UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENS SOERING,
Petitioner-Appellant,

v.
                                                                    No. 99-6498
GEORGE DEEDS, Warden, Keen
Mountain Correctional Center,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-98-361-R)

Argued: June 8, 2000

Decided: June 30, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gail Starling Marshall, Rapidan, Virginia, for Appellant.
John H. McLees, Jr., Senior Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: Mark L. Earley, Attorney General of Virginia, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner-appellant Jens Soering appeals from the district court's
denial of his application under 28 U.S.C. § 2254 for a writ of habeas
corpus. Soering claims, inter alia, that several of his confessions were
obtained in violation of Edwards v. Arizona, 451 U.S. 477 (1981),
and that the prosecution withheld material exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Because we con-
clude that the district court correctly upheld the Supreme Court of
Virginia's rejection of these and other claims advanced by Soering,
we affirm the district court's judgment denying Soering's application
for a writ of habeas corpus.

I.

Soering was sentenced in 1990, in accordance with the jury's rec-
ommendations, to two consecutive terms of life imprisonment for the
murders of Derek and Nancy Haysom. Five years earlier, the corpses
of the Haysoms were found in their home, with their throats slashed
and their torsos penetrated with multiple stab wounds. J.A. 1233-34;
1240-42 (autopsy reports). Soering, a German citizen, confessed to
these murders in detail on several occasions following his arrest in
England on unrelated check-fraud charges; he explained how he and
Elizabeth Haysom, the victims' daughter and Soering's former girl-
friend, arranged for Elizabeth to provide him with an alibi while he
killed her parents, and he demonstrated to authorities the manner in
which he severed the main artery in each of his victim's necks. See,
e.g., J.A. 154-58, 168, 847-48. Soering's account of how he struggled

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with and then killed the Haysoms was consistent with the deep facial
bruise and the bandages to his left-hand fingers that he was seen with
at the Haysoms' funeral. J.A. 877. Moreover, Soering's blood was of
the same type as the unidentified blood found at the crime scene. J.A.
933, 944.

On direct review, both the Virginia Court of Appeals and the
Supreme Court of Virginia denied Soering's petition for an appeal
from his convictions and sentences for first-degree murder. On state
collateral review, the Supreme Court of Virginia denied his petition
for a writ of habeas corpus, after first remanding his Brady claim for
an evidentiary hearing. Soering then filed an application for a writ of
habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254.
The district court denied Soering's application and subsequently
denied his motion to alter or amend its judgment.

II.

Applying the standard of review set forth by the Supreme Court in
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000), we consider
whether the Supreme Court of Virginia's rejection of Soering's
claims "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States," 28 U.S.C. § 2254(d)(1).

A.

Soering first argues that the district court erred in upholding the
Supreme Court of Virginia's rejection of his claim that his confes-
sions in England were obtained in violation of Edwards v. Arizona,
451 U.S. 477 (1981). Under Edwards,

          an accused [. . .], having expressed his desire to deal with
          the police only through counsel, is not subject to further
          interrogation by the authorities until counsel has been made
          available to him, unless the accused himself initiates further
          communication, exchanges, or conversations with the
          police.

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451 U.S. at 484. Specifically, Soering contends that, even though he
expressed his desire to deal with the police only through counsel at
the end of his second interview, he was subjected to further interroga-
tion a few hours later by a Virginia law-enforcement officer (Investi-
gator Gardner) and his British counterparts. Soering argues that,
because any self-incriminating statements that he made during the
third and subsequent interviews should have therefore been sup-
pressed, the trial court's failure to do so entitles him to habeas relief.

We conclude that the district court correctly upheld the Supreme
Court of Virginia's rejection of Soering's Edwards claim because,
even assuming that Edwards applies to an American law-enforcement
officer's interrogation of a German citizen in British custody we can-
not say that Edwards was actually violated at all: Soering has simply
failed to "rebut[ ]," "by clear and convincing evidence," "the pre-
sumption of correctness" that we must accord to the state trial court's
factual finding that Soering himself "initiated" the third and subse-
quent interviews with the police, § 2254(e)(1); J.A. 480.* Soering
offers nothing more than sheer speculation about whether the police
orchestrated or pressured him into initiating further contact with them
after his second interview. See, e.g. , Appellant's Br. at 43-44. And
there is strong support in the record for the state court's factual find-
ing that Soering himself initiated further communication with the
police. First, after being taken back to his cell, Soering asked one of
the jail guards to inform Detective Constable Wright, who had partici-
pated in Gardner's earlier questioning of Soering, that he wished to
speak to Gardner again. J.A. 609. Second, six minutes before the third
interview began, Soering signed the following entry in the custody
log at the British police station where he was being held: "I now wish
to speak to D/S Beever, D/C Wright, D/C Gardner without my solici-
tor being present." J.A. 609, 633, 1562. Soering therefore clearly indi-
cated that, regardless of what had transpired beforehand, he was
_________________________________________________________________
*The district court held that, under United States v. Verdugo-Urquidez,
494 U.S. 259 (1990), it was clearly established that Edwards applies to
custodial interrogations by American law-enforcement officers of foreign
citizens in foreign custody in foreign lands. J.A. 1556. Given our disposi-
tion infra, we need not address the question whether Edwards does in
fact govern custodial interrogations by American law-enforcement offi-
cers of foreign citizens in foreign custody in foreign lands.

                     4
"now," at that point in time, initiating contact with the police. And in
doing so, he in no way indicated that he wished to discuss only the
British check-fraud charges, rather than the Haysom murders, about
which Beever, Wright, and Gardner had interviewed him earlier that
day. Third, Soering's statements during the ensuing interview "reflec-
t[ed] no unwillingness to talk or any other reason to believe that he
was taken from his cell against his will and at the instance of law
enforcement officers"; moreover, Soering made no reference whatso-
ever to the British check-fraud charges during this interview, which
confirms that he did not wish to discuss only those charges. J.A.
1563; 151-90.

Even if the Supreme Court of Virginia's rejection of Soering's
Edwards claim was "contrary to," or "an unreasonable application of,"
Edwards, Soering would still not be entitled to habeas relief on this
ground, since Soering has failed to show that the admission of his
confessions made in England "had [a] substantial and injurious effect
or influence in determining the jury's verdict," thereby causing him
"actual prejudice," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Soering did not suffer "actual prejudice" because the jury in all likeli-
hood would have reached the same verdict that it did in reliance on
Soering's subsequent, voluntary, counseled confession to a German
prosecutor, which Soering does not challenge as being improperly
admitted at trial, and which contained many of the same incriminating
details that his confessions in England did. See , e.g., J.A. 1034-35
("the next thing that I can remember is that I stood behind Mr. Hay-
som, and then blood ran from his neck into his lap. . . . I stood there
with a knife in my hand. . . . I don't know whether I stabbed him in
the neck or cut down along the neck. . . . Prosecutor: Diagonal cut
through the artery? The defendant [Soering]: Yes, that was it."); J.A.
1038 ("finally I injured Mrs. Haysom, too, at her neck"); J.A. 1046
("I can remember that I caused both of them neck wounds.").

B.

Soering next argues that the district court erred in upholding the
Supreme Court of Virginia's rejection of his claim that material
exculpatory evidence was withheld from him by the prosecution in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically,
Soering contends that the Virginia court's decision was "contrary to,"

                     5
and "an unreasonable application of," Brady because there is a "rea-
sonable probability" that the outcome at trial would have been differ-
ent, Kyles v. Whitley, 514 U.S. 419, 434 (1995), if the prosecution had
disclosed to Soering evidence that, within a week of the Haysom mur-
ders, a sheriff's deputy briefly detained two vagrants, Shifflett and
Albright, who were later convicted of murdering Milliken, another
vagrant. Such evidence, Soering argues, would have bolstered his
defense that the Haysoms were murdered not by him, but rather, by
Elizabeth Haysom, assisted by one or two accomplices.

We conclude that the district court correctly upheld the Supreme
Court of Virginia's rejection of Soering's Brady claim because the
evidence in question is not material for purposes of Brady. The
Supreme Court of Virginia did not unreasonably apply Kyles in hold-
ing that there is no "reasonable probability" that "the result of the pro-
ceeding would have been different" had the prosecution disclosed to
Soering the evidence concerning Shifflett and Albright, Soering v.
Deeds, 499 S.E.2d 514, 517 (Va. 1998) (quoting, inter alia, Kyles,
514 U.S. at 435). First, the only relationship between the Haysom and
the Milliken murders was that they occurred in the same county
within six days of each other, and both were carried out with a knife.
There is no evidence whatsoever that either Shifflett or Albright had
ever met, or knew of, Elizabeth Haysom or her parents, nor is there
any physical evidence connecting Shifflett or Albright to the Haysom
murders. Second, it is highly unlikely that Shifflett and Albright, who
murdered another vagrant to rob him of his empty wallet, murdered
the Haysoms, since robbery was patently not the motive behind the
Haysom murders: silverware, jewelry, $122 in cash, the automobile
parked outside and the keys thereto, a television, stereo equipment,
and other valuable items that were in plain view were left behind after
the Haysoms were murdered. J.A. 1269, 1273, 1281-83, 694, 690-91.
Third, the manner in which Milliken and the Haysoms were murdered
differed markedly: Milliken's throat was stabbed, not slashed, as was
the case with the Haysoms, and thus Milliken died slowly, unlike the
Haysoms; moreover, the Haysoms were not sexually mutilated, as
was Milliken. Compare J.A. 1243-49 with J.A. 1226-42; see also J.A.
1191. Fourth, it is far from clear that the knife that the deputy found
buried in the back seat of his patrol car one week after he detained
Shifflett and Albright, and that Soering now alleges was used by Shif-
flett and Albright to murder the Haysoms, even belonged to the two

                     6
vagrants, since the deputy could not recall when he had last checked
his back seat prior to detaining Shifflett and Albright. J.A. 1120.
Fifth, the knife was a very common kind of folding knife, readily
available at retail stores. J.A. 1189. Sixth, even if the knife did belong
to Shifflett and Albright, there were no traces of blood on it, and
although the blade was "consistent with the size and shape of [the]
weapon that could have caused the wounds to [the Haysoms]," the
medical examiner explained that he could not determine the precise
dimensions of the blade actually used to cause the Haysoms' wounds.
J.A. 1187-88, 1186; see also Soering, 499 S.E.2d at 516. In light of
the foregoing, we cannot say that the Supreme Court of Virginia's
rejection of Soering's Brady claim was "contrary to," or "an unrea-
sonable application of," Brady or Kyles.

C.

Finally, Soering raises a number of ineffective-assistance-of-
counsel claims, all of which were rejected by the Supreme Court of
Virginia. We agree with the district court that the Virginia court's
rejection of these claims likewise was not "contrary to," or "an unrea-
sonable application of," Strickland v. Washington, 466 U.S. 668
(1984).

First, Soering argues that counsel was constitutionally ineffective
in failing to object to the prosecutor's comments to the jury about
Soering's refusal to submit blood and hair samples, footprints, and
fingerprints to the authorities when he was asked to do so. We con-
clude that counsel's failure to object did not "f[a]ll below an objective
standard of reasonableness," Strickland, 466 U.S. at 688, not only
because counsel may have made a tactical decision not to draw the
jury's attention to such comments by objecting, but also because, in
South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court
upheld the constitutionality of a state law permitting the admission
into evidence of a defendant's refusal to submit to a blood-alcohol
test, see id. at 918, 923. Soering counters that Neville is distinguish-
able because in Neville, unlike in the present case, the police had
probable cause prior to requesting a blood sample from the defendant,
and thus the prosecutor's comments did not burden the defendant's
Fourth Amendment right to refuse unreasonable searches of his body.
Thus, Soering argues, counsel could have successfully objected to the

                     7
prosecutor's comments by arguing for an extension of Griffin v. Cali-
fornia, 380 U.S. 609 (1965), which held that a prosecutor's or trial
court's comments on a defendant's refusal to take the witness stand
impermissibly burdened the defendant's Fifth Amendment right to
refuse to testify, see id. at 615. We doubt that such an argument could
have succeeded because, even if the trial court were willing to extend
Griffin to prohibit prosecutors from commenting on a defendant's
refusal to consent to searches unsupported by probable cause, the
prosecutor's comments would have still been permissible as a means
of impeaching Soering's credibility, since Soering testified on his
own behalf. See Portuondo v. Agard, 120 S. Ct. 1119, 1125 (2000)
(limiting Griffin to "comments that suggest [that] a defendant's
silence is [substantive] evidence of guilt" (internal quotation marks
omitted)). In any event, we cannot say that Soering was prejudiced
within the meaning of Strickland. See infra.

Second, Soering contends that counsel was constitutionally ineffec-
tive in failing to preserve an objection to the trial court's refusal to
instruct the jury on the crime of being an accessory-after-the-fact.
Counsel was not ineffective because under Virginia law, Soering was
not entitled to an accessory-after-the-fact instruction at all, since he
was not charged with being an accessory-after-the-fact. See Common-
wealth v. Dalton, 524 S.E.2d 860, 863 (Va. 2000); Indictments of
Jens Soering (June 13, 1986). Counsel was also not ineffective
because the trial court was entitled to insist, as it did, on giving an
accessory-after-the-fact instruction only if an accessory-before-the-
fact instruction was also given. Soering argues that the trial court was
not entitled to so insist because, under Virginia law, there was insuffi-
cient evidence to support an accessory-before-the-fact instruction.
However, there was ample evidence from which the jury could have
concluded that Soering participated as an accessory-before-the-fact in
planning the murders of the Haysoms. See, e.g., J.A. 998 (Elizabeth
Haysom's testimony that on the morning of the murders, Soering
bought a knife from a sporting goods store with some money that
Elizabeth had just given him); J.A. 1056 (Soering's testimony that he
bought two movie tickets and ordered room service for two on the
evening of the murders in order to produce an alibi for Elizabeth).
Even if Soering were entitled to an accessory after-the-fact instruc-
tion, he was not prejudiced by counsel's failure to preserve an objec-
tion to the trial court's refusal to give such an instruction, given the

                     8
overwhelming evidence that he personally killed the Haysoms. See
infra.

Third, Soering argues that counsel was constitutionally ineffective
in failing to present more evidence to rebut the prosecution's conten-
tion that the bloody sockprint found at the scene of the crime was
Soering's. Counsel's performance was not objectively deficient nor
was Soering prejudiced, since counsel effectively cross-examined one
of the prosecution's witnesses about his failure to compare Elizabeth
Haysom's foot impressions with the sockprint, and since counsel
demonstrated to the jury during closing argument"how one of Eliza-
beth's foot impressions matched the sock print almost as well as peti-
tioner's [did]." J.A. 969, 1572; see also J.A. 1076 (counsel reminds
the jury during closing argument that the shoe prints found at the
crime scene were similar in size to Elizabeth's shoes).

Finally, Soering argues that his rights under Strickland were
abridged because his lead trial counsel, who has since been disbarred,
was emotionally and mentally troubled at the time of the trial. How-
ever, we conclude that the Supreme Court of Virginia's rejection of
this claim was not an unreasonable application of Strickland, not only
because lead trial counsel did not perform below an objective stan-
dard of reasonableness, but also because Soering was not prejudiced,
since local co-counsel was of sound mind and represented Soering
competently.

Even considering all of the alleged instances of ineffective assis-
tance of counsel cumulatively, we cannot say that Soering was preju-
diced within the meaning of Strickland, given the overwhelming
evidence of his guilt. Soering's confessions to American, British, and
German officials recounted in detail how he and Elizabeth planned
the murders and how he then carried them out. See, e.g., J.A. 154-58,
168, 847-48. These accounts of how he struggled with and then
slaughtered the Haysoms were consistent with the deep facial bruise
and the bandages to his left-hand fingers that he was seen with at the
Haysoms' funeral. J.A. 877. And Soering's blood was of the same
type as the unidentified blood found at the crime scene. J.A. 933, 944.
Given these facts, we cannot say that, "but for counsel's unprofes-
sional errors, the result of the proceeding would have been different,"

                    9
and thus we cannot say that Soering was prejudiced, Strickland, 466
U.S. at 694.

CONCLUSION

For the reasons stated herein, we affirm the district court's judg-
ment denying Jens Soering's application for a writ of habeas corpus.

AFFIRMED

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