                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1552
                                     ___________

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

                               Submitted: December 14, 1999

                                    Filed: May 5, 2000
                                     ___________

Before BEAM and HEANEY, Circuit Judges, and KYLE,1 District Judge.
                            ___________


BEAM, Circuit Judge.

      Michael Holman, appeals from the district court's2 denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We affirm.


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
I.     BACKGROUND

        Holman was charged in Missouri state court with first-degree murder and armed
criminal action in connection with the shooting death of William Stufflebean, Jr. Prior
to trial, he moved to suppress a confession made to Daviess County, Missouri, Deputy
Bill Wright, on the grounds that the confession was obtained in violation of his Fifth
Amendment right to counsel as a component of the privilege against self-incrimination,
and his Sixth Amendment right to counsel. Following an evidentiary hearing on the
matter, the trial court denied the motion to suppress. Holman was subsequently found
guilty by a jury. He was sentenced to life imprisonment without eligibility for parole
on the murder charge and life imprisonment on the armed criminal action charge, the
sentences to be served consecutively. The Missouri Court of Appeals affirmed
Holman's conviction as well as the trial court's denial of post-conviction relief. See
State v. Holman, 965 S.W.2d 464 (Mo. Ct. App. 1998) (Holman). Following the denial
of his application for transfer to the Supreme Court of Missouri, Holman commenced
this section 2254 petition for a writ of habeas corpus in federal district court. The
district court denied the writ, but granted a certificate of appealability on the sole issue
of whether Holman "effectively waived his federal constitutional rights" at the time of
his confession.

        The confession at issue was obtained during a meeting between Holman and
Wright on the morning of October 24, 1993, at the Livingston County Jail where
Holman was being held until trial. Wright's visit to the prison took place after Holman
had telephoned his stepfather, Bernie Gayle Cabra, twice–the night before and again
that morning–asking him to summon Wright to the prison to take Holman's confession.
Upon arriving at the prison, Wright met with Holman in an interview room. According
to testimony given at trial by a jailer present during much of the encounter, Wright gave
Holman his Miranda rights and then obtained a written waiver of those rights. Wright
then proceeded to tape record an interview in which Holman confessed how he,
Melissa Stufflebean (Holman's girlfriend and the victim's wife), and Randy Asher

                                            -2-
(Melissa Stufflebean's brother), had planned to kill William Stufflebean. Following the
interview, Holman was left alone in the room with blank statement forms on which he
provided a written account detailing the events leading to William Stufflebean's murder.
Both the recorded interview and the written confession were admitted at trial.

      Holman concedes that he asked Cabra to tell Wright to come to the prison on the
morning of October 24. However, he asserts that the contacting of Wright and his
subsequent waiver of rights were precipitated by the fact that on the prior day, Wright
had visited Holman, without contacting Holman's attorney, and informed him that
Melissa Stufflebean had confessed and implicated Holman in William Stufflebean's
murder. Thus, Holman asserts, admission of his confession violates his Fifth and Sixth
Amendment rights to counsel.

       The Missouri Court of Appeals, rejected Holman's argument, finding that there
was no evidence that Wright had initiated conversation with Holman on October 23.
It noted that the trial court had heard evidence that Holman had requested jail officials
to send any law enforcement officers who might appear at the jail to see him. See
Holman, 965 S.W.2d at 468. The court concluded that "[t]he evidence supports an
inference that Holman wanted to talk to Wright or any other officer . . . and initiated
the conversation with Wright on October 23." Id. In denying Holman's section 2254
petition, the district court did not focus on the issue of who initiated the contact on
October 23, but rather found that Holman's decision to contact Wright the next day was
voluntary and sufficient to waive his Fifth and Sixth Amendment rights. See Holman
v. Kemna, No. 98-0650-CV-W-6-P, slip op. at 6-7 (W.D. Mo. Dec. 22, 1998).
Holman appeals.




II.   DISCUSSION

                                          -3-
       In determining whether to grant habeas corpus relief, we review whether the
state conviction "was contrary to, or involved an unreasonable application of, clearly
established Federal law . . . or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d). State court findings of fact are generally presumed
to be correct unless the petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). We review the district court's findings of fact
for clear error and its conclusions of law de novo. See Richardson v. Bowersox, 188
F.3d 973, 977 (8th Cir. 1999), petition for cert. filed, (U.S. Mar. 2, 2000) (No. 99-
8506).

       In Edwards v. Arizona, a Fifth Amendment case, the Supreme Court held that
once a defendant expresses a desire to deal with the police only through counsel, the
police may not further interrogate the defendant until "counsel has been made available
to him, unless the accused himself initiates further communication, exchanges, or
conversation with the police." 451 U.S. 477, 484-85 (1981). The Court also held that
once the defendant has invoked the 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 purpose
behind the prophylactic rule announced in Edwards is to prevent police from badgering
a defendant into waiving his previously asserted Miranda rights. See Michigan v.
Harvey, 494 U.S. 344, 350 (1990). In Michigan v. Jackson, 475 U.S. 625 (1986), the
Court extended the Edwards rule to the Sixth Amendment context.

      Neither side disputes that at the point when Wright visited Holman in his cell on
October 23, Holman had invoked his right to counsel for purposes of both his Fifth
and Sixth Amendment rights. Therefore the next question is whether the meeting that
day constituted "police-initiated custodial interrogation" in contravention of Edwards


                                          -4-
and Jackson, so as to render invalid Holman's subsequent contact of Wright and waiver
of rights.

        As noted earlier, the Missouri Court of Appeals found that Holman, himself, had
initiated conversation with Wright on October 23 because the record indicated that
Holman had previously requested jail officials to send any law enforcement officers
from Daviess County who might appear at the jail to see him. Holman asserts that the
record does not support such an inference.

        Initiation by a defendant occurs when the defendant evinces "a willingness and
a desire for a generalized discussion about the investigation." Oregon v. Bradshaw,
462 U.S. 1039, 1045-46 (1983). Although this Circuit has not settled on the proper
standard of review to be applied to a state court determination of initiation, we now
hold that, although we apply the section 2254 presumption of correctness to the facts
that the state court found, whether those facts constitute an "initiation" under Edwards
is a legal question requiring de novo review. See Bannister v. Delo, 100 F.3d 610, 620
n.9 (8th Cir. 1996); United States v. Whaley 13 F.3d 963, 968 (6th Cir. 1994). We do
not believe the facts found by the state court support its legal conclusion that Holman
initiated conversation with Wright on October 23. The testimony by Livingston County
jailers at the motion to suppress hearing indicates that although Holman made sporadic
requests to see Daviess County enforcement officers and even briefly met with Wright
once, there is no indication as to when these events took place nor their subject matter.
We also note that both in its brief to the Missouri Court of Appeals and to this court,
the government expressly states that Wright made the initial contact with Holman. See
Postscript Enter. v. City of Bridgeton, 905 F.2d 223, 227-28 (8th Cir. 1990) (treating
statements by parties made in briefs as judicial admission); Purgess v. Sharrock, 33
F.3d 134, 144 (2d Cir. 1994) (noting that a court can appropriately treat statements in
briefs as binding judicial admissions of fact). In short, we find that the state court's
determination that Holman initiated contact with Wright on October 23 involved an


                                          -5-
"unreasonable application" of clearly established federal law, as determined by the
Supreme Court of the United
States. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 120 S. Ct. 1495, 1520-23
(2000).

       Although we disagree with the state court's determination of this issue, we
nevertheless find that the record supports its ultimate conclusion that Holman
effectively waived his constitutional rights because the sequence of events following
Wright's initiation of contact with Holman on October 23, establishes that there was no
Edwards violation and that Holman's subsequent waiver was knowing and voluntary.
See Cooksey v. Delo, 94 F.3d 1214, 1218 (8th Cir. 1996) (court of appeals conducting
habeas review may affirm a judgment on any basis supported by the record).

        As noted earlier, under Edwards, once a defendant has invoked the 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." Edwards, 451 U.S. at 484. Because the district court erroneously
concluded that Holman had initiated contact with Wright, it did not proceed to consider
whether he had been subjected to custodial interrogation. Thus, we now turn to the
question of whether Holman was subjected to custodial interrogation during the
October 23 meeting. Although, we find that Holman was clearly in a custodial situation
at the time of the October 23 meeting, the question of whether he was subject to
interrogation at that time is more difficult. See United States v. Bautista, 145 F.3d
1140, 1147 (10th Cir.) (to implicate the Miranda-Edwards right to counsel prophylaxis,
both a custodial situation and official interrogation are required), cert. denied, Bautista
v. United States, 525 U.S. 911 (1998).

        Interrogation refers not only to express questioning but also to any words or
actions on the part of the police that the police should know are reasonably likely to
elicit an incriminating response from the suspect. See Rhode Island v. Innis, 446 U.S.

                                           -6-
291, 301 (1980). Interrogation must also reflect a measure of compulsion above and
beyond that inherent in custody itself. See id. at 300. Thus, not all statements made
while in custody are the product of interrogation. See United States v. Hatten, 68 F.3d
257, 262 (8th Cir. 1995). In determining whether a statement is the product of
interrogation, the focus is on Holman's perceptions of Wright's behavior at the time the
conversation took place. See Boykin v. Leapley, 28 F.3d 788, 792 (8th Cir. 1994).

        Our difficulty in determining whether Holman was subject to interrogation stems
primarily from the factual ambiguity in the record as to what transpired during the
October 23 meeting. This ambiguity, in turn, is due to the fact that neither Holman nor
Wright testified at the motion to suppress hearing.3 Thus, the only insight we have as
to the content of the conversation that took place between Holman and Wright is to be
gleaned from Cabra's testimony as to what Holman told him when he telephoned Cabra
on the night of the 23rd and again on the morning of the 24th. According to Cabra,
Holman indicated that he had learned from Wright that Melissa Stufflebean had given
a statement implicating Holman in the murder and therefore he wanted to confess.
Although, Holman may have indeed received such information from Wright that night,
the record is silent as to the sequence of events that led to Wright's divulging this
information. There is no evidence indicating whether Wright went to Holman's cell that
night with a signed confession from Melissa Stufflebean4 or with the express purpose
of telling Holman that his girlfriend had implicated him. Cf. United States v. Withorn,
204 F.3d 790, 796 (8th Cir. 2000). In short, there is nothing in the record which
reveals the nature of the conversation that took place between Holman and Wright on
October 23 or how it came about. However, in light of the testimony given at the



      3
          Wright died before the hearing took place.
      4
        The record shows that Wright had brought Melissa Stufflebean to the Livingston
County Jail that day from Oklahoma, where she had been living with her parents, and
that he had obtained a confession from her.

                                           -7-
motion to suppress hearing,5 we are inclined to construe the ambiguity in the record in
favor of Holman, and conclude that Holman was subject to interrogation during the
October 23 meeting.

        However, despite our finding that Holman was subject to police-initiated
custodial interrogation on October 23, after having invoked his right to counsel, we are
still unable to conclude that the admission of the confession obtained the next day
violated his Fifth and Sixth Amendment rights. Other circuits have noted that various
factors such as a break in custody or a lapse in time may vitiate the coercive effect of
an impermissible interrogation so that the admission of subsequent statements is not
barred by the Edwards rule. See Hill v. Brigano, 199 F.3d 833, 842 (6th Cir. 1999)
(lapse in time), petition for cert. filed, (U.S. Mar. 21, 2000) (No. 99-8773); United
States v. Gomez, 927 F.2d 1530, 1539 n. 8 (11th Cir. 1991) (same); Dunkins v.
Thigpen, 854 F.2d 394, 397 (11th Cir. 1988) (break in custody dissolves a defendant's
Edwards claim); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir. 1987) (same).
We do not believe these circumstances to be exhaustive and think that other scenarios
may also militate against the finding of an Edwards violation. We believe this is such
a case.

       First, we note again, that it is a close question whether Holman was even subject
to interrogation on October 23, let alone any mode of interrogation that would have
been overtly coercive. Second, when Wright left Holman's cell that night, Holman had


      5
        In addition to Cabra's testimony, there was also testimony at the motion to
suppress hearing from Sheriff Houghton of Daviess County, that Houghton talked to
Wright on October 23 after Wright's visit to Holman's cell. Although Houghton was
not allowed to testify as to what Wright told him on hearsay grounds, the trial court did
receive Houghton's statement to Wright. According to this testimony, Houghton told
Wright that Wright had not initiated the conversation with Holman because Holman had
insisted on talking with him, and, therefore, Wright could go back the next day and take
a statement from Holman if Holman changed his mind.

                                          -8-
not made any statement, thus reducing the likelihood that he was under any compulsion
to confess. Third, Holman had the chance to speak with his stepfather on October 23
who urged Holman to wait until they were able to contact Holman's attorney and to
sleep on his decision. Although, Holman and Cabra were unsuccessful in their attempts
to contact Holman's attorney, it was Holman's decision not to wait any longer in
speaking to Wright. Cf. Colorado v. Connelly, 479 U.S. 157, 170 (1986)
("voluntariness . . . has always depended on the absence of police overreaching, not on
'free choice' in any broader sense of the word"). In short, we believe that the facts of
this case do not warrant a finding that Holman's subsequent contact of Wright was
rendered invalid under Edwards. See Brigano, 199 F.3d at 842 (holding that
defendant's statement was not barred by Edwards, despite impermissible interrogation
the night before, because defendant had night alone in cell and defendant was aware
of his right to have an attorney). Cf Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.
1989) (finding defendant's next day confession not to be product of earlier interrogation
when defendant himself renewed contact with deputy following a night in jail and when
defendant, despite already having made a statement the previous day, was not under
great pressure from authorities to say anything more).
       Our conclusion that Holman's subsequent contact with Wright was not invalid
under Edwards, does not end the analysis. We must next determine whether subsequent
events indicate a valid waiver of Holman's right to counsel. See Oregon, 462 U.S. at
1044-45. Inquiry into the validity of a waiver has two distinct dimensions–whether the
waiver is voluntary and whether it is knowing and intelligent. See United States v.
Turner, 157 F.3d 552, 555 (8th Cir. 1998). A waiver is voluntary if it is the product of
a free and deliberate choice rather than intimidation, coercion, or deception. See id.
A waiver is knowing and intelligent if it has been made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it. See id. The burden of proving that a defendant has knowingly and
voluntarily waived his right to have counsel present at an interrogation rests with the
government. See United States v. Eagle Elk, Jr., 711 F.2d 80, 82 (8th Cir. 1983).



                                          -9-
       The Missouri Court of Appeals found that the state met its burden. Specifically,
it found that:

      When Wright took Holman's confession on October 24, he advised
      Holman several times before beginning the conversation and again before
      taking Holman's confession of his right to have his attorney present and
      his right to remain silent. Holman assured Wright each time that he
      wanted to waive his rights. Cabra had admonished Holman to talk to his
      attorney and to think about what he was doing before summoning Wright.
      Holman assured Cabra that he wanted to waive his rights. By a
      preponderance of the evidence, Holman . . . validly waived his right to
      have his attorney present before giving his confession to Wright.

Holman, 965 S.W.2d at 468.

       Having reviewed the record, we have no reason to dispute these conclusions.
Nevertheless, we pause to consider in further detail, Holman's contention that the state
court erred in finding that his waiver was voluntary. Specifically, Holman asserts that
as a result of Wright's overreaching on October 23 in informing him about Melissa
Stufflebean's confession, he became hysterical and was inexorably led to contact
Wright and to waive his rights. Holman also claims that the fact that he and his
stepfather unsuccessfully tried to reach his attorney indicates that his waiver of counsel
was far from voluntary.

      Whether a waiver is voluntary is a legal question requiring de novo review,
although subsidiary factual determinations are entitled the 28 U.S.C. § 2254(d)
presumption of correctness. See United States v. Makes Room, 49 F.3d 410, 414 (8th
Cir. 1995). In determining the voluntariness of Holman's waiver, we consider the
totality of the circumstances. See Colorado v. Spring, 479 U.S. 564, 573 (1987). To
establish that a waiver is involuntary, there must be evidence that Holman's will was



                                          -10-
overborne and his capacity for self-determination critically impaired, because of
coercive police conduct. See id. at 574.

       Our review of the totality of the circumstances does not show this to be the case.
Although, Holman may have been hysterical upon having learned of his girlfriend's
confession, this alone does not render his waiver involuntary. See Reese v. Delo, 94
F.3d 1177, 1184 (8th Cir. 1996) (holding that mental impairments alone do not render
a defendant's statement involuntary); Makes Room, 49 F.3d at 415 (declining to find
per se rule of involuntariness when defendant is fatigued or intoxicated). "There must
also be coercive police activity." Reese , 94 F.3d at 1184. The only evidence of
police coercion asserted by Holman is Wright's visit on the 23rd to inform him of
Melissa Stufflebean's confession. Again, as our earlier discussion indicates, we do not
think the totality of the circumstances surrounding this encounter rises to the requisite
level for a finding of coercion.

       Because Holman's subsequent contact of Wright was valid under Edwards and
its progeny and because subsequent events also indicate a valid waiver of Holman's
Fifth and Sixth Amendment rights, we find Holman's confession to be admissible. We
therefore affirm the decision of the district court denying the writ of habeas corpus.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. The defendant was unconstitutionally interrogated prior
to confessing, and nothing transpired between the impermissible interrogation and the
subsequent confession that broke the causal link between the two. The tainted
confession thus should not have been admitted at the defendant's trial, and to do so was
reversible error.

      On October 23, 1993, Michael Holman was being held in the Livingston County
Jail. He had previously invoked his rights to remain silent and to counsel.

                                          -11-
Accordingly, all interrogation by law enforcement should have ended. See Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981). However, Deputy Bill Wright approached
Holman while he was still in custody and advised him that his lover had implicated him
in William Stufflebean's murder.

      I agree with the majority that Wright's conduct constituted an Edwards violation,
because he reinitiated the interrogation of Holman after Holman had asserted his rights
to remain silent and to counsel. See id.; see also Rhode Island v. Innis, 446 U.S. 291,
301 (1980) (“A practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect . . . amounts to interrogation.”); Brewer v.
Williams, 430 U.S. 387, 399-400 (1977) (holding detective's statements to religious
suspect that victim could not receive proper Christian burial until body was found was
tantamount to interrogation despite absence of direct questioning). In my view,
whether there was an interrogation here is not even a close question. Wright clearly
expected to elicit a response from Holman by presenting Holman with his lover's
incriminating statement. Indeed, it is hard to imagine any reason, other than to get
Holman to talk, that Wright would have for presenting Holman with this statement.
Thus, Wright's conduct violated Edwards.

       The issue, then, is whether the coercive effects of the violation were dispelled
by the time Holman confessed. To me, the inquiry is relatively simple: whether the
confession was the product of an unconstitutional interrogation. I consider the totality
of circumstances in making this determination. Cf. Oregon v. Elstad, 470 U.S. 298,
310, 318 (1985) (holding that in deciding whether defendant's second confession is
product of coerced first confession, courts should inquire into relevant circumstances
evincing break in causal link between initial involuntary confession and subsequent
confession; such circumstances include passage of time, change in venue, change in
interrogators, and use of Miranda6 warnings).


      6
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -12-
       Such an analysis in this case leads me to conclude that Holman's confession was
the result of Wright's unconstitutional interrogation. After Wright told Holman that he
had been implicated by his lover, Holman called his stepfather, who testified that
Holman was hysterical, and immediately wanted to confess “as a result of what
[Wright] had told him.” (Appellant's App. at 39.) Acting on his stepfather's advice,
Holman waited until the next day, when he again called his stepfather and asked that
Wright be summoned back to the jail. When Wright arrived, Holman was brought to
an interview room at the jail, where he waived his Miranda rights and confessed.

        Only two facts support the majority's conclusion, neither of which are singularly
dispositive, nor do they together outweigh the other evidence that Holman's confession
was infected by the earlier unconstitutional interrogation. The first is the lapse of time.
Evaluating all pertinent facts, the lapse in time between Wright's interrogation and
Holman's confession did not purge the taint of the unconstitutional conduct. See United
States v. Barone, 968 F.2d 1378, 1385 (1st Cir. 1992) (holding lapse in time of twenty-
four hours did not preclude relief where other facts established that defendant's
confession was still product of earlier unconstitutional interrogation). The exact length
of time that elapsed between Wright's interrogation and Holman's confession is unclear,
but it certainly was less than twenty-four hours. His only reason for waiting that long
apparently was his stepfather's advice. During that time, Holman remained in jail. He
did not change locations. He was unable to contact his attorney. There is no evidence,
in fact, that Holman had anything to do except mull over his lover's confession until the
next morning when he confessed to the same deputy who had unconstitutionally
interrogated him the previous day. Moreover, Holman stated that he wanted to confess
as a result of Wright's impermissible interrogation. Substantial evidence reflects that,
despite the lapse in time, Holman's confession was the product of Wright's
interrogation.

     The second fact supporting the majority's position is Holman's waiver of his
Miranda rights. However, Holman's subsequent Miranda waiver could not vitiate

                                           -13-
Wright's earlier impermissible interrogation. Of course, standing alone a subsequent
Miranda waiver cannot cure an earlier violation. See Edwards, 451 U.S. at 481-84;
see also United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982) (“The circumstances
surrounding a prior illegal confession may in some cases carry over and taint a
subsequent confession . . . even if the accused has been advised of his Miranda rights
prior to the second confession.”); Desire v. Attorney General, 969 F.2d 802, 805 (9th
Cir. 1992) (holding Edwards violation not cured by reading of Miranda rights before
defendant confessed). While Holman's Miranda waiver is certainly a factor to consider,
it does not permit us to overlook powerful evidence indicating that Holman's confession
was the product of Wright's interrogation.

       To support its view that Holman's confession was not brought about by the
unconstitutional interrogation, the majority notes that Holman did not immediately blurt
out a confession upon being presented with his lover's statement. This fact cannot be
considered in isolation. Other evidence suggests that Holman did not immediately
confess because he was overtaken by hysteria at the realization that his lover had
incriminated him.7 Accordingly, the causal link between Wright's impermissible
interrogation and Holman's subsequent confession was not broken. Thus, Holman's
confession was tainted by unconstitutional conduct and therefore inadmissible.

       Although other evidence linked Holman to the crime, his confession was the
most persuasive evidence on the charge of first-degree murder. See Arizona v.
Fulminante, 499 U.S. 279, 296 (1990) (“[A] full confession in which the defendant
discloses the motive for and the means of the crime may tempt the jury to rely upon that
evidence alone in reaching its decision.”) Because the admission of Holman's
confession was not harmless beyond a reasonable doubt, he is entitled to a new trial.


      7
       Holman's stepfather described Holman's state of mind during their October 23
telephone conversation following Wright's interrogation as "pretty hysterical."
(Appellant's App. at 32).

                                         -14-
Accordingly, I would grant the writ, and respectfully dissent.

A true copy.

      Attest:

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




                                 -15-
