Grant-Chase v. Commissioner, New Hampshire Dept. of Corrections

• Decision Date: 06 April 1998
• Docket Number: GRANT-CHAS,P,No. 97-1520,97-1520
• Citation: 145 F.3d 431
• Parties: Cindyetitioner, v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 431

145 F.3d 431

Cindy GRANT-CHASE, Petitioner, v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Respondent.

No. 97-1520.

United States Court of Appeals First Circuit.

Heard April 6, 1998.

Decided June 5, 1998.

Albert E. Scherr for petitiioner.

John P. Kacavas, Assistant Attorney General for the State of New Hampshire, with whom Philip T. McLaughlin, Attorney General for the State of New Hampshire, was on brief, for respondent.

Leo T. Sorokin on brief for Federal Defender Office, amicus curiae.

David S. Kris on brief for United States Department of Justice, amicus curiae.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Petitioner Cindy Grant-Chase appeals the denial of her application for a writ of habeas corpus under 28 U.S.C. § 2254. Her appeal presents two questions. First, is 1st Cir. R. 22.1(c) (Interim Local Rule) inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R.App. P. 22(b) (as these provisions were amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")) insofar as it requires appellants seeking collateral relief under 28 U.S.C. §§ 2254 or 2255 who already have obtained a certificate of appealability ("COA") from a district judge as to one or more issues also to obtain a COA on those issues from the court of appeals? Second, if the merits of this case are properly before us, did the district court err in concluding that the challenged state ruling was neither contrary to, nor involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d)(1). We conclude that 1st Cir. R. 22.1(c) is inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R.App. P. 22(b) in requiring a second COA in the circumstances just described, but reject petitioner's appeal on the merits.

I.

We take the facts directly from State v. Grant-Chase, 140 N.H. 264, 665 A.2d 380 (1995), cert. denied, 517 U.S. 1140, 116 S.Ct. 1431, 134 L.Ed.2d 553 (1996).

On December 28, 1990, the [petitioner] and the victim, George Tegelaar, were in a physical struggle that resulted in the [petitioner] shooting and wounding the victim. Both the victim and the [petitioner] were transported to the hospital for treatment of their injuries. Because the [petitioner] was a suspect in the case, Officers Langley and Folini went to the hospital to question the [petitioner], hoping to elicit incriminating statements. The [petitioner] was under constant police watch and was not free to leave. Officer Langley was within three to five feet of her while she was in the emergency room. During that time the [petitioner] asked Officer Langley for her purse and if she could call her lawyer. Once the hospital staff had completed their testing, the [petitioner] telephoned her lawyer. During the five- to ten-minute telephone call Officer Langley remained present but could not overhear the substance of the conversation. After the [petitioner] ended her phone call, Officers Langley and Folini approached her to initiate questioning. Until this point the police had not subjected the [petitioner] to questioning or its functional equivalent. Officer Folini asked her if it was all right to ask some questions about the incident. The [petitioner] told him that she had talked to her attorney, who advised her to cooperate with the investigation. The officers explained to the [petitioner] her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which she explicitly waived by signing a waiver form, and elicited incriminating statements.

Id. at 265-66, 665 A.2d 380.

Prior to trial, petitioner moved to suppress the statements she had given to Officers Langley and Folini, arguing that the statements had been obtained in violation of, inter alia, her right to have counsel present during custodial interrogation. See Miranda, 384 U.S. at 469-73, 86 S.Ct. 1602. The state trial court rejected her argument, ruling that petitioner did not "adequately indicate[ ] to the officers that she sought the assistance of counsel." Grant-Chase, 140 N.H. at 267, 665 A.2d 380 (summarizing the trial court's ruling). Thereafter, a jury convicted petitioner of first degree assault.

Petitioner appealed her conviction to the New Hampshire Supreme Court, contending that statements elicited in violation of, inter alia, the rules of Miranda were used to convict her. On December 14, 1994, the New Hampshire Supreme Court affirmed petitioner's conviction. Petitioner moved for and was granted reconsideration of this decision. But on October 3, 1995, the court handed down a new opinion that again affirmed petitioner's conviction.

Disagreeing with the trial court, the New Hampshire Supreme Court first ruled that petitioner's request to call her lawyer was "an invocation of the right to counsel." Grant-Chase, 140 N.H. at 267, 665 A.2d 380. The court then opined that, "[h]ad the [petitioner] made her request for counsel after Miranda warnings had been given or after interrogation had begun, there would have been an irrebuttable presumption that the [petitioner] asked for the assistance of counsel for the purpose of having counsel present during any further questioning...." Id. (citing Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990)). But because the request preceded Miranda warnings and the inception of interrogation, the court declined to indulge such a presumption. Id. (citing Minnick, 498 U.S. at 153, 111 S.Ct. 486). Rather, the court scrutinized the nature of petitioner's actual invocation, and concluded that it was "ambiguous as to purpose." Id. at 268. A fair reading of the opinion reveals that the ambiguity detected was whether petitioner "wanted advice from counsel regarding how to handle the imminent questioning, or whether the [petitioner] wanted counsel present for interrogation...." ...." Id. at 267-68. The police officers therefore were within their rights to "clarify the ambiguity by asking the [petitioner] if ... she wishe[d] to go forward with interrogation." Id. at 268 (citing Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). And given petitioner's unambiguous affirmative response to this attempt at clarification, the court found petitioner's subsequent waiver of her Miranda rights to be effective. Id.

Subsequently, petitioner applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The application challenged as clearly unconstitutional the New Hampshire Supreme Court's unwillingness to extend to those in custody and facing imminent interrogation the "irrebuttable presumption" the court appears to have inferred from Minnick: that any "request for counsel" made during custodial interrogation (as opposed to just prior to interrogation) is for the purpose of invoking the right to counsel's presence during further questioning. See Grant-Chase, 140 N.H. at 267, 665 A.2d 380. The district court denied the petition, reasoning that (1) under 28 U.S.C. § 2254(d)(1), it was prohibited from granting the writ unless the challenged state ruling was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; and (2) the United States Supreme Court has never explicitly or implicitly endorsed application of such a presumption to situations preceding the commencement of custodial interrogation. The court did, however, issue petitioner a COA as to this issue pursuant to 28 U.S.C. § 2253(c).

In accordance with 1st Cir. R. 22.1(c), ¹ an interim rule adopted in 1996 in the wake of the AEDPA's amendments to 28 U.S.C. § 2253(c) and Fed. R.App. P. 22(b), petitioner then asked this court to grant her a second COA with respect to the Miranda issue. Noting that other circuits have determined that litigants who have obtained a COA on one or more issues from a district judge may proceed with their appeals of those issues forthwith, we decided to reexamine 1st Cir. R. 22.1(c) and requested that petitioner and respondent file supplemental briefs discussing "whether a petitioner who obtains a[COA] from a district court judge must also obtain one from the court of appeals before the appeal may proceed." We also invited the Federal Defender and the United States Attorney to file amicus briefs on this issue. In their helpful supplemental and amicus briefs, petitioner, respondent, the Federal Defender, and the United States Attorney all took the view that 1st Cir. R. 22.1(c) is inconsistent with the 1996 amendments to 28 U.S.C. § 2253(c)(1) and Fed. R.App. P. 22(b) ² insofar as the Rule requires litigants in possession of a COA from a district judge to apply for a second certificate from this court. As a result, petitioner, respondent, and amici join in urging us to revise 1st Cir. R. 22.1(c) to dispense with this requirement.

II.

A. 1st Cir. R. 22.1(c)

Upon due consideration of the arguments set forth in the supplemental and amicus briefs, we agree that 1st Cir. R. 22.1(c) should be revised to eliminate the requirement that litigants in possession of a COA from a district judge as to one or more issues apply for a second COA with respect to those issues from the court of appeals. ³ As an initial matter, we observe that every court of appeals that has considered the question has concluded that a district judge may issue a COA. See, e.g., Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.1997) (listing seven other court of appeals cases, involving appeals of denials of both 28 U.S.C. § 2254 petitions and 28 U.S.C. § 2255 motions, to similar effect); see also 7th Cir. R. 22.1(b). The basis for this unanimous view is well summarized in Judge Carnes' comprehensive opinion in Hunter v. United States, 101 F.3d 1565, 1573-84 (11th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997), and, in the absence of any suggestion that 1st Cir. R. 22.1(c)...