Full opinion text
DeMOSS, Circuit Judge: This case returns to us upon reinstatement by the ere banc Court, Soffar v. Cockrell, 300 F.3d 588 (5th Cir.2002) (“Soffar II”), of the original panel’s grant of a Certificate of Appealability (“COA”), Soffar v. Johnson, 237 F.3d 411 (5th Cir.2000) (“Soffar I”), as to Petitioner Max Alexander Soffar’s claims that (1) he did not have effective assistance of counsel in the guilt phase proceedings, and (2) his right to counsel was violated by police interrogation regarding an extraneous offense after he had been charged with capital murder and had requested and received appointed counsel, when that interrogation was later used to obtain a death penalty at the penalty phase. For the reasons stated herein, we reverse the district court’s order granting the Director’s motion for summary judgment and remand this case to the district court for entry of an order (i) granting Soffar’s application for writ of habeas corpus, (ii) setting aside Soffar’s conviction and sentence for capital murder, and (iii) ordering Soffar’s release unless the State commences a re-trial of Soffar within 120 days. This current opinion will be sometimes referred to herein as Sojfar III. As a brief overview, this opinion addresses three fundamental aspects of Sof-far’s first claim before us here, ie., his ineffective assistance of counsel claim. First, as has been discussed and developed on previous occasions, Soffar’s conviction was based indispensably on the statements taken from him by police after three days of interrogation and without an attorney present. Importantly, the single known eyewitness was neither contacted by defense counsel nor called to testify; and except for the facts recited in Soffar’s confession, which could have been controverted by that uncalled eyewitness, there was no physical evidence, circumstantial evidence, or other evidence that connected Soffar to the crime. Second, we address the State’s argument that Soffar’s claim of ineffective assistance of counsel was neither properly exhausted in his state habe-as petition nor properly raised in his federal habeas application. As we will detail below, specific and unambiguous language in the court documents submitted by Sof-far’s habeas counsel reveal that Soffar’s ineffective assistance of counsel claim was properly exhausted in the state courts and properly raised before the district court. Finally, as to the merits of Soffar’s ineffective assistance of counsel claim, for a litany of reasons bolstered by ample evidence in the record, we conclude that Soffar was denied the constitutional protections afforded by the Sixth Amendment and defined by Supreme Court precedent. I. BACKGROUND AND PROCEDURAL HISTORY We start with the facts of the case presented in a substantially similar form as in our original opinion in Soffar I. The facts are taken primarily from the facts found by the state and federal habeas courts. However, we also have included additional relevant facts that we have found to be undisputed based on our independent and exhaustive review of the entire record of this case. A. The Offense In either the late evening hours of Sunday, July 13, 1980, or the early morning hours of Monday, July 14,1980, four young people were each shot in the head during the course of a robbery at the Fairlanes-Windfern Bowling Alley, located at 14441 Northwest Freeway, approximately 13.5 miles northwest of downtown Houston, Texas. The victims who were killed were Stephen Allen Sims, a young male who was the assistant manager of the bowling alley; Tommy Temple, a young male employee of the bowling alley; and, Arden Alane Felsher, a young female non-employee. Gregory Garner, another young male employee of the bowling alley, was the only victim who survived. On the night before the robbery-murders, the Fairlanes-Windfern Bowling Alley had been burglarized. The side door of the bowling alley, which was broken by the burglars to gain entry the night before, had not been fixed by the next evening and could not be locked. As a result, at around 7:30 p.m. on the night of the 13th, Jim Peters, the manager of the bowling alley, asked Garner and Temple, to stay late after closing to keep an eye on the premises, at least until the early morning cleaning crew arrived at approximately 4:00 a.m. At approximately 9:30 p.m., Garner moved his car across the street into the parking lot of the Houston First Church of God, which was directly across the Northwest Freeway from the bowling alley, so that after closing it would appear that no one was at the bowling alley. Just as the bowling alley closed, a robber or robbers entered the bowling alley, shot the four individuals, and absconded with approximately $1,000 in cash. Garner was the only victim who survived; the other three victims died at the scene. Shortly after the robbery ended, at approximately 12:08 a.m., Garner, although seriously wounded, managed to get up from the floor and telephone his mother, Nellie Garner, from the control booth next to where he and the other victims were lying. He relayed to his mother that someone had been at the bowling alley and that he needed help. His mother told him that she was sending his father, Ira Garner, to the bowling alley and she asked her son if he was all right. After Garner responded “yeah, I’m all right,” the bowling alley’s other phone line rang and Garner told his mother that he was putting her on hold. The other caller was Peters, who was calling to check and make sure that everything was in order at the bowling alley. Peters testified that Garner’s speech was garbled but that Garner told Mr. Peters either “we, he, or they” made us lay down. Peters, sensing that something was awry, told Garner that he was going to call the police. After Peters called the police, he started on his own trip to the bowling alley. When Garner returned to the phone line with his mother, he told her again that he was all right and that the robber or robbers had just left. He answered his mother’s questions by telling her that he was bleeding from the side of his head and that he was holding his eyeball. Mrs. Garner then hung up the phone and headed towards the bowling alley. After he hung up the phone with his mother, Garner moved over and lay down next to the female victim Felsher, who was the only other person still alive at the time. When he lay down next to Felsher, he was positioned as the victim closest to the front door of the bowling alley, just inside the doors. Garner’s father was the first to arrive at the scene. When he arrived, he parked his car in front of the building with his headlights facing the front door. This illuminated the inside of the bowling alley and he saw four people lying on the floor. When he honked his horn, he could see his son lift his head and it was immediately apparent to him that Garner was injured. He ran inside, comforted his son, and then tried to telephone for help from the bowling alley phone. He was unable to make the call because he could not get an outside line. He then drove across the freeway to the church and asked a woman, who had gathered with several others awaiting the return of their children from a church youth trip, if she would call the police. He then returned to the bowling alley. As Ira Garner described the scene, his son was closest to the door on his stomach; Felsher was lying on her stomach, still alive, next to his son; Sims was lying dead on his stomach next to Felsher; and Temple was lying dead on his stomach on the other side of Sims. The first three victims were lying closer to the control booth where the cash register was located, and Temple was located closer to the concession area. Photographs of the crime scene indicate that, in general terms, Felsher’s, Sims’s, and Temple’s bodies were positioned in a somewhat semi-circular array, with a greater distance separating Temple from Sims. Garner was found aligned next to Felsher, but as discussed below, by his own account, and consistent with a bullet hole found in the carpet between the bodies of Sims and Temple, he was lying between Sims and Temple when he was shot, thus filling the gap in what would have been a fully semi-circular configuration at the time of the shootings. After Ira Garner had arrived back at the scene, Jim Peters arrived, and he was followed shortly thereafter by Mrs. Garner. Additionally, two men from the church across the street arrived at the scene to assist. Felsher was flipped over onto her back to clear her airway because according to those present, she was gurgling blood. Police and medical personnel arrived at the scene shortly thereafter. Dr. Daniel Bethingcord, a second-year resident from Hermann Hospital, was a member of the life-flight team of medical personnel that arrived later at the scene by helicopter. He directed efforts taken over from the fire department EMS personnel to resuscitate the only two living victims found on arrival, Felsher and Garner. Felsher was given priority of treatment because of her critical condition. All efforts to resuscitate Felsher were unsuccessful and she was pronounced dead at 1:40 a.m. Dr. Bethingcord then turned his efforts to treating Garner, who had previously been determined to be in more stable condition. Dr. Bethingcord thought Garner had suffered from two gunshot wounds to the head, but it was “difficult to tell which was the entrance and which was the exit.” In fact, it was later determined by Dr. Phillip Gildonburg, the neurosurgeon who performed surgery on Garner at the hospital, that the bullet which hit Garner entered just above and in front of his left ear, and exited just below his left eye. The bullet also caused some skull fragmentation resulting in embedded bone fragments in a small portion of Garner’s brain. As result of his injuries, Garner ultimately lost his left eye. Once Garner had been airlifted to the hospital, the police began their investigation of the crime scene in earnest. Autopsies later revealed that the victims suffered the following injuries. Temple suffered a gunshot wound to the head which entered the back of his head on the left side and the bullet remained lodged in his right ear, never exiting his body. Sims suffered a gunshot wound to the head that entered the back of his head on the left side and which exited his left cheek; he also suffered surface wounds on the front of his chest which resulted from bullet fragmentation. Felsher suffered a gunshot wound to the head which entered the front of her face just under her right cheek and which exited near the rear center of the top of her head. As stated above, Garner suffered a gunshot wound to the head that entered the side of his head just in front of and above his left ear and which exited his left cheek, just below his left eye. Gunshot wounds were ruled the causes of Temple’s, Sims’s, and Felsher’s deaths. B. The Investigation The crime scene itself was most aptly described at Soffar’s trial as “contaminated” in the sense that medical personnel attempting to resuscitate Felsher and Garner disturbed the positioning of their bodies and left debris scattered throughout the area surrounding the bodies. Additionally, Garner’s parents, the bowling alley manager, and two men from the church across the street entered the crime scene, moving items around and touching crucial areas of the crime scene. The forensic technicians testified that they had a difficult time recovering very many usable fingerprints. Despite this fact, several fingerprints and one palm print were lifted from the area surrounding the cash register. It was later determined that none of these fingerprints matched the fingerprints of either Soffar or Latt Bloomfield, Soffar’s alleged accomplice. Investigating officers who questioned those present at the crime scene determined that there was no eyewitness to the shootings, except for Garner. However, one individual by the name of Frank Kari-bus told a Houston homicide detective, G.J. Novak, that from his vantage point across the street at the church several hundred yards away, he had seen someone running from the bowling alley and getting into a small brown car, possibly a Honda. He initially described the individual as 5'8" to 5'9" with blonde shoulder length hair, but later gave a varying description of the individual he saw. Karibus was never called as a State witness to identify Soffar. Melvin Neal, the youth pastor at the church testified that it would be virtually impossible to specifically identify any individual at night from across the highway. Investigating officers also learned from pastor Neal that the church had been burglarized in the late evening hours of that same night as well. At some point that evening, entry was made into the church through a pried open door and the church’s main office had been broken into and ransacked. Crime scene investigators were dispatched and attempted to lift fingerprints from the church as well. During the night of the murders, an interested and curious local citizen, Richard Civitello, who came to the scene sometime after he heard about it on his police scanner, pulled into the parking lot and saw a billfold in the path of his headlights. He stopped, picked it up, and turned it over to investigating officers at the scene. That wallet belonged to Steven Sims. The very next day, a truck driver by the name of Andrew Davis, passed by the bowling alley on the inbound lanes of the Northwest Freeway. Traffic was bogged down, and as Davis looked out of his window he noticed a billfold on the pavement next to the grassy median separating the inbound and outbound lanes, approximately 100 yards from the bowling alley. The wallet was on what would be the driver’s side of an inbound vehicle. He pulled over so that he could walk back and retrieve the wallet he had seen. On his way back he spotted a second billfold in the same area. One of the wallets contained some money and both contained various other papers. Based on the information contained on the identification cards in the wallets, Davis tried to contact Garner but was initially unsuccessful. He eventually reached Ira Garner, who informed him that the wallet belonged to his son, who had been shot in a robbery the night before. After learning this, Davis called the police and turned the wallets over to one of three officers who, the next day, accompanied him back to the location where he had found the wallets. Forensic evidence obtained from the crime scene the night of the murders, and during subsequent investigations of the crime scene yielded the following evidence. Four bullet holes were found in the carpeting of the bowling alley. One hole, which contained a large fragment representing the remainder of a bullet, was located just above the area where Felsher’s head was originally positioned. A second bullet hole, also containing a large fragment was located at or just below the location of Sims’s head. A third, elongated hole was located near Sims’s body, closer to his torso, accompanied by a dent in the padding of the carpet. A fourth hole located to the right of Sims’s head contained a bullet embedded in the padding of the carpet. No bullet hole was found anywhere near Temple’s body, because the bullet which killed him never exited his body. And no bullet hole was found anywhere near where Garner was found lying either. Rather, the extra bullet hole, which was not closely aligned with any victim’s exit wound as the bodies were found, was between Sims’s and Temple’s body, where Garner was lying when shot, and plausibly represented the point of exit from Garner’s head. Homicide detectives pursued all available leads to the fullest extent, but had little success. The news media reported widely on the police investigation and reported all pertinent details as they became available from the police. For example, as early as the day after the shootings, the press reported that the bowling alley had been burglarized the night before, that four victims were shot in the head, execution style, with the males being shot in the left side of the backs of their heads, and the female shot in the cheek, that wallets were found near the scene, and that money was taken from the register. The press also reported on the $10,000 reward being offered by the Fairlanes Company, and later that the reward was increased to $15,000 by a private donor. At the scene, Garner was unable to make any statement to aid in the police investigation. He underwent more than seven hours of surgery the morning of July 14th and remained in critical condition for several days. However, as his condition was improving by July 17th, Garner’s treating physician advised the homicide detectives that Garner was independently remembering details of the offense and was alert enough to briefly speak with detectives. Over a period of four days, Garner spoke with homicide detectives on four separate occasions, and each conversation was both tape recorded and transcribed by the police. The essence of each of Garner’s interviews with the detectives is abstracted as follows: i. Gamer’s July 17, 1980, Statement On the morning of July 17, 1980, Garner gave his first taped interview with Houston homicide detectives Miland Kardatzke and Gil Schultz. This first interview occurred only three days following his surgery and was relatively brief. The dialogue contained in the transcript is direct in that the detectives did not employ either leading or suggestive questions. However, in this first interview, which had to be cut short, Garner’s responses can at times best be described as garbled, but he was nevertheless able to relay to the detectives the following basic information. At the time of the robbery there were four individuals present at the bowling alley. Approximately one hour after the doors were locked, the lone robber, a male individual whom Garner had never seen before, came into the bowling alley through the front door and asked all four to lie down near the control booth. Garner indicated that the robber gained initial entrance into the bowling alley by convincing the night manager, Steven Sims, that he needed to fill a white plastic container with water for his car. Garner also indicated that Sims and the robber went outside together after the robber talked his way in and that when they came back in, the robber directed Sims to get the money out of the register and made all four of the victims lie down on the floor. After a minute or so, Garner stated that the robber just started shooting and he thought he was shot third. ii Gamer’s July 18, 1980, Statement At approximately 4:45 p.m. the next evening, Kardatzke returned with Detective Williamson and Officer Yarberra to speak with Garner in his hospital room. In this second interview, which was also taped and transcribed by the police, Garner’s responses were more articulate, and he added the following information. Garner had arrived at work at approximately 5:30 p.m. and worked until closing. He and Temple were going to stay through the night and Steve Sims was going to leave once he finished his paperwork after closing. Garner recounted how he moved his car across the street to the church so that it would look like no one was there. He stated that Sims locked the front door after closing, but unlocked the door sometime later to let the robber in. When the robber first arrived, Garner was bowling on lanes 25 and 26. Garner gathered from the context of Sims’s and the robber’s actions and conversation that the robber needed to fill a plastic container he was carrying with water for his car. Sims went out the front door with the robber and they returned a short time later. When the two men reentered the building, Garner walked up to see what was going on. He noticed then that the robber had a gun by his side. Garner stated that the robber took Sims over to the register to get the money out and that they were all made to lie down. Then, according to Garner, the robber just shot them, “boom, boom, boom.” Garner stated that no one screamed or said anything and that the robber didn’t strike anyone before shooting. He recalled talking on the phone to both his mother and the manager of the bowling alley whom he referred to as “the head guy.” Garner initially stated that the robber was a black man, but later corrected the detectives by stating “no, he was white.” Garner also described the man as approximately 25-28 years old, with no hat or mask. He also described the robber as medium build. In addition to the statement given to the detectives on the 18th, Garner also identified the relative positions of the victims at the time of the shootings in a drawing made during this interview. He depicted the victims’ relative positions at the time of shooting, in a semi-circular configuration ordered as follows: Felsher, Sims, Garner, Temple. in. Gamer’s July 19, 1980, Statement On the evening of July 19th, Garner gave his third interview with Houston homicide detectives Novak and Magan, which was taped and transcribed by the police. Garner reiterated most of the information previously given to the other detectives; that is, that Sims let the robber in after he knocked on the door, that the robber had a container for water for his car and that Sims and the robber exited and returned. Garner added that when he first approached Sims and the robber, the robber asked him if he could open the register, to which he responded “I don’t know how.” The robber then made him lie down on the floor. The robber asked Sims if anyone else was there. Temple and Felsher were called up to the front and the robber made them lie down on the floor, too. The robber then stayed in front of the control counter with the gun on everybody and directed Sims to go empty the register and hand over the money. After Sims did this, the robber made him come out from behind the control counter and lie down on the floor just outside of the swinging doors. Garner told the officers that he lay down between Sims and Temple, with Felsher lying on the other side of Sims. Garner stated that while on the floor, no one said anything to each other, no one screamed, and the robber didn’t hit anyone. Once Sims was back down on the floor, the robber just paused for a minute, said “good-bye,” and shot everyone. Garner recounted again how he got up after the robber left and called his parents, and he remembered the manager of the bowling alley calling him. He then stated that he went back over and lay down in a different position than where he had been shot. He recalled lying down next to Felsher because she was the only one still alive. Garner surmised that he passed out shortly thereafter. He regained consciousness when his father arrived at the scene. iv. Gamer’s July 20,1980, Statement Garner gave his fourth interview with Kardatzke and Detective Ladd (“Ladd”) the evening of July 20th which was taped and transcribed by the police. He repeated the same general information he had given the three previous days but added that the robber was a little over 6 feet tall, had no facial hair, and had light brown hair pulled back. No additional information was provided at this interview. v. The Composite Draiving In addition to the information Garner provided to the investigators about how the robbery occurred, he was also able to assist a police artist in developing a composite drawing of the lone perpetrator. Along with the composite drawing, on July 30, 1980, police released Garner’s description of the perpetrator as a white man between 25 and 30 years of age, 6'2", 160 to 185 pounds with brown to dark brown ham worn combed back in front and over the ears, but not touching the collar. The composite drawing and Garner’s description were widely publicized in the newspaper and on the local television news. It is apparent that despite the alleged “retrogressed amnesia,” which the State suggested at Soffar’s trial rendered Garner’s memory unreliable, detectives relied on the credibility of Garner’s statements and composite drawings obtained therefrom throughout their investigation. Police statements to the press included the investigators’ firm belief that they were looking for one unknown white male “hijacker” matching the description Garner gave, who talked his way into the bowling alley by feigning car trouble. After initially receiving over 250 calls in regard to publication of the composite drawing, by August 4,1980, the exhaustive police investigation of the bowling alley murders had few if any promising leads. On August 5, 1980, at approximately 8:00 a.m., a League City, Texas, police officer, Raymond Willoughby, observed Soffar traveling approximately 57 miles per hour on a motorcycle in a 45 mile per hour speed zone on the westbound side of West 518 in League City, Texas. Subsequent investigation disclosed that the motorcycle was stolen in Friendswood, Texas on August 4, and Soffar was arrested for motor theft and placed in jail. C. The Interrogation of Max Soffar and His First Three Written Statements Over a period of three days following his arrest on the stolen motorcycle charge, while he was in custody and without counsel present, Soffar would sign three written statements, prepared by detectives, in which he implicated himself and Latt Bloomfield in the bowling alley robbery-murders. After booking Soffar for the motorcycle charge, the League City police contacted Detective Bruce Clawson of the Galveston County Sheriffs Organized Crime Unit, for whom Soffar had been an informant. Soffar also knew Clawson from spending time at the Friendswood Police Department and considered Clawson his friend. Because of this supposed friendship, Claw-son was summoned to be a “friendly face” for Soffar and to “hold Soffar’s hand,” in an effort to convince him that “he should talk to the Houston detectives.” It is clear, however, that although Soffar believed that they were friends, the feeling was not mutual. Discussing his relationship with Soffar, Clawson stated, “Max might have considered me a friend but I didn’t consider him a friend ... my primary job as a police officer was to get Max to talk.” After speaking with Soffar during the morning of August 5, Clawson succeeded in getting Soffar to speak with the Houston detectives. i. August 5, 1980 — Soffar’s First Statement After Clawson’s efforts to get Soffar to continue talking were successful, Detective Schultz interrogated Soffar for an additional two hours. At 3:30 p.m. on August 5, 1980, Soffar signed a written statement prepared by Detective Schultz. The statement was identified as State’s Exhibit 108, and while not introduced into evidence by the State, it was used against Soffar during the guilt phase of his capital murder trial. In this first statement, Soffar stated the following. He and Bloomfield went to the bowling alley one night in the first part of July and Soffar entered through a side door and checked the cash drawer. Bloomfield asked him to return the next night with his pistol, but he told Bloomfield he was not going to do it. He did, however, later agree to drive Bloomfield to the bowling alley and wait outside. While he waited in the car outside the front door, he saw Bloomfield move some people around and he heard two shots when Bloomfield was out of his sight. He then saw Bloomfield make some people get on their knees. As he moved the car forward, he heard another shot and then two more shots. He stated that Bloomfield told him that someone pulled a gun on him. They then went to Galveston where Bloomfield robbed a U-Totem convenience store and they bought some drugs. After giving this first written statement, Soffar was transported to Houston police headquarters, where he spent an additional 3 hours with Houston police officers before he was transported to the jail at approximately 7:43 p.m. ii August 6, 1980 — Soffar’s Second Statement Beginning shortly after 9:00 a.m. the morning of August 6, 1980, Williamson mirandized and interrogated Soffar for approximately 50 minutes in a tape-recorded conversation during which Soffar relayed more details of the same basic scenario, i.e., that he drove to the bowling alley and that Bloomfield did the robbery and shootings alone. At approximately 10:00 a.m., Soffar was taken to a line-up arranged for surviving witness Garner’s viewing. Garner failed to positively identify Soffar. Soffar was then mirandized and interrogated again by Williamson and Ladd, for approximately 1 hour and 15 minutes before giving his second statement. At 2:44 p.m. on August 6, 1980, Soffar signed the second written statement prepared by Ladd. This statement was identified as State’s Exhibit 109. As with State’s Exhibit 108, the second statement was not introduced into evidence by the State, but was used during the guilt phase of his capital murder trial. In his second statement, Soffar told the same basic story as he had in his first statement, adding the following details. The night before the robbery-murders, it was Soffar who kicked in the glass side door of the bowling alley to commit the burglary. The next day, Bloomfield picked him up at 1:00 p.m. and they hung out together for the afternoon. That evening they drove back to the bowling alley at 9:00 p.m., but since there were a lot of people there, they just parked the car and drank beer until most everyone had left. Again, Soffar stated that he pulled the car up in front of the doors while Bloomfield went inside of an unlocked front door. Bloomfield was approached by two people and then another, and he made these three lie down on the floor right in front of the door. Bloomfield motioned to someone else to come over and then Soffar heard the first shot. He could see the feet of the people on the floor. He then heard another and then several other shots. Bloomfield came running out of the bowling alley with the gun in one hand and the lady’s stocking he had put over his face when he entered in the other hand. Bloomfield told him that someone pulled a gun on him so he “did what he had to do.” Soffar added that they went to buy drugs that night from an individual named “Pops,” and that several weeks after the robbery-murders Soffar told Pops about the “deal at the bowling alley.” He asked Pops “if he heard about it and that Latt [Bloomfield] and I had done it.” At some point after signing his second statement at 2:44 p.m., Soffar was visited by, and he spoke privately with: his mother, Zelda Soffar; his uncle, Carl Lander; and his aunt, Celia Nathan. Ms. Nathan informed Detective Ladd that the family was in agreement that Max should cooperate with the police. At approximately 4:00 p.m., Detectives Williamson and Ladd checked Soffar out of the jail and took him in a patrol car to the crime scene. They pulled into the parking lot, but did not go inside of the bowling alley. At approximately 5:30 p.m., the detectives drove Sof-far to an area south of Houston where he identified Lawrence Bryant, a.k.a. “Pops,” as the person from whom he and Bloomfield had allegedly purchased drugs the night of the robbery-murders. At approximately 7:30 p.m., the detectives then took Soffar to Galveston where Soffar pointed out a convenience store Bloomfield had allegedly robbed. Soffar was cheeked back into the jail at 10:55 p.m. During the time Soffar was riding around with Detectives Williamson and Ladd, the police released Bloomfield from custody, citing a lack of any corroborating evidence to justify charging him in the robbery-murders. in. August 7, 1980 — Soffar’s Third Statement Beginning at approximately 8:42 a.m. the morning of August 7, 1980, Detectives Tom Ladd and Ted Thomas interrogated Soffar for approximately two and one-half hours. Soffar was also briefly interrogated that morning by Williamson. That afternoon, a felony capital murder complaint was filed against Soffar alleging that he intentionally caused the death of Felsher while in the course of committing or attempting to commit the armed robbery of Sims. Upset because he had learned that Bloomfield had been released and because he thought that he was going to be charged with all three murders alone, Sof-far contacted a family member and asked them to have detectives come and see him at the jail. At approximately 7:30 p.m. that evening, Detectives Ladd and Williamson came to see Soffar again. Soffar inquired as to why Bloomfield had been released and the detectives responded that they did not yet have enough evidence on Bloomfield to either hold or charge him. Ladd then began actively interrogating Soffar for another 30 minutes before beginning to take and prepare Soffar’s third statement. At 9:25 p.m. on August 7, 1980, Soffar signed the third written statement prepared by Ladd. This statement, identified as State’s Exhibit 110, was introduced into evidence by the State, and used against Soffar during the guilt and penalty phases of his capital murder trial. The entire text of Soffar’s third statement reads as follows: My name is Max Soffar. I have been in jail since Tuesday morning for this bowling alley deal. I gave two previous statements, one to detective Schultz and one to detective Ladd. I didn’t tell the whole truth in those statements and want to now so that I don’t take this whole thing by myself. One thing that I didn’t tell the truth on was that Lat Bloomfield and I did this thing when we first got to the bowling alley, not like I said about being there in the parking lot for awhile. Lat drove in and we were in his brown thun-derbird. Lat pulled right to the front door so that the passenger side was next to the bowling alley. I think that there was a couple of cars in the parking lot when Lat pulled to the door. Lat pulled a stocking over his hair so that his hair would be pulled back. I pulled up my t-shirt over my nose and mouth. Lat had his 357 revolver which I think is an R-G model. This gun had about a three inch barrel. He had the gun under his shirt when we walked in a guy asked what we were doing. Lat pulled the revolver and stuck it in this guys face and said, “This is a robbery.” Lat pulled this guy by the hair and made him get down on his knees and xx walked up. This was two dudes and a girl. Lat told them to get on the floor and if they didn’t do what he told them that he would shoot this first guy who was already on the floor. They got down on their knees away from the counter and Lat made them come back closer to the control counter and they did. They were laying from the door so that there was a dude and then a girl and then another dude and then the last dude. The second dude was trying to look up and Lat told him not to be looking and to turn around and lay facing the way all the others were. He then turned around so that they were all facing back towards the snack bar. The second dude kept looking around so Lat fired a warning shot into the floor. The girl screamed and then Lat told her to shut up and she kept screaming. Lat kicked the girl in the back and then the second dude who was the one who kept looking up started to raise up. He was about half way up when Lat shot him in the back of the head. Then Lat just turned around and shot the third dude. This third dude was the first one Lat grabbed and made get on the floor. He shot him the same way as the first one that he shot. Lat threw me the gun and told me to shoot the other two. I hesitated and then he said, “Shoot them now.” I aimed the gun and the other guy who was still left who was closest to the door and fired one time. I hit him in the back of the head behind the ear. I walked around the other side of them and heasitated [sic] and Lat said, “Shoot her.” She had her face down and she just looked up at me and I aimed and turned my head and shot her. I think I hit her in the cheek. I had the gun and ran around and looked in the cash register over by where you get the shoes. I got all the bills and a little of the change and then went to the office but the door was locked. I went over to the cash register by the snack bar and took bills out of it too. I put the money in my pockets. I went back by the office and tried to force the door open but I couldn’t get it opened. Lat was looking under the counter for a money bag and I think he got 50 or 60 dollars. We walked over by the office and I told him I thought I saw some headlights. I went outside but I didn’t see anyone so when I came back in Lat was rumageing [sic] through their pockets and took the wallets out of their pockets. He took the money and I think that he kept the wallets. We looked around to make sure that nobody was looking and we didn’t see anybody. I asked him if he wanted to check in the back and he said no. So, we looked in the bathrooms making sure no body was in there. Then we left. I still had the gun. Lat drove and we had the windows down to his car. He made a right on the highway and drove down for a little bit and then turned around and came back past the bowling alley. I asked him why he shot the dudes and he said he shot the dude for raising up and playing hero. He said he made me shoot the other two so that I would be as guilty as him if we got caught. I put the gun under the front seat after I reloaded it and it only had one live bullet in it before reloading. I don’t know where the gun is now. The last time I saw the gun was I believe last Saturday night and Lat had it at that time. We went to score some pills and got 24 pills over at the dope house. These were preludins. After the gas and pills I got 95 dollars out of the deal and I think Lat got a lot more. We went to my house and did some preludin and Lat said he was afraid someone had seen his car so he went and took it home. He walked back over to my house that night and we did the rest of the pills. We stayed up all day and went out to the park the next day. I was scared and that is the reason that I did not tell the whole truth before and I feel like shit and feel bad about what happened and ought to take my punishment for it. I think Lat and me both ought to pay for what we did. In addition to his written statement, Sof-far drew a diagram of the positions of the victims at the time of the shootings. In the diagram, Soffar depicted the four victims lying parallel to one another with their feet aligned along the edge of the control booth. This diagram was not introduced into evidence during Soffar’s capital murder trial, but was admitted into evidence by the state habeas court. It is attached to this opinion as “Appendix C”. D. Inconsistencies Between Gamer’s and Soffar’s Accounts As a factual matter we pause here briefly to note that when juxtaposed, Garner’s and Soffar’s accounts of the robbery-murders appear dramatically at odds with one another. The numerous fundamental factual inconsistencies between these two versions of events are both obvious and striking. The most noteworthy discrepancies between Garner’s recollection during interviews by detectives and Soffar’s third written statement are summarized in table format in “Appendix A” to this opinion. This appendix is followed by Garner’s diagram of the victims’ positions at the time of the shootings (see “Appendix B”), which also differs dramatically from Soffar’s diagram of the victims’ positions at the time of the shootings (see “Appendix C”). According to Garner’s diagram, the victims at the time of the shooting were in a semi-circular position with Garner located between Sims and Temple. Thus, the order of the victims was Felsher, Sims, Garner, and Temple, or female, male, male, male. In contrast, Soffar’s diagram shows the victims at the time of the shooting in a straight line in the following order: male, female, male, male. Although Soffar’s diagram is consistent with the scene when the victims were found, it is significantly inconsistent with Garner’s version of where the victims were located when the shooting took place. Further, in his statements, Garner explained why the order of the victims changed from the time of the shooting to the time the police arrived, telling the police that after he used the phone, he laid down in a different location next to Felsher, who was the only other victim still alive at the time. We also note that the physical evidence in this case supports Garner’s account of events more than Soffar’s third statement. With respect to the forensic and ballistics evidence, as discussed supra, the bullet holes found in the carpeting of the bowling alley are consistent with the body configuration recalled by Garner, that is, with him lying between Sims and Temple when he was shot. There is no physical evidence to support Soffar’s account of Garner having been shot lying between the front door and Felsher. In fact, the only unmatched bullet hole, which could represent the final resting point of the bullet exiting just beneath Garner’s left eye, is the one between Sims and Temple. Also with respect to body configuration, the photographs of the crime scene depict the bodies aligned, not parallel to one another along the edge of the counter as depicted in Soffar’s account, see “Appendix C”, but in a semi-circular configuration nearly identical to that depicted by Garner in his diagram, see “Appendix B”. Indeed, the photographs show a large vacant space between the bodies of Sims and Temple where, according to Garner, he would have been lying when shot. With respect to Garner’s account of how the perpetrator gained access to the bowling alley by feigning car trouble, a passerby to the bowling alley, who was never called as a witness by the State, told the police that at approximately 11:50 p.m., he passed the bowling alley and slowed down because he was looking for a place to purchase cigarettes, and that he saw a car parked directly in front of the bowling alley with its hood up. This individual saw just one person walking from that car toward the front entrance of the bowling alley. Additionally, one of the police photographs of the crime scene showed that there was a white plastic water jug like the one described by Garner as belonging to the robber located on the control booth counter. E. Appointment of Counsel and Pre-trial Developments On August 8, 1980, the day after Soffar gave his third written statement, Soffar made his preliminary initial appearance on the felony capital murder charge before the 232nd Judicial District Court of Harris County, Texas. During this appearance, the state court appointed Frederick Stover and Joseph Cannon to represent Soffar because of his indigence. These attorneys, who were present in the courtroom to accept their appointment, were advised that their client had already signed three written statements implicating himself in the charged offense. i. Soffar’s Letter to Counsel At some point after first meeting with Cannon, Soffar wrote a letter to Cannon explaining his side of the story. In a handwritten letter, Soffar wrote: This whole thing started when, this detective in Friendswood said he was going to lock me up cause I was a habitual criminal. His name is Mr. Palmary. He’s busted me a few times and he does not like me. He told me next time I bust you for something bad I’m going to put you away for the rest of your life. Well anyway, he busted me the last time for false imprisonment. Me and a girl had an argument and she wanted to leave and I wouldn’t let her. So someone called the police and he talked her or rather he therened her. She had a 38 snub nose pistol in her pocket when we were arrested, so he told her if she didn’t file some charges on me for kidnapping or false imprisonment, that he would file on her for a concealed wepon. Then he comes in and says I got you now boy. So when I got arrested on that stolen bike I look up and who drives up, Mr. Palmary, and he’s standing there with them lueague City police saying, I’ve got you now punk. So we go to lueague City Jail and I started thinking well Ill fix you smart ass and I told them I wanted to talk to bruce Clawson about the bowling alley. I knew it would be hell on me if I said anything but at that point I didn’t care. I was already on a years probation out of galveston co. and I’m caught on stolen bike. By the way that bike had the licence plate on it from another bike I had stolen, plus I had been on bond from an auto theft charge from Brazoria County, plus I am holding pot and some stolen jewels. So I told them that so palmary couldn’t put his slimy hands on me. I told my sister when I saw that drawing of the killer, I told her it looked like latt. he stole some silver from my house so I was going to tell the police he did it and get the reward, and get evan. She told me not to do it so I didn’t. Then when I got pulled over and I see palmary standing their I decided to say I knew who did it. Next thing I know them homicide detectives had me saying I did it. the truth is I did not kill anyone. There is a lot more to this than I can write. I will tell you the whole thing when I see you so you can check out my side of this to be sure yourself. Them police had me say what they wanted to hear. Did you know I took a polygraph test? I was on acid when I took it. The night before the robbery, their was a burgurly at this bowling alley. I told the police the night before the robbery, I broke into the bowling alley. That was what I saw on the t.v. so I said in a statement, me and lat bloomfeild did the burgurly. When I told them I killed some girl, which was another lie, they asked me if I really broke in the night before. I said no. They asked me that quiestion about 100 times. I put in a statement that I did. But after they kept asking me that same question over and over I said no, just to see what he would say. I did not put in a statement that I didn’t brake in the bowling alley. I said I did. Then he told me I didn’t do the burgurly cause they arrested some kids for it. If I really did this why didn’t I say I didn’t brake in. Cause that was what I saw on the news. I thought the brake in was done by the same person or persons that did the robbery. Me and 2 homicide police went out looking at bowling alleys. They wanted me to point out the bowling alley we robbed. They were drinking. We stopped 3 or 4 times for cokes for their mixed drinks! I asked them for some for my nerves and they said no. But they were drinking and that’s when they started getting forceful. I made 2 more statements later that day. I will take a polygraph test to prove I’m not lying about the drinking or the force they used. They also told me that greg gardner picked me out so I might as well say I did it and get a life sentence. They also asked me why lat shot the girl in the face before I made the last 2 statements. I said in one of the statements that I did it. In the 3rd statement after they gave me a few details, I said I shot her, to get them off my back. I went thru more quiestions than I thought I would. After I went back to my cell after I gave the second statement I was so tired I just gave in to them. The officers that were drinking was detective ladd and detective Williamson. They took me to galveston and to la-marge, to check out some robberys that I told them me and lat did. They all turned out to be lies. I admit that I did rape that girl in Alvin I told them I did. I told the Galveston County Sheriff I stole 2 motorcycles and I did. But I told them I shot the girl in this case. It’s a lie. I knew I was in lots of trouble anyway, for all the other things I have done, that’s why Im in the trouble Im in now. ii. Gamer’s Final Interview On August 21, 1980, after all of Soffar’s confessions had been taken and the State had been enjoined from interacting with Soffar any further, the State submitted Garner to questioning under hypnosis. Presumably, the hypnotic interview was conducted in an effort to bolster the strength of the State’s case against Soffar. However, Soffar’s appointed counsel were not invited and did not attend this session with Gamer; and in the end, Garner’s account of events under hypnosis only served to confirm the version of events he had described in his initial interviews with investigators, and that version of events differed dramatically from the version given by Soffar in his written statements. See “Appendix A”. If Garner had testified at trial in a manner consistent with the statements made to investigators on July 17, 18, 19, 20, and August 21, 1980, such testimony would have seriously undermined the State’s case against Soffar. The State did not call Garner as a witness at Soffar’s trial. Indeed, at trial, instead of calling Garner, the State called Dr. Gildonburg, the neurosurgeon who operated on Garner, during its case-in-chief. Dr. Gildonburg testified that Garner could be suffering from retrogressed amnesia and that Garner could have created a false memory of events. Dr. Gildonburg did not express any medical opinion that Garner was in fact suffering from amnesia. Additionally, we note that Soffar’s defense counsel were informed that Garner was a “vegetable” with no memory of the offense, and incredibly, based upon this assertion and the fact that Garner was not going to be called by the State as a witness, Sof-far’s defense counsel did not even attempt to interview Garner themselves. Rather amazingly, defense counsel instead chose to bolster Dr. Gildonburg’s testimony by asking and receiving an affirmative response to the question, “would it be a fair statement ... that a person that suffered the type of wounds that Greg Garner suffered, no one, including Greg Garner, himself, would ever know whether he was giving an accurate account of the events that caused his injury?,” thus implying to the jury that, indeed, Garner had no useful memory of the offense. F. The Trial Beginning on March 16, 1981, Judge Van Stovall presided over Soffar’s capital murder trial which, exclusive of nearly four weeks of voir dire and jury selection, lasted two and a half weeks. During the trial, and pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Judge Stovall conducted a two-day hearing out of the jury’s presence on the admissibility of Soffar’s first three written statements. During the Jackson v. Denno hearing, Sergeant Bruce Clawson testified that Soffar neither asked for an attorney, nor had any questions about his rights. At the conclusion of the admissibility hearing, Judge Stovall entered an oral ruling that the three statements were freely and voluntarily made after appropriate Miranda warnings. A written order to the same effect was entered on May 22, 1981. In his rulings, Judge Stovall held that each of Soffar’s first three written statements was signed after Soffar “knowingly, intelligently and voluntarily waived the Statutory and Constitutional rights.” Clawson and the other witnesses who testified at the Jackson v. Denno hearing, repeated the essence of their testimony before the jury. The State offered the testimony of Lawrence “Pops” Bryant to corroborate Soffar’s confession. Bryant testified that several weeks after the bowling alley robbery-murders, Soffar asked him if he had heard about the bowling alley murders and then stated to him “if I told you who did it you wouldn’t believe me.” During this conversation, Soffar told Bryant that three people got shot. Bryant testified that Soffar indicated to him that he and Bloomfield were involved in the bowling alley robbery. Mabel Cass, Bryant’s girlfriend testified that she did not participate in, but witnessed the conversation between Bryant and Soffar, and confirmed in substance that Soffar talked to Bryant about the bowling alley robbery-murders. Defense counsel presented Soffar’s case based on an alibi theory. Soffar’s mother, Zelda Soffar and other witnesses confirmed that Soffar spent the entire weekend of July 12-13, 1980 helping a family member move. Martin and Donna Naylor testified that they dropped Soffar off at his mother’s house in Friendswood sometime after 7:00 p.m. on the evening of July 13, 1980. According to the Naylors, all of the men who were moving the family belongings, including Soffar, were exhausted from working all day, for two days straight in the summer heat. Mrs. Soffar testified that Max was exhausted when he was dropped off and that he watched a little bit of television and then went straight to bed. She testified that he was in the house when she awoke the next morning, July 14, 1980. On March 31, 1981, the jury returned a verdict of “guilty of the offense of capital murder.” Judge Stovall then presided over the penalty phase of Soffar’s trial, which lasted three days. The State called numerous witnesses to attest to Soffar’s criminal history and reputation for having a violent temper. Amazingly, Soffar’s defense counsel presented no testimony or mitigating evidence of any kind whatsoever during the penalty phase. The three special issues submitted to the jury pursuant to the applicable version of Article 37.071(b) of the Texas Criminal Code were as follows: A. Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result? B. Do you find from the evidence beyond a reasonable doubt that there is a probability the Defendant would commit criminal acts of violence that would constitute a continuing threat to society? C. Do you find from the evidence beyond a reasonable doubt whether the conduct of the Defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased? Tex.CRIm. Proo.Code AnN. § 37.071(e) (Vernon 1981). On April 3, 1981, the jury returned its verdict answering each of the three special issues in the affirmative. Consequently, as required by Texas law when the jury so answered, the trial court entered an order sentencing Soffar to death by lethal injection. Id. G. Post-Conviction Proceedings Soffar’s conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals which, on September 23, 1987, affirmed Soffar’s conviction and sentence in a written opinion. See Soffar v. State, 742 S.W.2d 371 (Tex.Crim.App. 1987) (en banc). Soffar’s conviction became “final” for purposes of this appeal when the United States Supreme Court denied Soffar’s petition for writ of certiora-ri on October 10,1989. See Soffar v. State, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 206 (1989). On December 14, 1992, Soffar filed a state application for writ of habeas corpus in the 232nd District Court of Harris County, Texas, alleging twenty-four grounds for relief. Judge A.D. Azios conducted a thirteen-day evidentiary hearing during the time period between August 16, 1994 and September 8, 1994. On November 10, 1995, Judge Azios entered written findings of fact and conclusions of law recommending denial of Soffar’s application. On April 8, 1996, the Texas Court of Criminal Appeals, in a two-paragraph, unpublished per curiam opinion, followed Judge Azios’s recommendation and denied Soffar’s application for habeas corpus relief. On April 22, 1996, Soffar filed his first federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Texas alleging twenty-four claims for relief. Soffar filed a motion for partial summary judgment in the district court, and the Director filed a motion for summary judgment on all of Soffar’s claims. The Director did not contest that Soffar had sufficiently exhausted his available state remedies, except with respect to claim 21, as to which the Director waived exhaustion, and with respect to a portion of Soffar’s Brady claims, which were premised upon the State’s alleged suppression of a ballistics report and the pretrial statements of Garner. The district court assumed that Soffar had properly exhausted his state court remedies with respect to the Brady claims, and denied Soffar’s Brady claims on the merits. The district court refused to grant Soffar’s motion for discovery and an evidentiary hearing, and entered a written order granting the Director’s motion for summary judgment on all claims. Soffar filed his notice of appeal from the decision of the district court in this case on April 24, 1998, and he filed his motion requesting issuance of a certificate of probable cause to appeal with this Court on September 3, 1998, which covered among other claims the following issues: (1) Whether the State violated Soffar’s Fifth Amendment privilege against compelled self-incrimination by interrogating him after he had invoked his right to counsel, and further, that the State obtained an invalid waiver of his rights by virtue of untrue and deceptive responses made by a detective to Soffar’s questions about obtaining counsel, which rendered his subsequent custodial statements involuntary; (2) Whether the extraneous offense evidence used against Soffar in the penalty phase, that is, Soffar’s August 19, 1980, written statement as to the rape of Caroline Knight, was tainted by a violation of Soffar’s Sixth Amendment rights because the State interrogated Soffar after he had requested and been appointed counsel; (3) Whether Soffar was denied the effective assistance of counsel by virtue of his defense counsel’s failure to investigate, develop, and present available evidence during the guilt phase of Soffar’s trial; specifically, the failure to retain a ballistics expert or develop ballistics evidence, and the failure to investigate, develop, or present evidence with respect to Garner’s statements to police. On December 21, 2000, the panel issued its opinion in Soffar I which granted a COA on the merits as to each of the issues described above. Having determined that Soffar was entitled to full relief from his conviction and sentence based on the merits of his Fifth Amendment challenge, the panel majority reversed the order of the district court granting summary judgment in favor of the Director, and remanded the case to the district court for entry of an order granting Soffar’s application for writ of habeas corpus, setting aside Soffar’s conviction and sentence for capital murder, and ordering Soffar’s release unless the State commences a re-trial of Soffar within 120 days. Soffar I, 237 F.3d at 461. The panel did not address the merits of the remaining two issues. On January 11, 2001, the Director petitioned for rehearing en banc, in which the Director raised for en banc reconsideration the correctness of the panel’s determination of the merits of the Fifth Amendment/Miranda issues and the panel’s grant of COA on the merits as to the two other issues. En banc reconsideration was granted on May 31, 2001, thereby vacating the panel opinion. The en banc Court, in an opinion (Soffar II) issued on July 29, 2002, and authored by Judge Emilio Garza, affirmed the district court’s denial of Sof-far’s Fifth Amendment claims raised in his habeas petition. However, the en banc Court reinstated the panel’s rulings granting or denying COA on the merits as to each of the other claims raised by Soffar. The en banc Court, therefore, remanded the case to the panel for consideration on the merits of the outstanding two issues for which COA was granted. .Soffar II, 300 F.3d at 598. II. STANDARD OF REVIEW Because this is Soffar’s first federal ha-beas corpus petition, which was filed pursuant to 28 U.S.C. § 2254 on April 22, 1996, two days prior to the effective date of AEDPA, we are bound by the Supreme Court’s decision in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), to apply the substantive provisions of § 2254 as they existed prior to the changes made by AEDPA. Under the pre-AEDPA provisions of § 2254(d), which govern our substantive review of the merits of Soffar’s petition, when considering