Greenawalt v. Ricketts

• Decision Date: 22 August 1991
• Docket Number: 88-1910,Nos. 88-1828,s. 88-1828
• Citation: 943 F.2d 1020
• Parties: Randy GREENAWALT, Petitioner-Appellee, v. James R. RICKETTS, Director, Arizona DOC; Donald Wawrzaszek, Superintendent, ASP; Robert K. Corbin, Attorney General, State of Arizona, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1020

943 F.2d 1020

60 USLW 2207

Randy GREENAWALT, Petitioner-Appellee, v. James R. RICKETTS, Director, Arizona DOC; Donald Wawrzaszek, Superintendent, ASP; Robert K Corbin, Attorney General, State of Arizona, Respondents-Appellants.

Nos. 88-1828, 88-1910.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1991.

Decided Aug. 22, 1991.

Bruce M. Ferg, Asst. Atty. Gen., Tucson, Ariz., for respondents-appellants.

Cameron C. Artigue, Gammage & Burnham, Phoenix, Ariz., for petitioner-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, Chief Judge, and ALARCON and WIGGINS, Circuit Judges.

WALLACE, Chief Judge:

During a brief period of freedom following his escape from an Arizona state prison, Greenawalt kidnapped three people, murdered four, committed two armed robberies, and stole a motor vehicle. After confessing to some of these crimes, he was convicted and sentenced to death, and his conviction and sentence were affirmed on direct appeal, more than a decade ago. See State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc) (Greenawalt I), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); see also State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (en banc) (affirming conviction including assault and unlawful flight), cert. denied, 454 U.S. 848, 102 S.Ct. 167, 70 L.Ed.2d 136 (1981).

Greenawalt then petitioned for a writ of habeas corpus. The district court denied this petition, but Greenawalt appealed and we ordered a limited remand in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that once accused requests counsel, police-initiated interrogation must cease until counsel is made available). See Greenawalt v. Ricketts, 784 F.2d 1453, 1456 (9th Cir.) (Greenawalt III), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). The district court granted the petition on remand, and the state then appealed.

In their second appearance before this court, the parties initially confined their briefing to the Edwards issue. We ordered full briefing, however, since the issues not remanded remain before us from the first appeal. See id. We now consider the entire petition. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm in part and reverse in part.

I

Our prior opinion describes the facts in great detail. See Greenawalt III, 784 F.2d at 1454-56; see also Greenawalt I, 128 Ariz. at 154-55, 624 P.2d at 832-33. Our description here will be brief.

Greenawalt was already serving a life sentence for murder when he escaped from prison with Tison, a fellow prisoner, aided by Tison's three sons. The entire group left the prison after the Tison sons, while ostensibly visiting their father, carried an ice chest full of firearms into the prison visitation area. They remained at large for almost two weeks. They kidnapped and then killed John and Donnelda Lyons, and the couple's niece, Theresa Tyson. They also killed the Lyonses' two-year-old son, Christopher. Gun shells and fingerprints later linked the escapees and their companions to the murders of all four victims.

Greenawalt and two of Tison's sons were captured after a high speed chase during which Tison's third son was shot dead. Tison himself, who eluded capture, was subsequently found in the desert dead of exposure.

Upon taking Greenawalt into custody, the police gave him a pat-down search, handcuffed him, and placed him in the back of a pickup truck. They later strip-searched him and retained his clothing as evidence. The police initially left Greenawalt naked in the back of the truck, but after a short while he was given a blanket and put in a police sedan.

The police then explained the Miranda rights to Greenawalt and requested that he make a statement. Greenawalt refused and asked for counsel. The interrogation immediately ceased, but Greenawalt was later approached by other law enforcement and corrections officers. Greenawalt confessed to some of these officers but not others. Officers explained his Miranda rights, and he repeatedly invoked his right to counsel.

At some point Greenawalt was taken to jail, and after his arrival he spoke briefly with his counsel. Greenawalt was then returned to his cell and some time later, after another Miranda warning, Greenawalt again confessed.

The state trial judge excluded the earlier confessions but admitted the final one.

II

Greenawalt contended that his confessions were obtained in violation of his fifth amendment right to counsel, and that the admission of his final confession at trial required his petition be granted. The district court agreed, holding that Edwards requires the exclusion of any confession given in response to police interrogation outside the presence of counsel once counsel has been requested. The district court held that by admitting Greenawalt's final confession, the state trial court failed to comply with Edwards, since this confession was obtained outside the presence of counsel and after Greenawalt's request.

The district court's interpretation of Edwards has since been ratified by the Supreme Court in Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (Minnick). The facts in Minnick are strikingly similar to those of the present case. Minnick murdered two people following his escape from jail. He was eventually apprehended and then interrogated by federal law enforcement officials. Though the interrogation ceased when Minnick requested counsel, after Minnick conferred with counsel the interrogation resumed outside the presence of counsel. Minnick confessed. His confession was admitted at trial, and he was convicted. The Supreme Court reversed, holding that any confession given in response to police interrogation outside the presence of counsel, once counsel had been requested, may not be introduced at trial unless the defendant himself had reinitiated the communication. Id. 111 S.Ct. at 491-92.

The district court's holding comports with Minnick. If this were on direct review, we would affirm. But it is not, and the Supreme Court has limited the power of federal courts to impose new constitutional commands in collateral proceedings.

A.

In Teague v. Lane, a plurality of the Supreme Court stated that new rules generally would not be retroactively applied to cases on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1074-75, 103 L.Ed.2d 334 (1989) (Teague) (O'Connor, J., plurality opinion) (rejecting the retroactivity analysis of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). This position has since been affirmed by a majority of the Court, and expressly extended to capital, as well as noncapital cases. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1259-60, 108 L.Ed.2d 415 (1990) (Saffle); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1214, 108 L.Ed.2d 347 (1990) (Butler); Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (Penry). Teague also observed that new rules generally would not be announced in cases on collateral review. Teague, 489 U.S. at 316, 109 S.Ct. at 1078. This analysis, too, has been subsequently affirmed by a majority of the Court. Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44.

Recognizing that Minnick raises a retroactivity question, we ordered supplemental briefing. In its supplemental brief, the State contends that Minnick announced a new rule precluded from retroactive application to this collateral review. In response, Greenawalt contends that he does not seek the benefit of Minnick, but rather, as the district court held, merely the benefit of Edwards.

Greenawalt raises an interesting contention, but we do not accept it. The district court's Edwards analysis directly parallels the Supreme Court's ruling in Minnick. Therefore, if Minnick announced a new rule, the district court did so as well. See Harriman v. Lynn, 901 F.2d 64, 67-68 (5th Cir.1990) (rejecting similar argument when considering retroactivity of Arizona v. Roberson by stating that, "there would be little point in declaring that Roberson announced a new rule, if, on the same facts as those in Roberson, a court held that Edwards earlier compelled [relief].").

A new rule may not be announced on collateral review any more than it can be applied on it. Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44; Teague, 489 U.S. at 316, 109 S.Ct. at 1078. This principle applies equally to all levels of the federal judiciary; a new rule announced by a district court can have no greater retroactive effect than one announced directly by the Supreme Court. Whether we focus on Minnick or the district court's holding, the question remains the same: is this a new rule precluded from retroactive application on collateral review?

"In Teague, [the Supreme Court] defined a new rule as a rule that 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.' " Saffle, 110 S.Ct. at 1260, quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (emphasis in Teague). The breadth of this definition was demonstrated by Butler, where the Court found that the rule announced by Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (Roberson), was new for purposes of the retroactivity analysis.

In Roberson, the Court held that an Edwards request regarding any charge invokes the right to counsel with regard to all. Id. at 675-76, 108 S.Ct. at 2093-95. Emphasizing that Edwards had created a "bright-line rule," the Court in Roberson stated that prohibiting all police-initiated interrogation once the accused requests counsel "follows ... from Edwards and Miranda." Id. at 681, 684, 108 S.Ct. at 2097-98, 2099-2100. Based on this language, the petitioner in...