Full opinion text
MEMORANDUM OPINION HANCOCK, District Judge. This is an action for habeas corpus relief under 28 U.S.C. § 2254 by an Alabama state prisoner under a sentence of death. With the assistance of counsel, petitioner filed his petition for writ of habeas corpus on September 6, 1990, which was subsequently amended on September 25, 1990, and May 2, 1991. I. Factual and Procedural Background In the late-night hours of June 2 or early-morning hours of June 3, 1982, Thurmon Macon Donahoo was robbed, beaten, shot, and his house burned to the ground. His body, charred almost beyond recognition, was found during an investigation of the fire. Suspicion focused almost immediately upon the petitioner, Billy Wayne Waldrop. On July 26,1982, petitioner was arrested in California on a charge of driving under the influence of alcohol. He later waived extradition and was returned to Alabama on the basis of a warrant issued by the Circuit Court of Calhoun County charging him with receipt of stolen property. Despite being extradited on the basis of a Calhoun County warrant, the petitioner was returned to Talladega County on August 19,1982, where he ultimately gave two statements inculpating himself in the Donahoo robbery and murder. On December 17, 1982, petitioner was indicted on six counts of capital murder. He appeared in court on December 21, 1982, and attorneys Hank Fannin and R.D. Pitts were appointed by the court to represent him. On December 29, 1982, he appeared for arraignment and entered a plea of not guilty. Petitioner’s trial commenced on February 14, 1983, and continued for four days. On February 18, 1983, the jury returned a verdict finding the petitioner guilty of all six counts charged in the indictment. A penalty trial followed immediately and on that same day, February 18,1983, the jury unanimously voted to recommend imposition of the death penalty. The trial court held its separate sentencing hearing on March 22, 1983, as required by Alabama Code § 13A-5-47. As a result of that hearing, the trial court entered findings of fact with respect both to the petitioner’s guilt and with regard to the death sentence. Referring to the aggravating circumstances defined at Alabama Code § 13A-5-49, the trial court found two that applied: The defendant was previously convicted of two other felonies involving use or threats of violence to the person, both said felonies being murder in the second degree; * * * * * * The capital offense was committed while the defendant was engaged or was an accomplice to the commission of or an attempt to commit or flight after committing or attempting to commit robbery and burglary. (See Trial Record, Vol. I, p. 73). Furthermore, the trial court found no mitigating circumstances, either those defined by statute or otherwise. (See Id., at 74). Oral notice of appeal was entered by petitioner’s attorneys at the close of the hearing. Petitioner was once again represented by Fannin and Pitts on direct appeal. In the brief filed on July 6, 1983, petitioner and counsel raised three claims: 1. Did the trial court commit reversible error in not honoring defendant’s motion for commitment to a mental institution for examination? 2. Did the trial court commit reversible error in denying defendant’s motion for change of venue? 3. Did the trial court commit reversible error by allowing the alleged confessions of defendant into evidence? (See Tab R-29). Issues one and two each merited only one page of argument in petitioner’s brief, while ground three received slightly less than two and one-half pages of argument. No cases were cited in any of the arguments. Later, an amended brief was filed in which one additional paragraph was argued with respect to the voluntariness of petitioner’s confessions, and a fourth claim of error was raised. The fourth claim was “Did the trial court commit reversible error by allowing prejudicial and inflammatory remarks against the defendant by the State in closing arguments?” The entire argument offered in support of that claim was as follows: The trial court allowed the district attorney to call the defendant a “murderer” and a “robber” (R-550) on more than one occasion during his closing argument and further stating words to the jury to this effect, “Billy Wayne Waldrop and his partners in crime had no more regard for human life than you and I for a fly we swatted.” (R-556). The Alabama Court of Criminal Appeals rejected each of these assignments of error. Moreover, the court explained: In accordance with Section 13A-15-53, Code of Alabama (1975), we have reviewed the sentence proceedings in this case and find no error. Additionally, the trial court’s findings concerning the aggravating and mitigating circumstances are supported by the evidence. After considering each of the-aggravating and mitigating circumstances set out in the statute, the court found that Waldrop and his accomplices entered the victim’s home, robbed him, killed him, and then burned his house and body. The court also found that Waldrop had committed two prior murders. No evidence of any mitigating circumstances was introduced. This court further finds that the sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor. An independent weighing of the aggravating and mitigating circumstances by this court indicates that death was the proper sentence in this case. Finally, the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. Beck v. State, 396 So.2d 645 (Ala.1980). We have searched the record and have found no error prejudicial to the substantial rights of Waldrop. The judgment of the circuit court is affirmed. Waldrop v. State, 459 So.2d 953, 956 (Ala. Crim.App.1983). Rehearing was denied by the Court of Criminal Appeals on January 10, 1984. To prosecute petitioner’s further appeal to the Alabama Supreme Court, required by Rule 39(c) of the Alabama Rules of Appellate Procedure, Dennis N. Balske was appointed, and he filed a petition for writ of certiorari on April 5, 1984. In a brief filed with the petition for writ of certiorari, two issues were raised: 1. Defendant was deprived of his constitutional right to a fundamentally fair trial when the prosecution urged the jury to convict him and sentence him to death for improper and irrelevant reasons. 2. That feature of the Alabama capital sentencing scheme which requires trial judges to determine the appropriate sentence and allows them to reject a jury recommendation of life without parole violates rights guaranteed defendant both under the Alabama and United States Constitutions. (See Tab R-33). In support of the first argument, petitioner asserted that the closing arguments of the prosecutor during both the guilt and penalty phases of the trial were improper and denied him fundamental fairness by (1) vouching for the credibility of the witnesses, (2) exhorting the jury to join the war against crime, (3) including a patriotic pitch for the protection of society, (4) calling for the jury to rely on the district attorney, and (5) offering extrinsic or unproven factors. On September 28, 1984, the Alabama Supreme Court rejected each of these arguments and affirmed the conviction and sentence. See Ex parte Waldrop, 459 So.2d 959 (Ala.1984). Re-hearing was denied on November 9, 1984. In February of 1985 a petition for writ of certiorari to the Alabama Supreme Court was filed in the United States Supreme Court, but denied on April 15, 1985. Within two months after the denial of a petition for writ of certiorari by the United States Supreme Court, petitioner filed his state petition for writ of error coram nobis in the Circuit Court of Talladega County on June 4, 1985. This petition was filed with the assistance of Attorney Dennis Sweet. Petitioner asserted four broad claims for relief, several of which included multiple sub-claims. Under his first claim for coram nobis relief, ineffective assistance of trial and appellate counsel, petitioner alleged the following: 1. Trial counsel failed to investigate, prepare, and present mitigating evidence at the sentencing phase of petitioner’s trial. 2. Trial counsel failed to move the court for appointment of an independent defense psychiatric or psychological expert. 8. Trial counsel failed to move to suppress petitioner’s inculpatory statements obtained in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. 4. Trial counsel failed to file pretrial motions: a. to challenge the removal of prospective jurors opposed to the death penalty. b. to attack the death penalty as applied in Alabama because it is arbitrary, capricious, and applied in a discriminatory fashion with respect to the race of the victim. e. to suppress the pretrial statements of the petitioner, and d. to seek an individual sequestered voir dire of the jury venire. 5. Trial counsel failed to preserve several errors at trial for issues on appeal, including: a. hearsay testimony offered by witness Hugh Whistenant. b. improper impeachment by the prosecution of its own witness, Milton Gaither, with respect to the witness’s prior felony convictions. Ground number two in petitioner’s coram nobis petition attacked the admission into evidence of his inculpatory, pretrial statements. He asserted that his lengthy detention in the Talladega County Jail without the appointment of counsel violated his Fourth, Sixth, and Fourteenth Amendment rights, tainting the two pretrial confessions he gave. Claim three alleged in the coram nobis petition asserted that the removal of two prospective jurors, Melissa Britt and Willie Best, because of their opposition to the death penalty, violated the petitioner’s Sixth and Fourteenth Amendment rights to a fair and impartial jury composed of a cross-section of the community. Finally, coram nobis-elaim four alleged that the Alabama death penalty was applied in a raciaUy-discriminatory fashion, more frequently resulting in the imposition of a death sentence when the victim of the killing was white. At paragraph 42 of the petition, petitioner alleged “Sociological and statistical studies produced by Dr. Bernie Bray of Tal-ladega College conclude that defendants accused of killing white victims are considerably more likely to receive death than those who kill blacks.” (See Tab R-41, p. 17). In its answer, the respondent State of Alabama expressly asserted that claims two, three, and four were barred from review in coram nobis either because they were raised and rejected on direct appeal or were available but not raised on direct appeal. (See Tab A-42). The trial court conducted a full evidentiary hearing on the petition for writ of error coram nobis on April 3, 1986. Fourteen witnesses testified and the transcript of the hearing covers some 444 pages. On July 28, 1986, the trial judge filed his 52-page memorandum opinion and final judgment denying eoram nobis relief. All but three pages of that opinion dealt with petitioner’s claims relating to ineffective assistance of counsel. In the final pages of the opinion, the trial court concluded that claim two for coram nobis relief was barred from review “because it was raised on direct appeal.” Similarly, claims three and four were rejected because they “could have been raised at trial and on direct appeal but [were] not.” The trial court explained that coram nobis cannot serve as a substitute for direct appeal and does not lie to review claims that could have been raised at trial and on direct appeal. (See Tab R-43, pp. 50-51). On September 5, 1986, petitioner filed his timely notice of appeal from denial of coram nobis. Represented on appeal by Attorney Daniel R. Farnell, Jr., petitioner appealed all four general claims for coram nobis relief asserted in the Circuit Court of Talladega County. Although petitioner’s brief expressly reincorporated all of the alleged errors of counsel set out in the original coram nobis petition, the principal focus of the argument in the brief was on counsel’s failure to present mitigating evidence during the penalty phase of trial. As to claim two, the appellate brief argued violations of the Fourth, Fifth, Sixth, and Fourteenth Amendment rights of the petitioner. On April 28, 1987, the Alabama Court of Criminal Appeals affirmed the denial of co-ram nobis relief in Waldrop v. State, 523 So.2d 475 (Ala.Crim.App.1987) {See Tab R-53). In doing so, the appellate court adopted the findings of fact made by the coram nobis court with respect to petitioner’s claim of ineffective assistance. Furthermore, the court rejected on the merits each of petitioner’s claims that the admission of his confessions violated the Fourth, Fifth, Sixth, and Fourteenth Amendments. The court also concluded that petitioner’s counsel was not ineffective because he failed to move for a pretrial hearing to suppress the confessions. Finally, the court also concluded that petitioner’s counsel was not constitutionally ineffective because he failed to challenge the exclusion of death-qualified jurors and failed to challenge the allegedly discriminatory application of the death penalty to defendants accused of killing whites. The Court of Criminal Appeals denied re-hearing on March 8, 1988, and the Alabama Supreme Court denied a petition for writ of certiorari on April 22, 1988. (See Tab R-53). A petition for writ of certiorari filed in the United States Supreme Court also was denied on October 3, 1988. See Waldrop v. Alabama, 488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 154 (1988). Shortly after the denial of certiorari by the United States Supreme Court, the cycle of state collateral review began again. A petition pursuant to Rule 20 of the Alabama (Temporary) Rules of Criminal Procedure, seeking to vacate and set aside the conviction and death sentence, was filed in the Tallade-ga County Circuit Court on November 18, 1988. Petitioner was assisted by Attorneys L. Dan Turberville and James M. Wooten. Under three broad categories, petitioner asserted claims for relief based on ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and ineffective assistance of coram nobis counsel. Under the rubric of ineffective assistance of trial counsel, petitioner alleged the following deficiencies: 1. Trial counsel failed to adequately investigate petitioner’s mental, emotional, and psychological background in order to prepare and present mitigating evidence at trial and at the sentencing phase of the trial. 2. Trial counsel failed to seek an independent psychological or psychiatric examination of the petitioner. 3. Trial counsel failed to move to suppress the inculpatory statements obtained from the petitioner in violation of his Sixth and Fourteenth Amendment rights. 4. Trial counsel failed to object to the trial court’s striking of prospective jurors because of their opposition to the death penalty. 5. Trial counsel failed to challenge the application of the Alabama death penalty because it is imposed in a fashion that discriminates on the basis of the race of the victim. 6. Trial counsel failed to object to hearsay testimony offered at trial. 7. Trial counsel failed to effectively and adequately impeach the criminal background of a material witness. 8.Trial counsel failed to seek sequestration of the jury. Petitioner also alleged ineffective assistance of counsel because (1) his attorney on direct appeal failed to cite any authority to support the merits of the petitioner’s brief, and (2) appellate counsel failed to preserve and present as issues on appeal all of the claims asserted in the context of ineffective assistance of trial counsel. Finally, the petitioner also asserted that his coram nobis counsel was ineffective. (See Tab R-54). In an order entered August 4, 1989, the Circuit Court of Talladega County denied Rule 20 relief. As to the first seven allegations of ineffective assistance of trial counsel, the court found that they had been raised in the petition for error coram nobis and, therefore, the Rule 20 petition was successive as to these grounds. The court specifically cited Rule 20.2(b) and Rule 20.2(a)(4) as grounds for denying review of the merits of these claims. Similarly, citing Rule 20.2(b), the court concluded that the eighth specification of ineffective assistance of trial counsel could have been asserted in the petition for writ of error coram nobis and, because it was not, was barred from review in the Rule 20 action. As to petitioner’s allegations of ineffective assistance of appellate counsel, the court again cited Rule 20.2(b) to deny review. The court concluded that these claims “were known or could have been known at the time the first petition was heard” and, therefore, were barred from review in this action. Finally, the court also denied petitioner’s claim of ineffective assistance of coram nobis counsel, citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), for the proposition that there is no Sixth Amendment right to the assistance of counsel in collateral proceedings. The petitioner immediately filed his notice of appeal on August 23, 1989, but the Alabama Court of Criminal Appeals affirmed the denial of Rule 20 relief without a published opinion on January 19,1990. See Waldrop v. State, 564 So.2d 115 (Ala.Crim.App.1990) (Table). That court denied re-hearing on February 23, 1990, and there is no indication in the record that petitioner sought certiorari either to the Alabama Supreme Court or the United States Supreme Court. The instant habeas corpus petition, petitioner’s first, was filed in this court on September 6, 1990. II. Issues Without identifying all the various sub-issues asserted, petitioner seeks habeas corpus relief under § 2254 on the basis of seven major claims. Under claim one, petitioner avers that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated when an inculpatory, pretrial statement he made was introduced into evidence at trial. He argues that these confessions violated the Fourth Amendment because he was held and isolated in Talladega County without being presented to a judicial officer for a period of four months after his return to Alabama. During that time, he also asserts that his Sixth Amendment right to the assistance of counsel was violated and that he was pressured, duped, and induced into waiving his Fifth Amendment privilege against self-incrimination. Habeas claim two involves an assortment of allegations of ineffective assistance of trial and appellate counsel. The particular errors of counsel alleged in the petition are discussed more thoroughly in Section III below. He alleges at habeas claim three that he was denied the appointment of a defense psychiatric or psychological expert to assist in the preparation and presentation of his defense. Prosecutorial misconduct is the subject of petitioner’s fourth claim for habeas relief, focusing upon various remarks made by the prosecutor during his closing arguments at trial. Claim five alleges that hearsay evidence was included in a presentenee report considered by the sentencing judge, which deprived the petitioner of his right to confront and cross-examine his accusers. In the first of two amendments to the petition, petitioner added claim six on September 25, 1990. It asserted that one of the aggravating factors found by the trial court to exist and to justify the imposition of the death penalty was itself invalid. Specifically, he claimed that his two prior murder convictions, which were found to be an aggravating factor, were themselves invalid because they were based upon involuntary guilty pleas entered by the petitioner. Claim seven was added in the second amended petition on May 2, 1991, and it asserts that the trial court’s oral instructions to the jury on the definition of “reasonable doubt” violated due process because reasonable doubt was equated with an “actual and substantial doubt.” In its responses to the petition, the State asserts that a number of these claims and issues are procedurally barred from review on the merits. The State identifies in particular claims three, four, five, six, and seven as being subject to one or more forms of procedural default. Furthermore, the State contends that several specific allegations of ineffective assistance of counsel are also procedurally barred inasmuch as those specific assignments of attorney error were not previously argued or presented in an appropriate state proceeding. III. Illegally Obtained Confession During the time the Petitioner was held in the Talladega County Jail, he made two in-culpatory statements to law enforcement officers in which he confessed to participating in the robbery and murder of Macon Donahoo. The first statement was on September 15, 1982, and the second on October 18, 1982. Petitioner challenges the validity of his conviction based on the admission at trial of the October 18, 1982, confession which petitioner claims was elicited from him in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Specifically, Petitioner alleges that his four-month detention in the Talladega County Jail without probable cause and without presentation to a judicial officer violated his Fourth Amendment protection against unlawful seizures so that statements made by the petitioner during that time were tainted by the illegal detention and, thereby, inadmissible. Further, he alleges that although he was advised of his Miranda rights, he was pressured into waiving his Fifth Amendment privilege against self-incrimination. Petitioner further argues that his Sixth Amendment right to counsel had attached prior to the time the statements were procured and that any interrogation in the absence of counsel violated his Sixth Amendment rights. A Fifth Amendment Petitioner alleges that his conviction violated due process of law because it was based in part on a confession taken from him in violation of his Fifth Amendment privilege against self-incrimination. The tenor of Petitioner’s Fifth Amendment claim has changed over the course of his trial, appellate and collateral proceedings. At trial and on direct appeal, Petitioner raised a Fifth Amendment claim based on the inadequacy of the Miranda warnings given to him immediately prior to custodial interrogation and because inducements were offered by the Talladega County officials. In his petition for writ of error coram nobis filed with the Circuit Court of Talladega County, petitioner raised no independent Fifth Amendment claim. In the instant action, he supplements his original claim by arguing that his Fifth Amendment right to counsel was invoked at his arraignment in California on the offense of driving while intoxicated, which prohibited the subsequent initiation of interrogation by police officers regarding any crime. See Petitioner’s Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment and In Support of Petitioner’s Motion for Summary Judgment at p. 14. (1) Adequacy of Miranda Warnings and Voluntariness of Confession A confession is not admissible unless it is both voluntarily given and, if made by one in custody, preceded by the prophylactic warnings set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See, e.g., Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). While the ultimate question of the voluntariness of a confession is a matter for independent review by the federal habeas court, the subsidiary and historical facts found by the state trial court are presumed correct under 28 U.S.C. § 2254(d). See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The federal habeas court must apply the presumption of correctness to the state court’s findings of fact unless one of the exceptions enumerated in § 2254(d) applies. As the U.S. Supreme Court explained: Of course, subsidiary questions, such as the length and circumstances of the interrogation, the defendant’s prior experience with the legal process, and familiarity with the Miranda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable. But once such underlying factual issues have been resolved, and the moment comes for determining whether, under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution, the state-court judge is not in an appreciably better position than the federal habeas court to make that determination. Miller v. Fenton, 474 U.S. 104, 117, 106 S.Ct. 445, 453, 88 L.Ed.2d 405, 415 (1985). None of the exceptions to the presumption of correctness applies here. The Circuit Court of Talladega County conducted at least two separate evidentia-ry hearings on this issue. At trial, upon petitioner’s oral motion to suppress, the court conducted an evidentiary hearing outside the presence of the jury on the admissibility of the October 18, 1982, statement. The court concluded that the confession was given voluntarily and not in violation of petitioner’s constitutional rights. (See Tab R-ll, Trial Transcript at 459). During the hearing, the court heard testimony from several Talladega County officials and from Petitioner. Detective Dennis Surrett of the Tallade-ga County Sheriffs Department testified that he advised the Petitioner of his Miranda rights before the petitioner made his statement on October 18, 1982, as follows: You have the right to talk to a lawyer and have him present with you while you are being questioned. If you want a lawyer and cannot afford one, the court will appoint one for you. You have the right to remain silent. Anything you say, can, and will be used against you in a court of law. Trial Transcript at p. 362. When asked if he understood each of these rights, the Petitioner replied that he did. When asked if, having these rights in mind, Petitioner wished to talk to the authorities, petitioner replied that he did. Surrett further testified that no threats or promises were made to induce petitioner’s statement. After some discussion, a tape recording of petitioner’s October 18, 1982, statement was played for the court, which included a recording of Sur-rett administering the Miranda warnings and petitioner’s oral waiver. Detective Sur-rett testified that although the Petitioner had asked for a “lie detector test,” neither he nor anyone in his presence told him that the purpose of the statement was to prepare him for a polygraph examination. As to the suspension of petitioner’s visitation privileges, Sheriff Studdard testified that these privileges were suspended when weapons were found on persons attempting to visit the Petitioner at the jail. The court then heard testimony from the Petitioner, Billy Wayne Waldrop. Waldrop testified that his rights were read to him on only two occasions: once before the September 15, 1982, statement and the day before the polygraph examination, which was October 18,1982. He said that Detective Surrett advised him that the recorded statement was needed in connection with a polygraph test to be taken the next day. Additionally, Wal-drop stated that Sheriff Studdard told him that he would have no more visitor or telephone privileges until he “came straight,” which Sheriff Studdard denied. When Wal-drop denied that he understood the meaning of the Miranda warnings, District Attorney Robert Rumsey recounted as many as nine prior occasions when petitioner had been charged with a crime and his rights had been read to him, indicating petitioner’s familiarity with the rights warning. Detective Surrett testified that Petitioner remarked to District Attorney Rumsey on September 15, 1982, after being read a five-point warning, that he knew the rights better than the officers did. He further stated that “he didn’t have a lawyer and didn’t want a lawyer.” Trial Transcript at 421. According to Detective Surrett, at no time did the Petitioner request to have an attorney present before speaking to the officials. After hearing the above testimony at the suppression hearing, the trial judge denied the motion to suppress the confession. Plainly implicit in this conclusion are the findings that petitioner was not pressured, tricked, or induced into making the statement, and that he did not request the assistance of an attorney prior to his interrogation. If the trial court had believed the petitioner’s testimony, it could not have denied the motion to suppress the confession. Though the state trial court did not make its findings explicitly, this court may reconstruct those findings “either because [the state trial judge’s] view of the facts is plain from his opinion, or because of other indicia.” Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1962). By admitting the confession into evidence, the court clearly demonstrated that it believed the testimony of the Talladega officials over the testimony of the Petitioner. See Thompson v. Linn, 583 F.2d 739 (5th Cir.1978). There was also extensive testimony taken by the trial court during the hearing on petitioner’s error coram nobis petition. The trial court noted that the petitioner’s testimony was largely the same as his testimony at the suppression hearing, with the addition of allegations that he made the September 15,1982, statement so that his conjugal visits would be restored, and that he requested a lawyer before the September 15, 1982, statement. Again, Sheriff Studdard, Detective Surrett, and Detective Hurst testified at the hearing, along with District Attorney Robert Rumsey. Studdard testified that he never allowed petitioner to receive eonju-gal visits in the Talladega County Jail, that he never told petitioner that such visitation privileges would be suspended unless he confessed, and that Petitioner never requested an attorney in his presence. District Attorney Rumsey testified the Petitioner never requested an attorney in his presence and that he never had the Petitioner’s visitation, conjugal or otherwise, stopped as a part of an attempt to elicit a confession. Detective Sur-rett testified that the Petitioner never requested an attorney in his presence and that the Petitioner was not promised leniency in exchange for his confession. Detective Hurst testified that the Petitioner never requested an attorney in his presence, that the Petitioner was not promised leniency in exchange for his confession, and that he never •told the Petitioner that his visits would be stopped until he confessed. The court expressly found the testimony of Studdard, Rumsey, Surrett, and Hurst to be credible and found the testimony of the petitioner not to be credible. From a review of the transcripts of both hearings, the court concludes that both the explicit and implicit findings of fact made by the state court are fully supported by the record. It shows that petitioner was properly advised of the Miranda warnings prior to the September 15 and October 18 statements. He was also “Mirandized” on at least seven other occasions. Both four-point and five-point warnings were given to the petitioner. It should be noted here that the Miranda warnings are not themselves constitutional rights protected by the Fifth Amendment; rather, they are prophylactic measures established by the Supreme Court to insure that the Fifth Amendment right against self-incrimination is protected. Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). There is no talismanic incantation required to satisfy the strictures” of Miranda. Id. (quoting California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981)). As long as the warnings reasonably convey the requirements of Miranda, the reviewing court need not concern itself with the precise formulation of the warnings. Id. Accordingly, the court concludes that the requirements of Miranda were satisfied. The state court’s factual findings must also be considered in determining whether the confession was voluntary. In analyzing the voluntariness of a confession, the federal habeas court must make an independent examination of the totality of the circumstances surrounding the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The standard for making this evaluation is whether the accused made “an independent and informed choice of his own free will, possessing the capacity to do so, his will not being overborne by the pressures and circumstances swirling around him.” United States v. Rouco, 765 F.2d 983, 993 (11th Cir.1985) (quoting Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980)). The confession must be a product of the accused’s free and deliberate choice rather than the product of coercion, intimidation, or deception by the police. United States v. Mendoza-Cecilia, 963 F.2d 1467, 1475 (11th Cir.1992). Factors relevant to the inquiry include the accused’s intelligence, the length of detention, the nature of interrogation, use of physical force, and promises or inducements. See Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 520 n. 1, 93 L.Ed.2d 473, 482 n. 1 (1986); Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989). Each of these factors, along with other surrounding circumstances, combine to determine the crucial question — was there any “overreaching” on the part of the police. Colorado v. Connelly, 479 U.S. at 163, 107 S.Ct. at 520. The Talladega police first interrogated the petitioner about the Donahoo murder on August 4,1982, after his arrest in California. Following a lengthy extradition process, his detention in the Talladega County Jail commenced on August 19, 1982. However, he was not detained for the sole purpose of questioning him as a murder suspect; he was jailed on a pending receiving stolen property charge in Calhoun County, Alabama. Moreover, the petitioner preferred confinement in the Talladega County Jail to be near his family and to attempt to control the investigation. On occasion, he would request to speak to the Talladega detectives about the investigation. The petitioner alleges that he was interrogated ten times prior to his September 15, 1982, statement. However, there is nothing in the record to indicate that any single session was exhaustingly lengthy. There is no evidence that the police used any physical force against the petitioner or that they threatened or harassed him in any way. The trial court found that the statements were not conditioned upon the granting of conjugal visits or the taking of a polygraph examination, and this finding is supported by the evidence. As to the petitioner’s intelligence, there is no evidence which suggests that he was unable to comprehend the Miranda warnings or the consequences of his waiver of those rights. He stated to the police that he understood the rights better than they did and his past criminal history evinces his familiarity the warnings and the legal system in general. As to his diminished mental capacity resulting from prior brain surgery, there is no evidence in the record, from either the suppression hearing or coram nobis hearing, which suggests that the petitioner suffered any mental disability. By allowing the statement to be admitted into evidence, the trial court found implicitly that the petitioner was mentally capable of understanding his rights. Additionally, the petitioner’s neurosurgeon, Dr. Zeiger, testified by deposition in the coram nobis proceeding that the petitioner suffered no permanent disability or diminished capacity from the surgery. See Waldrop v. State, 523 So.2d 475, 484 (Ala.Crim.App.1987). After a review of the evidence, it appears that the custodial interrogation of the petitioner was free of coercion, intimidation and deception. There is no indication that the petitioner’s ability to resist had been overborne by any misconduct or overreaching on the part of the police. Accordingly, the court concludes that the totality of circumstances demonstrates that the confessions given by the petitioner on September 15, 1982, and October 15, 1982, were voluntary. (2) Request For Counsel In California Petitioner claims that his representation by the Public Defender’s Office at his extradition hearing in California triggered his Fifth Amendment right to counsel and that any subsequent statement elicited by police outside the presence of his counsel was unconstitutionally obtained and inadmissible. In support of this allegation, petitioner relies on the rule established in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), that police may not initiate interrogation of a suspect as to a second, unrelated crime without providing counsel when the suspect has previously requested counsel during interrogation regarding a different crime. The petitioner advances this argument for the first time in this action. In support of this argument, the affidavit of James Dorr, a former deputy public defender in San Ber-nardino County, California, was submitted along with copies of documents from the public defender’s file on the petitioner. This argument and the supporting documents were not presented at trial, on direct appeal, or on collateral review. To the contrary, his petition for writ of error coram nobis states that no attorney was appointed for the petitioner in California. See Tab R-41 p. 3. Although petitioner raised a Fifth Amendment challenge to the admissibility of his confession at trial and on appeal, the factual elements and legal theory he now advances relating to representation in California were never presented to the state courts. To satisfy the exhaustion requirement, a habeas petitioner must have “fairly presented” the federal claim to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, 443 (1971). A claim is not “fairly presented” unless all of the essential factual elements and the same legal theories are raised in state court, giving the state court an opportunity to apply the controlling legal principles to the facts. Id.; see Bunch v. Thompson, 949 F.2d 1354 (4th Cir.1991) (additional claims of ineffective assistance of counsel procedurally barred; also, fifth amendment “right to remain silent claim” procedurally barred when fifth amendment “right to counsel claim” allowed). Although this particular Fifth Amendment theory appears to be unexhausted, dismissal to allow the petitioner to exhaust this claim would be futile. Because the claim has never been presented to a state court, the question becomes whether there now is a state remedy available to him. See Collier v. Jones, 910 F.2d 770 (11th Cir.1990). The collateral attack ordinarily available under Rule 32 of the Alabama Rules of Criminal Procedure is barred because more than two years has elapsed since petitioner’s conviction became final. See Ala.R.Crim.P. 32.2(c). Because this state remedy is procedurally barred by the time limitation, habeas relief also is procedurally barred. Collier v. Jones, 910 F.2d 770 (11th Cir.1990); Burger v. Zant, 984 F.2d 1129 (11th Cir.1993). If a petitioner has procedurally defaulted on a constitutional claim, he is barred from litigating that claim in a federal habeas corpus proceeding unless he can show both cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The petitioner cannot show prejudice because the claim fails on its merits. First, the rule established in Arizona v. Roberson, supra, is not retroactively available to support the petitioner’s habeas corpus petition. Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). Prior to Roberson, an invocation of the Fifth Amendment right to counsel was offense-specific, i.e., it did not extend to investigations of crimes unrelated to the one for which the suspect was originally held. Therefore, had petitioner invoked his Fifth Amendment right to counsel with respect to either the California DUI charge or the Calhoun County charge of receiving stolen property, the interrogation by the Talladega officials regarding the murder was not contrary to established law at the time. Second, petitioner’s argument does not fall within the rule of Roberson or its progeny because the petitioner never invoked his Fifth Amendment rights. The Fifth Amendment privilege against self-incrimination must be asserted or claimed; it is not self-executing. United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943). Unless the privilege is expressly invoked, the witness cannot be said to have been “compelled” to testify against himself within the meaning of the Fifth Amendment. Id. There must be some expression of a desire to deal with the police only through counsel. Collins v. Francis, 728 F.2d 1322, 1332 (11th Cir.1984). The appointment of counsel at an arraignment or, as in the instant case an extradition hearing, does not invoke the Miranda/Edwards Fifth Amendment right to counsel. Id. A simple request for representation at a judicial proceeding does not by itself trigger the Fifth Amendment privilege. Rather, it indicates a desire for counsel under the Sixth Amendment. Id. at 1333. There is no evidence here that the petitioner indicated in any manner that he wished to invoke his Fifth Amendment privilege in California by requesting counsel prior to interrogation. While a public defender did appear in petitioner’s behalf at the extradition hearing, there is nothing in the record which indicates that the petitioner expressly requested counsel in California. The affidavit of indigency attached as Exhibit D-2 to James Dorr’s affidavit is not signed by the petitioner. Indeed, the petitioner testified that he did not request counsel until he was in the Talladega County Jail. Even so, had he requested the presence of the public defender at the extradition hearing, this representation would only implicate petitioner’s Sixth Amendment rights in connection with the receiving stolen property charge on which he was extradited to Alabama. Consequently, the petitioner’s Fifth Amendment claim based on his request for counsel in California is without merit. B. Procedural Default on kth and 6th Amendment Claims The only claim concerning the admissibility of petitioner's confession presented at trial and on direct appeal was based on the alleged violation of his rights and privileges protected by the Fifth Amendment. No independent Fourth or Sixth Amendment claims were argued to or discussed by the Alabama Court of Criminal Appeals in its decision on the appeal of petitioner’s conviction. See Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983). The Petitioner raised independent Fourth and Sixth Amendment claims in his petition for writ of error eoram nobis filed with the trial court. However, the Alabama Court of Criminal Appeals erroneously declared these claims barred from collateral review because they were previously raised and decided on direct appeal. Waldrop v. State, 523 So.2d 475, 496 (Ala.Crim.App.1987). When the petitioner appealed the denial of the error eoram nobis petition, he abandoned the independent Fourth and Sixth Amendment claims. Thereafter, the claims were presented as ineffective assistance of counsel claims in violation of the Sixth Amendment right to the assistance of counsel. The procedural ground upon which the appellate court denied review was incorrect in that the Fourth and Sixth Amendment claims were not raised on direct appeal. The only challenge made to the admissibility of the confession on direct appeal was based on the Fifth Amendment. The court was correct, however, in refusing to review the claims, but for the wrong reason. The court should have denied review because the claims could have been raised at trial and on direct appeal, but were not. See Magwood v. Smith 791 F.2d 1438, 1444 (11th Cir.1986). For the purposes of this action, either holding constitutes a procedural default which precludes review by a federal habeas court. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (last state court expressly states its judgment rests on a state procedural ground); Collier v. Jones, 910 F.2d 770 (11th Cir.1990) (claim never presented to state court); Burger v. Zant, 984 F.2d 1129 (11th Cir.1993). Additionally, Collier v. Jones teaches that the claims have been procedurally defaulted. The Fourth and Sixth Amendment challenges to the confession, in fact, were presented to the coram nobis court and denied. Petitioner then abandoned the claims on appeal from denial of coram nobis, making them comparable to unexhausted claims never presented to any state court. See Collier v. Jones, supra; Burger v. Zant, supra. Because the two-year limitation set forth in Alabama Rule of Criminal Procedure 32.2(e) now bars them from consideration by a state court, they are also procedurally barred from habeas review. As discussed previously, a procedural default can be excused if the petitioner is able to show cause for failing to raise the claim and actual prejudice arising from the default. Again, the petitioner has not shown cause, and cannot show prejudice because the claims are meritless, nor does the “fundamental miscarriage of justice” exception require federal review. See Part VI, infra, generally for a discussion of the “cause and prejudice” and “fundamental miscarriage of justice” exceptions to procedural default. (1) Fourth Amendment Claim As with the Petitioner’s Fifth Amendment claim, his Fourth Amendment claim has been presented with some variation along the way. Initially, petitioner argued that he was unlawfully detained at the Tal-ladega County Jail without probable cause and without the benefit of an appearance before a judicial official and any statement or confession made by him was “tainted” by the unlawful detention and thereby inadmissible. Later, recognizing that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), would bar federal review of his Fourth Amendment claim, petitioner stated that he no longer seeks to raise an independent Fourth Amendment claim. See Petitioner’s Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment, n. 3. Petitioner has restructured his claim and now asserts that the state’s egregious violation of his Fourth Amendment rights was “ ‘so offensive to a civilized system of justice that they must be condemned under the Due Process clause of the Fourteenth Amendment.’ Miller v. Fenton, 474 U.S. 104, 108, 106 S.Ct. 445, 448, 88 L.Ed.2d 405 (1985).” Id. An arrest is a deprivation of liberty that may be challenged under the Fourteenth Amendment without reference to the Fourth Amendment. However, for purposes of analysis, the Fourth Amendment is a more specific regulation and if a case cannot be made under the principles of the Fourth Amendment, the petitioner may not alternatively appeal to the principles of due process. Patton v. Przybylski, 822 F.2d 697 (7th Cir.1987). Petitioner argues that his Fourth Amendment rights were violated because he was jailed for a period of four months without appearance before a judicial officer. Under the Fourth Amendment, a fair and reasonable determination of probable cause must be made as a condition to any significant pretrial restraint on liberty. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The probable cause determination must be made either before or promptly after the detention. Id. at 125, 95 S.Ct. at 869. If probable cause has not been predetermined, a preliminary hearing must be held by a judicial officer to ascertain whether there is probable cause to detain the person. This probable cause requirement may be satisfied prior to an arrest, thereby eliminating the need for a preliminary examination. “Since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.” Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979). The petitioner was in custody in the State of Alabama pursuant to a warrant issued by the appropriate official of Calhoun County, Alabama, after a showing of probable cause, charging the petitioner with receiving stolen property. Even though the petitioner was transferred to the Talladega County Jail, his confinement was nevertheless pursuant to the Calhoun County warrant. For purposes of the Fourth Amendment, the situs of custody makes no difference as long as the probable cause requirements are satisfied. Because the probable cause determination had been made prior to his arrest and extradition to Alabama, the petitioner was not entitled to a post-arrest probable cause hearing. He was later indicted for murder in Talladega County, Alabama which eliminated the need for a preliminary hearing on the subsequent murder charge. Therefore, the court concludes that the petitioner was lawfully detained after sufficient probable cause was shown in order to obtain the arrest warrant, and no Fourth Amendment violation occurred as a result of petitioner’s detention in the Talladega County Jail. Since the petitioner is unable to show a Fourth Amendment violation, his Fourteenth Amendment claim must necessarily fail. See Patton, supra. (2) Sixth Amendment Petitioner also claims a violation of his Sixth Amendment right to counsel. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” The Sixth Amendment is violated if, once the right has attached, the defendant is questioned by the police outside the presence of an attorney, and any statements so obtained are inadmissible at trial. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The protections of this amendment are often confused with the right to counsel found in the context of the Fifth Amendment protection against self-incrimination. The Fifth Amendment right to counsel is not directly conferred by the Constitution, but rather is a judge-made device to assure that the express constitutional right, the right against compulsory self-incrimination, is not infringed. The Fifth Amendment right to counsel is one of the prophylactic measures established in Miranda v. Arizona, designed to counteract the “inherently compelling pressures” of custodial interrogation. An invocation of the Fifth Amendment right to counsel indicates that the person invoking the privilege desires to have an attorney assist him in dealing with custodial interrogation by the police. The Sixth Amendment right to counsel is designed to protect the defendant at judicial proceedings when “the government has committed itself to prosecute, and the adverse positions of the government and defendant have solidified.” United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146, 155 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). It is not until this point that the defendant finds himself “immersed in the intricacies of substantive and procedural criminal law.” Id. An invocation of the Sixth Amendment right to counsel indicates a desire for the assistance of an attorney during actual judicial proceedings with respect to a particular alleged crime. In other words, the Sixth Amendment right to counsel and the right to counsel under the Miranda/Edwards rule are two separate and distinct concepts protecting separate and distinct interests. The invocation of one is not to be construed as an invocation of the other. McNeil v. Wisconsin, 501 U.S. 171, 174-77, 111 S.Ct. 2204, 2206-08, 115 L.Ed.2d 158, 166-67 (1991). As the language of the amendment suggests, the protection of the Sixth Amendment extends to an accused in a criminal prosecution. The right “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing or arraignment.’ ” Id. (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146, 155 (1984)); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992). Moreover, another distinction between the Fifth and Sixth Amendment is that the Sixth Amendment right to counsel is “offense-specific.” McNeil, 501 U.S. at 175, 111 S.Ct. at 2207, 115 L.Ed.2d at 166. The Supreme Court explained the rationale for limiting the Sixth Amendment right to counsel to specific pending charges: The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at the time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges_ Maine v. Moulton, 474 U.S. 159, 180, 106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985). When the petitioner gave his October 18, 1982, statement, he was in custody in Alabama pursuant to the receiving stolen-property warrant, the only offense for which a formal charge had been made. It is undisputed that petitioner’s Sixth Amendment right to counsel had attached as to the Calhoun County stolen-property charge. However, since the Sixth Amendment right to counsel is offense-specific, it had not attached as to the Talladega County murder investigation because he had not yet been charged with murder. Any questioning relating to the murder investigation falls within the interest the Supreme Court sought to safeguard in Maine v. Moulton — the ability of law enforcement officers to investigate new and additional criminal activities through the questioning of criminal defendants. The petitioner argues that the Sixth Amendment right to counsel attached at an earlier stage when he was targeted by the police as a suspect in the Donahoo murder. Relying on the decision in DeAngelo v. Wainwright, 781 F.2d 1516 (11th Cir.1986), petitioner maintains that the state’s investigation of his involvement in the murder had surpassed the investigatory phase and was well within the accusatory phase, and that his Sixth Amendment rights had attached. While the DeAngelo court suggested that the right to counsel may attach even though no accusatory pleading is pending when the investigation focuses on one particular person, it based the possibility on language found in the case of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). However, as the Eleventh Circuit recognized, Es-cobedo is viewed “as an aberration in an otherwise unbroken chain of precedent which holds that a defendant does not have a constitutional right to counsel until adversary judicial proceedings are brought against him.” DeAngelo v. Wainwright, 781 F.2d at 1519. Additionally, DeAngelo involved a confession surreptitiously obtained from a hospital patient by an informant wearing a hidden microphone. It is this type of conduct that the Eleventh Circuit condemns when it refers to the evasion of constitutional protections “by means of trickery or circuitous machinations.” DeAngelo, 781 F.2d at 1520 n. 2. There was no such conduct involved when the petitioner gave his statements to the police. No wire taps, hidden tape recorders, or other forms of subterfuge were used. The petitioner was well aware that he was giving a formal statement to the police which was being tape recorded. Moreover, the United States Supreme Court made it clear in McNeil that the Sixth Amendment right to counsel does not attach until a prosecution is commenced, McNeil, 501 U.S. at 175-77, 111 S.Ct. at 2207-08, 115 L.Ed.2d at 167, plainly undermining any Sixth Amendment foundations underlying DeAngelo. Some circuits have recognized an exception to the “offense-specific” rule set out in McNeil. These courts have interpreted the Supreme Court’s language and disposition in Maine v. Moulton to mean that the Sixth Amendment (not the Fifth Amendment) prohibits interrogation about an uncharged offense if it is “inextricably intertwined” or “extremely closely related” to the charged offense. United States v. Carpenter, 963 F.2d 736 (5th Cir.1992); see United States v. Hines, 963 F.2d 255 (9th Cir.1992); United States v. Cooper, 949 F.2d 737 (5th Cir.1991). The petitioner in the instant case was charged in Calhoun County with receiving stolen property, the stolen property being the five-carat diamond ring stolen from the victim, Macon Donahoo. The uncharged offense, about which the petitioner was questioned and for which petitioner was ultimately tried and convicted, was the murder of Mr. Donahoo. Relying on the rationale in Carpenter, Hines, and Cooper, the court concludes that these two offenses do not fall within the “closely related” exception. The two crimes involve totally different conduct, even though some of the same evidence could be used in the prosecution of both. See Cooper, 949 F.2d at 744. The two crimes occurred in two different counties at different times. See Hines, 963 F.2d at 257. The stolen property and murder charges are separate and distinct offenses, therefore the Sixth Amendment did not bar the police from questioning the petitioner about the murder. Petitioner also contends that the State intentionally delayed by four months bringing a formal charge against him for the murder in order to suspend his Sixth Amendment right to counsel, and that the intentional and unnecessary delay invoked the protections of the Sixth Amendment. This argument was rejected in the ease of Flittie v. Solem, 775 F.2d 933 (8th Cir.1985), the case cited by the petitioner in support of this proposition. Likewise this court declines to adopt the principle, and concurs with the United States Supreme Court’s reasoning on this matter: There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to est