
context of custodial interrogation. See, e.g., Connecticut v.
Barrett, 479 U.S. 523, 528 (1987); Moran, 475 U.S. at 424-25; New
York v. Quarles, 467 U.S. 649, 654 (1984); Michigan v. Tucker,
417 U.S. 433, 444 (1974); see also Giuffre v. Bissell, No. 93-
5541, slip op. at 26 (3d Cir. August 4, 1994) (recognizing that
the Miranda right to counsel is "a procedural safeguard, and not
a substantive right").
5
 . Hence, the focus in much of the Court's Miranda jurisprudence
on the legal contours of "custody," see, e.g., Stansbury v.
California, ___ U.S. ___, ___, 114 S. Ct. 1526, 1528-29 (1994)
(per curiam); Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984);
Orozco v. Texas, 394 U.S. 324, 325-26 (1969), and
"interrogation," see, e.g., Arizona v. Mauro, 481 U.S. 520, 526
(1987); Estelle v. Smith, 451 U.S. 454, 468-69 (1981); Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980), and the requirement
that both be present for the Miranda protections to attach.
                                B.

           In the instant case, the magistrate judge found, and

the district court agreed, that petitioner's execution of the

invocation form was insufficient to trigger his Miranda right to

counsel.   The magistrate found that the attempt to invoke the

right to counsel was made outside of the context of custodial

interrogation, and was thus ineffective.     Petitioner argues that

this case satisfies both prongs of Miranda, pointing out that he

was already in custody, he was a suspect in a number of

robberies, and he had already been interrogated at the time that

he made his request for counsel.     All of these circumstances

taken together, concludes petitioner, created the "atmosphere of

coercion," Br. at 18, that Miranda and progeny seek to protect

against, and mandates a finding that his invocation of his right

to counsel was proper.   We disagree.

           As evidenced by the Supreme Court's repeated rehearsal

of the issue, the term "custodial interrogation" defies easy

definition.   We have recognized that such a determination

requires individualized analysis on a case-by-case basis.     See

United States v. Mesa, 638 F.2d 582, 584 (3d Cir. 1980).
Assuming, arguendo, that petitioner was in custody for purposes

of Miranda analysis,6 we disagree that at the time petitioner

6
 . When he signed the request for counsel form on August 26th,
Alston was obviously in custody in the physical sense, given that
he was being held in a prison. However, "[w]hile Miranda may
apply to one who is in custody for an offense unrelated to the
interrogation, incarceration does not ipso facto render an
interrogation custodial." Leviston v. Black, 843 F.2d 302, 304
(8th Cir.) (citations omitted), cert. denied, 488 U.S. 865
(1988); see, e.g., Cervantes v. Walker, 589 F.2d 424, 428-29 (9th
requested counsel he was being interrogated, or that

interrogation was imminent.    Petitioner was questioned on August

23rd and again on August 29th.   There is no evidence in the

record to suggest that he had been questioned on the 26th, the

date on which he made his request for counsel, or that there was

a continuous interrogation during the period from August 23rd to

August 29th.   His putative invocation of his right to counsel on

August 26th was made while he was sitting in his jail cell

speaking with a representative of the Public Defender's office,

far removed from the strictures of custodial interrogation feared

by the Miranda Court.   See id. at 590 n.1 (Adams, J., concurring)

("In Innis the Court indicated that "interrogation," as

conceptualized in the Miranda opinion, must reflect a measure of

compulsion above and beyond that inherent in custody itself.").

Absent the "interaction of custody and official interrogation,"

Perkins, 496 U.S. at 297, the petitioner's Miranda right to

counsel had simply not attached when petitioner signed the

invocation form in his cell.




(..continued)
Cir. 1978) (finding that inmate questioned during a search of his
cell was not in custody because there was no greater restraint on
his freedom than usual). Though Alston was in custody as a
suspect in the Medkeff-Sands robberies, he was not necessarily
"in custody" for Miranda purposes as to interrogation on the
other robberies. Since we decide Alston's appeal on other
grounds, we need not reach the issue of whether he was in custody
for Miranda purposes when he requested counsel.
C.
             In essence, Alston asks this Court to adopt, as an

extension of the reach of Miranda, a rule allowing a suspect to

invoke the right to counsel in cases where the suspect is in

custody, has already been interrogated, and may be reinterrogated

at some point in the future.     We decline the invitation.   As did

the district judge, we find the Supreme Court's opinion in McNeil

v. Wisconsin, 501 U.S. 171 (1991), to have presaged the result in

this case.    In McNeil, the petitioner was arrested on a charge of

armed robbery.     After a bail hearing on the armed robbery charge,

at which he was represented by an attorney, he was repeatedly

questioned by police officers concerning a different crime, and

he eventually made an inculpatory statement.     See 501 U.S. at

173-74.    After his conviction at trial, at which his statement

was used against him, petitioner filed for a writ of habeas

corpus, arguing that his appearance at the bail hearing,

accompanied by an attorney, was sufficient to invoke his Miranda

right to counsel, thus invalidating the police-initiated

interrogation under the operation of Edwards.     See id. at 174-75.

After carefully distinguishing the differing objectives of the

right to counsel under Miranda and the Sixth Amendment, the Court
rejected the argument that the assertion of the Sixth Amendment

right to counsel was an explicit or implicit assertion of the

Miranda right to counsel, holding that "[t]he rule of [Edwards]

. . . requires, at a minimum, some statement that can reasonably

be construed to be expression of a desire for the assistance of

an attorney in dealing with custodial interrogation by the
police."     Id. at 178.   The Court explicitly rejected the "bright-
line" rule proposed by McNeil--"no police-initiated questioning

of any person in custody who has requested counsel to assist him

in defense or interrogation"--which was similar to the one

advocated by the instant petitioner.   See id. at 181.

          Of particular interest to the case sub judice is the

majority's reply to the dissent's prediction that the decision

would be circumvented by the explicit invocation of the Miranda

right to counsel at preliminary hearings.   See id. at 184

(Stevens, J., dissenting).   The majority noted that premature

invocation of the Miranda right to counsel would be

impermissible:
          We have in fact never held that a person can invoke his
          Miranda rights anticipatorily, in a context other than
          "custodial interrogation"--which a preliminary hearing
          will not always, or even usually, involve. If the
          Miranda right to counsel can be invoked at a
          preliminary hearing, it could be argued, there is no
          logical reason why it could not be invoked by a letter
          prior to arrest, or indeed even prior to identification
          as a suspect. Most rights must be asserted when the
          government seeks to take the action they protect
          against. The fact that we have allowed the Miranda
          right to counsel, once asserted, to be effective with
          respect to future custodial interrogation does not
          necessarily mean that we will allow it to be asserted
          initially outside the context of custodial
          interrogation, with similar future effect.


Id. at 182 n.3 (citations omitted) (emphasis added).     Though this

passage in McNeil is essentially dicta, being a response to a

hypothetical posed by the dissent, we must consider it with

deference, given the High Court's paramount position in our

"three-tier system of federal courts," Casey v. Planned

Parenthood, 14 F.3d 848, 857 (3d Cir. 1994), and its limited
docket.   See Town Sound & Custom Tops, Inc. v. Chrysler Motors

Corp., 959 F.2d 468, 495 n.41 (3d Cir.) (in banc), cert. denied,

___ U.S. ___, 113 S. Ct. 196 (1992); accord Doughty v.

Underwriters at Lloyd's, London, 6 F.3d 856, 861 & n.3 (1st Cir.

1993); Hendricks County Rural Elec. Membership Corp. v. N.L.R.B.,

627 F.2d 766, 768 n.1 (7th Cir. 1980) ("A dictum in a Supreme

Court opinion may be brushed aside by the Supreme Court as dictum

when the exact question is later presented, but it cannot be

treated lightly by inferior federal courts until disavowed by the

Supreme Court.") (citing 1B Moore's Federal Practice ¶ 0.402, at

112 & n.3), rev'd on other grounds, 454 U.S. 170 (1981).    The

footnote strongly supports the proposition that, to be effective,

a request for Miranda counsel must be made within "the context of

custodial interrogation" and no sooner.   See United States v.

Wright, 962 F.2d 953, 955 (9th Cir. 1992); United States v.

Barnett, 814 F. Supp. 1449, 1454 (D. Alaska 1992).

          The antipathy expressed in McNeil towards the

anticipatory invocation of the Miranda rights is consistent with

Miranda's underlying principles.   The Miranda right to counsel is

a prophylactic rule that does not operate independent from the

danger it seeks to protect against--"the compelling atmosphere

inherent in the process of in-custody interrogation"--and the

effect that danger can have on a suspect's privilege to avoid

compelled self-incrimination.   Miranda, 384 U.S. at 478.   To

allow an individual to interpose Miranda in a situation outside

the custodial interrogation context would represent an

unwarranted extension of Miranda's procedural safeguards, an
extension best left to the discretion of the Supreme Court, which

devised the Miranda safeguards in the first place and which has

quite recently expressed disinterest in expanding them.   See,

e.g., Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350,

2355 (1994) (declining "to extend Edwards and require law

enforcement officers to cease questioning immediately upon the

making of an ambiguous or equivocal reference to an attorney");

McNeil, 501 U.S. at 182; Quarles, 467 U.S. at 658 ("At least in

part in order to preserve its clarity, we have over the years

refused to sanction attempts to expand our Miranda holding.");

see also Barnett, 814 F. Supp. at 1454 (assuming that footnote 3

in McNeil "accurately predicts that the . . . Supreme Court will

hold that an accused cannot invoke his Fifth Amendment right to

counsel until he is taken into custody, and prior to

interrogation, warned of those rights").   As the Supreme Court

recognized in Innis, "[i]t is clear . . . that the special

procedural safeguards outlined in Miranda are required not where

a suspect is simply taken into custody, but rather where a

suspect in custody is subjected to interrogation."   446 U.S. at

300.7
7
 . Petitioner points to language in Miranda itself that, read in
isolation, would seem to allow invocation of the right to counsel
in the manner he proposes:

          If, however, [the defendant] indicates in any manner
          and at any stage of the process that he wishes to
          consult with an attorney before speaking there can be
          no questioning.

384 U.S. at 444-45. Read in context, however, it is clear that
the "process" referred to by the Court is the actual process of
custodial interrogation.
          The McNeil footnote also reflects the general

proposition, consistent with recent Supreme Court jurisprudence,8

that the rights guaranteed by the Constitution of the United

States are primarily negative in character, standing guard as

vigilant sentinels at the perimeter of permissible state conduct.

See Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.

1983), cert. denied, 465 U.S. 1049 (1984); David P. Currie,

Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev.

864 (1986).   But see Susan Bandes, The Negative Constitution:       A

Critique, 88 Mich. L. Rev. 2271, 2273-78 & n.20 (1990)

(critiquing the prevailing view of the Constitution as "a charter

of negative liberties" and collecting scholarly sources espousing

a similar view).   It is only at the time that the state seeks to

invade this citadel of individual liberty that these

constitutional guarantees can be summoned to battle.   This

position has strong textual support in the Bill of Rights.     The

right of free speech, the right to be free from unreasonable

searches and seizures, the right to be free from double jeopardy,

the right to due process under the Fifth Amendment, all of these

are framed as prohibitions on state conduct, rather than as

8
 . In the context of the Due Process Clause, the negative nature
of constitutional rights is viewed as imposing on the state no
positive obligation to act absent some special circumstance such
as custody. See Collins v. City of Harker Heights, ___ U.S. ___,
___, 112 S. Ct. 1061, 1069 (1992); DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189, 195-200 (1989); Harris v.
McRae, 448 U.S. 297, 317-18 (1980); D.R. by L.R. v. Middle Bucks
Area Vocational Technical Sch., 972 F.2d 1364, 1368-69 (3d Cir.
1992) (in banc), cert. denied, ___ U.S. ___, 113 S. Ct. 1045
(1993).
commandments for state action.   Similarly framed is the

prohibition against compelled self-incrimination that is involved

in this case.   U.S. Const. amend. V ("nor shall [any person] be

compelled in any criminal case to be a witness against

himself").9   To require that the Government first act to compel

an individual to incriminate herself before that individual can

assert her right to remain silent is merely to recognize that the

privilege against compelled self-incrimination acts as a shield

against state action rather than as a sword, and that the shield

may only be interposed when state action actually threatens.10
9
 . In fact, the entire Fifth Amendment is written in similar
vein:

          No person shall be held to answer for a capital, or
          otherwise infamous crime, unless on a presentment or
          indictment of a Grand Jury, except in cases arising in
          the land or naval forces, or in the Militia, when in
          actual service in time of War or public danger; nor
          shall any person be subject for the same offence to be
          twice put in jeopardy of life or limb; nor shall be
          compelled in any criminal case to be a witness against
          himself, nor be deprived of life, liberty, or property,
          without due process of law; nor shall private property
          be taken for public use, without just compensation.

U.S. Const. amend. V.
10
 . That Miranda imposes an affirmative obligation on
interrogators to inform a suspect of his rights, indeed, to
provide the suspect a lawyer if one cannot otherwise be afforded,
does not change the basic negative nature of the Miranda
protections, because the true protection of Miranda, the
suppression of statements given without a valid waiver by the
suspect of her Miranda rights, only arises if the state chooses
to question a suspect without providing the Miranda warnings and
attempts to introduce those statements in evidence. See Miranda,
384 U.S. at 479. Until the attempt is made, the Miranda right,
and the corresponding Fifth Amendment right it prophylactically
protects, essentially lies dormant. If the state never
interrogates a suspect, Miranda is not implicated.
            Our decision also finds support in the Ninth Circuit's

opinion in United States v. Wright, 962 F.2d 953 (9th Cir. 1992).

Wright presented a real-life example of the hypothetical posited

by Justice Stevens in his McNeil dissent, the anticipatory

invocation of the Miranda right to counsel.      Wright was arrested

and pled guilty to armed robbery.      At the plea hearing, his

attorney stated that she wanted to be present at any interviews

with her client.     See id. at 954.   Shortly thereafter, Wright was

interrogated, without counsel being present, as to an unrelated

bank robbery.    He confessed, a confession that he moved to

suppress.    When that was unsuccessful, he entered a conditional

guilty plea and appealed on the basis that his counsel's

statement at the hearing triggered the Edwards presumption

concerning further police-initiated questioning.     See id.

            The Ninth Circuit rejected the claim, holding that a

request by counsel, during a plea hearing, to be present at any

further "interviews" with a suspect did not trigger Edwards.       See

id. at 956.     As explained by the court, McNeil compelled this

conclusion:
          McNeil strongly suggests that Miranda rights may not be
          invoked in advance outside the custodial context.
          Wright's request through his attorney would do just
          that if it were more broadly effective than to assure
          counsel's presence at interviews having to do with the
          robbery. The Court has never held that Miranda rights
          may be invoked anticipatorily outside the context of
          custodial interrogation; we see no reason, apart from
          those already rejected in McNeil, to do so here.

Id. at 955.     Though arguably distinguishable, since Wright was at

a plea hearing, not "in custody," when he made his request for
the presence of counsel at future interviews, the opinion is an

affirmation of the principle expressed in footnote three of

McNeil that there must be both custody and interrogation before

the right to counsel can be invoked.

           We recognize that some courts, post-McNeil, have found

a proper invocation of the Miranda right to counsel when a

suspect has requested counsel prior to interrogation or to the

reading of the Miranda rights.    In United States v. Kelsey, 951

F.2d 1196 (10th Cir. 1991), petitioner Joseph Kelsey arrived at

his home late one night to find eighteen members of a police

narcotics task force conducting a search for contraband.      See id.

at 1198.    He was searched and arrested before entering the house,

and was placed on a couch alongside three others who had been

arrested during the raid.    Kelsey asked to see his lawyer three

or four times, but the police only responded that "if they

'allow[ed] him to see [his] lawyer now, then they would not be

able to ask [him] any further questions and would have to take

[him] to jail.' . . . The police also told [Kelsey] that 'if [he]

was to cooperate and talk with the officers, then they'd take it

easy on [him] . . . .'"     Id. (alteration in original).   Kelsey

was not questioned at this point, nor was he read his Miranda

rights.    He was later questioned in his home and made

incriminating statements during the interrogation.     See id.

            The Tenth Circuit held that the request by Kelsey for

his lawyer was sufficient to invoke the protections of Edwards,

even thought the request was made before questioning or the

reading of Miranda rights.     See id. at 1198-99.   Mindful of the
requirement that there be "some statement that can reasonably be

construed to be expression of a desire for the assistance of an

attorney in dealing with custodial interrogation by the police,"

McNeil, 501 U.S. at 178 (emphasis omitted), the Court held that

Kelsey's request for counsel after being arrested, when it was

"clear from the exchange between Kelsey and the police . . . that

the police intended to question Kelsey at some point at his home,

and that the police understood Kelsey to be invoking his right to

counsel during questioning," Kelsey, 951 F.2d at 1199, was

sufficient to trigger Edwards.        The Court rejected the

Government's argument that Rhode Island v. Innis required that

there be questioning before the invocation of the right to

counsel, finding that the fact that Kelsey asked for an attorney

"before the police were required to inform him of that right

[was] irrelevant."    Id. at 1199.

          In State v. Torres, 412 S.E.2d 20 (N.C. 1992), the

North Carolina Supreme Court examined a similar issue.         Georgia

Torres was a battered spouse who one night, in the midst of an

altercation with her intoxicated husband, shot him to death.

Though not placed under arrest, she was transported by a police

officer to the sheriff's department, and was detained in a

conference room by a deputy from 7 P.M. to 10 P.M., pending

questioning concerning the shooting of her husband.       At around 10

P.M., she was taken into the sheriff's office, and the sheriff

informed her that she would be shortly questioned by two other

police officers.     See id. at 24.    At two points, while

sequestered in the conference room and while meeting with the
sheriff, Torres asked if she needed an attorney, and was told

both times that she did not.    See id. at 23.   At 10:35, she was

given her Miranda warnings, which she waived, was interrogated,

and gave an incriminating statement.    See id. at 25.   She was

thereafter convicted of murder.

          On appeal, Torres argued that her interrogation

violated Edwards, since she had made a request for counsel before

the police initiated her interrogation.    The Court accepted her

argument, finding that Edwards had been violated even though she

was not being questioned at the time she requested an attorney:
               . . . [T]he State argues that defendant could not
          have invoked her right to counsel because she was not
          being questioned at the time she inquired about an
          attorney.
               . . . If defendant "at any stage of the process"
          indicates her desire to consult with counsel, all
          questioning must cease. . . . [A]lthough an individual
          cannot waive her right to counsel prior to receiving
          Miranda warnings, a suspect in custody can certainly
          assert her right to have counsel present during her
          impending interrogation prior to Miranda warnings and
          the actual onset of questioning.


Id. at 25 (citations omitted).    The Court distinguished footnote
three in the McNeil opinion by noting that "[t]he examples of

'anticipatory invocation' cited by the Court in that . . .

footnote . . . make clear that the Court had in mind situations

in which a person was not in custody at the time of her

invocation."   Id.   Thus, for the Torres court, it was sufficient

for Miranda and Edwards purposes that the suspect was in custody

and awaiting interrogation when she invoked her right to counsel.

See id. at 26 ("It would make little sense to require a defendant

already in custody to wait until the onset of questioning or the
recitation of her Miranda rights before being permitted to invoke

her right to counsel.").

          The decisions in Kelsey and Torres are distinguishable

from our decision in this case.   The suspects in both of those

cases, though not being interrogated when they requested counsel,

were faced with "impending interrogation."   Torres, 412 S.E.2d at

26 (emphasis added); Kelsey, 951 F.2d at 1199.   Kelsey had just

been arrested in his home, and the dialogue between him and his

captors indicated he would be interrogated in his home.    See id.

Torres had been taken to the police stationhouse immediately

after shooting and killing her husband, and she was sitting in a

conference room awaiting imminent questioning.     See 412 S.E.2d at

25-26.   In no manner can Alston's situation be analogized to

Kelsey and Torres.   In fact, when Alston requested counsel, he

was in his cell, with no state official present, speaking to a

representative of the Public Defender's office, having already

been interrogated three days earlier, with no further

interrogation pending, and without any indication that he was to

be reinterrogated.   Whatever the merits of the position taken in

those cases, i.e., an accused may invoke the right to counsel

anticipatorily when an interrogation is imminent, the instant

case falls outside the ambit of their reasoning.    Given that

Alston was not being interrogated when he signed the invocation

form, and that no interrogation was impending or imminent, we

hold that Alston was not within the "context of custodial

interrogation" when he signed the invocation form, and therefore
that the prophylactic rules of Miranda and Edwards did not render

inadmissible the statement taken on August 29th.11



                                 D.

          Even if we were to conclude that Alston could invoke

his Miranda right to counsel when an interrogation was impending

or imminent, we cannot conclude that the method used by Alston,

i.e., advising the warden of his decision, was sufficient to

trigger the protections of Miranda-Edwards and of Arizona v.

Roberson, 486 U.S. 675 (1988).   In Roberson, the Supreme Court

rejected the contention that an interrogator's lack of knowledge

concerning a previous invocation of the Miranda right to counsel

vitiated the Edwards prophylactic:
          In addition to the fact that Edwards focuses on the
          state of mind of the suspect and not of the police,
          custodial interrogation must be conducted pursuant to
          established procedures, and those procedures in turn
          must enable an officer who proposes to initiate an
          interrogation to determine whether the suspect has
          previously requested counsel. . . . [W]hether the same
          or different law enforcement authorities are involved
          in the second investigation, the same need to determine
          whether the suspect has requested counsel exists. The
          police department's failure to honor that request
          cannot be justified by the lack of diligence of a
          particular officer.




11
 . Additionally, we note that the extension of Miranda and
Edwards implicitly requested by petitioner, i.e., allowing him to
invoke the right to counsel outside of the context of custodial
interrogation, would diminish the "bright-line" nature of the
Supreme Court's Miranda jurisprudence, often cited by the Court
as one of qualities of that body of law. See Jackson, 475 U.S.
at 634; Smith v. Illinois, 469 U.S. 91, 98 (1984); Quarles, 467
U.S. at 658; Fare, 442 U.S. at 718.
Roberson, 486 U.S. at 687-88 (footnote omitted).   Applying this

language on direct appeal, the Delaware Supreme Court held that

the investigating officers who interrogated Alston on August 29th

could not be charged with "constructive knowledge" of an

invocation contained in "records which are merely accessible to

other state agents who function at the custodial level."    Alston,

554 A.2d at 310.   The court therefore concluded that the

interrogation of August 19th did not run afoul of Roberson.      We

agree, though on different grounds.   While the holding of the

Delaware Supreme Court is based on a determination that the

warden of Gander Hill prison never had possession, and thus never

had knowledge, of Alston's pro forma invocation, see id., our

decision turns on the inapplicability of Roberson to a non-

investigating state official such as a warden.12

12
 . Because the Delaware Supreme Court rested its decision on
this point, i.e., that the warden never had knowledge because he
had no possession, we feel compelled to address it. We believe
that basing the decision in this case on these grounds goes too
far. If the state puts into place a record-keeping system that,
as an essential element, contemplates that records will be
maintained by a third-party, e.g., the Public Defender's office,
it would be inequitable to allow the state official charged with
administering the system to disclaim at least constructive
knowledge of the information contained in those records. We
therefore do not find the warden's lack of actual possession of
Alston's letter to be dispositive.
     We also note in passing that petitioner neither here nor
below argued that the state should be estopped from questioning
the validity of his pro forma invocation, due to the warden's
establishment of and participation in the procedure employed in
Gander Hill. While we do not reach the issue, we do not mean to
diminish any due process considerations that may accompany
official conduct that actively misleads an accused in the
exercise of her Miranda rights. Cf. Tukes v. Dugger, 911 F.2d
508, 516 n.11 (11th Cir. 1990) (rejecting, in dicta, the
contention that the state can disregard a suspect's invocation of
the right to counsel that is made after he has been given his
            The Supreme Court's opinion in Roberson focused on

multiple interrogations concerning different crimes, principally

holding that the Miranda right to counsel was not offense-

specific.   See 486 U.S. at 682-85.   As a corollary to that

holding, the Court directed that "custodial interrogation must be

conducted pursuant to established procedures, and those

procedures in turn must enable an officer who proposes to

initiate an interrogation to determine whether the suspect has

previously requested counsel."   Id. at 687 (emphasis added).

Later interrogators are thus charged with the knowledge of what

occurred during prior interrogations, not what occurred during

other time periods, i.e., while the suspect was sitting in his

cell speaking with a representative from the Public Defender's

office.   The practical implication of this conclusion is that

noninvestigatory officials charged with the mere custody or care

of a suspect, e.g., jailers, doctors, vocational instructors,

should not be considered state agents capable of accepting a

suspect's invocation of his Miranda rights.13   Any other

interpretation of Roberson would not provide serviceable guidance

to law enforcement officials seeking to administer the Miranda-
Edwards protections, since, in effect, they would become

absolutely liable for any statement made by an incarcerated
(..continued)
Miranda warnings, even if the suspect is not yet in custody),
cert. denied sub nom. Singletary v. Tukes, ___ U.S. ___, 112 S.
Ct. 273 (1991).
13
 . With the caveat that someone acting as an investigatory
official's agent in conducting an interrogation would likely
assume the status of her principal.
suspect to his jailer.14   This conclusion is consistent with our

rejection supra of anticipatory invocations.   If Alston cannot

assert his Miranda rights anticipatorily, it would make little

sense to permit him to assert them to the warden, a

noninvestigatory state official.

          Petitioner cites to no case law, other than Roberson

itself, supporting his contention that the knowledge of his

putative invocation on the 26th must be imputed to the officers

who interrogated him on the 29th, and the Court's research has

likewise failed to unearth any such support.   On the contrary,

the courts that have applied Roberson were dealing with

defendants who were reinterrogated notwithstanding earlier

requests for counsel that were made to law enforcement officers.

See, e.g., United States v. Lucas, 963 F.2d 243, 244-45 (9th Cir.

1992); United States v. Lenfesty, 923 F.2d 1293, 1297 (8th Cir.

1991);   Balfour v. State, 598 So.2d 731, 736, 745-46 (Miss.

1992); State v. Schuster, 502 N.W.2d 565, 570 (S.D. 1993); cf.

People v. Young, 607 N.E.2d 123, 126-28 (Ill. 1992) (refusing to

impute knowledge from a Wisconsin law enforcement agency to an

Illinois law enforcement agency).   We conclude that knowledge of
14
 . Petitioner's focus on Roberson's admonition that Edwards
"focuses on the state of mind of the suspect," 486 U.S. at 687,
does not change the result. In Edwards, there was no question
that there had been a proper invocation of the right to counsel.
See Edwards, 451 U.S. at 479 (suspect stated during custodial
interrogation that "I want an attorney before making a deal").
Absent such a proper invocation, the suspect's state of mind is
essentially irrelevant, because a suspect cannot "believe" a
right into existence. Since Alston's initial invocation was
insufficient, the fact that he believed he had invoked his right
to counsel is beside the point.
the letter "sent" by Alston to the warden of the Gander Hill

facility cannot be imputed to the police officers who

interrogated Alston on the 29th, and that the interrogation was

therefore not violative of Miranda, Edwards, or Roberson.15



                             *   *   *



          We decline to extend the reach of Miranda-Edwards to

encompass a suspect sitting in his cell, free of any

interrogation, impending or otherwise.   As the Supreme Court

stated in rejecting the McNeil petitioner's proposal to expand

Miranda, "[i]f a suspect does not wish to communicate with the

police except through an attorney, he can simply tell them that

when they give him the Miranda warnings."   McNeil, 501 U.S. at

180.   We add no more.




15
 . Alston's argument that the absence of a waiver of counsel
form on file in the warden's office is notice of an invocation of
the right to counsel is also without merit. The presence or
absence of forms in a custodial state agent's files cannot
suffice for the imputation of knowledge to investigatory
officials.
                               IV.

           Petitioner also argues that the magistrate and district

judges erred in concluding that the admission of the statements

taken in violation of his Sixth Amendment right to counsel was

harmless error.   Before the Delaware state courts, and before

this Court, the respondents have acknowledged that the statements

of August 29th concerning the Medkeff-Sands robberies were

impermissibly taken, since Alston's Sixth Amendment right to

counsel had attached once the indictment of August 28th was

returned, and he was interrogated without his lawyer being

present.   See Michigan v. Jackson, 475 U.S. 625, 636 (1986)

(applying the Edwards presumption concerning police-initiated

interrogations to the Sixth Amendment right to counsel); United

States v. Gouveia, 467 U.S. 180, 198 (1984); Massiah v. United

States, 377 U.S. 201, 206 (1964).16   The state courts and the

district court found that this error, however, was harmless,

since there was sufficient evidence introduced during trial to

convict Alston regardless.   We agree.

           In Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert.
denied, ___ U.S. ___, 114 S. Ct. 2730 (1994), we recently held

that admission of a statement taken in violation of the Sixth

Amendment right to counsel is "trial type error," requiring on

collateral review application of the harmless error standard

16
 . Under Maine v. Moulton, 474 U.S. 159, 180 & n.16 (1985),
interrogation concerning the other crimes was permissible,
notwithstanding the attachment of the Sixth Amendment right to
counsel as to the Medkeff-Sands robberies. This point is not
contested on appeal.
utilized in Brecht v. Abrahamson, ___ U.S. ___, 113 S. Ct. 1710

(1993).     See Deputy, 19 F.3d at 1495-96; see also Arizona v.

Fulminante, 499 U.S. 279, 307-08 (1991) (opinion of Rehnquist,

C.J., for the Court) (characterizing a "confession obtained in

violation of Massiah" as a "trial error").     Under Brecht, "where

a constitutional error is a 'trial type error' which implicates

the weight and effect of evidence presented to the jury, we must

ask whether the error had 'substantial and injurious effect or

influence in determining the jury's verdict.'"     Deputy, 19 F.3d

at 1496 (quoting Brecht, 113 S. Ct. at 1722).    The analysis

"'must take account of what the error meant to [the jury], not

singled out and standing alone, but in relation to all else that

happened.'"     Brecht, 113 S. Ct. at 1724 (Stevens, J., concurring)

(quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)).

Only if the error was not harmless can the writ of habeas corpus

issue.

             The evidence at trial concerning the Medkeff-Sands

robberies was substantial.     Both victims identified Alston as the

perpetrator, Alston's fingerprint was recovered at the scene, and

Alston confessed to the crime during the interrogation of August

23rd.     The evidence introduced concerning the August 29th

confession, consisting of the testimony of one of the

interrogators as well as a transcript of the confession, which

had been recorded, was in essence cumulative.     Viewed in relation

to the other evidence in the case as to the Medkeff-Sands

robberies, the Court finds that the August 29th statements did

not have a "substantial and injurious effect" on the jury's
verdict, and their introduction into evidence was therefore

harmless error.17




17
 . The Delaware Supreme Court applied the higher standard
announced in Chapman v. California, 386 U.S. 18, 23-24 (1967),
finding that the error was "harmless beyond a reasonable doubt."
Alston, 554 A.2d at 309. Were the Court required to apply this
standard, we would reach the same conclusion.
                                  V.

          Petitioner's final point of appeal is that the

interrogation of August 29th somehow denied him "fundamental

fairness," and was therefore violative of the Fourteenth

Amendment's Due Process clause.    In support of this argument,

petitioner states that he "could not resist the pressures of

custodial interrogation," and argues that this is the only

possible conclusion "because, otherwise, it is incomprehensible

why a 28 year [old] literate man with three prior felonies would

so readily incriminate himself."       Pet. Br. at 32.   Petitioner

apparently claims that his waiver of his Miranda rights at the

beginning of the August 29th interrogation was somehow faulty,

and he was therefore deprived of his right to counsel.       See

Miranda, 384 U.S. at 444 (providing that the Miranda safeguards

may be waived, "provided the waiver is made voluntarily,

knowingly and intelligently"); Ahmad v. Redman, 782 F.2d 409,

412-13 (3d Cir.), cert. denied, 479 U.S. 831 (1986).        The

respondents argue that this issue was initially raised in

petitioner's objections to the magistrate's report, was therefore

not properly before the district court, and ipso facto is not
properly before this Court.   Whatever merit respondent's position

may have, the record in this case indicates that the magistrate

judge addressed petitioner's Fourteenth Amendment claim, see

Report & Recommendation at 12, and we will do likewise.

          "[T]he voluntariness of a defendant's waiver of Miranda

rights is a mixed question of law and fact, subject to plenary

review by federal habeas courts."      Ahmad, 782 F.2d at 413.
Though we do not treat with deference the legal conclusions

reached by the state court, the underlying factual findings, upon

which the court based its conclusions, if fairly supported by the

record, are entitled to the statutory presumption of correctness

provided by 28 U.S.C. 2254(d).   See McAleese v. Mazurkiewicz, 1

F.3d 159, 166 (3d Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.

645 (1993); Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991),

cert. denied, ___ U.S. ___, 112 S. Ct. 1679 (1992).   In assessing

the validity of the waiver, we must determine whether it was

voluntary, i.e., free of coercion or deception, and whether it

was knowing.   "Only if the 'totality of the circumstances

surrounding the interrogation' reveal both an uncoerced choice

and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived."     Moran, 475

U.S. at 421 (quoting Fare v. Michael C., 442 U.S. at 725); see

United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989),

cert. denied, 494 U.S. 1017 (1990).

          The Delaware courts found that Alston understood his

Miranda rights when he signed the waiver form proffered to him at

the beginning of the August 29th interrogation.   See App. at 118,
254.   This finding has a basis in the record, given defendant's

execution of the waiver form and the testimony of the

interrogating officers concerning their recitation of the rights

and Alston's acknowledgement that he understood them.    Cf.

Collins v. Brierly, 492 F.2d 735, 739 (3d Cir.) (in banc) ("It

may be assumed that [a written waiver's] main purpose is

evidentiary, to establish with a minimum of difficulty and a
maximum of certainty that the police gave the warnings and that

the suspect had agreed--preliminarily--to answer questions."),

cert. denied, 419 U.S. 877 (1974).   There is also no contention

that Alston did not understand his Miranda rights when he waived

them during the interrogation of August 23rd.   Given the

presumption of correctness, we are satisfied that Alston

understood his Miranda rights, and that he did knowingly waive

them at the August 29th interrogation.

           As to the question of voluntariness, the only

indication in the record of any coercion on the part of the

interrogators is the offer to Alston to make a plea

recommendation to the prosecutors if Alston cooperated fully in

the interrogation.   "That a law enforcement officer promises

something to a person suspected of a crime in exchange for the

person's speaking about the crime does not automatically render

inadmissible any statement obtained as a result of that promise."

United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993); see

Miller v. Fenton, 796 F.2d 598, 604-08 (3d Cir.), cert. denied

sub nom. Miller v. Neubert, 479 U.S. 989 (1986).   The question of

voluntariness ultimately turns on whether the totality of the

circumstances indicates that the will of the suspect was

overborne by government coercion.    See Colorado v. Connelly, 479
U.S. 157, 169-70 (1986); Moran, 475 U.S. at 421; Walton, 10 F.3d

at 1028.   In making its assessment, the Court must evaluate the

events that occurred, as well as the suspect's background and

experience, including prior dealings with the criminal justice

system.    See Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)
(plurality opinion); United States v. Cruz Jimenez, 894 F.2d 1,

7-8 (1st Cir. 1990); Velasquez, 885 F.2d at 1086.

          The Delaware Supreme Court made the following findings

of fact concerning Alston's background:
          Alston was 28 years old at the time of his arrest and
          had previously been convicted of three felonies.
          Alston had completed the tenth grade and was able to
          read and write. At the time his statements were made
          he was alert and did not appear to be under the
          influence of alcohol or drugs. The interviews were
          during the day, and each interview lasted approximately
          one to one and one-half hours. Although in custody,
          Alston was not handcuffed during either session.


Alston, 554 A.2d at 307.   We find no reason, and Alston makes no

claim, to disturb these findings.   See 28 U.S.C. § 2254(d);

Reese, 946 F.2d at 254.

          As to the promise, the investigators promised Alston

during the interrogation of August 23rd that they would recommend

to the prosecutor that Alston be allowed to plead to one count of

first degree robbery, a promise conditioned on Alston's full

cooperation.    The promise was made with the caveat that the

recommendation was in no way binding on the prosecutor.   App. at
41-42, 54-55.    During the course of the first interrogation,

Alston did not mention a robbery that the police suspected him

in, a robbery to which Alston confessed during the second

interrogation after the police prompted him.    Due to this failure

to cooperate, as well as the police's strong belief that Alston

had been involved in other crimes as to which he did not confess

at either interrogation, the police informed the prosecutor of

the proposal made to Alston, but did not make the recommendation.
App. at 102-03.   As already noted, Alston was then indicted on

nine counts of first degree robbery and nine counts of second

degree conspiracy.

          In light of Alston's age, literacy, and prior

experience with the criminal justice system, as well as the

limited nature of the promise made by the investigators, a

promise to make a non-binding recommendation to the prosecutor,

the Court finds that Alston's written waiver of his Miranda

rights on August 29th was not coerced.   Alston's three prior

convictions indicate that he was not "an 'uninitiated novice,'

susceptible to coercive pressure or threats by law enforcement

officers."   Cruz Jimenez, 894 F.2d at 8.   If anything, his

dealings with the criminal justice system would have allowed him

to fully comprehend the serious situation in which he found

himself, as well as the nature of the circumscribed promise made

to him.   Faced with substantial charges, implicated in the

Medkeff-Sands robberies by fingerprint evidence, and incriminated

by his confession of August 23rd, a confession that he does not

challenge, Alston's decision on August 29th to waive his Miranda

rights and cooperate with the authorities was a reasonable one,

and there is nothing in the record to indicate that the promise

made coerced him into waiving his rights.

          As Chief Justice Burger noted in his concurrence in

Edwards, the Supreme Court "consistently has 'rejected any
paternalistic rule protecting a defendant from his intelligent

and voluntary decisions about his own criminal case.'"    Edwards,
451 U.S. at 490-91 (Burger, C.J., concurring) (quoting Mosley,
423 U.S. at 109 (White, J., concurring)).   We find that Alston

made just such an autonomous decision when he waived his Miranda

rights and spoke with the police on August 29th, and that he was

not denied in any way the "fundamental fairness" guaranteed him

by the Fourteenth Amendment.



                               VI.

          This petition has raised some significant questions

concerning the efficacy of the procedures used in Delaware's

Gander Hill prison facility.   Perhaps if this Court were charged

with crafting a procedure for the recordation and maintenance of

a suspect's invocation of his right to counsel, we would devise a

less cumbersome system than the one applied to the petitioner.

But it is not our task to develop such a system, nor do we sit as

an ecumenical overseer of the state's detention procedures.    We

are solely charged with determining whether petitioner is being

held in violation of his constitutional rights.   Limited as we

are to this jurisdictional grant, we find that there was no

deprivation of Alston's constitutional rights, and will affirm

the district court's denial of Alston's petition.
