Neuschafer v. McKay

• Decision Date: 06 January 1987
• Docket Number: No. 86-1909,86-1909
• Parties: Jimmy NEUSCHAFER, Petitioner-Appellant, v. Brian McKAY, * Attorney General of the State of Nevada, Respondent- Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 839

807 F.2d 839

Jimmy NEUSCHAFER, Petitioner-Appellant, v. Brian McKAY, ^* Attorney General of the State of

Nevada, Respondent- Appellee.

No. 86-1909.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 13, 1986.

Decided Jan. 6, 1987.

N. Patrick Flanagan, Asst. Federal Public Defender, Federal Public Defender's Office, Reno, Nev., for petitioner-appellant.

David Sarnowski, Deputy Atty. Gen., Brian R. Hutchins, Asst. Atty. Gen., Atty. General's Office Carson City, Carson City, Nev., for respondent-appellee.

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

Before CHAMBERS, KENNEDY, and HALL, Circuit Judges.

KENNEDY, Circuit Judge:

Appellant Neuschafer appeals from the district court's denial of his petition for habeas corpus, 630 F.Supp. 897. We remand for an evidentiary hearing on whether Neuschafer's confession was obtained consistently with the standards set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Neuschafer was convicted under Nevada law and sentenced to death for the murder of a fellow inmate. An account of the crime is in the opinion of the Nevada Supreme Court affirming the judgment. Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985). Among other contentions in the habeas proceeding here and in the district court is Neuschafer's assertion that his constitutional rights were violated by use of a confession derived from an interrogation begun four days after he requested a lawyer and none was provided. Under Edwards, Neuschafer's confession was illegally obtained unless, first, he initiated the interview that led to the confession and, second, knowingly and intelligently waived his right to counsel. Edwards, 451 U.S. at 484-85, 486 n. 9, 101 S.Ct. at 1884-85, 1885 n. 9; see Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983); id. at 1048, 103 S.Ct. at 2836 (Powell, J., concurring in the judgment) (noting that all other Justices agree that Edwards requires a two-step inquiry).

The state trial court denied the motion to suppress the confession. The Nevada Supreme Court held that the second part of the Edwards test had been satisfied by the execution of a knowing and intelligent waiver, but did not make the first required finding that Neuschafer initiated the interview. On that point, the court said:

The record is unclear whether Neuschafer initiated the communication which led to the ... interview. Evidence suggests that Neuschafer requested to speak to authorities regarding the Johnson murder in a note he wrote and gave to prison employees....

705 P.2d at 612.

In the instant habeas corpus proceeding, the district court reviewed the state trial record and concluded that it "fairly supports a conclusion that Neuschafer expressed a desire to speak to the authorities." The district court found that no evidentiary hearing was required because the state trial record was adequate to support its decision denying Neuschafer's petition. On its face, that finding conflicts with the characterization given to the state record by the state's highest court, which called the record "unclear."

In federal habeas corpus proceedings, deference must be granted to the findings of state appellate courts as well as state trial courts. Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). In Sumner v. Mata, the Supreme Court stated that 28 U.S.C. Sec. 2254(d) "makes no distinction between the factual determinations of a state trial court and those of a state appellate court." 449 U.S. at 546, 101 S. Ct. at 769. In Wainwright v. Goode, the Court held that the Eleventh Circuit should not have "substitut[ed] its view of the facts for that of the Florida Supreme Court" where both courts reviewed the same cold record and reached opposite conclusions as to the factors relied on by the sentencing judge. 464 U.S. at 85, 104 S.Ct. at 383. We are instructed to give the benefit of the doubt to a state appellate court's reading of a record on appeal just as we would to a state trial court's findings of fact.

In this case, the state trial court denied Neuschafer's motion to suppress the confession, implicitly finding that Neuschafer had initiated the conversation. See Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.1986) (stating that when state court hears motion to suppress and rules on the motion, federal habeas court can assume it found facts necessary to support its ruling). Yet the state's highest tribunal reviewed the record and was unwilling or unable to hold squarely that Neuschafer initiated the conversation with the authorities. In consequence, the district court was presented with conflicting, or at least inconsistent, conclusions by two state courts on the critical point in the case. It could not render a decision on the record before it without second-guessing at least one state tribunal.

We decline to hold that in every case a state trial record will never support a factual determination if a state appellate decision is inconsistent with it; but in the circumstances of this case, we believe an evidentiary hearing in the district court is warranted to resolve the issue whether Neuschafer initiated the conversation that led to his confession. See Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963) (stating that state record must reveal "full and fair ... evidentiary hearing resulting in reliable findings ") (emphasis added); Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985) (noting that Townsend controls issue of when evidentiary hearing should be held). Neuschafer alleged serious error, of constitutional dimension. The state did not produce a note sent by Neuschafer in which, the state claims, Neuschafer requested the second interview with the officers, even though these events were after ...