Ronnie HOWARD, Petitioner-Appellant, v. Michael W. MOORE, Director of South Carolina Department of Corrections; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees, 131 F.3d 399

Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINSON and Judges DONALD S. RUSSELL, WIDENER, WILKINS, NIEMEYER, HAMILTON, and LUTTIG joined. Judge MICHAEL wrote a dissenting opinion, in which Judges K.K. HALL, MURNAGHAN, and DIANA GRIBBON MOTZ joined. OPINION WILLIAMS, Circuit Judge. In June 1986, Ronnie Howard was convicted of capital murder by a South Carolina jury and sentenced to death. After exhausting his state appeals, he petitioned the federal district court for habeas corpus relief.

The district court denied his petition and Howard appeals, raising numerous constitutional challenges to the state court proceedings. After oral argument before a panel of this Court, we voted to hear Howard’s appeal en banc to address the important procedural and substantive issues raised.

These issues included whether the more deferential habe-as standards of review set forth in § 104 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), signed into law on April 24, 1996, and codified at 28 U.S.C.A. § 2254(d) (West Supp.1997), apply to this appeal; whether the prosecutor’s peremptory challenges violated Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); whether questioning by Howard’s federal probation officer after Howard’s invocation of his Fifth Amendment right to counsel tainted his subsequent confessions; and whether the admission of Howard’s redacted confessions erroneously excluded exculpatory and mitigating evidence from the jury’s consideration. The en banc court heard oral argument on April 8,1997. On June 23, 1997, the United States Supreme Court issued its opinion in Lindh v.

Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), in which it held that the new habeas standards of review, codified at 28 U.S.C.A. § 2254(d) (West Supp.1997), do not apply to habeas corpus petitions pending in federal court pri- or to the enactment of the AEDPA. Howard filed his habeas petition in the district court prior to April 26, 1996, the effective date of the AEDPA. We, therefore, review Howard’s claims under pre-AEDPA law. Applying the proper standard of review to the substantive issues on appeal, we conclude that (1) no Batson violation occurred;

(2) Howard’s oral confessions to FBI Special Agent Brendan Battle and Lieutenant William Hitehins of the Greenville County Sheriffs Department were not “tainted fruits” of an improper custodial interrogation by Howard’s federal probation officer, Haywood Polk; (3) the redactions of his confessions were not violative of his Fifth and Eighth Amendment rights; and (4) the other assignments of error raised by Howard have no merit. Accordingly, we affirm the district court’s denial of habeas relief. I. The primary facts of the tragedy underlying this appeal are undisputed.

Chinh Le disappeared on her way home from work in Greenville, South Carolina, on the evening of August 29, 1985. On September 12, 1985, Howard was arrested on unrelated robbery charges in Asheville, North Carolina, and detained in the Buncombe County Jail. After Howard was appointed counsel and invoked his Fifth Amendment right to remain silent, Howard met with his federal probation officer, Haywood Polk, on October 3. During this meeting, Howard orally confessed to his involvement in numerous armed robberies and in two murders, including the murder of Le.

At this meeting, Howard also asked to speak to the FBI about his crimes in the hopes of negotiating a plea to lessen his punishment. As a result, Howard met with Agent Battle on October 8, and, after signing a waiver of rights form, orally confessed to, among other things, Le’s murder. Agent Battle immediately notified Lieutenant Hitehins of the Greenville County Sheriffs Department of Howard’s connection to the Greenville murder. Lieutenant Hitehins contacted Howard and the two met on October 16 at which time Howard, after orally waiving his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), again orally confessed to Le’s murder. In each confession, Howard revealed that he and Rickey Weldon had formulated a plan to steal the automobile of a lone female driver. On August 29, the two men spotted Le and followed her down a dirt road where they “bumped” the rear of her vehicle. When Le exited her automobile to inspect the damage, Howard forced her back into her automobile at gunpoint. Howard then drove away in Le’s vehicle, and Weldon followed in the other car.

Howard subsequently stopped in an isolated area where the two men beat Le and eventually murdered her by placing a piece of plastic over her head until she suffocated to death. They again drove around until they found another isolated area where they dumped Le’s body into a clump of kudzu vines. Before disposing of her body, however, Howard and Weldon removed all her clothing and washed her body, first with soda and then in a mud puddle, to remove any fingerprints. Howard and Weldon then abandoned Le’s automobile in Columbia, South Carolina.

Howard, however, retained possession of some of Le’s personal belongings and traveled to Charlotte, North Carolina, where he disposed of the items in various garbage dumpsters. As a result of Howard’s confession, South Carolina authorities recovered Le’s body and her automobile several weeks after her death. Howard and Weldon were tried jointly for Le’s murder. The State introduced Howard’s confessions into evidence through the testimony of Agent Battle and Lieutenant Hitehins, both of whom had taken meticulous handwritten notes of their conversations with Howard. Polk did not testify.

In compliance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the trial court directed Agent Battle and Lieutenant Hitehins not to reveal those portions of Howard’s confessions inculpating his code-fendant Weldon during direct or cross examination. On June 5, 1986, a jury found both defendants guilty of murder, kidnapping, armed robbery, and conspiracy.

Howard and Weldon were each sentenced to death for the murder, plus twenty-five years for the armed robbery and five years for the conspiracy. Ón direct appeal, the South Carolina Supreme Court upheld Howard’s conviction and his death sentence. See State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989). The state court also affirmed Weldon’s conviction, but reversed his death sentence and remanded for resen-tencing.

The United States Supreme Court denied Howard’s petition for certiorari, see 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989), and his petition for rehearing, see 492 U.S. 932, 110 S.Ct. 13, 106 L.Ed.2d 628 (1989). Howard then sought post-eonviction relief (PCR) in state court. After con ducting an evidentiary hearing, the state PCR court denied Howard relief on September 3, 1991. The South Carolina Supreme Court affirmed the denial of relief, and the United States Supreme Court again denied certiorari, see 508 U.S. 917, 113 S.Ct. 2359, 124 L.Ed.2d 266 (1993).

On September 17, 1993, Howard filed this federal habeas action in the United States District Court for the District of South Carolina. The petition was referred to a magistrate judge, who recommended denying Howard’s motion for an evidentiary hearing and his petition for habeas corpus relief. The district court adopted the findings of the magistrate judge and granted the State’s motion for

summary judgment on June 16, 1995. Howard now appeals the district court’s denial of habeas corpus relief. ' II. Howard raises several issues in his petition to this Court. He argues that his conviction should be reversed because (1) the prosecutor improperly used peremptory strikes against six of the seven black potential jurors in violation of Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) the trial court erroneously admitted portions of Howard’s confessions made to Agent Battle and Lieutenant Hitchins; and (3) the trial court erroneously excluded from the jury’s consideration portions of Howard’s confessions which contained exculpatory evidence. Howard also challenges his death sentence on the grounds that (1) the trial court erroneously excluded mitigating evidence contained in Howard’s confessions in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Skipper v.

South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); (2) the trial court erroneously failed to reinstruct the jury on the elements of involuntary manslaughter when it repeated its instructions on murder;

(3) Howard’s counsel was ineffective in failing to present certain mitigating evidence ■ during the penalty phase of the trial; (4) the prosecutor improperly, commented on Howard’s failure to testify during closing arguments; and (5) there was improper ex parte contact between the prosecutor’s office and the jury. When considering a habeas petition, we review de novo the state court’s determinations of questions of law, see Savino v. Murray, 82 F.3d 593, 598 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 1, 135 L.Ed.2d 1098 (1996), and of mixed questions of law and fact, see Miller v.

Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). However, the state court’s factual findings underlying those determinations are presumed to be correct and binding, as long as they were made after a full, fair, and adequate hearing on the merits. See 28 U.S.C.A. § 2254(d) (West 1994) (pre-AED-PA); see also Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). The habeas petitioner bears the burden of establishing by convincing evidence that a state court’s factual determinations were erroneous.

See 28 U.S.C.A. § 2254(d) (pre-AEDPA); see also Sumner, 449 U.S. at 550, 101 S.Ct. at 770-71. We now address each of Howard’s claims in turn. A. First, Howard, who is black, argues that the. prosecutor’s use of peremptory strikes to exclude black venirepersons from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We conclude, however, that Howard has failed to rebut by clear and convincing evidence the trial court’s finding, affirmed by the South Carolina Supreme Court, that the challenges were not exercised for racially discriminatory reasons. See Hernandez v.

New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991) (plurality opinion) (holding that the intent to discriminate under Batson is “a pure issue of fact, subject to review under a deferential standard”); see also id. at 369, 111 S.Ct. at 1871-72 (holding that the findings of the trial court on discriminatory intent in Batson challenge are reviewed for clear error); Dayton Bd. of Educ. v.

Brinkman, 443 U.S. 526, 534, 99 S.Ct. 2971, 2977, 61 L.Ed.2d 720 (1979) (holding that the finding of intent to discriminate is a factual determination subject to the “clearly erroneous” standard of review); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995) (“A finding by the [trial] court concerning whether a peremptory challenge was exercised for a racially discriminatory reason is given great deference by this court; we review that finding only for clear error.”). Accordingly, we affirm. After voir dire, forty-two persons were qualified as jurors, only seven of whom were black.

The prosecutor struck six of the seven black prospective jurors and four of the thirty-five white prospective jurors, resulting in a jury of eleven white jurors and one black juror. Howard moved to quash the panel pursuant to Batson. The trial court found, and we agree, that the prosecutor’s striking of six out of the seven black prospective jurors constituted a prima facie case of discrimination. Once the defendant establishes a prima facie case of discrimination, the burden shifts to the prosecutor to articulate race-neutral explanations for the challenges. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

The prosecutor’s “explanation need not be ‘persuasive, or even plausible,’ as long as it is neutral.” Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir.) (quoting Purkett v.

Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995)), cert. denied, — U.S. -, 118 S.Ct. 102, — L.Ed.2d -(1997); see also Jones, 57 F.3d at 420 (“To satisfy this burden, the party need offer only a legitimate reason for exercising the strike, i.e., one that does not deny equal protection; the reason need not be worthy of belief or related to the issues to be tried or to the prospective juror’s ability to provide acceptable jury service.”). If the prosecutor satisfies this requirement, the burden shifts back to the defendant to prove that the explanation given is a pretext for discrimination.

See Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24. The ultimate burden always rests with the opponent of the challenge to prove “purposeful discrimination.” See Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866 (“ ‘ “Discriminatory purpose” ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’” (quoting Personnel Adm’r v.

Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (internal footnote and citation omitted))); see also Jones, 57 F.3d at 420-21 ,(“[T]he party challenging the selection process [must] prove[ ] that intentional discrimination was a substantial or motivating factor in the decision to exercise the strike.”). The trial court must then determine whether the challenge was exercised for a racially discriminatory reason. The trial court’s resolution of this issue rests largely on credibility determinations, and therefore, we give its findings great deference.

See Jones, 57 F.3d at 421 (“[T]he [trial] court is especially well-suited to resolve challenges to peremptory strikes of jurors because it has observed with its own eyes the very act in dispute.”). Howard first challenges the prosecutor’s use of peremptory strikes against black prospective jurors Edward Wood and Charles Copeland. During the Batson hearing, the prosecutor explained that he struck Wood “because he said he leans towards life every time. He was more pro-life.

He said he was not really for the death penalty.” (J.A. at 536-37.) The prosecutor further stated that Copeland was struck “because he said ... from a religious standpoint he would find it hard to vote for the death penalty. He said he does not believe another man should take another man’s life. He also said it would have to be [a] very extreme ease for him to vote for the death penalty.” (J.A. at 537.) Although Howard admits that these reasons are race-neutral, he argues that they were pretextual because the prosecutor.failed to strike white jurors expressing similar views.

While this circumstance may give rise to an inference' of pretext, see Ford v. Norris, 67 F.3d 162, 169 (8th Cir.1995), “Bat-son is not violated whenever two veniremen of different races provide the same responses and one is excused and the other is not,” Matthews, 105 F.3d at 918. Both the prosecutor and defense counsel must be allowed to make credibility determinations when exercising peremptory challenges.

For example, counsel may consider “the ‘characteristics of the other prospective jurors against whom peremptory challenges might be exercised; to reevaluate the mix of jurors ... and to take into account tone, demeanor, facial expression, emphasis — all those factors that make the words uttered'by the prospective juror convincing or not.’ ” Id. (quoting Burks v. Borg, 27 F.3d 1424, 1427 (9th Cir.1994), cert. denied, 513 U.S. 1095, 115 S.Ct. 762, 130 L.Ed.2d 660 (1995)).

Moreover, the responses of the white jurors cited by Howard were sufficiently dissimilar to those provided by the black jurors to show that the prosecutor did not intentionally discriminate in the selection of the jury. Although white jurors Richard Ashmore, Sharon Lunny, and Floyd Rohm were ambivalent about the death penalty, Wood’s and Copeland’s anti-death penalty sentiments were much stronger. As a result, mindful of the deference we must give the trial court, we affirm its finding that the prosecutor’s reasons for striking Wood and Copeland were not pretextual.

Howard also challenges the striking of Antonio Golden and Amanda Fuller, arguing that the combination of factors relied upon by the prosecutor to strike them was not supported by the record. The prosecutor explained that he struck Golden because she had an “erratic” work history, her husband was “unemployed,” and he was attempting to reach the next juror whom he believed was a stronger advocate of the death penalty.

The prosecutor stated that he challenged Fuller due to her “unstable work history,” her young age, and her inability to “commit generally for or generally against the death penalty.” Employment status is a legitimate race-neutral factor that may be relied upon by a prosecutor for challenging a potential juror. See United States v. Day, 949 F.2d 973, 979 (8th Cir.1991). Likewise, age is an acceptable race-neutral factor. See United States v. Jackson, 983 F.2d 757, 762 (7th Cir.1993).

Again, we cannot say that the trial court erred in concluding that Howard failed to prove that the given reasons for striking these jurors were pretextual. Finally, Howard argues that the prosecutor’s comprehensive questioning of Gladys McElrath and his mischaracterization of Jeffrey Dunbar’s testimony demonstrate his discriminatory intent. We disagree.

McEl-rath’s statements that she did not believe in capital punishment and “would go for life” legitimately prompted extensive questioning by the prosecutor, and the prosecutor’s observation that Dunbar had twice stated he could not vote for the death penalty was accurate. Moreover, Dunbar’s unique status as a recent high school graduate was a race-neutral reason for striking him. See Jackson, 983 F.2d at 762 (holding that age is an acceptable race-neutral reason for striking a prospective juror).

In sum, we hold that the trial court did not err in concluding that the prosecutor’s striking of the challenged black venirepersons was not racially motivated. B. Next, Howard challenges the admission of his two confessions, which were admitted in redacted form in accordance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). First, he contends that the confessions should have been suppressed because they were the tainted fruits of a custodial interrogation initiated by his probation officer in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Second, Howard argues that if the confessions were legally obtained, the failure to admit each confession in its entirety was erroneous because the exclusions distorted the meaning of the confessions, created a materially false impression of Howard’s relative culpability, and excluded substantially exculpatory evidence. Third, he claims that the unredacted version of his confessions contained statements admissible as mitigating evidence in the penalty phase of the trial under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 1. Howard argues that his confessions to.

FBI Agent Battle and Greenville County Lieutenant Hitchins should have been suppressed because they were the “tainted fruits” of a custodial interrogation initiated by his federal probation officer, Haywood Polk, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Whether Howard’s confessions are “tainted fruits” is a question of law reviewed de novo. See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir.1997). After a thorough review of the record, we conclude that the confessions were properly admitted. a.

On September 12, 1985, two weeks after Le’s disappearance, police in Asheville, North Carolina, arrested Howard on robbery charges. On September 18, Attorney Gary Cash was appointed to rep resent Howard on the North Carolina robbery charges. On October 2, Asheville Detective Lee Warren and two South Carolina detectives met with Howard and Cash to discuss a series of South Carolina robberies under investigation. Howard, following Cash’s advice, declined to make any statement. Cash then attempted to negotiate an immunity agreement with South Carolina authorities in exchange for a statement from Howard.

An agreement could not be reached, however, and Cash notified the North Carolina and South Carolina authorities that Howard would not make any statements. On October 3,1995, Howard met with Polk in Asheville, where Howard remained in custody. At that time, Howard confessed to numerous armed robberies and to two South Carolina murders, including the murder of Le. Hoping to obtain lesser sentences for his crimes, Howard asked Polk to arrange for him to speak to an FBI agent about the crimes. Polk contacted Agent Battle, who met with Howard on October 7 and October 8.

Howard signed standard Miranda waiver of rights forms on both October 7 and October 8 prior to speaking with Agent Battle. In addition, on October 7, Howard signed an addendum to the waiver of rights form specifically acknowledging his desire to speak with the FBI without the benefit of counsel. Having waived his right to counsel, on October 8 Howard confessed in great detail to the Le murder and approximately seventy other armed robberies. Agent Battle immediately notified Lieutenant Hitchins of Howard’s involvement in Le’s murder. Lieutenant Hitchins met with Howard on October 16.

Lieutenant Hitchins advised Howard of his Miranda rights and requested that he sign a waiver of rights form. Howard stated that “he preferred not to” sign the form, and gave an oral statement to Lieutenant Hitchins confessing to the Le murder.. During their meetings with Howard, both Agent Battle and Lieutenant Hitch-ins took notes that were later transcribed for their respective reports. After reviewing these reports, the trial court ordered both witnesses to refrain from discussing Weldon’s

part in Le’s murder, except as it was corroborated in Weldon’s own confession. b. The trial court conducted a hearing pursuant, to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), prior to the admission of the statements during both the guilt and penalty phases of Howard’s trial. After considering the testimony of Howard, Agent Battle, and Lieutenant Hitch-ins, the trial court denied Howard’s motion to suppress the confessions.

The trial court found that the State has proven beyond a reasonable doubt and met its burden that the Defendant was first advised of his constitutional rights, his Miranda rights, that he fully understood the warnings and knowingly elected to waive his rights, that he did indeed make a statement, and that the statement was freely and voluntarily made under the totality of the circumstances, and also that all constitutional Miranda rights were accorded him and complied with. (J.A. at 551-52.) The South Carolina Supreme Court affirmed.

During his state PCR hearing, Howard again argued that his confessions should have been suppressed because they were not voluntarily given and that they were the “tainted fruits” of a custodial interrogation by Polk made in violation of Miranda The state PCR court rejected Howard’s argument, finding that Howard’s “statements were freely and voluntarily given and that none were taken in violation of [his] Miranda and Edwards rights.” (J.A. at 839.) None of the state courts reviewing Howard’s appeal have specifically found whether Polk or Howard initiated their meeting, or whether their meeting constituted a custodial interrogation.

The federal magistrate judge dismissed Howard’s allegation that Polk was acting on behalf of the FBI when he interviewed Howard and that the interview constituted a custodial interrogation. The magistrate judge noted that Howard’s allegations flatly contradicted his earlier position in state court that his counsel was ineffective for not calling Polk, Howard’s friend as well as his probation officer, as a favorable witness for Howard during the trial.

The district court similarly concluded that because “[n]othing in the record demonstrates that Polk was acting outside his role as probation officer in approaching petitioner,” there was no “custodial interrogation” and therefore, no Edwards violation. We review the district court’s legal conclusions de novo. See Savino v. Murray, 82 F.3d 593, 598 (4th Cir.1996). c. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court outlined “concrete constitutional guidelines for law enforcement agencies and courts to follow.” Id. at 442, 86 S.Ct. at 1611.

For example, “Miranda ... declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation,” Edwards, 451 U.S. at 482, 101 S.Ct. at 1883, and that if the accused asserts his right to counsel, “ ‘the interrogation must cease until an attorney is present,’ ” id. at 485, 101 S.Ct. at 1885 (quoting Miranda, 384 U.S. at 474, 86 S.Ct. at 1627).

The Edwards rule, as enunciated by the Supreme Court, provides that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights_[Rather,] an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Id. at 484-85, 101 S.Ct. at 1884-85; see also Minnick v. Mississippi 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990) (stating “that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney”); Savino, 82 F.3d at 599-600 (holding that “any confession obtained by interrogation reinitiated by police in the absence of counsel is inadmissible” unless “the defendant reinitiates discussion with police and then confesses”).

Polk, to whom Howard initially confessed, did not testify at Howard’s trial. The only confessions which Howard seeks to exclude are those made to Agent Battle and Lieutenant Hitchins. Every reviewing court has found that Howard initiated contact with Agent Battle through his probation officer Polk, and that he voluntarily made self-incriminating statements to both Agent Battle and Lieutenant Hitchins. See Howard v. State, No. 90-CP-23-3829 (S.C.1991) (state post-conviction relief court finding that Howard “requested to talk to the F.B.I. about certain crimes”); Howard v. Evatt, C.A.

No. 3:93-2361 (D.S.C.1993) (district court finding that Howard “told Polk that he wanted to talk with the FBI” and that Howard’s subsequent “October 7 and 8 statements were made voluntarily after initiation of communication by petitioner”).

Even more telling, Howard concedes that “[t]here is ample support in the record for the factual finding that” he “initiated contact with [the] FBI.” (Petitioner’s Reply Br. at 1.) In fact, he “does not contest that finding” on appeal. (Id.) Based upon the aforementioned findings and Howard’s concession, it is not surprising that Howard does not contend that his confessions to Agent Battle and Lieutenant Hitchins were made in violation of Edwards.

Rather, Howard’s sole argument regarding the admissibility of the confessions to Agent Battle and Lieutenant Hitchins is that Polk’s meeting with Howard, in which Howard initially confessed constituted a “police-initiated custodial interrogation” in violation of Edwards, ie., a poisonous tree, and that the resulting confessions to Agent Battle and Lieutenant Hitchins were inadmissible “tainted fruit.” Assuming, without deciding, that Polk’s actions were on behalf of law enforcement and that his questioning of Howard while he was in custody constituted a “custodial interrogation” under Miranda, we nevertheless reject Howard’s claim.

Howard invoked his Fifth Amendment right tó counsel prior to his. interview with Polk, thereby triggering the protections of Edwards. See Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (holding that an accused who has invoked the right to counsel is not subject to further interrogation “unless the accused himself initiates further communication, exchanges, or conversations with the police”). Howard claims that Polk initiated the contact, approaching Howard in the hopes of extracting a confession from him.

The State contends, however, that it was Howard who initiated contact with Polk, thereby waiving his right to counsel, when he asked Detective Warren of the Asheville Police Department to call Polk. During the suppression hearing at trial, Howard never refuted the State’s contention that he asked Detective Warren to allow him to speak with Polk. Howard testified that “it was either a week and a half or maybe two weeks before I talked to my parole officer, [Haywood Polk], He was called up by [Detective] Lee Warren, I think.

I’m not sure about that_ And [Detective Warren] called Heywood [sic] up or I think that was what happened, and Heywood[sie] came up, and I talked to him.” (App. at 1091.) Howard also testified that he and Polk enjoyed “a real close relationship” in which he “considered [Polk] not as a parole officer, but as my friend, and a person who I could talk to at different times about things.” (App. at 1088.) Howard also consistently testified that at the October 3, 1985, meeting with Polk in which he agreed to speak with the FBI, “I just told him.

I think I opened up to him about everything, and I tried to be as honest as possible_” (App. at 1092.) During Howard’s state PCR hearing, Polk testified that he was contacted by Detective Warren “on instructions from Ronnie Howard.” (J.A. at 758.) The State also points to the testimony of FBI Agent Drucilla Kurrle, who was present with Agent Battle when Howard was questioned. At trial, Agent Kurrle stated that the interviews with Howard began after “he contacted Mr.

Polk and ... requested to speak to an FBI agent.” (App. at 1361.) In fact, at Howard’s state PCR hearing, Howard’s attorney attempted to use the fact that Howard contacted Polk to show that Howard wanted to cooperate with law enforcement.

We conclude, however, that it is immaterial whether Polk’s interrogation of Howard constituted an Edwards violation (because either Howard initiated contact with Polk and then inyoked his right to counsel, triggering his rights under Edwards anew, or Polk initiated contact with Howard after he invoked his right to counsel) because Howard’s subsequent confessions to Agent Battle and Lieutenant Hitchins are not inadmissible “tainted fruits.” The “tainted fruits” doctrine is simply inapplicable absent a constitutional violation. See Oregon v.

Elstad, 470 U.S. 298, 308, 105 S.Ct. 1285, 1292-93, 84 L.Ed.2d 222 (1985) (concluding that the “fruit of .the poisonous tree” doctrine did not apply to a suspect’s second statement, made while in custody as a result of unwarned first statement obtained in violation of Miranda, because there was no actual infringement of the suspect’s constitutional rights); Michigan v.

Tucker, 417 U.S. 433, 445-46 & n. 19, 94 S.Ct. 2357, 2364-65 & n. 19, 41 L.Ed.2d 182 (1974) (refusing to apply “tainted fruits” doctrine to the testimony of a witness whose identity was discovered as a' result of a statement obtained in violation of Miranda); United States v. Elie, 111 F.3d 1135, 1141 (4th Cir.1997) (rejecting “application of the ‘fruit of the poisonous tree’ doctrine to physical evidence discovered as the result of a statement obtained in violation of Miranda”); Correll v.

Thompson, 63 F.3d 1279, 1289-91 (4th Cir.1995) (refusing to apply “tainted fruits” doctrine to a third confession obtained as a result of'two earlier confessions obtained in violation of Edwards), cert. denied, — U.S. -, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996). An Edwards violation, like a Miranda violation, is- not itself a constitutional violation. In Arizona v.

Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the prophylactic protections that the Miranda warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product ,of the “ ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Id. at 681, 108 S.Ct. at 2097-98 (citations and quotations omitted); see also id. at 682, 108 S.Ct. at 2098 (“The Edwards rule ... serves the purpose of providing, ‘clear and unequivocal’ guidelines to the law enforcement profession.”); id. at 688, 108 S.Ct. at 2101-02 (Kennedy, J., dissenting) (noting that “the rule of Edwards is our rule, not a constitutional command”); Comil, 63 F.3d at 1290 (concluding that “[a] breach of the rule established in Edwards is [ ] a technical violation of Miranda, not a Fifth Amendment violation.”).

Accordingly, even if we were to accept Howard’s argument that his statement to Polk, including his request to speak to the FBI, was obtained in violation of Edwards, the “fruit of the poisonous tree” doctrine would not bar-admission of Howard’s confessions to Agent Battle and Lieutenant Hitch-ins.

Only if Howard could show that his statement to Polk was obtained in violation of his Fifth Amendment right against compulsory self-incrimination and that insufficient time had passed to dissipate the taint, might the “fruit of the poisonous tree” doctrine bar admission of Howard’s subsequent confessions to Agent Battle and Lieutenant Hitch-ins. Cf.

Correll, 63 F.3d at 1290 (holding that, under Elstad, the first question that must be answered when determining whether a subsequent confession is tainted by an earlier confession “is whether the initial confession[ was] obtained in violation of [the defendant’s] Fifth Amendment rights — i.e., whether [it was] involuntary — or whether the confession[ was] voluntary but obtained in technical violation of Miranda ”). The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself ... without due process of law.” U.S.’ Const. Amend. V.

Whether a statement is voluntary within the meaning of the Fifth Amendment is a mixed question of law and fact subject to de novo review. See Miller v. Fenton, 474 U.S. 104, 111-12, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985); Fields v. Murray, 49 F.3d 1024, 1030 (4th Cir.) (en banc), cert. denied, — U.S. -, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). The Supreme Court has held “that coercive police activity is a necessary predicate to the finding that a [statement] is not ‘voluntary’ within the meaning of the Due Process Clause.” Colorado v.

Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); see also Elie, 111 F.3d at 1143. Whether Howard’s statement to Polk was the result of coercive conduct or activity can be answered only by reviewing the-totality of the circumstances under which the statement was made. See United States v. Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, — U.S. -, 118 S.Ct. 192, — L.Ed.2d - (1997).

Howard admitted that Polk did not promise him anything and specifically denied that Polk “coerced” him in return for his cooperation. (App. at 1105.) In addition, Howard previously had numerous prior encounters with federal, state, and local law enforcement authorities. See United States v. Watson, 423 U.S. 411, 424-25 & n. 14, 96 S.Ct. 820, 828 & n. 14, 46 L.Ed.2d 598 (1976) (noting that the absence of any indication that the defendant was a “newcomer to the law” is an important factor in determining whether consent was voluntary). He was a high school graduate and had served in the military.

Based on the totality of the circumstances, we conclude that Howard’s statements to Polk were not “involuntary” within the meaning of the Fifth Amendment, and therefore, the “fruit of the poisonous tree” doctrine is inapplicable to Howard’s subsequent confessions to Agent Battle and Lieutenant Hitchins. See Correll, 63 F.3d at 1291 (concluding that a third confession “could not have been tainted” by initial confessions because although the initial confessions were obtained in violation of Edwards, they were not obtained in violation of the Fifth Amendment).

Accordingly, we affirm the trial court’s denial of Howard’s motion to suppress them. 2. Howard next contends that when the trial court decided to admit the confessions in the guilt phase of the trial, it violated his Fifth Amendment right not to testify and the rule of completeness by failing to admit the statements in their entirety.

Based on the same reasoning, he also challenges the trial court’s limitation on his cross-examinations of Agent Battle and Lieutenant Hitch-ins which prevented them from relating to the jury any information regarding the culpability of Weldon unless Weldon’s own confession corroborated it. We reject this argument because the trial court excluded only portions of Howard’s confession that inculpated Weldon and did not exculpate Howard.

Due to Bruton considerations, the- trial court directed Agent Battle and Lieutenant Hitehins to omit from their testimony any part of Howard’s confessions that inculpated Weldon, his codefendant. See Bruton v. United States, 391 U.S. 123, 133-34 & n. 10, 88 S.Ct. 1620, 1626-27 & n. 10, 20 L.Ed.2d 476 (1968) (holding that the introduction of a jointly tried, non-testifying codefendant’s statement violates the Sixth Amendment Confrontation Clause if the statement contains incriminating evidence concerning a defendant).

Howard’s complete confessions, with their incriminating references to Weldon, could have been used only if he and Weldon had been tried separately or if Howard had been subject to cross-examination by Weldon.

The Supreme Court has clearly stated that separate trials are not required under these circumstances: ■ It would impair both the efficiency and the fairness of the criminal justice system to require, in all these eases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution’s case beforehand....

Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708-09, 95 L.Ed.2d 176 (1987). The Court also has rejected the alternative of foregoing the use of a codefendant’s confession because “[tjhat price also is too high, since confessions ‘are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’ ” Id. at 210, 107 S.Ct. at 1709 (quoting Moran v.

Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986)). Therefore, when analyzing its alternatives, the trial court is called upon to balance the rights of the defendant, the rights of the codefendant, society’s interest in convicting only the guilty, and the efficient administration of justice. After comparing the original statements with the redactions, we agree with the district court that the Excluded statements were not exculpatory and that their exclusion did not materially alter the meaning of the confessions.

Thus, we find no constitutional error and affirm. , Agent Battle took handwritten notes of Howard’s October 8, 1985, confession. He later memorialized these notes in a typed report as' follows: HOWARD noticed that there was “a lot of plastic in the ear, like a seat cover or whatever.” HOWARD “had the bright idea of using that to put her out — not kill her, just put her out.” HOWARD placed the plastic over the female’s head. RICK [Weldon] hit her several times in the stomach. When HOWARD “took the bag off, she was still, like maybe she was ‘playing possum’.” HOWARD thought that he felt a pulse.

RICK then “reapplied pressure.” HOWARD “thought she was knocked out” but added, “I don’t think I really cared, to be honest.” He did not realize that she was .dead until he was driving around looking for a place to leave her. At that time he touched her body, which felt cold, and realized that she was dead.

HOWARD insisted “I’m being honest — I don’t know if he killed her or I killed her.” (J.A. at 559.) Over Howard’s objection, the trial court instructed Agent Battle not to testify as to the portions of the confession inculpating Weldon, unless the inculpatory statement had been corroborated by Weldon’s own statement. Agent Battle then testified: Q. What did Mr. Howard do next? A. Well, he said he noticed that there was a lot of plastic in the car, like seatcov-ers or something like that, and that he had the idea of using those plastic— that plastic material to — to put her out.

He said not to kill her, just to put her out. Q. What did Mr. Howard do at that point? A. Well, he placed the plastic over the woman’s head. Q. According to Howard what did Rick do at that time? A. He told me that Rick hit the woman in the stomach several times. Q. Did Mr. Howard eventually take the plastic off the victim’s head? A. Yes. He said he took the bag off her head or the plastic off her head and that the woman was still. He thought then that she was, and he used the words, I have them in quote [sic], “playing possum.” He thought at that time that he had felt a pulse, that she was still alive.

He said he thought that she was knocked out, but he said, “I don’t think I really cared to be honest.” (J.A. at 626-27.) This modified version omits Howard’s statement that Weldon “reapplied pressure.” Lieutenant Hitchins also drafted a typed report of Howard’s October 16, 1985, confession, based on his handwritten notes taken during the interview. His report stated: [Howard] grabbed the girl and pushed her into her car and got in behind the wheel, and Rickey was driving their ear.

He stated that he drove to a place that had no houses around, and parked on the side of the road where he put a plastic bag over her head, and was going to make her pass out. He stated that he was holding the bag until she quit fighting and was going to turn [her] loose but Rickey grabbed the bag and held it. He stated that he got in the back seat and he grabbed and pulled her over the seat into the back while Rickey was helping him get her over the seat.

They started to drive and that is when he noticed she was not breathing, and they stopped. (J.A. at 553.) At trial, however, Lieutenant Hitchins, following the trial court’s redaction instructions, testified as follows: Q. What did they do when they got to the area where there were no houses around? Did they stop or keep going or— A. They stopped the vehicles, and at that point in time Mr. Howard placed the plastic bag over the victim’s head. Q. Did he ever release the plastic bag from over the victim’s head? A. Yes, sir.

He said that he held the bag over her head until she quit fighting, and then he released the bag. Q. What did they do or what did Mr. Howard say he did with the victim after he — after she quit fighting and he took the plastic bag off her head? A. Said that he got into the back seat of the victim’s vehicle, started pulling the victim into the back seat, and at that time Mr.

Weldon helped him put the victim in the back seat of her vehicle. (J.A. at 573.) The redaction excludes Howard’s statement that he “was going to turn [the bag] loose but Rickey grabbed the bag and held it.” Howard argues that the unredacted portions of both statements show that Howard lacked the intent to kill because he released the plastic when he thought that Le was still alive. Moreover, Howard claims that the jury could have concluded from his original statements that Weldon, not Howard, actually killed Le.

Even accepting Howard’s argument that the jury could have concluded from his complete confessions that Howard did not intend to, and in fact did not, kill Le, this assertion would not in -any way diminish Howard’s culpability for Le’s murder. As the trial court charged the jury under South Carolina law: When one does

an act in the presence of and with the assistance of another, the act is considered to have been done by both, and where two or more acting with a common design or intent are present at the commission of the crime, it matters not by whose immediate agency the crime is committed, all are guilty. The hand of one is the. hand of all. (J.A. at 656.) In other words, the State had to prove only that Howard and Weldon, working together and with malice aforethought, were jointly responsible for Le’s death.

See S.C.Code Ann. § 16-3-10 (Law Co-op.1985) (defining murder as “the killing of any person with malice aforethought, either express or implied”). Therefore, because South Carolina does not require that a defendant have specific intent to commit murder, nothing in Howard’s original confessions was exculpatory for Fifth Amendment purposes and in no way diminished Howard’s legal blameworthiness for the murder. See State v. Foust, 479 S.E.2d 50, 51 (S.C.1996) (holding that wrongful intent to injure another may give rise to finding of malice to support verdict of murder) (citing State v.

Johnson, 291 S.C. 127, 352 S.E.2d 480, 481 (1987)). Nor did the redaction distort the meaning of the confessions. Accordingly, we affirm the admission of the testimony concerning Howard’s confessions during the guilt phase of the trial. 3. Although we have determined that the redactions did not violate Howard’s Fifth Amendment right not to testify, a different issue arises when we consider whether the exclusion of the redacted statements during the sentencing phase violated Howard’s Eighth Amendment rights.

A defendant may present all relevant mitigating circumstances to the sentencer for its consideration of whether to impose the death penalty. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the Supreme Court held that the Eighth and Fourteenth Amendments require admission of relevant mitigating evidence in the penalty phase of a defendant’s capital trial. Skipper, 476 U.S. at 4, 106 S.Ct. at 1670-71.

The Court stated that “in capital cases the ‘ “sentencer ... [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” ’ ” Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at 2964)).

In other words, “the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Id. (quoting Eddings, 455 U.S. at 114, 102 S.Ct. at 877); see also Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 (1987) (a jury in a capital case must consider not only statutory mitigating evidence, but also nonstatutory factors as well).

Howard argues that the omitted portions of his confessions implicate Weldon as Le’s actual murderer, and therefore, although these omitted portions may not be exculpatory under South Carolina law, they nonetheless constitute mitigating evidence that Howard should have been allowed to present to the jury during his cross-examination of Agent Battle and Lieutenant Hitchins in the penalty phase of his trial. Whether the trial court’s rulings limited the jury’s consideration of mitigating evidence is a mixed question of law and fact. See Kennedy v.

Herring, 54 F.3d 678, 682 (11th Cir.1995) (whether a trial court’s instructions to the jury improperly limited its consideration of mitigating evidence is a mixed question of law and fact). As such, we defer to the state court’s findings of fact, but review its legal conclusions de novo. After reviewing the record, we find ourselves in complete agreement with both the South Carolina Supreme Court and the district court. Both courts rejected Howard’s claim, finding that nothing in his confessions could be construed as mitigating. See State v.

Howard, 295 S.C. 462, 369 S.E.2d 132, 138 (1988) (finding that “Howard’s unredacted confession contained no mitigating evidence,” and therefore, that there was “no prejudice from its exclusion at the penalty phase of the trial”); (J.A. at 299 (district court opinion) (concluding that “there is nothing truly exculpatory or mitigating about the unredacted statement[s]”).) Therefore, we conclude that Howard’s Eighth Amendment rights were not violated.

In his confession to Agent Battle, Howard stated that he placed the plastic over Le’s head and held her until “she was still.” He thought Le was just “playing possum” and claimed that he “felt a pulse.” He said that after “Rick [Weldon] then reapplied pressure,” he continued to think that “she was knocked out.” (J.A. at 559.) Only later, when Howard and Weldon were looking for a place to leave Le’s body, did Howard realize that Le was dead.

Howard then conceded “I’m being honest — I don’t know if he killed her or I killed her.” (J.A. at 599.) When considered as a whole, Howard’s unredacted confession in no way suggests that he believed Weldon killed Le. Rather, he admitted that even after Weldon’s assault, Howard thought that Le was still alive. Moreover, although Howard said that he thought, she was only unconscious when he released his grip and Weldon grabbed her, he plainly conceded that he did not know whether he or Weldon actually killed Le.

Similarly, in the unredaeted version of Howard’s confession to Lieutenant Hitehins, Howard stated that “he put a plastic bag over [Le’s] head, and was going to make her pass out.” Again, he claimed that he held “the bag until she quit fighting and was going to turn loose but Rickey [Weldon] grabbed the bag and held it.” (J.A. at 553.) Howard did not tell either Agent Battle or Lieutenant Hitehins that Weldon actually killed Le.

Rather, he simply stated that it was not until they drove away, after both men had assaulted her, that he realized she was not breathing. (J.A. at 553.) Howard extracts two single phrases from the nine typed pages of notes transcribed by Agent Battle and Lieutenant Hitehins and construes them as a statement that Weldon, not Howard, actually killed Le. To accept this characterization of the record requires a tortured and speculative

interpretation of two phrases lifted out of Howard’s confessions and complete disregard of the remainder of the statements and the context of the phrases within them. In determining whether the extracted phrases constitute “relevant mitigating evidence,” we cannot ignore the rest of Howard’s account. When both statements are reviewed in context, the alleged assertion of innocence is completely negated by Howard’s admission that he did not know whether he or Weldon killed Le and that he thought she was “just knocked out,” even after Weldon assaulted her.

Moreover, Howard admitted to Agent Battle that he drove the car that “bumped” Le; that he brandished the .357 magnum handgun and forced Le back into her automobile; that he had the “bright idea” to cover Le’s face with plastic to “put her out”; that he put the plastic over Le’s face; that he stated, “Maybe it was because of the black beauties, but her death didn’t really bother me at all”; that he and Weldon removed all of Le’s clothes, washed her body with soda to remove any fingerprints, and left her body in a deserted area among kudzu vines after again washing it in a mud puddle; and that he returned to Charlotte to dispose of Le’s personal effects. (J.A. 558-61.) In sum, we agree with the South Carolina Supreme Court that Howard’s confession; rather than providing any mitigating evidence, clearly demonstrates that Howard “actually was the leader and decision-maker.” Howard, 369 S.E.2d at 138.

We are firmly convinced that no reasonable juror could have found that the unredacted' portions of Howard's confession were evidence that Weldon, rather than Howard, actually killed Le. Nothing in the redactions altered Howard’s personal culpability for.Le’s death. Moreover, nothing in the redactions could be construed as mitigating evidence in Howard’s favor.

And finally, in response to Howard’s argument that it was important for the jury to know who actually killed Le, a reading of Howard’s unredacted confession readily reveals Howard’s own uncertainty as to whether he or Weldon committed the final act of murder. (J.A. at 559 (“Howard insisted ‘I’m being honest — I don’t know if [Weldon] killed her or I killed her.’ ”).) There is simply no evidence upon which a reasonable juror could conclude who killed Le.

Moreover, contrary to the dissent’s assertion that “anything that makes Weldon look worse necessarily helps Howard,” see post at 429, Weldon’s intent to kill Le is not mitigating evidence in favor of Howard. Weldon’s state of mind is not relevant to the jury’s determination of the proper punishment for Howard because the Eighth Amendment requires an individualized determination of sentencing in death penalty cases. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978).

In conclusion, we agree with the South Carolina Supreme Court’s finding that his “unredacted confession contained no mitigating evidence,” and therefore, there was “no prejudice from its exclusion at the penalty phase of the trial.” State v. Howard, 295 S.C. 462, 369 S.E.2d 132, 138 (1988). Based on the foregoing, we reject Howard’s Eighth Amendment claims. C. Howard also contends that the trial court erroneously failed to instruct the jury on the lesser included offense of manslaughter when it recharged the jury on the elements of murder.

The trial court originally charged the jury on both murder and manslaughter. During deliberations the jury requested “the

interpretation of the charge of murder you previously provided.” The trial court complied with the request and repeated only the murder instruction. Howard did not object. “Errors at trial not objected to, in contravention of State contemporaneous objection rules, are not cognizable in federal habeas corpus proceedings, absent a showing of cause for non-compliance and prejudice.” Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir.1978) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)).

We readily dismiss Howard’s claim, concluding that Howard was in no way prejudiced by the trial court’s refusal to recharge a manslaughter instruction that was not requested and previously had been charged. See Sturges v. Matthews, 53 F.3d 659, 661 (4th Cir.1995) (“A judgment will be reversed for error in jury instructions ‘only if the error is determined to have been prejudicial, based on a review of the record as a whole.’ ” (quoting Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir.1983))). D.

Next, Howard contends that he was denied effective assistance of counsel in violation of the Sixth Amendment because trial counsel failed to investigate and present mitigating evidence during sentencing eoncern-ing his adaptability to prison, his military record, and his school performance. A claim of ineffective assistance of counsel is a mixed question of law and fact which we' review de novo. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

To prove a constitutional claim for ineffective assistance of counsel, a defendant must show both that his counsel’s representation was deficient and that he was prejudiced by the deficiency. See id. at 687, 104 S.Ct. at 2064. As to prison adaptability, Howard’s counsel offered into evidence several witnesses who testified that Howard was capable of adapting to prison life.

Although counsel failed to submit evidence regarding Howard’s prior incarceration for armed robbery, he presented three North Carolina law enforcement witnesses describing Howard’s remorseful state after Le’s murder and his cooperation with the authorities surrounding the instant charges. We agree with the state PCR court that Howard’s past prison record presented a “double[-]edge[d] sword” in that any further evidence of Howard’s prior federal prison experience may have detrimentally highlighted his past criminal record.

Regarding counsel’s failure to present evidence regarding his military record and school performance, we agree with the other courts that have reviewed the record that Howard’s military and school history were, at best, “checkered,” and would have hurt him as much as helped him.Therefore, counsel’s decision not to introduce his military and school records into evidence was not deficient. See Bell v. Evatt, 72 F.3d 421, 429 (4th Cir.1995) (noting that counsel’s use of reasonable and acceptable trial tactics does not constitute ineffectiveness), cert. denied, — U.S. -, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996). E.

Howard claims that he was unduly prejudiced when the prosecutor, during closing arguments in the sentencing phase of Howard’s trial, violated his Fifth Amendment right against self-incrimination by improperly commenting on his failure to testify. The prosecutor made the following remarks: In order to rehabilitate it must come from the heart. It’s like an alcoholic. An alcoholic, you have to admit your problem before you can get treated. You’re half way there if you admit your problem. For you to be able to rehabilitate, you must start with remorse. Where is the remorse in this case?

There is no remorse in this case. There is no remorse in the actions of Dana Weldon and Ronnie Howard, because one week later, they’re out on another crime spree in Asheville, North Carolina. Where is the remorse? There is no remorse in Ronnie Howard. He told these witnesses, “I don’t think I really cared.” He told Mr. Lee Warren, the detective from Asheville, “Well, the first one bothered me some, but after that I really didn’t care.” WThere is the remorse? There is none. ■ (App. at 1612-13.) Although the Fifth Amendment forbids comment by the prosecution on a defendant’s failure to testify, see Griffin v.

California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), when a prosecutor’s comments are merely “a fair response to a claim made by defendant or his counsel,” there is no constitutional violation, see United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 869, 99 L.Ed.2d 23 (1988). We agree with the South Carolina. Supreme Court and the federal district court, which both rejected Howard’s claim, that this statement was neither a direct nor an indirect comment on his failure to testify.

Wfiien considered in context, these remarks are a simple repeat of the evidence demonstrating that Howard and Weldon had robbed another store a mere week after murdering Le, and Howard’s own statement that Le’s death “really didn’t bother him at all.” Moreover, these remarks were in direct response to defense counsel’s argument that Howard was remorseful for his actions. See id. Accordingly, we conclude that the comments did not violate Howard’s constitutional rights and affirm the district court’s denial of habeas relief on this ground. F.

Finally, Howard claims that his due process rights were violated when the prosecution allowed the jury to use as scrap paper the reverse side of outdated form letters, used by a previous prosecutor to thank former jurors for their service. Howard claims that this action was an impermissible ex parte communication between the prosecutor and the jury. This argument is meritless. In Remmer v.

United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (Remmer I), the Supreme Court held that any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.

The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Id. at 229, 74 S.Ct. at 451. In accordance with Remmer I, we have established a three-step process for analyzing allegations of ex parte juror contact. First, the party attacking the verdict must introduce competent evidence that there was an extrajudicial communication or contact, and that it was “ ‘more than innocuous interventions.’ ” United States v.

Cheek, 94 F.3d 136, 141 (4th Cir.1996) (quoting Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537 n. 9 (4th Cir.1986)). If this requirement is satisfied, the Remmer I presumption automatically arises. Then, the burden shifts to the prevailing party to demonstrate “that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” Id. (quoting Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988)).

Years prior to Howard’s trial, a former prosecutor printed numerous copies of a form letter, which he sent to former jurors thanking them for their service. Apparently in an effort to conserve resources, the county clerk bound the unused form letters and used them, reverse side up, for notepads. While the jury in Howard’s trial was deliberating, they made notes on the scrap paper that had been provided.

The state PCR court, after conducting a full evidentiary hearing, found that there was no evidence to suggest that any member of the prosecutor’s office attempted to contact any juror, directly or indirectly, or to influence them. Moreover, there was no evidence presented to show that the prosecutor, at any time prior to the state PCR hearing, had any knowledge that the reverse side of the form letters had been used as scrap paper. Accordingly, the state PCR court dismissed Howard’s claim, finding that no improper ex parte contact occurred.

The state PCR court’s factual findings are entitled to a presumption of correctness. See Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456-57, 78 L.Ed.2d 267 (1983) (per curiam) (a state court’s post-trial finding of the effect of ex parte communication on juror impartiality is a “fact” deserving “a high measure of deference”); Johnson v. Maryland, 915 F.2d 892, 896 (4th Cir.1990) (same). The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption absent “convincing evidence” to the contrary.

See Rushen, 464 U.S. at 120, 104 S.Ct. at 456. Here, the state court necessarily concluded that the jury’s deliberations were not biased. Howard has failed to present evidence that the jurors even read the form letters, and thus he fails to meet the first prong of the Remmer I test. Even assuming that the jurors were aware of the form letters, we conclude that any error was harmless as. the form letters were nothing “more than innocuous interventions,” Cheek, 94 F.3d at 141, that had no “ ‘substantial and injurious effect or influence in determining the jury’s verdict,’ ” Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). III. In conclusion, finding no constitutional errors, we refuse to disturb- the conviction and sentence rendered against Howard by South Carolina’s state court system. Accordingly, we affirm the district court’s denial of habeas relief to Howard. AFFIRMED. .

Although the State contends that it became eligible for the procedures outlined in § 107 of the AEDPA as of June 18, 1996, with the enactment of the Effective Death Penalty Act of 1996, 1996 S.C. Acts 448, we need not decide whether those procedures satisfy the statutory opt-in requirements of § 107 because, whatever the merits of South Carolina’s appointment system, § 107 is inapplicable to this appeal since Howard's state habeas petition was finally denied by the South Carolina Supreme Court before June 18, 1996. See Bennett v.

Angelone, 92 F.3d 1336, 1342 (4th Cir.) (concluding that Virginia was ineligible for the benefits of § 107 of the AEDPA, regardless of the merits of Virginia's current appointment of counsel procedures, because petitioner’s Virginia habeas petition had been finally denied by the Virginia Supreme Court prior to the passage of Virginia's appointment of counsel procedures), cert. denied, - U.S. -, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996). . In addition to the murder of Le, Howard confessed to Polk and later to Agent Battle that he had murdered Mary Duncan in Oconee Counly, South Carolina.

During the Duncan trial, Howard's confession to Agent Battle was admitted into evidence over Howard’s objections. On direct appeal, Howard challenged the admissibility of the confession to Agent Battle on numerous grounds, including an argument that the confession was the "tainted fruit” of a custodial interrogation conducted by Poik in violation of Miranda. The South Carolina Supreme Court affirmed Howard's conviction and life sentence, concluding that Polk's questioning of Howard did not constitute a "custodial interrogation” triggering the safeguards of Miranda. See State v.

Howard, 296 S.C. 481, 374 S.E.2d 284, 287-88 (1988). This issue was not raised by Howard in the. direct appeal of the murder of Le. . Kudzu. is a.-green leafy vine of Japanese origin found in the .southeastern, part of the United States. It. is used primarily for forage and erosion control. , In August, kudzu provides a thick vegetative cover over many fields and wooded areas in South Carolina. . On direct appeal, Howard challenged his conviction, claiming that the trial court erroneously (1) refused to quash the jury panel pursuant to Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) refused to sever his trial from that of his codefendant Weldon; (3) admitted Weldon’s confession in violation of Howard's right to confrontation; (4) submitted the case to the jury when the State failed to present any proof of the corpus deliciti aside from his confession; (5) admitted his confession when it was obtained in violation of his right to counsel under both the Fifth and Sixth Amendments; and (6) refused to provide Howard with two attorneys in compliance with S.C.Code Ann. § 16 — 3—26(b) (Supp.1986).

Howard alleged that in the penalty phase the trial court erroneously (1) refused to admit Howard’s federal parole records as mitigating evidence; (2) admitted portions of Howard's statements in which he confessed to approximately 70 armed robberies and another murder; (3) admitted affidavits regarding Howard's participation in additional armed robberies; (4) refused to declare a mistrial following the prosecutor's comments concerning Howard’s failure to testify; (5) admitted evidence regarding the victim's background; (6) conducted the trial past midnight; and (7) failed to admit Howard's complete confessions into evidence in mitigation of punishment. .

On direct appeal, the South Carolina Supreme Court concluded that Weldon was unduly prejudiced during the penalty phase of the trial by the exclusion of his complete confession. The trial court had redacted portions of Weldon's confession in compliance with Bruton v. United States, 391 U.S. 123, 133-34 & n. 10, 88 S.Ct. 1620, 1626-27 & n. 10, 20 L.Ed.2d 476 (1968) (the introduction of a jointly tried, non-testifying codefendant's statement violates the Sixth Amendment Confrontation Clause if the statement contains incriminating statements concerning a defendant).

The State Supreme Court held that the unredacted version of Weldon's confession supported his position that he acted under Howard’s domination, a statutory mitigating circumstance charged to the jury. Because the State Supreme Court determined that this information was erroneously excluded from the jury's consideration, it vacated Weldon’s death sentence and remanded for resentencing. The State Supreme Court rejected .Howard's argument that he was prejudiced by the exclusion of portions of his confessions, concluding that his unredacted confessions, unlike’ Weldon’s, contained no mitigating evidence. .

In the state PCR court, Howard argued that (1) he received ineffective assistance of counsel; (2) the trial court erroneously failed to admit Howard's complete confessions; (3) the- trial court erroneously failed to appoint experienced counsel; (4) the trial court erroneously admitted Howard’s unconstitutionally obtained confessions; (5) the trial court erroneously failed to provide a meaningful psychiatric evaluation; (6) the trial court erroneously denied Howard funds for a jury expert; (7) his trial counsel had a conflict of interest; (8) the trial court erroneously admitted Howard’s guilty plea to the unrelated robbery charge in North Carolina, because it was involuntary; (9) the prosecutor failed to disclose favorable mitigation evidence prior to trial in accordance with Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (10) the trial court erroneously excluded the testimony of his federal probation officer, Haywood Polk; (11) the trial court erroneously instructed the jury so as to allow a finding of guilt below the degree of proof required; (12) there was improper ex parte contact between the prosecutor's office and the jury; (13) the trial court arbitrarily excluded women with children from the venire; (14) the trial court erroneously instructed the jury regarding aggravating and mitigating circumstances and failed to reinstruct the elements of lesser included offenses; and (15) the trial court erroneously admitted evidence regarding the victim's background. .

To establish a prima facie violation of racial discrimination in the use of peremptory challenges, a defendant must demonstrate that (1) “he is a member of a cognizable racial group”; (2) “that the prosecutor has exercised peremptory challenges to remove the venire members of the defendant’s race”; and (3) “that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). .

"J.A.” indicates,a reference to the Joint Appendix. “App.” indicates a reference to the State Supreme Court Appendix. . Before Howard gave his oral statement to Agent Battle, he signed a paragraph, handwritten by Agent Battle, which stated: I, Ronnie Howard, have requested through my federal probation officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about my involvement in criminal activities. I do not want the lawyer present who is representing me on Asheville armed robbery charges and understand that the F.B.I. agents will ask me no questions about those charges. Signed Ronnie Howard. (App. at 867.) .

As previously discussed at n. 2, supra, in Howard's direct appeal of his conviction for the murder of Mary Duncan, Howard claimed that his waiver of his right to counsel during his meeting with Polk was ineffective because Polk violated his Fifth Amendment right against self-incrimination when he questioned Howard at the Buncombe County Jail on October 3, 1985. The South Carolina Supreme Court rejected Howard’s claim, concluding that Polk did not “interrogate” Howard during his visit to the jail.

While Howard steadfastly challenged the admissibility of the confessions to Agent Battle and Lieutenant Hitchins throughout his trial for the murder of Le and on direct appeal on various grounds, he did not argue that the confessions were “tainted fruit” directly resulting from Polk’s “custodial interrogation” until his state habeas proceeding. Therefore, Howard’s Edwards claim is arguably procedurally defaulted by virtue of his failure to raise it on direct appeal. The State, however, has waived the procedural default issue by failing to argue it before this Court. See United States ex rel. Bonner v.

DeRobertis, 798 F.2d 1062, 1066 (7th Cir.1986). . Although Howard argues that the district court implicitly found that Polk initiated the meeting with him, we conclude that neither the magistrate judge nor the district court made a specific finding on that issue. It appears that both assumed, without deciding, that Polk initiated the meeting, but then rejected Howard’s claim by finding that the meeting did not constitute a "police-initiated custodial interrogation.” .

The dissent inexplicably criticizes the majority for failing to focus upon whether Howard’s confessions to Agent Battle and Lieutenant Hitchins were made in violation of ’Edwards. See post at 425. The dissent, however, blatantly disregards the state court's finding that Howard initiated contact with the FBI. In fact, Howard concedes that the state court’s finding is supported by ample evidence. (Petitioner's Reply Br. at 1.) Howard’s concession is undoubtedly based in no small part upon a statement he signed prior to his confessions.

The statement provides that: I, Ronnie Howard, have requested through my federal probation officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about my involvement in criminal activities. I do not want the lawyer present who is representing me on Asheville armed robbery charges and understand that the F.B.I. Agents will ask me no questions about those charges. (App. at 867).

Because Howard admits that he initiated contact with the FBI, there was simply nothing upon which to "focus.” In addition, the dissent’s assertion that "Polk convinced Howard to talk to the FBI in an attempt to get a deal,” see post at 424, is simply unfounded. See Howard v.

State, No. 90-CP-23-3829 (S.C.1991) (state post-conviction relief court noting that Howard's trial counsel, upon investigation of the admissibility of the confessions, learned “that no promises either oral or written were made to [Howard], that [Howard] confessed to the authorities in the hope that he would get some type of concession or recommendation and in the hope that they would not seek the death penalty, and that for reasons only known to [Howard] he felt compelled to reveal information”).

A review of the record reveals, and Howard does not dispute, that he initiated contact with the FBI, thereby waiving his rights under Edwards. See Oregon v. Bradshaw, 462 U.S. 1039, 1047, 103 S.Ct. 2830, 2835-36, 77 L.Ed.2d 405 (1983) (concluding that "questions which evinced a willingness and a desire for a generalized discussion about[an] investigation” constitute initiation under the Edwards rule). . As we previously noted, once a defendant invokes his Fifth Amendment right to counsel, any subsequent police-initiated custodial interrogation would violate Edwards.

This circuit has not addressed whether custodial questioning by a probation officer constitutes a police-initiated interrogation under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court held that Polk’s questioning of Howard did not violate Edwards because Polk was acting simply in his capacity as a probation officer when he spoke with Howard and not as an agent of the FBI.

We need not decide whether Polk was acting as a law enforcement officer or whether he interrogated Howard because even if Howard’s statements to Polk were obtained in violation of Edwards, we conclude that the statements made to Agent Battle and Lieutenant Hitchins were admissible. ' Nevertheless, we address the dissent's apparent resolution of both of these issues. According to the dissent, whether an Edwards violation occurred turns upon who initiated the discussion between Polk and Howard.

The dissent, therefore, necessarily finds, without any analysis' or explanation, both that Polk was acting as an agent of the police and that the conversation between Polk and Howard constituted á "custodial interrogation” for Edwards purposes. Neither of these conclusions, however, is self-evident. ’ First, it is fa'r from clear that Polk/ a federal probation officer, was acting as an agent of the police when he met with Howard, his probationer. Unfortunately, the Supreme Court has not directly addressed this issue. In Minnesota v.

Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the Court rejected a probationer’s claim that incriminating statements he made to his probation officer during a routine interview should have been suppressed because the officer failed to advise him of his Miranda rights. The Court concluded that the interview did not constitute a custodial interrogation giving rise to the protections of Miranda because the interview was not inherently coercive. Id. at 430-33, 104 S.Ct. at 1143-45.

It is unclear from the Court's analysis, however, whether it considered the probation officer, whose admitted primary purpose for arranging the interview was to obtain incriminating statements from her probationer, to be acting as an agent of the police. The circuit courts, however, have uniformly held that probation officers fulfilling routine duties are not agents of the police, but agents of the court, and therefore their probationers may not invoke the protections of Miranda. See Williams v.

Chrans, 945 F.2d 926, 951 (7th Cir.1991) (concluding that a probation officer conducting a custodial postcbnviction presentence interview is acting as " 'a neutral information gatherer for the court rather than [as an agent of] the police or prosecution, the parties most likely to coerce the defendant into relinquishing his Fifth Amendment rights’ ’’) (quoting United States v. Cortes, 922 F.2d 123, 127 (2d Cir.1990)); United States v.

Rogers, 921 F.2d 975, 979 (10th Cir.1990) (concluding that ”[t]he purpose of the presen-tence report ... is neither prosecutorial nor punitive ... [as t]he probation officer acts as an agent of the court for the purpose of gathering and classifying information”); United States v. Jackson, 886 F.2d 838, 842 n. 4 (7th Cir.1989) ("[W]e do not believe that a federal probation officer acts on behalf of the prosecution.”) Investigating a probationer’s alleged noncompliance with the terms of his probation is certainly a regular duty of a probation officer.

Therefore, absent evidence that Polk stepped outside his neutral role as a federal probation officer, we question the dissent's assumption that Polk acted as an agent of the police. Second, even assuming that Polk was acting on behalf of the police when he met with Howard, an argument rejected by both the federal magistrate judge, (J.A. at 213), and the district court, (J.A. at 301-02), the1 dissent offers no factual suppor

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