Greenawalt v. Ricketts, s. 88-1828
| Decision Date | 23 April 1992 |
| Docket Number | 88-1910,Nos. 88-1828,s. 88-1828 |
| Citation | 961 F.2d 1457 |
| 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 |
Before: WALLACE, Chief Judge, ALARCON and WIGGINS, Circuit Judges.
The panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc. An active judge called for an en banc vote, and a majority of the judges of the court has voted to reject the suggestion for rehearing en banc. Fed.R.App.P. 35(b).
The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.
RE: Greenawalt v. Ricketts, Nos. 88-1828/1910, decided August 22, 1991 and published at 943 F.2d 1020 (9th Cir.1991).
I respectfully dissent from our court's decision not to hear this case en banc. Such a rehearing would have enabled us to reconsider the panel's decision in the light of the very recent Supreme Court decision in Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). The Supreme Court's decision, unfortunately, came down too late in our en banc process for our judges adequately to consider the effect that decision should have on this case.
Once again, a death row habeas petition is denied solely on the basis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Once again, the courts uphold a death sentence following an unconstitutional conviction on the ground that the Supreme Court did not recognize that the type of state conduct involved was unconstitutional until too late. This time, a panel of our court applies Teague in a case in which it is neither necessary nor proper to do so: it construes the Teague rule--a rule that (at least when applied to capital cases) offends the sensibilities of most serious students of the law--in a manner that is not only niggardly and illiberal but, more to the point, is clearly wrong. As a result, once again a man convicted by unconstitutional means is likely to die at the hands of the state--here, for two reasons: first, because three judges of this court misconceive a harsh procedural rule that, even when properly construed, fails to afford the full measure of constitutional protection to those whom the state would execute, and, second, because a majority of this court is unwilling to afford Greenawalt an en banc hearing on a compelling and valid constitutional argument that renders his conviction unlawful and mandates that his sentence of death be set aside.
When the Arizona police interrogated Greenawalt, he repeatedly requested counsel. Although the interrogation was halted to allow him to confer with an attorney, the police resumed interrogating him soon afterwards. This court, as well as others, has consistently stated that further interrogation of a prisoner once he has invoked his right to counsel violates Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See, e.g., Smith v. Endall, 860 F.2d 1528, 1529 (9th Cir.1988) (), cert. denied, --- U.S. ----, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990); Neuschafer v. Whitley, 816 F.2d 1390, 1391 (9th Cir.1987) (). 1 In these cases, we did not suggest that we were in any way extending Edwards or broadening the right it recognized; rather, we were merely restating its clear holding. The Arizona courts interpreted Edwards no differently. See, e.g., Arizona v. Emery, 131 Ariz. 493, 497-98, 642 P.2d 838, 842-43 (1982) . Under Edwards, therefore, Greenawalt's conviction was unquestionably obtained in violation of his constitutional rights.
In Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), the state unsuccessfully attempted to carve out an exception to Edwards. Mississippi argued that its officers should be free to resume interrogating incarcerated defendants after the defendants had consulted with their lawyers--in other words, to do precisely what occurred here. The adoption by the Court of the exception proposed by Mississippi might have rendered (retroactively) Arizona's actions in Greenawalt's case lawful. However, the Supreme Court emphatically rejected Mississippi's arguments, declaring that Edwards itself, as well as Miranda, precluded the creation of any such exception. The Court stated that "[t]he exception to Edwards here proposed is inconsistent with Edwards' purpose to protect the suspect's right to have counsel present at custodial interrogation," id. 111 S.Ct. at 491, that the proposed exception "is inconsistent as well with Miranda, where we specifically rejected respondent's theory that the opportunity to consult with one's attorney would substantially counteract the compulsion created by custodial interrogation," id., and finally that "[t]he exception proposed, furthermore, would undermine the advantages flowing from Edwards' 'clear and unequivocal' character," id. 111 S.Ct. at 491-92.
There is, of course, no dispute over the fact that Edwards is applicable here, see Greenawalt v. Ricketts, 784 F.2d 1453, 1456-57 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). Greenawalt's conviction was upheld by the Arizona courts for one reason alone--because Edwards was not handed down until after the state courts had considered his case. Nevertheless, because Edwards was decided before the Supreme Court denied review, it is controlling. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
Why then does the panel uphold Greenawalt's conviction? The answer, oddly, appears to be--because some other courts, though not the Arizona courts or the Ninth Circuit, made a legal error. Specifically, the panel found that, prior to Minnick, the Fifth and Sixth Circuits as well as Mississippi sought to carve out the exception to Edwards which the Supreme Court squarely rejected, and that their attempt,...
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U.S. v. Beckford
...Arizona recognized no lesser included offense to that crime. Greenawalt v. Ricketts, 943 F.2d 1020, 1029 (9th Cir.1991), reh'g denied, 961 F.2d 1457 (1992), cert. denied, 506 U.S. 888, 113 S.Ct. 252, 121 L.Ed.2d (1992); see also Hill v. Kemp, 833 F.2d 927, 929 (11th Cir.1987) (where defenda......