White v. Finkbeiner, 79-1563

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore SWYGERT, Senior Circuit Judge, and SPRECHER and WOOD; SWYGERT; HARLINGTON WOOD, Jr.; Among others
Citation687 F.2d 885
PartiesEutues WHITE, Petitioner-Appellant, v. Fred FINKBEINER, Respondent-Appellee.
Docket NumberNo. 79-1563,79-1563
Decision Date26 March 1982

Page 885

687 F.2d 885
Eutues WHITE, Petitioner-Appellant,
Fred FINKBEINER, Respondent-Appellee.
No. 79-1563.
United States Court of Appeals,
Seventh Circuit.
March 26, 1982.

Page 886

Before SWYGERT, Senior Circuit Judge, and SPRECHER and WOOD, Circuit judges.

SWYGERT, Senior Circuit Judge.

Pursuant to an order of the Supreme Court, 1 this case is before us for the third time. The first time we considered this case we reversed the district court's denial of petitioner-appellant Eutues White's application for a writ of habeas corpus and remanded for an evidentiary hearing. 2 On remand, the district court again denied habeas relief, finding that White had not requested to have counsel present during a custodial interrogation. Consequently, the district court held that the confession which White made during the interrogation was admissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In an appeal from that judgment, we affirmed. However, we rejected the district court's determination that White had not requested counsel. Instead, we held that although White had made such a request, he had validly waived his right to counsel afterward. 3

In its remand order, the Supreme Court directed us to reconsider our decision in White II in the light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Additionally, although we found it unnecessary to do so previously, 4 we now must consider respondent-appellee Finkbeiner's contention that we should extend the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), to bar White from obtaining federal habeas relief on the basis of a Miranda claim which White had a full and fair opportunity to litigate in the state court proceedings. 5

After considering the parties' statements submitted to this court pursuant to Circuit Rule 19, for the reasons given below, we reverse the district court's judgment and remand with instructions to issue the writ and order White's release unless he is retried within ninety days of the issuance of this court's mandate. 6


Edwards completely undermines our holding in White II and behooves us to reverse the district court's judgment. In Edwards, after being given Miranda warnings, which he acknowledged that he understood, the defendant stated that he was willing to be questioned. Having been told that another suspect had implicated him in the crime, Edwards denied any involvement in the crime, gave an alibi, and tried to negotiate a deal. The interrogating officer told Edwards that he wanted a statement and that he had no authority to make a deal. Thereafter, Edwards telephoned an attorney but hung up after a few moments. Edwards then told the officer that he wanted an attorney before making a deal. 7 "At that point, questioning ceased and Edwards was taken to county jail." 451 U.S. at 479, 101 S.Ct. at 1882. The next morning two detectives called on Edwards at the county jail. Although he said that he did not want to talk to the detectives, Edwards was told that he must. After being given additional Miranda warnings and listening to part of a

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tape recording of an alleged accomplice's statement, Edwards confessed. Id.

The Supreme Court determined that Edwards' confession, given during the second custodial interrogation, was inadmissible. Specifically, the Court stated:

(w)e now hold 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. We further hold that an accused, such as Edwards, 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.

451 U.S. at 484-85, 101 S.Ct. at 1884-1885 (footnote omitted). Under this test Edwards' confession was deemed inadmissible because, after invoking his Miranda right to counsel, Edwards was subjected to additional interrogation which he did not initiate, without counsel having been made available to him. 451 U.S. at 486-87, 101 S.Ct. at 1885-1886.

The facts of this case are almost identical to those of Edwards. In White II we found that, although not clear and unequivocal, White's statement during an initial interrogation: "I'd rather see an attorney," constituted a request for counsel under Miranda. 611 F.2d at 189-90. 8 Under Edwards, after requesting counsel during the initial interrogation, White should not have been subjected two days later to interrogation which he did not initiate and before which counsel had not been made available to him. 9 Consequently, when White confessed during the second interrogation he had not validly waived his Miranda

Page 888

rights. Nor did his confession itself constitute a valid waiver. Thus, White's confession was inadmissible.


As stated above, in two previous appeals in this case we did not have to decide, as respondent Finkbeiner urged us to do, whether to extend the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), to bar habeas relief on the basis of a Miranda claim. See note 4, supra and accompanying text. However, our conclusion that White is entitled to habeas relief under Edwards compels us to resolve that question now. For reasons discussed more fully below, we decline to extend Stone.

The holding of Stone is deceptively simple:

(W)here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

428 U.S. at 494, 96 S.Ct. at 3052 (footnotes omitted). 10 However, the basis and perimeter of Stone remain obscure and ambiguous. See Stone, 428 U.S. at 503-06, 96 S.Ct. at 3056-3058 (Brennan, J., dissenting); United States ex rel. Sanders v. Rowe, 460 F.Supp. 1128 at 1141-42. 11

Some insight may be gained by looking backward at the concurring opinion of Justice Powell, the author of Stone, in Schneckloth v. Bustamonte, 412 U.S. 218, 250-75, 93 S.Ct. 2041, 2059-2072, 36 L.Ed.2d 854 (1973) (Powell, J., concurring), and by examining Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), decided three years after Stone, in which, in its only decision explicitly resolving an argument to extend Stone beyond the Fourth Amendment, 12 the Court held that Stone did not bar a habeas petitioner's claim of racial discrimination in the selection of members of the grand jury by which he was indicted. 13 In his Schneckloth concurrence, Justice Powell examined the history and purpose of the writ of habeas corpus. 412 U.S. at 252-56, 93 S.Ct. at 2060-2062. Based on this examination, he severely criticized the "extension" of the writ to permit habeas petitioners to raise constitutional claims having no bearing on their guilt or innocence. 412 U.S. at 256-58, 93 S.Ct. at 2062-2063. Thus, in Schneckloth Justice Powell seemingly embraced the thesis of Judge

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Henry Friendly in his seminal article Is Innocence Relevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970) (arguing that only claims related to guilt or innocence should be cognizable on federal habeas corpus) (cited in Schneckloth, 412 U.S. at 258 n.12, 93 S.Ct. at 2063 n.12). By comparison, Stone seems to sweep less broadly. See Stone, 428 U.S. at 494 n.37, 96 S.Ct. at 3052 n.37 (Stone not concerned with the scope of the federal habeas statute as a vehicle for litigating constitutional claims generally). Rose reinforces our view that, whatever its reach, Stone does not incorporate the broad-based curtailment of federal habeas jurisdiction contemplated by Justice Powell's concurrence in Schneckloth. Indeed, in arguing that habeas litigation of the racial discrimination claim at issue in Rose should be barred because the asserted claim was unrelated to the fairness of the petitioner's trial, Justice Powell relied more on his concurrence in Schneckloth than on his opinion of the Court in Stone. See Rose, 443 U.S. at 579-88, 99 S.Ct. at 3012-3017 (Powell, J., concurring in judgment).

Because of, or perhaps despite, the cryptic nature of Stone, virtually uniformly lower courts either have refused to, or have stated in dicta that they would not, extend Stone beyond Fourth Amendment claims. 14 We are not bound by any of these decisions, but they strongly suggest the result we should, and do, reach in this case.


First, there is a jurisprudential reason underlying our refusal to extend Stone to Miranda claims. 15 We doubt whether we

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have the power to do so, believing that such an extension of Stone may be a matter for the Supreme Court. In Wainwright v. Sykes, 433 U.S. 72, 87 n.11, 97 S.Ct. 2497, 2506 n.11, 53 L.Ed.2d 594 (1977), the Court acknowledged the question whether Stone applies to Miranda claims. However, the Wainwright Court determined that the rule of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), should govern the cognizability of a Miranda claim in a federal habeas proceeding. Thus, the Court held that federal habeas review of a Miranda claim is unavailable where there has been a state procedural waiver, absent a showing of "cause" and "prejudice." 433 U.S. at 87, 97 S.Ct. at 2506.

Wainwright v. Sykes necessarily permits habeas litigation of a Miranda claim, such as the one at issue here, which was litigated in state court, see note 5, supra, because such litigation clearly is permissible under Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), which was cited in Wainwright without its continued viability being questioned. 433...

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